BINDERSING NIRMALSING KAILI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal by original accused Nos. 1 and 2 is directed against the judgment dated 20-1-1997 passed in N. D. P. S. Case No. 2/96 by the Additional Sessions judge, Khamgaon. The learned Judge tried both the accused along with other two accused for the offences punishable under section 18 of the Narcotic Drugs and Psychotropic substances Act (hereinafter referred to as the NDPS Act for short) and under section 66 (1) (b) of the Bombay prohibition Act. The learned Judge acquitted the remaining two accused but held accused Nos. 1 and 2 guilty of the abovementioned offences and sentenced each of them on the first count to suffer rigorous imprisonment for ten years with a fine of Rupees One Lakh, in default to suffer simple imprisonment for three years and on the second count to suffer rigorous imprisonment for six months. Feeling aggrieved by the order of conviction and sentence, accused nos. 1 and 2 have preferred this appeal.

(2.) THE prosecution case in brief is that on 12-5-1996 at about 10. 30 P. M. P. S. I. Sasthe of Nandura Police Station received an information that opium and country liquor were illegally kept at the Dhaba of Lakhwindersingh (accused No. 3) near Naigaon Fata on Nandura-Malkapur Road. On receipt of the information, PSI Sasthe contacted on phone the Executive magistrate Vairale and Circle Police Inspector, Nandura wankhede and apprised them of the information received. He further requested them to come to the Police Station. PSI sasthe also arranged to call two panchas and informed them about the information which he had received. Thereafter at about 00. 30 hours the raiding party comprising of PSI sasthe, CPI Wankhede, Executive Magistrate Vairale, other police staff and two panchas proceeded in two jeeps to the dhaba of accused No. 3. Both the jeeps were stopped at some distance from the Dhaba and thereafter the members of the raiding party went to the Dhaba on foot.

(3.) AT that time, accused Nos. 1 and 2 were present in the Dhaba. On enquiry, both the accused disclosed their names and stated that they were running the said Dhaba. PSI sasthe introduced himself as well as CPI Wankhede and executive Magistrate Vairale to both the accused and gave search of all the members of raiding party. In the presence of two panchas search of the Dhaba was taken and ten sealed bottles each of the capacity of 750 ml. containing country liquor were found in a wire bag by the side of the counter. One of the sealed bottles was taken as a sample bottle. It appears that since no opium was found in the dhaba, the surrounding area was searched for that purpose. At that time, a polythene bag was found kept concealed under a heap of dried banana leaves on the embankment of banana orchard behind the dhaba. It was found that there were 86 small packets in all containing 890 grams of opium. In addition there were 9 big packets containing in all 450 grams of opium. Thus, the total quantity of opium found was 1. 340 kg. and it was of the value of Rs. 4,300/ -. In the personal search of accused No. 1 a cash amount of Rs. 2,300/- was found. Out of the 95 packets of opium, one small packet and one big packet were taken as samples. These two packets weighed 60 grams. All the above mentioned articles were then seized under a panchnama. The samples of liquor and opium as well as the remaining quantity thereof were duly sealed and labelled. Both the accused were taken in custody and thereafter the raiding party returned to the police station where PSI Sasthe lodged his complaint Exh. 29 against the two accused for the offences punishable under sections 20 and 27 of the NDPS Act and under section 66 (1) (b) of the bombay Prohibition Act. The initial investigation was carried by PSI Sasthe who found that accused Nos. 3 and 4 were partners of accused Nos. 1 and 2 in the said business of dhaba. Therefore, on 13-5-1996 he arrested accused Nos. 3 and 4 also. The further investigation of the case was carried by CPI Wankhede. In the course of the investigation, the samples were sent to the Chemical Analyser. The Chemical analyser opined that the sealed packet contained opium having 3. 2 grams of morphine and that opium falls under section 2 (xv) (a) of the NDPS Act. The Chemical Analyser further found that the sealed bottle contained 42% v/v of ethyl alcohol in water. He opined that it was not a medicinal/antiseptic/toilet preparation nor it was a flavouring material. In due course, the investigation was completed and all the four accused came to be charge-sheeted.