OKACHA MIKE Vs. UNION OF INDIA AND ANOTHER

JUDGEMENT

(1.) By this appeal, the appellant/accused is challenging the judgment and order dated 8th October 2012 passed by the learned Special Judge under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act for the sake of brevity) for Greater Mumbai, in NDPS Special Case No.118 of 2009, thereby convicting the appellant/accused of offences punishable under Sections 21(c) read with 8(c) read with 28 read with 23 of the NDPS Act. The appellant/accused is sentenced to undergo rigorous imprisonment for 13 years. In addition, he is directed to pay fine of Rs.1 lakh and in default, to undergo further simple imprisonment for 6 months.

(2.) Facts in brief, leading to the prosecution and resultant conviction of the appellant/accused, can be summarized thus :

(3.) I have heard Mr.Ayaz Khan, learned counsel appearing for the appellant/accused. I have also perused written notes of arguments submitted by the learned counsel for the appellant/accused. The learned counsel for the appellant/accused has vehemently argued that the Charge itself is wrong. The learned trial court has charged the appellant/accused for possessing and attempting to export 2890 grams of heroin. This is contrary to the case of prosecution, as even according to the prosecution, quantity of contraband seized was 2700 grams. The learned counsel placed reliance on judgment of the Honourable Supreme Court in the matter of State of Rajasthan vs. Manoj Sharma and Another, 2009 2 SCC(Cri) 591 to demonstrate that deficiency in Charge must result in acquittal. Judgment of the learned Single Judge of this court in the matter of Pukhrambham Surchandsingh Ibohan Singh vs. The State of Maharashtra, Criminal Appeal No.211 of 2003 dtd.4th June 2008 is also relied by the learned counsel to point out that framing of wrong Charge is fatal to the prosecution.