NILKANTH MAHADEO CHANDEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this appeal, the appellant challenges his conviction and sentence for having committed an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N. D. P. S. Act) in Special Criminal Case No. 5 of 1994 decided on 20-6-1996 by the Special Judge, Nagpur, under which he came to be sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year.

(2.) IN short, the prosecution case is that on 7-11-1993 police Head Constable Bhaskar Kolhe along with his team of officers of Narcotic Cell, Crime Branch, Nagpur, was on patrolling duty. At about 13-30 hours while they were at indora Square they received an information that Nilkanth chandekar, r/o Ashok Nagar, wearing full shirt of cream colour and green colour full pant, is in possession of Gard and sells it to his customers, and at present he is sitting near the well of Municipal Corporation in the open ground in front of his house. On receipt of this information, H. C. Kolhe communicated the information to Shri Shukla, Assistant commissioner of Police, on telephone who ordered them to conduct the raid immediately. The information was sent to the Assistant Commissioner of Police, through police constable B. No. 4884. Two passers-by namely Kishor tarachand Rodke and Nagorao Shankarrao Dhanvijay were called to act as Panch. They were apprised of the information and explained the purpose of the raid. Thereafter the police party along with panchas proceeded from Chammar nullah to char Khamba square. They parked their vehicles and went towards Ashok Nagar on foot. There they enquired about the municipal Corporation s well and as per the information they noticed that the person of the given description was present at the site. The police party accosted him and informed him that he is to be searched as they had information that he was possessing packets of Gard. The said person was also informed of his right to be searched in presence of a gazetted Officer or a Magistrate and an intimation came to be given under section 51 of the N. D. P. S. Act. As the said person did not express his desire to be searched in the presence of Gazetted Officer or Magistrate, he was offered search by the police party and the panchas. The appellant/accused is supposed to have taken out a small transparent polythene packet from the right pocket of his green colour full pant containing very small 12 packets, these packets were found to be containing Gard. The contents were weighed together and was about 600 mgms. of Gard. Out of the total contents of the packets, 100 mgm. of Gard powder was drawn as sample and sealed separately. The search and seizure panchanama was completed. The appellant/accused was informed that he has been arrested for being in possession of narcotic drug. Thereafter the police party came to police station Panchpaoli where H. C. Kolhe lodged a written report with the Duty Officer, P. S. I. D. D. Shukla who registered Crime No. 553 of 1993 against the accused for having committed an offence under section 21 of N. D. P. S. Act. H. C. Kolhe handed over the sealed packets to P. S. I. Shukla who affixed his own seal as DDS and caused the property to be entered in the Muddemal register for despatching it to chemical analyser for analysis. As the raid was successfully completed, H. C. Kolhe filed his report under section 57 of the N. D. P. S. Act. On receipt of the report of chemical analyser, the police filed charge-sheet against the accused in the Court of Special Judge, Nagpur.

(3.) ON 4-1-1995 the case of the appellant was taken up for trial before the learned Special Judge and charge (Ex. 11) came to be framed against the appellant/accused. The accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined in all five witnesses, i. e. two panchas. P. C. Prabhakar, P. H. C. Bhaskar kolhe and P. S. I. Shukla. The accused did not examine himself or any witness on his behalf but merely relied on certain documents, particularly certified copy of the judgment in s. T. No. 616 of 1992 decided on 12-11-1993. The defence of the accused was that he has been falsely implicated in the case by H. C. Kolhe.