SANJEEV SAJANY KUMAR JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Appeal arises from Judgment dated 10th December, 1998 passed by the Narcotics Drugs and Psychotropic Substances Court, Mapusa in Special Case No. 18 of 1998. By the impugned Judgment, the Appellants have been convicted under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced to undergo twelve years rigorous imprisonment each and to pay a fine of Rs . 1,00,000/ each and in default to undergo one year rigorous imprisonment. It is the case of the prosecution that on 13th April, 1998 at about 15.30 hours while the police personnel were on look out for a criminal by name Wilson and in the course of a raid at Sautavade Calangute in that regard came across certain foreigners and the accused sitting in a shack and on having suspected them of being in possession of the Narcotic drugs, in the search carried out, the accused no.1 was found carrying 3 Kgs . of Opium worth Rs . 1,50,000/ in a bag on his shoulder. The prosecution examined six witnesses in support of the charge.

(2.) THE materials brought on record disclose that on 13th April, 1998 the investigation officer Shri Umesh Gaonkar received a phone call from Franky Martin that a criminal by name Wilson who was wanted by the police was seen sitting in Ajit Moraskar's shack at Calangute and on receipt of the said information, the said Investigation Officer along with the police staff proceeded towards the said destination and on reaching the spot noticed some foreigners and the accused sitting in the shack. As the Investigation Officer got the smell of Narcotic drugs, the accused was suspected of carrying in their possession the Narcotic drugs. On offering themselves to be searched along with the raiding panchas , the Investigation Officer informed the accused that their search can be carried out in the presence of Magistrate or Gazetted Officer if they so desired. Both the accused declined the offer. The accused no.1 at that time was found carrying a bag on his shoulder and on search of the said bag it was found to contain a pant and shirt and underneath was a cloth bag containing another plastic bag which contained yet another plastic bag having therein a substance which was suspected to be Opium. The substance found in the bag along with the bag and other materials found therein were seized under panchanama and the substance thereafter was sent for chemical analysis which was examined by Mahesh Kaissare , P.W.1 and was found to contain Morphine.

(3.) AS regards the conviction under Section 18, the materials are restricted to the acts on the part of Appellant No.1 and there is nothing on record to establish or even to suggest remotely the involvement of the Appellant No.2 in any manner as regards the possession of Opium of 3 kgs . with the Appellant No.1. Being so, as far as the Appellant No.2 is concerned, his conviction under Section 18 is also to be set aside.