(Per : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order dated 09.12.2005 passed by the Presiding Officer, Fast Track Court No. 2, Bhavnagar in Sessions Case No. 10 of 2005, whereby the accused has been convicted of the charges leveled against him under sections 8(B) and 20(B) of NDPS Act (hereinafter referred to as 'the Act'). The accused was ordered to undergo rigorous imprisonment for ten years and fine of Rs. one lakh in default to undergo simple imprisonment for one year.
2. The brief facts of the prosecution case are as under:
2.1 On 17.04.2005, at about 11.45 am the complainant received information that two persons along with accused no. 1 residing at Vartej, Harijanvas are engaged in trafficking of prohibited drugs. The raiding party therefore went to the scene of offence with the panchas, required materials and a gazetted officer. After reaching the location, the party introduced themselves and asked the appellant if he wanted to be searched in the presence of the gazetted officer or the Magistrate as laid down under section 42 of the NDPS Act. The appellant gave permission to be searched before the gazetted officer.
2.2 On strict search, the appellant and the original accused no. 2 handed over a suitcase and a red coloured bag. In the suitcase and the bag, 8 packets and 3 packets respectively of ganja was found. Out of these 8 packets, of total 12 kgs, 400 gms of ganja worth Rs. 800/- was kept as sample and the remaining 11.60 kg was seized amounting to Rs. 23200/-. Out of the 3 packets of 1.5 kg each, after keeping some for sample, the remaining amount of ganja was seized. The next room was locked and on opening the said room a blue coloured bag was found. From the said bag, two packets of two kg each of ganja was found. The appellant herein was therefore arrested along with 21 kg ganja. Rs. 8800/- was also found from the pocket of the appellant.
2.3 A complaint was therefore lodged with Vartej Police Station vide FIR (Prohibition) 94/05. Necessary investigation was carried out and statements of several witnesses were recorded. Thereafter, charge-sheet was filed against him. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.
2.4 The trial was initiated against the respondent and during the course of trial the prosecution examined the following witnesses as oral evidences:
Bhikhubha Juvansinh Gohil Ex. 14 Pradhyumanbhai Bhagwanjibhai Bhatt Ex. 16 Mahmadbhai Aadambhai Ex. 18 Bachubhai Patabhai Kalsariya Ex. 19 Harpalsinh Hamirsinh Rana Ex. 30 Meghjibhai Khodabhai Degda Ex. 34 Hadmukhbhai Narayanbhai Ex. 38 Ambalal Laljibhai Haripara Ex. 39 2.5 The prosecution also exhibited the following documentary evidences:
yadi after registering offence Ex. 22 Notification under section 42 of Act Ex. 23 Permission letter of accused Ex. 24 Seizure memo Ex. 25 Certificate of weight Ex. 26 Yadi to register offence Ex. 27 Copy of note 12 & 15 of station diary Ex. 28 Yadi of sending muddamal to FSL Ex. 29 Yadi of receiving muddamal by FSL Ex. 31 Report by FSL, Gandhinagar Ex. 40 Report Ex. 41 Yadi to PSI, Sinhor for investigation Ex. 42 Yadi of carrying out investigation by PSI, Sinhor Ex. 43 2.6 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the trial Court the appellant has preferred the present appeal.
3. Ms.
Rekha Kapadia, learned advocate appearing on behalf of the appellant has submitted that the muddamal material was not weighed at the scene of offence but was weighed at the police station. She has submitted that the independent witnesses were present at the time of raid but no one deposed that the material was weighed in their presence.
3.1 Ms.
Kapadia has further submitted that there are serious contradictions in the evidence of the complainant and the complaint in itself. There are certain contradictions in the evidence of the witnesses also. Some witnesses have turned hostile.
3.2 Ms.
Kapadia has also submitted that the quantity of ganja found with the accused was not below the limit of commercial quantity as only 17 kg of ganja was alleged to have been found from him and that the remaining 4 kg of ganja was found from the accused no. 2 who is absconding. She has submitted that the accused no. 3 has been acquitted by the court below.
3.3 In the alternative, Ms. Kapadia has submitted that looking to the quantity of the ganja recovered from the accused coupled with the fact that the accused no. 3 has been acquitted by the court below, the quantum of sentence imposed upon the appellant may atleast be reduced.
4. Mr.
Kodekar, learned APP has strongly supported the order of the trial court and submitted that the raiding party has conducted the raid and the seizure as prescribed under the law and therefore it cannot be said that there has been any infirmity in the same. He has submitted that the accused no. 3 has been acquitted on the basis of the facts and circumstances and also the evidence qua him, however, that cannot be a ground for acquitting or reducing the sentence imposed upon the accused no. 1 when there is ample evidence pointing the involvement of the accused no. 1 in the said offence. He has submitted that the fact that the accused no. 2 is absconding is also to be borne in mind.
5. We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the appellant as well as the learned APP Mr. Kodekar.
6. The first submission made by the appellant is that the raiding party has not followed the procedure as laid down under the Act while conducting the raid and collecting samples. The trial court has examined the documentary evidence at Ex. 32 whereby the raiding officer has noted down the information received in a diary. The requirement to reduce the prior information in writing under Section 41(2) & 42(1) of the Act is hereby complied with. A gazetted officer was taken along with the raiding party and it also appears that the complainant has informed his superior officer. The panchnama of the scene of offence clearly mentions that the entire raid was carried out in the presence of a gazetted officer after being permitted by the accused no. 1 and that the entire muddamal which was seized was sealed as per the procedure laid down. Thus it cannot be said that the procedure as laid down under the Act was not complied with.
6.1 The contention of the appellant that the muddamal was weighed at the police station cannot sustain in view of the fact that the Ex. 26 weight certificate and Ex. 25 seizure memo clearly mention that a person was called at the scene of offence to weigh the muddamal. From the evidence it appears that after seizing the sample from the scene of offence, a police official was sent to call for weighing the same and thereafter the certificate Ex. 26 was issued. The panchnama also supports the same. Thus it appears that the raiding party has conducted the raid by following the due procedure under the law.
6.2 It is true that the panch witnesses have turned hostile but that cannot be a ground for acquitting the appellant when all the other evidence weigh against him. Though the panch witnesses have turned hostile, the investigating officer's evidence supports the case of the prosecution. The name of the appellant no. 1 was very well mentioned in the information received by the police. The appellant no. 1 was very much present at the scene of offence. The house where the alleged operation was carried out was rented by the accused no. 1. Requisite amount of ganja was recovered from his possession during the raid. The panchnama at the scene of offence clearly lays down the scenario in which the raid was conducted which is in accordance with law.
7. On a close scrutiny of the evidence, it has been established that the appellant is involved in the offence in question. The trial court has also perused the FSL report and the same supports the case of the prosecution. The witness Harpalsinh has supported the case of the prosecution. Hence this court feels that the stand taken by the trial court is just and proper and does not deserve any interference, more particularly, when the sentence awarded is just and proper.
8. Ms.
Kapadia, learned advocate is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. In the above view of the matter, we are of the considered opinion that the trial court was completely justified in convicting the appellant of the charges leveled against him.
9. However, we are of the opinion that the sentence in default of the fine is on the higher side. The trial court had ordered one years' simple imprisonment in default of the fine of Rs. One lakh. The same seems to be a bit excessive. Interest of justice would be served if the said sentence is reduced and therefore we are of the opinion that the same should be reduced to six months instead of one year. Appeal is accordingly required to be partly allowed.
10. In the result, the conviction of the appellants under Section 8(B) and 20(B) of NDPS Act vide judgment and order dated 09.12.2005 passed by the Presiding Officer, Fast Track Court No. 2, Bhavnagar in Sessions Case No. 10 of 2005 is upheld. The sentence of ten years' rigorous imprisonment imposed by the Presiding Officer, Bhavnagar under section Section 8(B) and 20(B) of NDPS Act is also confirmed. However, the sentence imposed upon the appellant to be undergone in default of the fine is modified and the sentence of one year is reduced to six months. Accordingly, the appellant is ordered to undergo rigorous imprisonment for ten years with fine of Rs. One lakh in default to undergo simple imprisonment for six months. In view of the above, the appeal is partly allowed. Direct service is permitted.
(K.S.
JHAVERI, J.) (Z.K. SAIYED, J.) Divya// Top