JUDGEMENT
H.B.ANTANI, J. -
(1.)Present appeal filed under Section 374(2) of the Code of Criminal Procedure,
1973, questions legality of judgment dated January 19, 2000, rendered by the
learned Special Judge & Additional Sessions Judge, Mehsana Camp at Patan, in
Special N.D.P.S.Case No.2 of 1999, by which the appellant is convicted under
Sections 15, 20, 21 & 22 of the Narcotic Drugs & Psychotropic Substances Act,
1985 ("the Act" for short) and sentenced to suffer R.I.for ten years and fine of
Rs. 1 Lakh, in default, S.I. for three years, for each of the offences.
(2.)The short facts giving rise to the present appeal are as under :
Mr.Dashrathsinh Joravarsinh Vaghela, Police Sub-Inspector, Rapid Response Cell,
Gandhinagar, received an information on 8.10.1998 that person named Navinkumar
alias Shambhuprasad alias Shambhu-maharaj Chimanlal Vyas, residing at Rangfali
Rudra Mahalay, near Rudra Mahalay Sidhpur, was dealing in ganja/charas etc. On
receipt of the information, he reduced the same into writing. He went to Sidhpur
Rest House and requisitioned services of two panch witnesses and returned to
Sidhpur Police Station. The first part of panchnama was drawn at Sidhpur Rest
House. Thereafter, the raiding party along with panch-witnesses went to the
place mentioned in the information received by Mr.D.J.Vaghela in a government
vehicle. On reaching the place situated in Rangfali, Rudra-mahalay Maholla, PSI
Mr.Vaghela called out name of the appellant, as a result of which, one person
came down from first floor of the house. He was interrogated by PSI Mr.Vaghela
and on being asked, the person stated that his name was Navinkumar alia
Shambhuprasad alias Shambhu-maharaj Chimanlal Vyas (i.e. the appellant). PSI
Mr.Vaghela introduced himself to the appellant and informed the appellant that
an information was received that he was dealing in charas and ganja and,
therefore, it was necessary to search his house. The panch-witnesses, who were
members of the raiding party, were also introduced to the appellant. Before
effecting search of the house of the appellant, Mr.Vaghela offered the appellant
to search his house in presence of a Magistrate or a Gazetted Officer, but the
said offer was declined by the appellant. Thereupon, the house belonging to the
appellant, consisting of three rooms, was searched, which resulted into find of
ganja, charas, poppy husk and 22 packets of Madhu-Munakka tablets containing
psychotropic substance, namely, Tetrahydroc Anna Bional. Mr.Vaghela demanded
from the appellant pass or permit authorising him to possess ganja, charas and
psychotropic substance, but none could be produced by the appellant. Samples of
250 grams of ganja, 250 grams of poppy husk, 20 grams of charas, and the tablets
of madhu-munakka, were drawn and sealed to be sent to F.S.L. for detailed
analysis. The second part of panchnama was drawn. The samples were sent to
F.S.L. for the purpose of detailed analysis. The appellant and his wife, who was
also present in the house were arrested. PSI Mr.Dasharathsinh J.Vaghela lodged
complaint against the appellant and his wife, and forwarded his complaint,
muddamals, panchnama etc. with the accused to Police Inspector, Sidhpur Town
Police Station. Necessary investigation into complaint of Mr.Vaghela was made by
Mr.Nanjibhai Surjibhai Ninama of Sidhpur Police Station. On receipt of the
report from F.S.L., which indicated that the substances seized from the
possession of the appellant were narcotic drugs and psychotropic substance
within the meaning of the Act, the investigating officer submitted charge-sheet
in the Court of learned Special Judge, Mehsana, on the basis of which Special
N.D.P.S.Case No.2 of 1999 was registered against the accused.
(3.)The learned Special Judge framed charge against the two accused at Exh.18 for
commission of offences punishable under Sections 15, 20(b), 21 & 22 of the Act.
The charge was read over and explained to them, who pleaded not guilty to the
same and claimed to be tried. The prosecution, therefore, examined: (1) Police
Constable Dilipsinh Mafaji Vaghela as PW.1 at Exh.21, (2) PSI R.R.Cell
Mr.Dasharathsinh Joravarsinh Vaghela as PW.2 at Exh.26, (3) Panch Rajeshkumar
Khanchandbhai Rathod as PW.3 at Exh.38, (4) Panch Nanjibhai Bijalbhai Raval as
PW.4 at Exh.40, (5) Panch Shantiji Madarji Thakor as PW.5 at Exh.41, (6)
Bhupatji Ghemarji Thakor as PW.6 at Exh.43, (7) Unarmed Head Constable Kirtisinh
Pratapsinh Chauhan as PW.7 at Exh.45, (8) Shantilal Bhavarlal Shah as PW.8 at
Exh.49, (9) Investigating Officer Mr.Vikramsinh Shivsinh Raol as PW.9 at Exh.51,
(10) Devendrakumar Haribhai Desai, P.S.O. of Sidhpur Police Station as PW.10 at
Exh.52, (11) Assistant Director of F.S.L. Dr.Mohindersing Jogeram as PW.11 at
Exh.54, (12) Markan Kantilal Pathak as PW.12 at Exh.59, (13) Investigating
Officer Mr.Ambuji Ramaji Bhati as PW.13 at Exh.61, (14) Prabhudas Ramgopal
Sharma as PW.14 at Exh.62, and (15) Investigating Officer Nanjibhai Surajibhai
Ninama as PW.15 at Exh.63, to prove its case against the accused. The
prosecution also produced documentary evidence such as; entry made in the
station-diary at Exh.27, complaint lodged by Mr.D.J.Vaghela at Exh.28, report
forwarded to P.I. Sidhpur Police Station by PSI R.R.Cell, Gandhinagar Range at
Exh.29, resolution passed under Section 42 of the Act at Exh.30, seizure-memo
served on accused at Exh.31, arrest-memo at Exh.32, original slips bearing
signatures of panch-witnesses at Exhs.34 to 37, letter written by P.I. Sidhpur
Police Station to Director of F.S.L. requesting him to accept muddamal sent
through Kirtisinh at Exh.46, note which was sent to F.S.L. by R.R.Cell,
Gandhinagar Range, Gandhinagar at Exh.47, letter written by Assistant Director,
F.S.L. to P.I.Sidhpur Police Station at Exh.48, certificate given by Shantilal
Bhavarlal Shah, who weighed the muddamal articles, at Exh.50, report of F.S.L.
for having received muddamal for analysis at Exh.55, report of analysis at
Exh.60 etc., in support of its case against the accused.