IMPORTANT POINT
Conditions incorporated in section 42, NDPS Act can be dispensed with, in certain circumstances.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of the Division Bench of the Gujarat High Court upholding the conviction of the appellant for offence punishable under Section 20 (b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the “NDPS Act”). The learned Additional Sessions Judge, Bharuch had found him guilty under the aforesaid provision for having committed the offence under Section 8(c) of the NDPS Act. Minimum sentence of 10 years’ rigorous imprisonment and a fine of Rs.1,00,000/- with default stipulation was imposed.

2. The appellant, who is the original accused in Sessions Case No. 84 of 1996, was charged for having committed offence punishable under Section 20(b) (ii) of the NDPS Act, on the basis of a complaint lodged by one PSI KD Pandya, LCB Branch, Aharuch District, Complainant in Course of investigation of one snottier offence, registered vide CR No, II 135 of 1995, under the NDPS act, came to know that accused is also possessing and selling the contraband articles at his residence. Upon such information he and other Officers started for raid.

3. Initially, he informed about having received such information to the higher officers, namely D.S.P. and Circle Inspector of Bharuch District, by writing a report in a sealed envelope, and sent it through one Police Constable.

4. On the basis of the said report, entry came to be recorded in Jambusar Police Station Diary at SL. No.17 of 1995 at about 2.30 P.M., the raid was affected on 15. 12.1995 after calling panchas and other officers and a photographer, and after undertaking other exercise required under law.

5. The raiding party led by Mr. Pundya, PSI, went to the residence of accused, bearing Bharuch Municipal House No, 3132. The door of the house was open, and one person standing there was questioned, who replied that his name was Hamidbhai Azambhai Malik, the accused and the appellant before us. After introducing himself, he prepared a memorandum, to the effect as to whether, accused would like his house to be searched in presence of an Executive Magistrate or a Gazetted Officer, to which, accused replied in the nagative. Since, accused had no objection, before starting search, PSI Pandya, took the signature of the accused on the memorandum, produced at Exh. 29.

6. Thereafter, the house was searched in presence of- Panchas, and a ladies purse containing 17 closed plastic small bags were found out, containing small tablets. Out of 17, the 16 small plastic bags contained the same weight. Plastic bags were opened and verified and weighed in presence of panchas, photographs were taken and again they were placed in the plastic bags. It was apprehended that on account of the unpleasant odour and smell, it seemed to be contraband articles like ‘Charas’. The necessary procedure for seizure was undertaken and after the procedure was followed, the seal of LCB Branch, Bharuch was applied on the cover. The total weight of the contraband articles, like charas came to 4,900 mgs. The sealed mudammal contraband articles charas thereafter was forwarded to the Director of Forensic Science Laboratory, for examination and report, who upon examination reported, it to be falling within the prohibited and contraband article under the NDPS Act i.e. ‘Charas’. The FSL authority had, also, verified the seal and it tallied with the forwarding letter and the item sent. Upon the basis of the report, the accused came to be charged as stated above.

7. In support of the prosecution case, the prosecution placed reliance on as many as nine prosecution witnesses and also on 21 documents. The defence of the accused was of total denial. No defence evidence was led. Upon the analysis and appraisal of the evidence of the prosecution, the learned Addl. Sessions Judge found accused guilty for having committed an offence punishable under Section 20(b) (ii) of the NDPS Act, and after hearing on the quantum of sentence, awarded minimum sentence pres