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Gujarat High Court
Judgename :K.R.VYAS, RAVI R.TRIPATHI
LAKHIRAM NARANDAS BAWASADHU - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 705 of 1997
Decided On : 03/27/2002
Criminal Procedure Code, 1973 - Section 374 (2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18 - Judgement and order – Convicted - Punished with imprisonment - Default to undergo imprisonment - On receipt of the information from the District Superintendent of Police, the Police Inspector and Police Sub Inspector came to the LCB office and then called the staff members of the LCB, two panchas and a person to weigh the substance - Held, The temple premises were searched and at that time, the accused in this case, Sadhu Lakhiram Narandas, was sitting on a cot. On search of the mattresses, from the pillow side, a plastic bag was found in which opium in a semi liquid form weighing 5 kilo and 20 gms. was found. A detailed panchnama was drawn. Opium for sample was taken and the same was sealed - Accused is totally blind and the substance found is in semi liquid form, which may not be noticed by a blind man if the same is kept below the pillow. Ignoring this fact, the weightage given to the large quantity and which lead the learned Judge to hold that the accused was in conscious possession of it, and that the provisions of Sections 41 and 42 are not applicable to the facts of the present case, has resulted in miscarriage of justice - This factor could not have been sidetracked - The raid, being in the premises which is in the personal occupation of the accused, cannot be said to be in the public premises and, therefore, Sections 41 and 42 are very much applicable - The appellant-accused is to be released forthwith, if not required for any other offence - Disposed of.
( 1 ) ). THIS appeal is filed under Section 374 (2) of the Code of Criminal Procedure against the judgement and order dated 3 1/05/1997 rendered by the learned Additional Sessions Judge, Banaskantha, at Palanpur, in Sessions Case No. 142 of 1996, by which the appellant is convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`ndps Act for short) and punished with imprisonment for 10 years and a fine of Rs. 1 lac (Rupees One lac Only), in default to undergo imprisonment for two years more.
( 2 ) ). ON 1/05/1996, in the early morning at about 3. 30 a. m. to 4. 00 a. m. , the then District Superintendent of Police called the Police Inspector (LCB), Shri Vyas, and Police Sub Inspector (LCB), Shri R. P. Patel, at his residence and informed them that in a temple of Lord Shiva at Village Sherpura-Dhani, one Lakhiram Narandas Sadhu is keeping opium. On receipt of the information from the District Superintendent of Police, the Police Inspector and Police Sub Inspector came to the LCB office and then called the staff members of the LCB, two panchas and a person to weigh the substance. Then they went to Village Sherpura-Dhani by about 5. 30 to 6. 00 a. m. in the morning. The temple premises were searched and at that time, the accused in this case, Sadhu Lakhiram Narandas, was sitting on a cot. On search of the mattresses, from the pillow side, a plastic bag was found in which opium in a semi liquid form weighing 5 kilo and 20 gms. was found. A detailed panchnama was drawn. Opium for sample was taken and the same was sealed. The balance quantity of opium was also sealed. Thereafter, the Police Sub Inspector, Shri Patel, prepared a complaint and after completing the raid, the accused was taken to Agthala Police Station. On the basis of the complaint of Shri Patel - Police Sub Inspector, an offence bearing Crime Register No. 51 of 1996 was registered in Agthala Police Station. On completion of the investigation, the accused-appellant was chargesheeted for the offence punishable under Section 18 of the NDPS Act in the Court of the Additional Sessions Judge, Banaskantha, at Palanpur.
( 3 ) ). THE learned Judge had framed charge at Exh. 4 against the appellant for the offence punishable under Section 18 read with Section 29 of the NDPS Act. The charge was read over and was explained to the appellant, who pleaded `not guilty to the same and claimed to be tried.
( 4 ) ). THEREFORE, the prosecution had examined (i) Abdul Gafar Haji Siddiqbhai Vora, PW-1, Exh. 7; (ii) Faiz Mohammad Fate Mohammad Makrani, PW-2, Exh. 11, Panch Witness; (iii) Dahyabhai Nagarbhai, PW-3, Exh. 14, a person who was brought to weigh the substance; (iv) Ghasura Mohammad Yunus Rehamatkhan, PW-4, Exh. 16, Talati-cum-Mantri, Sherpura Group Gram Panchayat; (v) Gulabbhai Hirabhai, PW-5, Exh. 19, Head Constable; (vi) Sherkhan Anwarkhan, PW-6, Exh. 23, the constable who had taken the sample to the Forensic Science Laboratory, Ahmedabad; (vii) Kapildev Suryanath, PW-7, Exh. 26, Police Station Officer of Agthala Police Station; (viii) Pravinchandra Harilal, PW-8, Exh. 27, "anami" police constable, one of the member of raiding party; (ix) Ramanbhai Pursottambhai Patel, PW-9, Exh. 28, Police Sub Inspector, (LCB), Palanpur, a member of the raiding party and also complainant in the present case; and, (x) Indravadan Balkrishna Vyas, PW-10, Exh. 30, Police Inspector (LCB), Palanpur.
( 5 ) ). THE prosecution had also produced documentary evidence such as a letter written by the Police Inspector (LCB), Palanpur to the Police Officer in charge, Agthala Police Station, dated 1/05/1996, forwarding letter, F. S. L. report and other relevant documents. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his statement as required under Section 313 of the Code of Criminal Procedure, 1973.
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