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2004 Supreme(Guj) 525
Gujarat High Court
Judgename :R.P.Dholakia, SHARAD D.DAVE
Ismail Adam Mitha - Appellant
Versus
State of Gujarat - Respondent
CRIMINAL APPEAL133 of 2000
Decided On : 08/19/2004
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Section 21 read with section 22 – Evidence Act - Criminal procedure Code - Section 374 - Appeal is directed against judgment and order of conviction and sentence passed against present appellant by district and Sessions has been convicted - Gujarat is directed against judgment and order of acquittal these appeals were listed before us in middle of have given priority to these appeals and started hearing counsels appearing for respective parties - As common facts and law arise in both these appeals which had arisen out of a common judgment and order are deciding both these appeals together by way of a common judgment - Prosecution is that on serving as a Deputy superintendent of Police received a secret information at a. m. that one resident of District was keeping narcotic substance like brown sugar in his occupation and possession at bungalow situated and was engaged in said illegal business of buying and selling as importing and exporting said narcotic substance in international market – Held, Court in its judgment in by holding that case of prosecution against accused is difficult to believe as in question was seized on basis of evidence Act wherein both and weighing person did support prosecution regarding seizure of and it was held be Trial court after discussing oral evidence that accused was arrested - There is no explanation forthcoming for not raiding at accused house till it was raided place from where accused was arrested is also not clear - As per evidence was arrested from Near Railway station - However was deposed by him that was arrested from - It was admitted by that no as regards this accused was drawn - It was discussed by him that case of accused could be considered from another aspect and taking into consideration way in which alleged search and seizure were made by investigating agency accused was acquitted by trial Judge and hence appeal has been filed by State against this accused also - Appeal rejected (Para 26)
( 1 ) CRIMINAL Appeal No. 133 of 2000 under Section 374 of the Code of Criminal procedure (the Code for short) is directed against the judgment and order of conviction and sentence dated 4-2-2000 passed against the present appellant by the district and Sessions Judge, Bharuch, in sessions Case No. 145 of 1995 whereby the appellant Ismail Adam Mitha (Tailor) @ deka, resident of Sitpon, Taluka and district Bharuch, has been convicted for the charge under Section 21 read with section 22 of the Narcotic Drugs and : psychotropic Substances Act (the Act for short) and sentenced to suffer 11 years R. I. with fine of Rs. 2. 00 lakh in default to suffer two and half years more R. I.
( 2 ) CRIMINAL Appeal No. 248 of 2000 under Section 378 (1) (3) of the Code preferred by the State of Gujarat is directed against the judgment and order of acquittal dated 4-2-2000 passed by the District and sessions Judge, Bharuch, in Sessions Case no. 145 of 1995 whereby the original accused No. 2-Aminaben, wife of Ismail adam Mitha (Tailor) @ Deka and the original accused No. 5-Ibrahim: malangminya Shaikh were acquitted of the charges levelled against them. However, no appeal was preferred against the judgment and order of acquittal passed against the original accused Nos. 3,4 and 6.
( 3 ) INITIALLY, while admitting the appeals, this Court (Coram: M. S. Parikh and h. H. Mehta,jj) vide order dated 21-2-2000 directed for expedite hearing of the appeals. Thereafter, this Court (Coram: D. K. Trivedi and M. S. Shahjj.) vide order dated 19-9- 2003 passed in Cri. Misc. Appln. No. 7143 of 2003 in Criminal Appeal No. 133 of 2000 ordered for hearing of both these appeals together.
( 4 ) BOTH these appeals were listed before us in the middle of June, 2004. We have given priority to these appeals and started hearing learned counsels appearing for the respective parties. As common facts and law arise in both these appeals which had arisen out of a common judgment and order, we are deciding both these appeals together by way of a common judgment.
( 5 ) THE case of the prosecution is that on 25-6-1995, one Shri Abhesinh Devisinh chudasma serving as a Deputy superintendent of Police, Ankleshwar, district Bharuch, received a secret information at 4. 00 a. m. that one Ismail adam Mitha (Tailor) @ Deka, resident of sitpon, Taluka and District Bharuch, was keeping narcotic substance like brown sugar in his occupation and possession at the bungalow situated at Sitpon and was engaged in the said illegal business of buying and selling as well as importing and exporting the said narcotic substance in the international market. He was also dealing in the illegal business of deadly weapons and ammunition. Said information was conveyed to Superintendent of Police, bharuch, and thereafter he along with CPI, ankleshwar, Shri K. R. Parmar, Reader PSI, zala, N. D. Dodiya, Gurudeshwar PSI and other police personnel went to Nabipur police Station at about 7. 00 a. m. where psi, Nabipur Police Station, was given to understand that a raid was to be carried out and he instructed to call panchas and weighing person. Necessary information was given to post the said entry in the station Diary and it was entered in the station Diary by Dy. S. P. , Mr. Chudasma. Written intimation as regards this information was given to the District superintendent of Police. On arrival of panchas and weighing person, when they were given to understand about this, they showed willingness to act such and hence, after preparing primary panchnama, raiding party consisting of Police personnel, panchas and weighing person proceeded towards Sitpon Village. Upon reaching there, they entered into Unda Faliya area where the house of Ismail Adam Mitha is situated. The said house had a big compound wall and by opening the gate, they entered into the compound. When they knocked at the door, a person opened the door from inside and on being asked stated his name to be Ismail Adam Mitha (Tailor) @deka. Dy.
