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2011 Supreme(Guj) 801
IN THE HIGH COURT OF GUJARAT
Ravi R. Tripathi, P.P. Bhatt, JJ.
Shyamrao Hanumantrao Rao – Petitioner
Versus
State of Gujarat – Respondent
Criminal Appeal No. 1028 of 2007 with Cri. Appeal Nos. 1069, 1093, 1141 all of 2007 and 2918 of 2008
Decided On : 28-04-2011
For the Appellant :Shakeel A. Qureshi with Rushabh R. Shah, Advocates.
For the Respondent: Kartik Pandya, Addl. P.P.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c) 20(B)(i) and 29 - Appeals are preferred against the judgment and order - Evidence - Seizure of marijuana -Prior secret - Information - Both panchas do not support prosecution case of raid and seizure - Seizure from a room of marijuana in commercial small quantity - Room was rented by accused No. 1 accused persons were present in the same room - Pleadings of defense that conscious possession on part of accused persons not proved - Held, Prosecution has established its case beyond reasonable doubt that the appellants were in conscious illegal possession of contraband goods during the search carried out by raiding party. It appears that procedure as laid down under NDPS Act has been followed by the raiding party, learned Special Judge has rightly appreciated the evidence on record while passing the order of conviction. It also appears that a further statement under section 313 of the Code of Criminal Procedure was also recorded, but no contradictory version is found and the defence is unable to dislodge the fact that the appellants were found with conscious illegal possession of the contraband goods at the time of search carried out by the raiding party upon receipt of secret information. Thus, it appears that there is no substance in the appeal and the same deserves to be dismissed - Appeals dismissed.
JUDGMENT :
P.P. Bhatt, J.
The above mentioned appeals are preferred against the judgment and order passed in Special NDPS Case No.2 of 2005 dated 30th June 2007 passed by the learned Special Judge, Surat, by which the present appellants have been convicted for the offences under section 8(C) and 20(B)(1) read with section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'). Aggrieved by and dissatisfied with the above judgment and order passed in Special NDPS Case No.2 of 2005 dated 30th June 2007, the appellants have preferred these appeals.
2. Brief facts of the prosecution case are as under:
2.1 As per the prosecution case Shri P.R. Pandya, Police Inspector, Pandesara Police Station, Surat City on 26.12.2004 at 1515 hrs received an information from a private informer that in L.I.G. 512, Block No.295, Room No.2681 OF Gujarat Housing Board at Pandesara, one person named Babula Alias Bullu, son of Upendra Parida, who is staying there as a tenant of one Shri Azadbhai, in collusion with four other persons, illegally selling Marijuana (Ganja) and having bulk quantity of Marijuana (Ganja), which is lying in the room. Thereafter, he made entry in the Station Diary at 1520 hours and its written information was forwarded to the Deputy Police Commissioner, South Zone, Surat City. In turn, they gave instructions for further action. Thereafter, Assistant Head Constable, Shri Panchiyabhai Rajaram was informed to arrange for two reputed persons to act as panchas for raid proceedings, other Police personnel were also called. During that, Head Constable Panchiyabhai had called Shri Kamleshbhai Chaturvedi Patel, residing at C/711, Akash Bhumi Apartment, G.H. Board, Pandesara, Surat, and Shri Kishorbhai Mahipatra Valdure, residing at B/147, L.I.G., 536, G.H. Board, Pandesara, Surat to act as Panchas. They and present Prohibition Inspector, L.G. Yadav, Prohibition Constable Dipsingh Kanji, Assistant Head Constable Panchia, Assistant Head Constables Rajaram, Aiyazuddin Nizamuddin, Hasmukh Gomanbhai, A.P.C. Kanti Gordhanbhai Valji Manubhai, Hitendra Shreeram, Farasram Mansukh, Umesh Bhikha, Netaji Kalu and Ramesh Maganbhai, etc. have been apprised of the facts, Panchas were provided information and instructed to make inter-se search of the persons of raiding party and the Panchas and verify that no illegal goods/articles were there with them. Thereafter, necessary instructions were given to the raiding team. For the purpose of raid proceedings of the said case they took necessary papers and instruments. Thereafter, preliminary Panchnama was drawn between 1600 hrs and 1630 hrs in Police Station and made entry of proceedings in the Station Diary of the Police Station. Thereafter, checking of Government jeep No.GJ-G-758 and Tata Sumo bearing No.GJ-G-378, was done in presence of the Panchas. Thereafter, Panchas and raiding party persons started from the Police Station and came to Gujarat Housing Board premises, LIG, 512, Block No.295, Room 2681, in the said vehicles. The door of the said premises was half opened, they pushed it and on looking inside the room, found 5 persons sitting there with one iron sheet drum and weighing instrument.
2.2 On being asked their names, they stated as (i) Babula Alias Bullu, son of Upendra Parida, residing at Pandesara G.H. Board, LIG 512, Block No.295, Room No.2681, in Azadbhai's room, Surat, having native at Kavisugnagar, Udia Police Station, Kavisugnagar, District Ganjam, Orissa; (ii) Ravindra Bansidhar Bahera, residing at Pandesara G.H. Board, LIG 512, Block No.295, Room No.2681, in Azadbhai's room, Surat, having native at Village Sikula, Thana Pursotampur, District Ganjam, Orissa; (iii) Ramu Hari Sharma, residing at Pandesara G.H. Board, LIG 512, Block No.295, Room No.2681, in Azadbhai's room, Surat, having native at Village Darakot, Thana Adka, District Ganjam, Orissa, (iv) Shyamrao Hanomatrao, residing at Magadugam, Thana Narasampeth, District Nalgonda, A.P., and (
