JUDGMENT :

Sanjeev J.Thaker, J.

1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 27.05.2010, passed by the learned Special Judge (NDPS) and Presiding Officer, 3rd Fast Track Court, Junagadh, in Sessions Case (NDPS) No.94 of 2008, punishable under Section 20(B), 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS’ Act), the appellant – State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short, “the Code”).

2. The prosecution case as unfolded during the trial before the Sessions Court is that complainant – P.S.I., S.O.G. Junagadh, Shri Udaykumar Raval registered a complaint against the accused persons with Junagadh City 'B’ Division Police Station, stating that on 26.07.2008, when he was performing his duty with the police staff, at that time, he received a secret information that Haji Osaman Matva, residing near Bharat Mill, Junagadh, would transport Cannabis (`ganja’) in his rickshaw bearing registration No.GJ.1.VV.964 from Sardarbagh, Junagadh to Janjarda without pass and permit. On receiving such information, the complainant sent Maldebhai Lakhabhai, Police Constable, for arranging two panchas and at about 8:30 hours, he came back with two panchas and thereafter, prepared a preliminary panchanama, sent the report to the Superintendent of Police, Junagadh, and also sent a report in writing to the P.S.O., ‘B’ Division Police Station about the said raid and made entry in the station diary being Entry No.10 of 2008. Thereafter, at about 8:55 hours, the police party, panch witnesses and the complainant went to the place and reached there at 9:05 hours; thereafter, at about 9:20 hours, they stopped one rickshaw being No.GJ.1.VV.964, they introduced themselves and asked the name of the driver, to which, the driver replied that his name is Hussain Haji and on asking the name of the passenger, he gave his name as Osman Matva Kureshi and they seized the ‘ganja’ from the possession of the passenger, which was without pass or permit; the accused were given an option, whether they want to be searched in presence of the Police Officer or any other Gazetted Officer and as they were ready and willing to be searched before the Police Officer, accordingly, the same was recovered by drawing panchanama; the samples were collected and rest was seized for the purpose of investigation. Therefore, the case was registered against the respondents/accused.

3. After investigation, sufficient prima facie evidence was found against the accused person/s and therefore, charge- sheet was filed in the competent criminal Court. Since the offence alleged against the accused person/s was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court concerned, where it came to be registered as Sessions Case (NDPS) No.94 of 2008. The charge was framed against the accused person/s. The accused pleaded not guilty and came to be tried.

4.1 In order to bring home the charge, the prosecution has examined 9 witnesses before the trial Court, which are described in the impugned judgment, which are as under :

4.2 The prosecution has produced 33 documentary evidence which includes panchanama, complaint, FSL report, muddammal receipt, etc., before the trial Court, which are described in para 12 of the impugned judgment.

5.