ORAL JUDGMENT

1. The present Appeal is directed against the judgment and order dated 23.10.1996 passed by the learned Additional City Sessions Judge, 14th Court, Ahmedabad, in Sessions Case No.186 of 1995, whereby respondent accused No.1 Gaurishankar Sidhanath Tiwari (hereinafter referred to as “the respondent”) has been acquitted of charges under Sections 29, 8 and 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) and Sections 14, 66(B) and 83 of the Bombay Prohibition Act, 1949.

2. Though there were two accused before the Sessions Court, the present appeal has been filed only qua the respondent.

3. Briefly stated, the case of the prosecution is that on 16.05.1995, at about 6:00 PM, both the accused persons were going on a scooter from Amraiwadi area, near Vishnunagar Shopping Centre, opposite Radhaswami X-ray Clinic. The scooter met with an accident and the person driving it fled away. The respondent was the pillion rider, and fell down on the road. The passers- by caught hold of the respondent and, as he had sustained some injuries due to the accident, he was taken to the Clinic of the complainant- Doctor Bhailalbhai Ramdas Patel. As per the case of the prosecution, the Clinic of the complainant is situated near the site of the accident. A girl aged about 5 years was also injured in the accident and was treated by the complainant. The case of the prosecution is that the respondent had a plastic bag with him and when the complainant asked him to open it, the respondent hesitated to do so or to disclose its contents. The complainant got suspicious and contacted the Amraiwadi Police Station, on telephone. On receipt of the message, an entry was made in the Police Station Diary and thereafter, a Yadi was issued to Police Sub Inspector - Fatesinh Ranchhodsinh Jadav to rush to the Clinic of the complainant. Immediately, two panch witnesses were called and the respondent was searched in their presence. From the plastic bag in possession of the respondent, Ganja weighing 12 kg. was found. The contraband was weighed in the presence of the complainant and panch witnesses and was seized. After the completion of the Panchnama, it was duly signed and an offence was registered against the accused. The investigative machinery was set into motion. The Panchnama of the scene of offence was prepared and statements of witnesses were recorded.

After completion of the investigation, a charge-sheet was submitted. The charge was read over and explained to the accused who denied the allegations and claimed to be tried. Accordingly, the case was put to trial.

4. After having appreciated and evaluated the evidence on record, the Trial Judge recorded a finding of acquittal in favour of the respondent.

5. This Court has heard Mr. H.K. Patel, learned Additional Public Prosecutor for the appellant – State of Gujarat at length and perused the record and proceedings of the case.

6. The respondent has been served but has not cared to put in an appearance before the Court.

7. Mr. H.K. Patel, learned Additional Public Prosecutor, has submitted that the impugned judgment of the Sessions Court is against law and the evidence on record. The Trial Court ought to have appreciated that the respondent was involved in an accident and after examining the accused, the complainant asked him regarding the contents of the plastic bag in his possession, which was found to contain Ganja, which is evidence in support of the fact that the contraband was in the possession of the respondent. As it was the complainant who had telephoned the police who started investigation, there was no question of the compliance of Section 50 of the NDPS Act. It is further submitted that Section 50 of the NDPS Act would have no application as the person of the respondent was not searched but the contraband was found from a white plastic bag in his possession. Therefore, the findings arrived at by the Trial Court to the effect that the