IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 962 of 1999 For Approval and Signature:

Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================

1. Whether Reporters of Local Papers may be allowed : NO to see the judgements?

2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement?

4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?

5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?

--------------------------------------------------------------

VIJAYSINH CHANDUBHA JADEJA Versus STATE OF GUJARAT --------------------------------------------------------------

Appearance:

1. Criminal Appeal No. 962 of 1999 MR DEEPAK M SHAH for the appellant Ms. B.R. Gajjar, APP for Respondent No. 1 --------------------------------------------------------------

CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE H.H.MEHTA Date of decision: 21/10/2002 ORAL JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA)

1.(cid:9)The original accused of Sessions Case No. 69 of

1998 has, by filing this appeal under Section 374(2) of the Code of Criminal Procedure, ('Cr.P.C.' for short), read with Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985, challenged the correctness and legality of the judgment Exh.53 dated 9th July 1999 rendered by the learned Additional Sessions Judge, Rajkot, who presided over the Special Court constituted under Section 36-A of of the Narcotic Drugs and Psychotropic Substances Act, 1985, [hereinafter referred to as 'the learned Judge of the trial court'] in the aforesaid Sessions Case No.69 of 1998, by which, the appellant has been convicted under Section 235(2) of Cr.P.C. for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) and was sentenced to undergo simple imprisonment for ten years and to pay fine of Rs.1 lakh and, in default of fine, to undergo further simple imprisonment for one year.

2.(cid:9)The facts leading to filing of this present appeal in a nutshell are as follows:

3.(cid:9)On or about 14th February 1998, the complainant, Police Jamadar, Nanjibhai Ramjibhai Pargi (since deceased), who was present, on duty, in Rajkot City 'A' Division Police Station, received a secret information from the informant to the effect that one Vijaysinh Chandubha Jadeja (appellant), resident of Ranchhodnagar Society, Rajkot, was selling brown sugar in small packets illegally in Bangadi Bazar, at Rajkot, and that, at the time of giving the information, he was continuing to sell the contraband article. By that information, it was further informed that that person was wearing white clothes. On receipt of the said information, Nanjibhai made an Entry No.15 of 1998 (Exh.27) in the Station Diary of 'A' Division Police Station of Rajkot at 13.30 hrs. He, by sending a copy of that entry, informed the Assistant Police Commissioner of Eastern Region of Rajkot He also wrote a yadi (Exh. 17) to the Scientific Officer of the Forensic Science Laboratory ['FSL' for short) requesting the said Scientific Officer to join him during the course of the raid and search at the place stated in the information. Thereafter, Nanjibhai sent one Police Constable, P.W.3, Janaksinh Gajubha Rana, to call two persons to act as independent panch witnesses. Thereupon, P.W.1 Shri Bhaskarbhai Bhagwanjibhai Dave and another person, P.W.2 Shri Sahadevsinh Ajitsinh Jhala, came to the police station. Nanjibhai gave introduction of the Scientific Officer, Shri Gameti and other police personnel, who were present in the Police Station, to the panch witnesses. Thereafter, a preliminary panchanama was drawn in between 14.10 hrs and 14.30 hrs in the police station and, at that time, search of the police personnel and panch witne