j-cri-appeal-635-03.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 635 OF 2003

The State of Maharashtra

]

… Appellant

V/s.

Ramsingasan Jamunaprasad Mourya

]

Age 42 yrs., R/o. Mahurai,

]

Taluka Basgaon, Dist. Gorakhpur (U.P.)]

… Respondents

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

Mr. S.S. Hulke, APP for the Appellant.

None present for the Respondent.

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

CORAM

:

S.S. SHINDE &

N.R. BORKAR, JJ.

RESERVED ON :

04.01.2022.

PRONOUNCED ON : 31.01.2022.

JUDGMENT (PER : N.R. BORKAR,J.)

1]

This appeal takes an exception to the judgment and

order dated 18.2.2003 passed by the Special Judge, N.D.P.S.,

Thane, in Special Sessions Case No.5 of 2002. By the

impugned judgment and order, the respondent, who was

accused before the trial Court, has been acquitted of the

ofence punishable under Sections 20 and 22 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short

“NDPS Act”).

Dinesh Sherla

1/7

DINESH

SADANAND

SHERLA

Digitally

signed by

DINESH

SADANAND

SHERLA

Date:

2022.01.31

14:36:16

+0500

j-cri-appeal-635-03.odt

2]

It is the case of the prosecution that on 9.10.2001 at

about 2.00 p.m., PW-5 Rajendra Tambat, who at the relevant

time was working as Sr.Police Inspector at Wagale Estate,

Police Station, had received an information that the accused

would be coming near Hotel Vikrant, Wagale Estate, Thane for

sale of charas. The description of the accused was also

informed to him. The information was reduced into writing.

The entry of information was taken in Station dairy. The panch

witnesses were then called. PW-5 along with other police

personnel and panch witnesses then reached to the spot at

about 3.20 p.m. The trap was arranged. At about 4.00 p.m.,

the accused came there and stood in front of Hotel Vikrant.

According to the prosecution at that time accused was

carrying a suitcase.

3]

The accused was intercepted. PW-5 disclosed his identity

to him. The reason for his search was apprised to him. He was

then given option to be searched before a Gazetted Ofcer,

however, according to the prosecution the same was

declined. Thereafter search of the accused was taken.

Dinesh Sherla

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4]

According to the prosecution, during search 2 Kgs

charas was found in the suit case. The samples were

collected. All the incriminating articles were seized and

accordingly, panchanama was prepared.

5]

The complaint was then fled by PW-2 PSI Harishchandra

M. Sawant against the accused for the ofences punishable

under Sections 20 and 22 of the NDPS Act. On completion of

investigation, charge-sheet was fled.

6]

The accused was charged and tried for the abovesaid

ofences. The trial Court by the impugned judgement and

order acquitted the accused inter alia on the ground of non-

complaince of sub-section (2) of section 42 of NDPS Act.

7]

We have heard the learned APP for the appellant / State.

The learned APP for the appellant/ State submits that the trial

Court had erred in acquitting the accused for non-compliance

of sub-section (2) of Section 42 of the NDPS Act. It is

submitted that PW-5 has stated in his evidence that he had

submitted report to Assistant Commissioner of Police. It is

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submitted that the trial Court was therefore, not justifed in

acquitting the accused for non-compliance of sub-section (2)

of Section 42 of the NDPS Act. It is thus submitted that the

order of acquittal needs to be set aside and the accused

needs to be convicted for the ofences for which he was

charged.

8]

The Hon’ble Supreme Court, in the case of Karnail

Singh vs. State of Haryana¹, has observed :

“35.

In conclusion, what is to be noticed is Abdul

Rashid did not require literal compliance with the

requirements of Sections 42(1) and 42(2) nor did

Sajan Abr