Decided on December 12,2014

Kanjibhai Mithabhai Od Respondents


Z.K.SAIYED, J. - (1.) PRESENT appeal under Section 378 of the Criminal Procedure Code, 1973 ('the Code' for brevity) has been filed by the State against judgment and order dated 03/06/1997 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No.173 of 1994 whereby, the learned trial Judge was pleased to acquit the respondents herein original accused for the offence punishable under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1989 ('the Act' for brevity).
(2.) BRIEF facts of the prosecution case is that on 05/08/1994, Police Inspector Shri Pundarik Laxaman Patil received information that original accused no.4 has kept Charas, Brown Sugar, Ganja etc. in his house in Bhavaninagar Society Street No.1 and therefore, he called two panchas and acquainted the above two panchas of the raid to be carried at the house of accused no.4 and thereafter, prepared a preliminary panchnama. He also recorded the reasons for carrying out the raid in the house of accused no.4 at night. Thereafter, he proceeded to the house of accused no.4 along with panchanas and searched the house of accused no.4. While the police was proceedings up stairs the house of accused no.4, he ran away. Accused no.1 to 3 were found on terrace of the house and the police found 46 small plastic bags of charas. 80 small plastic bag of ganja and 136 small plastic bags of brown sugar. Prior to above search, the police asked accused nos.1 to 3 as to whether they want the search to be carried out in presence of Magistrate of gazetted officer or not. Accused nos.1 to 3 raised no objection. Thereafter, they have carried out the search. The police sealed the above small plastic bags of Charas, Borwn Sugar and Ganja in three packets. The police prepared the panchanama and rojnama for the recovery of the above articles. The police further recovered ration card from the ground floor of the house. Thereafter, police inspector lodged the complaint. Three mudamal packets were sealed by the police officer and thereafter, sent to FSL at Junagadh. Thereafter, charge sheet was submitted by the Investigating Officer before the Court. Charge was framed against the respondents original accused and they have pleaded not guilty and so evidence of the prosecution has been recorded. The prosecution has examined PW.6 Police Inspector Punderik Laxman Patil at Exh.29, PW No.7 Police Contable Mehul Chavda at Exh.33 and PWNo.5 Panchwitness Harsh Vaghela at Exh.20 prove the recovery of the mudammal ganja, charas and brown sugar. The prosecution has also examined PW No.1 Pravinchandra Chandulal, PW No.2 Police Head constable Ikbalbhai Rajabhai and PW No.3 Head Constable Ganpati Prasad Banarsiprasad vide Exh.9,11 and 15, PW No.4 Bavakubhai at Exh.17 and PW No.18 Investigating Officer Jetabhai Vala Exh.35.
(3.) IN support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.30, panchnama at Exh.21, Note to the FSL at Exh.8 and and report of the FSL at Exh.41. Thereafter, arguments of both the sides were heard by the learned trial Judge at length. The learned Judge observed that mandatory provision of the NDPS is not followed by the prosecution and therefore, acquittal order in favour of the respondent accused was passed.;

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