ANVARKHAN A. PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE short question which has surfaced in this appeal for our consideration is as to whether the conviction of the appellant and sentence for the offence punishable under Sec. 20(b)(ii) read with Sec. 31 of the Narcotic Drugs and Psychotropic substances Act, 1985 (NDPS Act), by virtue of the impugned judgment and order dated 24 -11 -1992, recorded by the learned Sessions Judge Kutch at Bhuj, in Sessions Case No. 46 of 1988 is vulnerable, in view of the provisions of Sec. 50 of the NDPS Act?

(2.) THE prosecution case has been that, the appellant original accused, on being carried out raid on 16 -9 - 1986 at about 11.30 a.m. in the office of the Mamlatdar, situated in the city of Bhuj, Was found possessed of contraband article like Charas, weighing about 10 gms. The raid was effected by a raiding party headed by PSI Mr. R.S. Sharma, upon prior information that the accused who had gone to attend the officer of the Mamlatdar at Bhuj, on 16 -9 -1986, was in possession of contraband article Charas. When PSI Mr. Sharma of Bhuj City police station, upon such prior information, in presence of panchas, searched the person of the accused when he was in the office of the Mamlatdar, at Bhuj and was found to be in possession of 10 gms. of Charas, which had been recovered from the right side pocket of the pant of the accused. There were about seven ploythene bags in which the Charas in the form of tablets was seized and the accused was found to be in illegal possession of the same as he was not having any permit. After drawing the necessary panchnama of the seizure and arrest the sample of muddamal contraband article was sent to forensic Science Laboratory (FSL) and it was reported that the said article was prohibited Charas. Therefore the accused was sent up for trial before the Sessions Court. Kutch. At Bhuj against whom a charge was framed on 2 -11 -1992 for the offence punishable under Sec. 20 of the NDPS Act for the illegal possession of the contraband article Charas, to which he denied and claimed to be tried.

(3.) UPON the examination and assessment of the evidence of the prosecution by the trial Court the impugned judgment of conviction followed, finding the accused guilty of the offence punishable under Sec. 20 (b) (ii) read with Sec. 31 of the NDPS Act, as the accused was also held guilty of similar offence and as a result of which the accused came to be sentenced to undergo RI for 15 years and to pay a fine of Rs. 1,50,000/ -. in default, to undergo further RI for 1 -1/2 years, which is precisely, under challenge at the instance of the original accused appellant before us, by invoking the provision of Sec. 374 (2) of the Code of Criminal Procedure 1973 (Code).