RAJKUMAR RAMCHANDRA SAHU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this appeal, appellants-accused Nos. 1 and 2 challenge their conviction under section 8 (c) read with section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentence of rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-, in default to suffer further rigorous imprisonment for three years recorded by the learned Additional Sessions Judge, Greater Bombay in N. D. P. S. Special Case No. 1010 of 1989 by a judgment and order dated October 8, 1990.

(2.) THE relevant facts giving rise to the appeal are as under. On September 2, 1989 at about 7. 00 a. m. Dattaram Narayan Ketkat (P. W. 1), a head constable attached to Nagpada Police Station, received information that a dealing in narcotic drugs would take place at Room No. 6, Building No. 40 at the 6th lane of Kamathipura, M. R. Road, Bombay. Head Constable Ketkar, therefore, contacted Sub-Inspector Dagdu Patil (P. W. 5) and accordingly the raiding party went to a police chowki situated at the corner of the 5th lane of Kamathipura. There, the informant requested Sub-Inspector Patil to wait for some time and in the meanwhile he would find out the exact time of the dealing. The informant came back at about 9. 45 a. m. and told Sub-Inspector Patil that the deal was to take place at 10. 00 a. m. Immediately, two panch witnesses viz. , Mohammed Amin Mohammed Hussain Shaikh (P. W. 2) and Babu Abdul Khan (P. W. 3) were called and the raiding party along with the panch witnesses as also the informant went to the 6th lane of Kamathipura where the informant pointed out building No. 40 and Room No. 6 therein on the first floor and went away. The police party accompanied by the panch witnesses went to the first floor and stood in front of Room No. 6 of which the door was slightly open. The raiding party knocked at the door and entered the room and noticed that the appellants were about to leave the room. Appellant No. 1 was having a grey bag hanging on his shoulders and appellant No. 2 was found holding a Khaki paper package in his left hand. Both the appellants got frightened on seeking the police party and on being questioned gave evasive replies. Thereafter, their search was taken which revealed that in the grey cloth bag which was with appellant No. 1 there was one white polythene bag and one red cloth bag. In the polythene bag there was one white cloth bag which when opended was found containing one more polytene bag inside which there was a Khaki paper bag. In the said Khaki paper bag was found some brown power which was smelt and and it was ascertained that the same was brown sugar. In the red bag there was also a cash amount of Rs. 13,725/- in different denominations. Likewise, in the Khaki paper package which was found the appellant No. 2 there was a polythene bag in which again there was brown powder which was smelt and ascertained to be brown sugar. Weighing apparatus were then procured and what was found with the appellants was weighed. Thus, what was found from appellant No. 1 was 750 grams of brown sugar and what was found with appellant No. 2 was 250 grams of brown sugar. Thereafter, samples of 10 grams from each packet were taken and put in two small polythene packets which was closed with staple pins and put separately in brown paper sheets and sealed. They were marked as A, A-1 and B, B-1 and were labelled with the signatures of the panch witnesses and sealed. The main packets now containing 740 grams and 240 grams of brown sugar were also taken charge under a panchanama. Both the appellants were then arrested and brought to Police Station where Sub-Inspector Patil recorded the statement of Ketkar which was treated as First Information Report upon which a crime was registered. Further investigation was carried out during which a report of the Chemical Analyser was obtained which revealed that what was found from the appellants was brown sugar. On completion of the investigation, the appellants were charge-sheeted in the Sessions Court at Bombay. During the pendency of the trial it appears that original accused No. 3 who was released on bail absconded and, therefore, his trial was separated and thus the present appellants were tried. The defence of both the appellants at the trial was one of not guilty.

(3.) WITH a view to bring home the guilt to the appellants, the prosecution in all examined five witnesses i. e. , head constable Ketkar and Sub-Inspector Patil as also the two panch witnesses viz. Mohammed Amin Mohammed Hussain Shaikh and Babu Abdul Khan. The other witness was Hari Ramayya Kalloji (P. W. 4) who was a tenant of Room No. 6 in building No. 40 at the 6th lane, Kamthipura who had given the said room to one Champabai, mother of appellant No. 1 with which evidence we are hardly concerned.