RAMESH DHAKTU SHIRODKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE three appeals are being disposed of by a common judgment as they arise out of one and the same judgment and order convicting the appellants under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Sessions Case No. 4 of 80 recorded on 31st December, 1990.

(2.) THE appellant in Criminal Appeal No. 7 of 91 was the accused No. l, appellant in Criminal Appeal No. 4 of 91 was the accused No. 2 and the appellant in Criminal Appeal No. 3 of 91 was the accused No. 3. There was another co-accused. No. 4, put up for trial but, however, he was acquitted by the teamed Sessions Judge. We will refer to the appellants as accused Nos. 1,2 and 3 the positions in which they were tried in the Sessions case.

(3.) THE prosecution case is that there was a confidential information that accused Nos. 2 and 3 husband and wife were dealing in narcotic drugs at their residence at Calangute. A raid was therefore arranged on the morning of 2nd July, 1987, with two panchas. The raiding party was headed by Sub-Divisional Police Officer of Mapusa Police Station by name Dilip Kumar (P. W. 6 ). The raiding party proceeded from Mapusa and came to Calangute and stopped near a petrol pump. When they were approaching the house of accused Nos. 2 and 3 they found accused No. 1 Satish had just come out of the house of accused Nos. 2 and 3 with a cigarette packet in his hand. He was questioned by P. W. 6 Dilip Kumar as to what he was carrying. According to the prosecution story he did not answer and became nervous. A personal search of accused No. 1 was taken and in the cigarette packet that he was carrying some cigarettes and a pudi containing about gm. of brown sugar were detected. On his information that the brown sugar was sold to him by a lady in the house nearby the raiding party approached the house where they accosted accused No. 2. She denied that she had sold any drug to accused No. 1 although accused No. 1 had pointed out that she was the lady who had sold the drug to him. She however produced a plastic bag from the folds of her sari alongwith some money and the raiding party discovered that there were some packets in the plastic bag which also contained the brown powder. According to the prosecution story the apprehended drugs were weighed and panchanama was prepared which was attested by panchas Rama Popa Pawar, P. W. 1 and Yacub Ali Khan, P. W. 4. On the basis of this story a charge-sheet was filed against the appellants as well as one Babli Vasu Chodankar, the father and father-in-law of accused Nos. 2 and 3 respectively. It is not understood as to how the charge as framed and found at page 31 of the paper book was at all framed that way. The story of the prosecution itself is clear that there were three separate apprehensions, one from the accused No. 1 containing a pudi of about gm. and that too on a public road and the second apprehension was at the residence of accused No. 2 and 3. Indeed the prosecution story is that the apprehension from accused No. 2 was to the extent of about 17 gms. , 2 gms from accused No. 3 and * gm. from accused No. 1. In our view, the charge should have separately showed these apprehensions from different accused. The charge is as if the recovery of 19 * gms of brown sugar is from joint possession of the three accused. Though we find that there is a defect in the framing of the charge it must be fairly mentioned that rightly no grievance was made as nothing turns on such a defective charge.