- (1.) VIDE judgment and order dated December 24, 1993 in Sessions Case No. 49 of 1993, the Special Judge, Pune, convicted the appellant-Rubyana @ Smita Sanjib Bali for the offences punishable under sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the N. D. P. S. Act") and sentenced her to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- for both the counts under sections 20 and 21 of the N. D. P. S. Act, in default to suffer rigorous imprisonment for one year. She was further convicted for the offence punishable under section 25 read with section 7 of the Arms Act, 1959 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently. She was given the benefit of set-off under section 428 of the Criminal Procedure Code.
(2.) THE prosecution case runs as under :---Pilu @ Bakhtiyar Ahmad Khan @ Sohal Qureshi (hereinafter referred to as "sohal") was accused in C. R. No. 349/92 under section 3/25 of the Arms Act at the Yerwada Police Station, Pune. He was present at the police station on October 24,1992 at about 9. 15 p. m. On enquiry from him, he gave information that since March 1992, he was residing at Graphicon Court, Kalyaninagar, Yerwada, Pune, with his friend Smita @ Rubiyana Sanjib Bali, resident of Juhu-Tara Road, North Bombay Society; that he was residing in a rental flat and doing the business of selling narcotic drugs, like brown sugar, cocaine, hashish, etc. ; and that in the above mentioned flat at Kalyaninagar, there is a large quantity of drugs. This information was given in the presence of Shinde, ACP of Lashkar Division. A. S. Shaikh, PI, Yerwada Police Station, Pune, called two panchas, namely (1) Arun Genaji Inkar and (2) Chandrakant Rama Pujari, in the police station. The substance of the information was disclosed to them and they were asked whether they were ready to act as panchas. They agreed. The panchas took searches of PI Shaikh, ACP Shinde and other police staff and PI Shaikh took search of the panchas. No incriminating article was found in the searches. Shinde, Shaikh, other staff, panchas and the appellant were led by Sohal to Graphicon Court building. They were asked to halt the vehicle in front of the flat and all of them alighted from the respective vehicles. Sohal opened the gate of the compound of the building and led all of them in front of the flat. Sohal opened the latch of the door with the key in his possession. Shinde and Shaikh disclosed to the appellant and Sohal that they intend to take search of the flat and whether they intend to offer search before a Magistrate or any Gazetted Officer and that they are also Gazetted Officers. They declined. Shaikh offered searches and Sohal took the same but no incriminating article was found in the search. Shaikh, Shinde, the other police staff and panchas entered the flat. Sohal took them in the hall of the flat and thereafter took them to right side bed room. Sohal took out one leather bag (Article 7) from the tin cupboard. The bag was searched and one. 38 revolver and one 9 mm pistol were recovered from fold Nos. 1 and 2; 2 country made revolvers were found in the third fold; and one. 445 revolver was found in the fourth fold. The revolvers and the pistol were labelled as Articles 1 to 5 in the Court. Two hundred and eighty one live cartridges of different bores were also found in the said bag. The said cartridges were found in a flap which had a chain. These were labelled as Article No. 6 in the Court. All the revolvers, pistol and the cartridges were wrapped separately. Paper labels bearing the signatures of PI Shaikh and the panchas as also the lac seals were affixed on them. It is further the case of the prosecution that Sohal took them in the western side bed room and the appellant was present at the said time. A diwan was in the said room. Sohal took out one greenish colour bag (Article 8) which was under the Diwan. The bag was searched and two white colour cloth bags (Article 9) containing 1 kg. 55 gms. and 1 kg. 30 gms. heroin were found therein. One polythene bag was found in the compartment of the green colour bag. On opening it, cocaine weighing 70 gms. (sic) (Article 10) was found therein. One blackish cake (Article 117 was also found in the said bag near the packet of cocaine. The brown sugar bags, cocaine and hashish were sealed separately and labels bearing the signatures of PI and the panchas and lac seals were affixed thereon. Sohal had disclosed that the articles were hashish, brown sugar and cocaine. Dollars were found in the green colour bag in which cocaine and brown sugar were found. Indian currency was also found in the said bag. It is further the case of the prosecution that search of the wooden cupboard in the bed room was taken and raw diamonds, driving licence in the name of Sohal (Article 16), pass book of Canara Bank (Article 17) and colour photographs of the appellant and Sohal joint and with others were also found in the said cupboard. Maruti car coupons and other articles were also recovered from the said room. All the articles were seized under panchanama, Ex. 23. Copies of the panchanama were given to the appellant and Sohal and their signatures were obtained on the panchanama. The muddemal property and the appellant and Sohal were brought to the police station. Shaikh wrote down the complaint, Ex. 44. He handed over the complaint along with his report, Ex. 45, for registration of the offence. On the basis thereof, Yerwada C. R. No. 773/92 was registered. The appellant and Sohal were arrested in the offence. The muddemal property was handed over along with the panchanama to Koshti and the muddemal entry No. 682 was made in the muddemal register. The fire arms were sent to the Forensic Science Laboratory, Bombay, along with a letter. The narcotic substances and drugs were sent to the Chemical Analyser, Pune, along with a letter. Statements of various witnesses were recorded.
(3.) AFTER completing the investigation, charge-sheet against Sohal and the appellant was filed in the Court of the Special Judge, Pune. However, Sohal had absconded and the learned Special Judge, by order dated August 17, 1993, separated the trial of the appellant.;