H.H.MEHTA, J. - (1.) The appellant who was an accused in Sessions Case No. 358 of 1995 before the learned Additional City Sessions Judge, Court No. 9, Ahmedabad, has, by preferring this appeal under Sec. 374(2) of the Criminal Procedure Code, 1973 (for short "Cr.P.C.") read with Sec. 36B of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the "N.D.P.S. Act"), challenged the correctness and legality and validity of judgment Exh. 52 dated 11th September, 1997 rendered in Sessions Case No. 358 of 1995 by which the appellant has been convicted of the offences punishable under Sec. 120B of the Indian Penal Code and also under Sec. 20(b)(ii) read with Sec. 29 of the N.D.P.S. Act and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 1 lac and in default of payment of fine, to undergo further Rigorous Imprisonment for one year for the offence committed by him under Sec. 20(b) of the N.D.P.S. Act. The learned Judge of the trial Court has not inflicted any separate sentence for the offences punishable under Sec. 120B of the Indian Penal Code and under Sec. 29 of the N.D.P.S. Act.
(2.) The facts leading to the present appeal in a nutshell are as follows :- 2.1 In the month of July, 1995, P.W.I Omprakash Nankaram Khober, a Senior Intelligence Officer, was performing his duties in the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi, (for short "D.R.I."). On or about 10th July, 1995 at about 11-00 a.m., he was present and on duty in his office, and at that time, he was doing his office work. One person from public came to him and gave an information. He reduced that information into writing in one prescribed form D.R.I.-I. Thereafter, first he contacted his Senior Officer, Mr. Amitabh, Assistant Director, D.R.I, and informed him about the information which he received. In token of information for which his Senior Officer was informed, Mr. Amitabh signed that information which was reduced into writing. On the basis of information which Mr. Omprakash received and which he reduced into writing, his Superior Officer gave certain directions. Mr. Omprakash left Delhi for Ahmedabad for making an inquiry in connection with that information. He arrived at Ahmedabad in the evening on 11-7-1995. He started making inquiry in connection with that information. He organized a watch of persons of his department, on the house situated in Mirzapur, Ahmedabad. On 17-7-1995, he came to know that delivery of Charas had already been effected and that contraband article has now been kept somewhere in Juhapura area, Ahmedabad. Thereafter, he informed Mr. R. K. Singla, Deputy Director of D.R.I. Ahmedabad Zone, Ahmedabad. Mr. Singla informed him to come at his office on 18-7-1995. 2.2 At about 8-00 a.m. on 18-7-1995, Mr. Omprakash in company of Officers of his Department went to the Office of Mr. Singla. Mr. Singla called one Mr. Rao, Assistant Director and asked him to proceed further in connection with the information which has been brought by Mr. Omprakash that Charas has been kept in the house of Usmanbhai (present appellant) in Juhapura area, Ahmedabad. Mr. Omprakash in company of P.W.3 Baljitsing Bakshi, Senior Intelligence Officer of D.R.I. Ahmedabad Office and other Officers of D.R.I. of Ahmedabad Office went to Juhapura area. They also took with them police personnel of local police. They went to House Nos. J-186 and J-187 of Sanklit Nagar, Juhapura, Ahmedabad. Mr. Bakshi was a leading officer of the raiding party. He had called two independent persons who can act as panch witnesses. Mr. Bakshi informed panch witnesses that he had a reliable information that Charas was stored in said two houses. He also told that he was a Gazetted Officer of the Department. He requested that two persons to witness the search in the aforesaid two houses. They agreed and accompanied them. 2.3 Keeping the police officers out of the compound, the officers of D.I.R. Department opened the gate and entered into the compound of house No. J-187 and knocked the door. The person opened the door from inside and came out. On asking his name by Mr. Bakshi, that person gave his name as Akbarbhai Usmanbhai (son of the appellant). He also said that he was also known as Babubhai. Mr. Bakshi disclosed his identity to Akbarbhai and appraised him of the purpose for their visit. When Mr. Bakshi and other members of the raiding party entered in the house, there were other members of the family inside the room. One of them was Kulsumben Usmanbhai-the wife of the appellant. Other children of the appellant were also present. 2.4 In presence of panch witnesses, Akbarbhai and Kulsumben Mr. Bakshi raided and searched the house and on making search, when they entered into Second room which was a bed-room, they found that three gunny bags were lying there. That gunny bags were found stitched with jute thread (sutali). They opened that three gunny bags one after another and found that each bag was having a plastic bag. Each plastic bag was tied with jute thread (sutali). First, they opened one gunny bag and found 16 rectangular slabs. Each rectangular slab was packed with adhesive tape and on opening it, it was found that it was wrapped by one plastic paper and on opening that plastic wrapper, they found one almond coloured paper and from that paper, they found coffee coloured cakes. According to the prosecution, from first gunny bag, they found 16 rectangular slabs and out of 16 rectangular slabs, from each of 15 rectangular slabs, 4 cakes were found and from 16th rectangular slab, they found only one cake and thus there were 61 cakes of Charas in first gunny bag. They tested one of the cakes found from the gunny bag by making use of Test Kit and they found positive result of Hasish (Charas). 2.5 Thereafter, they opened Second gunny bag and from that they found 13 rectangular slabs total containing 46 cakes. Similarly, they found 13 rectangular slabs from third gunny bag, from which in all 40 cakes were found. All these cakes were weighed and it was found that 61 cakes which were found from first gunny bag were weighing 31 kgs., 46 cakes found from second gunny bag were weighing 24 kgs. and 40 cakes found from third gunny bag were total weighing 40 kgs. Thus in all 95 kgs. of Charas was found from in all three gunny bags. 2.6 Thereafter, first for sample 5 gms. of substance from each cake out of 61 cakes found from first gunny bag was separately taken. That substance was mixed up and from that mixture, substance of one sample of 30 gms. was taken and in this manner, three samples each of 30 gms. were taken from first gunny bag. In similar manner, three samples of cakes found from second and third gunny bags were taken. In all 9 samples were prepared and taken from three gunny bags. All the articles and 9 muddamal samples which were prepared, were properly packed, duly sealed and seized under panchnama in presence of panch witnesses, Akbarali son of accused and Kulsumben wife of accused. 2.7 It is the case of the prosecution that during the search of the house, from that very bed-room in all 91 documents were found from one safe. All these documents were also attached and seized under that very common panchnama. It is the case of the prosecution that all those 91 documents and panchnama were signed by Akbarali and Kulsumben along with the panch witnesses. Thus, according to the case of the prosecution, 95 kgs. of Charas of estimated value of Rs. 9,50,000/- was recovered from the house. On asking for pass or permit for Charas, Mr. Akbarali and Kulsumben could not produce any document. It is the case of the prosecution that appellant was occupant and person in possession of that house, and therefore, aforesaid contraband article was found from the possession of the appellant. Copy of panchnama was given to Mr. Akbarali. Details of articles found from said three gunny bags were given mark as Annexure A-1, A-2 and A-3 which are part and parcel of the said panchnama. 2.8 On that very day, summons under Sec. 67 of the N.D.P.S. Act addressed to the appellant was served on his wife Kulsumbibi, directing the appellant to appear before Mr. B. S. Bakshi on 18-7-1995 at 11-00 a.m. On next day, similar types of summons under Sec. 67 of the N.D.P.S. Act were served on Kulsumbibi and Akbarali @ Babubhai by which they were directed to appear before Mr. B. S. Bakshi under whose leadership and supervision entire raid was arranged in his office on 19-7-1995 at 12-00 p.m. 2.9 On 19-7-1995, the appellant did not appear before Mr. B. S. Bakshi but on his own he appeared before Mr. B. S. Bakshi on 20-7-1995. He gave his statement to Mr. Bakshi. That statement was recorded under Sec. 67 of the N.D.P.S. Act. The appellant gave his such statement in his own hand-writing. That statement was inculpatory statement for him. 2.10 It is the case of the prosecution that muddamal sample articles under forwarding letter dated 19-7-1995 were sent to the Central Revenues Control Laboratory, New Delhi (for short "C.R.C.L.") for the purpose of analysis of the substance recovered and seized under panchnama. 2.11 It is the case of the prosecution that on or about 6-10-1995 one motor vehicle (mini Swaraj Mazda truck) bearing R.T.O. registration No. GJ-1T-4797) was attached and seized by P.W.4 D.R.I. Officer, Mr. R. J. Thakkar in presence of panch witnesses. It is the case of the prosecution that this is a very vehicle through which said 95 kgs. of Charas was transported from the place near Rajasthan Hotel, near Railway Crossing, Kalol Road and unloaded in the house of accused-appellant situated in Juhapura, five days before aforesaid raid. The appellant had made a reference of these facts in his statement recorded under Sec. 67 of the N.D.P.S. Act. It is also the case of the prosecution that when the said motor vehicle was attached, along with it, Goods Tax Book and R.C.A.Book issued by the R.T.O. authority were also seized under the same panchnama. It is the case of the prosecution that on receipt of a report of analysis of substance from "C.R.C.L.", Mr. B. S. Bakshi lodged his complaint against the appellant in the City Sessions Court at Ahmedabad on 17-10-1995.
(3.) The learned Additional City Sessions Judge, Court No. 3, Ahmedabad took cognizance of the offence on said complaint, as a result of which the said complaint came to be registered as Sessions Case No. 358 of 1995 and summons was served on the appellant. The appellant appeared before the learned Additional City Sessions Judge, Court No. 3, Ahmedabad with his Advocate on 15-11-1995. The learned Additional City Sessions Judge, Court No. 3, Ahmedabad, on the basis of material on record, framed charge Exh. 6 on 7-2-1996 for offences punishable under Sees. 120B, I.P.C. and also under Sec. 20(b)(ii) read with Sec. 29 of the N.D.P.S. Act. On recording plea of the appellant, he pleaded not guilty to the charge and claimed to be tried.;