S G SHAH, J. - (1.)BOTH these appeals are arising out of the common impugned judgment and order dated 15/12/2009 rendered by the Addl. Sessions Judge and Presiding Officer of 4th F.T.C at Palanpur in Special [NDPS] Case No. 112/2006 so far as appellant in Criminal Appeal No. 991/2010 and Case No. 166/2007 so far as appellant in Criminal Appeal No. 243/2010 are concerned. Since both the cases are arising out of the same FIR being Palanpur City Police Station II C.R. No. 294/2006 dated 3/6/2006 under sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short 'the Act'] and since they are convicted by judgments impugned in the appeals by the trial Court, the appellants are heard together and decided by impugned judgment. By impugned judgments, both the appellants have been awarded sentence of 10 years rigorous imprisonment [RI] and fine of Rs.1 lac each and two years' additional RI if fine is not paid. As usual, the period of custody during trial was ordered to be given set off. As per the jail record, appellant Ghaverchand Khetaram Darji of Criminal Appeal No. 243/2010 has undergone almost 8 years of imprisonment and he is also convicted for 3 years in another Case No. 620/2007 but under sections 392 and 114 of the IPC. Whereas appellant Mularam Punaram Prajapati - of Criminal Appeal No. 991/2010 has undergone almost 9 years of imprisonment.
(2.)I have heard Ms. Sadhna Sagar, Ld. Advocate for the appellants and Mr. KL Pandya, Ld. APP for the respondent State and perused the record and proceedings.
(3.)THE case of the prosecution is to the effect that on 3/6/2006 when the complainant has tried to check the vehicle of the appellants on Danta Ambaji road, instead of stopping the vehicle, accused have tried to run away with the vehicle and ultimately they left the vehicle near Chamda Mill Crossing and tried to run away. However, at that time, appellant Mularam Punaram Prajapati was caught by the police, whereas appellant Ghaverchand Khetaram Darji has run away from the place. On inspecting the vehicle, the complainant has found that real registration number of the vehicle was RJ -04 -TA - 0081 and it has been replaced with the another number plate showing registration number of the vehicle as GJ -18 -AA -7101 and there was 284.500 Kgs posh doda of opium without any permission or licence to hold and carry such narcotic substance. Therefore, FIR was lodged and after investigation, charge -sheet was filed which resulted into conviction of the appellants as aforesaid.
It is a futile attempt and exercise by the appellants in submitting that the charge is disclosing only one name and, therefore, when charge is not properly framed against both the appellants, trial and conviction thereupon is unwarranted, for the simple reason that it is admitted fact that at the place of incident, one of the appellants, namely Mularam Prajapati was caught with the vehicle; whereas other accused was able to run away from the place of incident and, therefore, though FIR is common against both of them, in absence of Ghaverchand Khetaram Darji, who was shown as absconder, initially charge -sheet was filed only against Mularam Prajapati and, therefore, in Special Case No. 112/2006 when charge was framed on 20/11/2006 certainly it is only against one accused. Whereas as and when Ghaverchand Khetaram Darji was arrested, Special Case No. 166/2007 was initiated against him wherein charge was framed as late as on 18/6/2008. However, on scrutiny of both these charges, it becomes clear that since only one accused was available for framing charge on both different dates though charge was framed individually on different dates, there is specific reference of another accused in such charge and, therefore, there is no substance in the submission by the appellant that the charge is improper.