Bombay High Court
Rifakatalikhan vs State Of Maharashtra on 22 June, 1993
Equivalent citations: 1994(4)BOMCR75, 1993CRILJ3844
JUDGMENT Kamat, J.
1. The order of conviction, firstly under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and secondly under section 66(1)(b) of the Bombay Prohibition Act and sentence of rigorous imprisonment for 10 years, fine of Rs. 1,00,000/-, in default further rigorous imprisonment for 5 years on the first count, and rigorous imprisonment for 3 months and fine of Rs. 1,000/-, in default further rigorous imprisonment for one month on the second count, imposed in Sessions Case No. 19/1991, by the learned 2nd Additional Sessions Judge, Jalna, by the impugned judgment dated July 25, 1991, is impugned by the appellant in this appeal.
2. The appellant was found in possession of 2 Kgs. of Charas valued at Rs. 1,95,305/-. The appellant was an external student for the degree course of engineering at Aurangabad.
3. There are cases in which the Police act on prior information. There are cases in which panchas are easily available and the search can be made or the articles can be seized in their presence. Equally well, there are cases in which due to the time or the place at which the search is made or for some other reasons panchas are not available and search can be made or the articles cannot be seized in their presence. If in a case, the Police do not avail themselves of the panchas or the panchas do not support the prosecution, having been won over by the accused, the Court will have to examine the evidence of the Police witnesses carefully, bearing in mind the fact that independent evidence is not available for the Court and if after exercising due care and caution, the Court comes to the conclusion that their evidence can be safely relied upon, the Court can proceed to act on the evidence of the Police witnesses. The Court has to weigh such evidence and has to reach a conclusion as to whether their evidence is reliable or not if such evidence is found to be reliable, there is no harm in accepting their evidence. The Court cannot proceed on the implicit faith in the Police witnesses, but the Court has to consider their evidence and scrutinise the evidence. There are cases which are to be termed as accidental detection of crimes.
4. Even the NDPS Act does not ignore these aspects. There are provisions contemplating the factual situation that on facts certain requirements, if cannot be followed without affording opportunity for the concealment of evidence or facility for the escape of an offender, the investigating agency is not rendered helpless in the situation. The procedural safeguards provided in the NDPS Act have to be considered in their application with reference to the factual situation.
5. In approaching to consider the nature and consequences as a result of non-compliance of these safeguards, the Court will have to keep in mind that the NDPS Act was brought on the statute to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The Act is brought on the statute book to implement the provisions of the international convention on narcotic drugs and psychotropic substances. Those who deal in drugs in any manner will have to be looked at with reference to the consequences of consumption of drugs. Those who consume become their slaves and slowly pushed into grave of their own making. The trafficking in drugs is not only antinational, but an atrocity against the public health. Stringent provisions with procedural safeguards are available in the Act to ensure the fairness and consequent acceptance of the investigation by the Court. The Act contains several provisions requiring the method of investigation. There are provisions of submitting reports at several stages of investigation.
6. In considering the nature of these provisions as to whether they are mandatory or directory, it would not be sufficient to confine ourselves to the language of the section and the letter of the law. The approach must take into consideration the intention and the purpose of the legislation in question. Its design would have to be appreciated in the context of the consequences. A look will also have to be given with regard to the non-compliance of the safeguards, as to whether any penalty is vitiated. The Court also will have to consider as to whether the legislature really intended to consider the character of these safeguards of such a nature that the object of the enactment also in a given factual situation if gets totally defeated, by giving the highest importance to the procedural safeguards rather than ignoring the factual positions presented before the Court. Every case is brought before the Court with an inter-wooven fabric of its factual situation. The question is whether the non-observance of the statutory safeguard would entail nullification of the entire investigation. The basic principle is that a defect or illegality in the investigation has no direct bearing on the result of the trial. The Court has to consider ultimately by keeping in mind that the procedure is ultimately a help-mate of the ultimate justice, and unless miscarriage of justice floats on the surface, the trial will not get vitiated. The position with regard to the importance to be given to procedure is available from 3 judgments of the Supreme Court, , HN Rishbud v. State of Delhi; , Chittaranjan Das v. State of W.B.; AIR 1976 SC 2386 : 1976 Cri LJ 1875, Santa Singh v. State of Punjab. It is with these aspects that the present appeal will have to be considered.
7. Factual matrix :-
On October 27, 1990, P.S.I. Baheti of Kadim Jalna Police Station at about 8 p.m. at night received information from a person who is anonym that a person (not named) was trying to sell Charas on Hero Honda Motor cycle UHP 8747 in M.I.D.C. area. P.S.I. Baheti (P.W. 7) contacted Circle Police Inspector Sonar (P.W. 1) and conveyed this oral information to him. P.S.I. Baheti was directed to call 2 panchas. More (P.W. 2) and Mhaske (P.W. 3) are the 2 panchas arranged by Constable Rathod (P.W. 4) on instructions from P.S.I. Baheti (P.W. 7). Immediately thereafter the Police party headed by Circle Police Inspector Sonar (PW-1), P.S.I. Baheti (PW-7), Constable Ankush Rathod (P.W. 4), 2 panchas left the Police Station for interception of motorcycle - UHP 8747 in a Police Jeep. The MIDC area was combed by the raiding party with no result. Ultimately, the party came and stopped in front of the gate of Zalani Industry. The engine and the headlights of the Jeep were kept running. P.S.I. Baheti (P.W. 7) came out of the Police Jeep and at about 9 p.m., a motorcycle was in sight from the southern side of the south north road. The motorcyclist (who was ultimately the accused and the present appellant) speeded up instead of stopping. P.S.I. Baheti (PW-7) immediately returned to the Jeep and the motorcycle was chased and stopped at some distance. The accused-appellant was encircled. The motorcycle was found to have the same number UHP 8747. There was confirmation to the oral information. The appellant was having a Shabnam bag on his shoulder. In the bag was found Charas weighing 2 kgs. It was in sticks form as also 70 plastic bags, each containing 5 pills of Charas. The contraband was covered in a polythene bag with was in turn covered by a pant piece, all of which was found in Shabnam bag.
8. 50 Gms. of Charas out of the sticks and separately 2 plastic bags of Charas containing 5 Gms. Charas in each was taken for sample. The two samples were lebelled, sealed and signed with the signatures of the panchas and P.S.I. Baheti. The appellant had a motor-driving licence and was found with a currency note of Rs. 100/-. The appellant and the raiding party reached the Police Station. P.S.I. Baheti (P.W. 7) gave his own FIR which was recorded by Head Constable Magre (PW-6) who was the Police Station Officer and Cr. No. 146/90 was registered. The samples and the Muddemal articles were placed at the Police Station and on the next day (October 28, 1990), Constable Surudkar (P.W. 5) was directed to take the Muddemal articles to the Chemical Analyser, Aurangabad, which was done on October 29, 1990, at 7-30 a.m. During this time, the Muddemal and the samples were in-charge of the writer Head Constable of the Police Station. Articles were sent alongwith the letter (Exh. 29). The samples had signatures of the panchas Cr. No. 146/90 and the signature of P.S.I. Baheti (P.W. 7). Apart from the charge u/s. 20(b) of the NDPS Act and under section 66(1)(b) of the Bombay Prohibition Act, the appellant was also charged u/s. 132(1)(a) r/w Section 179 of the Motor Vehicles Act for not obeying the orders of P.S.I. Baheti (P.W. 7) and speeding up the vehicle. After completion of investigation and receipt of the report of the Chemical Analyser, a charge-sheet was filed in the trial Court where the charge (Exh. A) was framed.
9. At the trial, the prosecution examined C.P.I. Sonar (P.W. 1), the panchas (More (P.W. 2) and Mhaske (PW-3)) Constable Rathod, who arranged for the panchas and accompanied the raid, Constable Surudkar (PW-5) who carried the samples to the Chemical Analyser for analysis, Head Constable Magre, who recorded FIR of P.S.I. Baheti (P.W. 7) and P.S.I. Baheti (P.W. 7) as witnesses.
10. Both the panchas - More and Mhaske admitted their signatures on the panchanama. The panchanama is tendered on record in the evidence of P.S.I. Baheti at Exhibit 26. However, both the panchas did not support the prosecution and are declared hostile. The learned Judge with regard to the evidence of the 2 panchas - More and Mhaske, has observed that they have been won over by the accused.
11. The learned Judge, on appreciation of the evidence of the Police witnesses, has reached a conclusion, after carefully considering their evidence, their cross-examination that these witnesses are trust-worthy witnesses. The evidence was accepted. The learned Judge held that on the facts, the panchas turned hostile and did not support the prosecution and this will not affect the evidentiary value of the Police Officers. The learned Judge also held, relying on the decision of the Gujarat High Court that the panchanama (Exh. 26) can be proved by the Police Officer through his deposition because everything happened in his presence and in all circumstances the contents amount to a statement of a panch witness, whereas the contents of the panchanamas that merely record the existence of some facts that are incorporated on observation, are not attributable exclusively to the panchas who were noticed by the investigating officer himself. The learned Judge observed that whenever the authors of a document deny its execution or genuineness, such documents, could be proved by persons in whose presence the documents, were executed. The execution of the panchanama (Exh. 26) was witnessed by all the members of the raiding party.
12. The learned Judge held that this was a case in which there was no information in the legal sense. Name of the person was not disclosed. The commission of the offence was not reported, but only a possibility thereof was communicated by an anonymous person. The learned Judge, therefore, held that the statutory provisions of Section 42 of the Act are not applicable. On facts, the learned Judge held that the contraband was in transit for an attempt to sell on a public road. The learned Judge also held that there is substantial compliance of the provisions of Section 50 of the Act because C.P.I. Sonar himself was a gazetted officer who had supervised the entire raid which was substantial compliance with the provisions of Section 50. The learned Judge also held that on facts when Charas was found with the appellant who was actually carrying it in the Shabnam bag on his shoulder coupled with the fact that he speeded up when asked to stop, clearly spell out that the appellant was well aware of what he was possessing and, therefore, to expect non-compliance of Section 52 of the Act, in that he was not informed of the ground of his arrest, is an empty formality. The learned Judge also held that Section 52-A of the Act is also complied with because P.S.I. Baheti was himself the officer-in-charge of the Police Station. In this context, the learned Judge observed that there is no material on record that Kadim Police Station had any Police Inspector. The learned Judge also held that even the provisions of Section 55 are not violated, in view of the fact that on the very next day the samples were sent to the Chemical Analyser. In view of the fact that the raid was actually supervised by the Circle Inspector Sonar (P.W. 1), the learned Judge held that there was substantial compliance of Section 57 of the Act as report of the particulars of arrest and seizure were not required to be given to the superior officer as C.P.I. Sonar was accompanying raid and he was fully aware of all the facts of the raid, which is substantial compliance.
13. In regard to the submission as to whether these provisions incorporated in Sections 41, 42, 43, 50, 52, 52-A, 55 and 57 of the Act are mandatory or directory and consequently as a result of the violation thereof, the entire trial is vitiated, relying on the decision of the Nagpur Bench of this Court, Unreported judgment in Criminal Appeal No. 288/1989, dated December 4, 1989. Hemant Agwan v. State of Maharashtra, the learned Judge held that the provisions are directory and their violation in every case will not lead to acquittal. In support, the learned Judge has also placed reliance on the decision of the Supreme Court, , State of U.P. v. Gokarn.
14. More or less the same contentions are raised before us in this appeal.
15. Firstly, we will consider the evidence of the Police witnesses to examine whether the conclusion reached by the learned Judge that their evidence is wholly acceptable keeping in mind that certain statutory provisions are not complied with. Through the evidence of P.S.I. Baheti (P.W. 7) and C.P.I. Sonar (P.W. 1) coupled with the evidence of Constable Rathod (P.W. 4), Head Constable Magre (P.W. 6) and Constable Surudkar (P.W. 5), the prosecution places on record that at 8 p.m. at night, P.S.I. Baheti (P.W. 7) received oral information from a person - anonym that someone is selling Charas in the M.I.D.C. area Jalna. Information was not about an offence, but about an offence to be committed. Information was not against a specific person. Therefore, the raiding party had to be on its toes. The raiding party left the Police Station instantaneously and reached M.I.D.C. area. The area was combed. None was traced and ultimately the Police Jeep was parked on a cross road near Zalani Industry when a motorcycle was in sight. It speeded up and could be stopped only after the chase by the raiding party. It was only at that time, it could be ascertained that the number of the motorcycle - UHP 8747 tallied the intercepted motorcycle. The panchanama was drawn. Samples were taken. They were labelled and sealed with the signatures of the panchas and P.S.I. Baheti. The facts that are presented through the evidence of these witnesses make out more than clear that this was a case of an accidental detection of crime wherein the accused-appellant was intercepted at a public place and the property - the contraband was found on his persons. The manner in which P.S.I. Baheti came to know about the prospecting crime, it will have to be stated that there is no information as such in the legal sense which could be reduced to writing. Apart therefrom, the fact that P.S.I. Baheti came to know at 8 p.m. and after combing the entire MIDC area twice and ultimately reaching the cross road near Zalani Industry, the motorcycle in question was intercepted at 9 p.m., it will have to be said that no time is lost. The facts spell out that there was not information and, therefore, there is no question of reducing it to writing and consequently sending a copy thereof to the nearest Magistrate. This also gets intrinsic support from the fact that after interception, everything was recorded in panchanama (Exh. 26) which commenced at 9 p.m. and ended at 9-45 p.m. The evidence of Head Constable Magre who was P.S.O. of the Police Station shows that FIR was immediately recorded by him and Cr. No. 146/90 was registered by him. The evidence of Constable Surudkar (P.W. 5) shows that the samples bearing labels and seals alongwith the signatures of the panchas and P.S.I. Baheti were taken by him to the Chemical Analyser at Aurangabad. This was practically on the next day (October 29, 1990 at 7-30 a.m.) when the interception was at night on October 27, 1990. The fact that these Police witnesses have not procured the panchas, which is established even from the evidence of the 2 hostile panchas that they have not acted as panchas any time before, would also be a factor to accept the evidence of the Police witnesses. Taking into consideration the evidence of these Police witnesses, we cannot but agree with the conclusion recorded by the learned Judge. There is nothing in their evidence to discard the testimony of any of them on any count whatsoever. We agree with the conclusion recorded by the learned Judge that they are truthful witnesses on their own testimony.
16. Let us now consider as to whether the provisions of Sections 41 and 42 of the Act could be said to be applicable. If we reach the conclusion that the said provisions are applicable, then it would be necessary to consider as to whether the information received was required to be taken down in writing. A bare reading of Sections 41 and 42 of the Act would show that the provisions are applicable when there is a question of search of any building, conveyance or an enclosed place. On facts, it is not possible even to imagine application of these two sections because the appellant was intercepted on a public road and the property - the contraband was found on his person in a Shabnam bag hanging on his shoulder. It is clear that when the contraband is seized at any public place or in transit, the provisions are not applicable. Even then if the officer feels that by reason of resorting to the provisions, it would afford opportunity for the concealment of evidence or facilitate the escape of an offender, the formalities are premitted to be wound up without resort. The language of the provisions are mandatory directory. Everything depends on the factual position represented before the Court.
17. Shri R. K. Jain, the learned counsel relied on the provisions of Section 50 of the Act and strenuously urged that there is non-compliance. The learned Judge in the impugned judgment has already held that because of the presence of C.P.I. Sonar, who is himself a gazetted officer, there is substantial compliance with the said provisions. The learned counsel submitted that the provision requiring the Police Officer to take the person intercepted to the nearest gazetted officer. In this context, with advantage, reference can be made to the decision of the Gauhati High Court, 1991 Cri LJ 696, Mohd. Jainulabdin v. State of Manipur. In the said case, it is also held that as the entire operation was done in the presence of a gazetted officer, there is no violation of Section 50 of the Act. In the process of reasoning, it is observed that the cardinal rule of construction of a statute is that it should be construed according to the intention expressed in the Act itself and if the words of a statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The distinction between strict and liberal construction has almost disappeared with regard to all classes of statutes so that all statutes, whether penal or not, are now construed by substantially the same rule, they are construed now with reference to the true meaning and the real intention of the legislature. The Court has observed that the menace of narcotic drugs and psychotropic substances has assumed alarming proportions not only in our country, but the whole world. This has become an enemy for the mankind. Not only that trafficking in drugs meant to amass illegal wealth quickly, which is a matter no society can tolerate. From the long title of the Act, to tackle this problem, it is apparent that the legislature has enacted this law to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. It is also observed that the object of the Act is to curb and eradicate the evil of narcotic drugs and that is why there are certain departures from the other normal laws. There is a separate procedure provided giving adequate safeguards keeping in view the criminal jurisprudence of our country with the sole object to ensure that in no case, an innocent is convicted and the officers mis-use the powers. Nothing is available on record to discard the evidence of C.P.I. Sonar, who is a gazetted officer. The manner in which the appellant is intercepted and the facts that are revealed in the evidence of the Police witnesses that promptly the panchanama was made, the appellant was taken to the Police Station, crime was registered, the samples were sent to the Chemical Analyser, Aurangabad, we have no doubt that the investigation carried out by P.S.I. Baheti (P.W. 7), supervised by the C.P.I. Sonar (P.W. 1) has been conducted in a most honest and responsible manner.
18. The provisions of Sections 52 and 52-A then would require consideration. Reading these sections, it is more than clear that there is substantial compliance with the provisions of Section 52. The learned Judge has held that the appellant was fully conscious of what he was possessing which was an offence and to expect P.S.I. Baheti (P.W. 7) to inform him of the grounds of arrest, would be an empty formality. The appellant was not arrested under a warrant. It must be noted that in fact the learned counsel candidly stated that he wished to make no submissions with regard to Section 52-A of the Act.
19. Provisions of Section 55 of the Act require an officer-in-charge of the Police Station to take charge of and keep in safe custody all articles seized. The evidence on record shows that P.S.I. Baheti (P.W. 7) kept the articles at the Police Station and he was the senior officer of the Police Station. The articles were lebelled and sealed. The evidence further shows that the articles were sent under letter (Exh. 21) to the Chemical Analyser, Aurangabad. With regard to the compliance of the provisions of Section 57, it is clear that the entire raid was conducted under the supervision of the superior officer - C.P.I. Sonar (P.W. 1). On facts, we agree with the learned Judge that there was no violation of the provisions of Sections 55 and 57 of the Act. On the contrary, there was substantial compliance with the said provisions.
20. Once we reach the above conclusions that there was no violation of the provisions of the Act that are complained of, it would be really unnecessary to consider as to whether the provisions are mandatory or directory. It is already enunciated above that ultimately the Court has to get satisfaction from the material on record, which is available from the factual situation presented before the Court. We have already spelt out the facts of the case and our conclusion that we wholly accept the evidence of the Police witnesses on its intrinsic merit. A strong submission is made by Shri R. K. Jain, the learned counsel for the appellant that these provisions are mandatory and not directory and there is no question of substantial compliance if the provisions are mandatory and as a consequence the case has to end in acquittal of the appellant. In support, the learned counsel placed reliance on the two decisions of this Court, Rajkumar v. State of Maharashtra; 1991 Cri LJ 232, Usman Shaikh v. State of Maharashtra. We have carefully considered the said decisions. In Rajkumar's case, information was relating to storage of drugs in room No. 6, building No. 40, Kamathipura lane, Bombay. This Court, on facts observed that there is non-compliance of Section 50 of the Act. This is obvious from the observation, "In the present case, we are inclined to believe and accept the submission of Mr. Ponda to the extent that in not following the procedure laid down in Section 50 of the NDPS Act, grave prejudice was caused to the appellants in the facts and circumstances of this peculiar case."
There is yet another aspect which would distinguish the present case before us on facts. In Rajkumar's case the accused desired and requested Sub-Inspector Patil that they should be searched in the presence of a gazetted officer or a Magistrate, the request which was not accepted on a spacious ground that Sub-Inspector did not have enough time. There was no gazetted officer present, neither there was any request.
21. In Usman Shaikh's case, the question as to whether the provisions are directory or mandatory is not taken up for consideration. What has been observed that the Police witnesses cannot be relied upon implicitly to base the conviction when the evidence of panch is rejected. There is no question of implicit reliance on the evidence of the Police witnesses in the case before us. There is no question of rejecting the evidence of the panch witness because he has been declared hostile by the prosecution and the conclusion reached by the learned Judge is that they have been won over by the accused, a conclusion with which we agree.
22. Shri R. K. Jain, the learned counsel also placed reliance on the judgment of the Rajasthan High Court, Criminal Appeal No. 227/1988 with Appeal No. 253/1988 decided on October 7, 1988, and reported in 1989 EFR, 410, a xerox copy of which was subsequently furnished to us, to rely upon the observations that as the Act provides very severe punishment and the minimum punishment awarded for this offence is 10 years and fine of Rs. 1,00,000/-, the statute has deliberately made such provisions and has given some safeguards to the accused persons so that they may not be harassed unnecessarily. These are valuable rights in built in the provisions of the Act. We have carefully gone through the entire judgment. The evidence of the witnesses is not accepted by the Court and it is observed, on the contrary, that there are material contradictions in the statement of witnesses. We find no discussion leading to the conclusion that the provisions are mandatory. It is not possible to agree with the view.
23. To the contrary, the learned Judge has relied upon the Division Bench judgment of this Court at Nagpur (supra) to observe that the Bench on a careful consideration, held that the provisions are directory and their violation do not essentially in every case lead to the acquittal of the accused. Copy of the said judgment was not available to us. We now have the benefit of the said judgment. In the said judgment, the question as to whether the provisions are mandatory or directory is taken up for consideration thread-bare. It is observed that the question depends on the intention of the legislature and not upon the language in which the intent is clothed. It is to be ascertained not only from the phraseology, but by considering its nature, its design and the consequences which would follow from construing it one way or the other. The Court has also considered as to whether the object of the Act would be defeated totally and would leave out many factual situations in regard to which it is the Court and the Court alone has to consider on merits. If by holding the provisions as mandatory, serious general inconvenience would follow, the said provisions will have to be construed as directory. There are situations in which the word "shall" is required to be read as the word "may". Referring to the decision of the Supreme Court, K. L. Subhayya v. State of Karnataka, the Bench referred to the three decisions of the Supreme Court (supra) to the effect that a defect or illegality in investigation, however, serious has no direct bearing on the competence or the procedure relating to the cognizance or trial. Because of the illegality of the search, what is required is that the Court has to examine other evidence carefully regarding the seizure. In fact, the seizure does not get vitiated. The Bench also observed in the context that requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on more technicalities in respect of the matters which are not of vital or important significance in a criminal trial on many occasions frustrate the ends of justice. It is also observed that when the intention of the legislature is to make the provisions mandatory, there is indication in the statute itself introducing serious infirmity and in its absence in the statute, the breach thereof does not necessarily vitiate the trial unless miscarriage of justice is shown. It is held that these provisions - Sections 42, 50, 52, 55 and 57 cannot be said to be mandatory in any manner.
24. By the law of judicial precedent, with regard to the ratio of a judgment, the Courts of coordinate jurisdiction bind each other, the judgment of the Nagpur Bench considers all aspects with regard to the question as to whether these provisions are mandatory. After careful and conscientious consideration of the judgment, we see no reason to deviate therefrom. We accept it and we endorse the ratio therein that these provisions are not mandatory.
25. The result of the above conclusion is that we wholly accept the evidence of the Police witnesses and do not place implicit reliance thereon. We hold that provisions of Sections 41 and 42 are not applicable to the factual situation presented before us. We further hold that the seizure of the contraband was in the process of an accidental detection of crime. All formalities provided by the Act are complied with substantially. We hold that the factual situation presents no deviation from the safeguards provided by the Act. Not sending a copy to the Court is also explained on record to the effect that P.S.I. Baheti (P.W. 7) directed Head Constable Magre to send a copy and Head Constable Magre gave the said copy to Constable Bhayade who did not send it in time. However, there is endorsement of the Court of having received the copy on October 30, 1990. There is substantial compliance.
26. After having held that the prosecution has established its case, in our judgment, there is yet an additional link. The defence of the accused-appellant is that on October 27, 1990, at about 11 to 11-30 p.m., he was going in a taxi from Jalna to Aurangabad and at a place near Nagewadi, P.S.I. Baheti made him to alight from the taxi and arrested him. He further states that one S. P. Sharma does illegal business and asks others to carry articles. It is alleged that P.S.I. Baheti is a friend of Sharma and since the appellant did not obey S. P. Sharma, P.S.I. Baheti as a friend, involved him in the matter. On the next day, his motorcycle was brought from his house at Aurangabad. He has no concern with the contraband. It is on record in the cross-examination of the witnesses that the appellant is an external student for the degree course in engineering. There is nothing on record, also in the statement of the accused appellant u/s. 313 of the Cr.P.C. 1973, as to why he was at Jalna and that too at about 11 to 11-30 p.m. at night in a taxi. His case is that he is a student for a degree course in engineering at Aurangabad. He had no business to be at Jalna on the day in question and that too at mid-night in a taxi. The evidence of the search and seizure is fully acceptable and in the context, the defence of the accused will have to be termed as false or at least wholly unacceptable.
27. For the above reasons, appeal stands dismissed. The order of conviction, firstly under section 20(b) of the NDPS Act, 1985, and secondly under section 66(1)(b) of the Bombay Prohibition Act, stands confirmed.
28. Under the NDPS Act, 1985, sentence of rigorous imprisonment for 10 years and fine of Rs. 1,00,000/-, in default rigorous imprisonment for 5 years, is imposed. This is the minimum sentence. Nothing can be considered on the question of the sentence on this count. On the second count, under the Bombay Prohibition Act also, sentence of rigorous imprisonment for 3 months and fine of Rs. 1,000/- in default, rigorous imprisonment for one month is the minimum sentence. There is no reason to consider the appeal on the point of sentence. Consequently, the impugned judgment dated July 25, 1991, of the learned Second Additional Sessions Judge, Jalna, in Sessions Case No. 19/1991, stands wholly confirmed. The appellant is already in jail, no other order is necessary.
29. Appeal dismissed.