Bombay High Court
Mohammed Akil Abdul Sattar Shaikh vs The State Of Maharashtra on 18 August, 1994
Equivalent citations: 1994(4)BOMCR583, 1995 A I H C 4871, (1994) 4 BOM CR 583
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT M.S. Rane, J.
1. The appellant in this appeal has challenged the order and Judgment dated 9th August, 1990 passed by the Additional Sessions Judge, Greater Bombay, holding the appellant guilty for the offences punishable under section 8(c) read with section 21 of Narcotic Drugs & Psychotropic Substances Act and awarded sentence of ten years R.I. plus fine of Rs. 1,00,000/- and in default further R.I. for one year.
2. Few relevant facts in the background of the prosecution case are stated as under :
On 6th November, 1986 in the morning at about 2.00 a.m. the police party under Police Inspector Mr. Khan attached to Nagpada Police Station was on patrolling duty. He was accompanied by Head Constable B. No. 12909, Police Naik B.No. 14801 and Ravindra Vishwanath Jadhav Police Constable B. No. 16472 - P.W. No. 3 herein. While so patrolling the said police party came near Mastana tank area at Dimtikar Road Near J.J. Group of Hospital in Central Bombay at about 2.oo a.m. when they noticed one motor taxi bearing No. MRK-1791 parked near that place and 3 persons were sitting inside. The police party found that conduct of the said 3 persons suspicious because when the police party approached near the taxi, the taxi inmates who were three in number tried to hide themselves. They were smoking. When the Head Constable and Constable Jadhav accosted them, the taxi inmates threw away cigarette ends and extinguished the burning cigarette ends by rubbing by the sole of their chappals.
3. The Police Inspector Khan then summoned two panchas which included one Shri Krishna Rama Nayar P.W. No. 2 and took personal searches of the said three persons. They were also asked their names. On searching in presence of the panchas out of the three, two persons were found possessing nothing incriminating substance or article. However, from the personal search of one of the three, a match box of Ship brand was found in his pant pocket and upon open of the same was found containing 'charas'. In presence of panchas the same was taken charge of and it weighed 10 gms. P.I. Khan before that had sent one constable for fetching the necessary material such as stamp pad, etc., from the nearby Police Station and it was brought within 5 to 6 minutes. In presence of panchas, the said material was taken charge of after taking out the small quantity thereof for being sent to the Chemical Analyser for examination. The material taken charge of including the sample were duly sealed in presence of panchas and labelled under the signatures of the panchas. It may be stated that the panch witness Krishna Rama Nair P.W. No. 2 has confirmed the said search and drawing of the panchanama which has been produced as Exh. No. 14. The person from whom the said article was recovered has been identified as the appellant who was accused No. 1 before the Sessions Court.
4. As the appellant and two other persons were sitting in motor-taxi when the police party apprehended them as stated above the taxi bearing No. MRK-1791 was also taken charge of.
5. Police Inspector Khan thereafter alongwith other members of the patrolling party and the appellant and other two co-accused with seized articles returned to Nagpada Police Station.
6. Then Ravindra V. Jadhav P.W. No. 1 lodged the F.I.R. which has been produced as Exh. No. 10 on record.
7. Threafter the sample article was sent to the Chemical Analyser and report of the C.A. being dated 24th November, 1986 has been tendered before the Sessions Court being Exh. No. 16 which shows that the material seized was 'charas'.
8. In due course on completing of the investigation, charge-sheet was submitted against the appellant and other two co-accused namely Shaikh Abdul Kadar Mohammed and Adam Abdul Kadar who were respectively accused Nos 2 and 3 before the Sessions Court in Sessions Case No. 275 of 1987. The record shows that said accused Nos. 2 and 3 pleaded guilty before the learned Sessions Judge and they were convicted and sentenced for a period of one year. The appellant herein pleaded not guilty to the charge and therefore trial proceeded against them before the learned Additional Sessions Judge.
9. The prosecution in support of its case against the present appellant examined three witnesses namely Ravindra Vishwanath Jadhav-Police Constable-P.W. No. 1 who was one of the members of the raiding party present when the appellant and other two co-accused were apprehended and the contraband material i.e. charas was seized after personal search of the present appellant and who lodged the F.I.R. at the concerned Police Station produced as Exh.No. 10. Krishna Rama Nair P.W. 2 one of the panchas to the search panchanama produced as Exh. No. 14 in whose presence in personal search of the appellant the charas weighing 10 gms was recovered and Charudatt Vithal Zandekar - P.W. No. 3 also a Constable who was also a member of the raiding party with Police Constable Jadhav P.W. No. 1 and who had also witnessed the apprehension of the appellant and other two co-accused and recovery and seizure of charas from the person of the appellant.
10. It is noticed from the tenor of the cross-examination of the above witnesses on behalf of the appellant that his defence was of a total denial. He pleaded non guilty. He abjured his guilt and claimed to be innocent having falsely implicated.
11. However, the learned Additional Sessions Judge accepted the case of the prosecution and proceeded to hold that offence under section 8(o) read with section 21 of the Narcotic Drugs and Psychotropic Substances Act was brought home and duly proved and proceeded to sentence the appellant as mentioned earlier which sentence is sought to be challenged in this appeal.
12. Mr. Rao the learned Counsel for the appellant submitted that evidence on record is not sufficient to prove the guilt of the accused. He submits that there were 3 accused in the matter and there is an evidence that the appellant herein was a taxi driver and he has been wrongly roped in this case.
13. However on careful examination and scrutiny of the evidence adduced by the prosecution before the learned Sessions Judge, wo do not find any merit and substance in the aforesaid contention made on behalf of the appellant by the learned Counsel.
14. Panch witness Krishna Rama Nair P.W. No. 2 is an independent witness and his evidence shows that the present appellant and other two co-accused were found sitting in the taxi at the date and time in question. The said witness has also deposed about the personal search of the appellant conducted and recovery of 10 gms of charas which was concealed in a match box and found in the pant pocket of the appellant. The said witness has also proved the panchanama in respect of the search recovery of the said Narcotic Drug namely 'charas' produced as Exh. No. 14. It is necessary to note that in the cross-examination of the said witness nothing has been brought out to appear the testimony of the said witness suspicious or incredible. By reading the testimony of the said witness, we notice that the said witness has deposed the facts in a very straight forward manner and there is nothing on record brought about which would affect his testimony. In short his testimony has remained absolutely unimpeached which clearly proves the recovery of 10 gms of charas from the person of the present appellant.
15. The testimony of the panch P.W. No. 2 has been adequately and sufficiently corroborated by the other two witnesses namely Ravindra Vishwanath Jadhav, Police Constable, P.W. No. 1 who had lodged the F.I.R., so also Charudutta Vithal Zandekar, P.W. No. 3, a Constable, who were present when the present appellant alongwith two other co-accused were apprehended and 'charas' weighing 10 gms was recovered from the appellant. Both the witnesses have been consistent in their versions before the Court and their evidence also is in confirmity and in consonance with the evidence of panch witness P.W. No. 2.
16. The further piece of evidence is the report of Chemical Analyser produced as Exh. No. 16 which clearly shows that the sample article sent to him by the Nagpada Police Station was charas which is prohibited under the provisions of the said Act. The evidence in this regard has remained absolutely unimpeached.
17. No other point or points have been urged by and on behalf of the appellant in this case. Since we have held as discussed above that the evidence on record amply and clearly established the guilt of the accused, we do not find any merits to interfere with the order and judgment of the learned trial Judge in this appeal. It is noticed that the learned Sessions Judge has taken into account the evidence laid before him and discussed hereinabove and held the appellant guilty for the offences for which he was charged.
18. The appeal stands dismissed and sentences awarded by the learned Sessions Judge convicting the accused-appellant vide his impugned Judgement stands confirmed. Office to intimate this order to the appellant through the concerned Jail Authorities.
Appeal dismissed.