Indian Kanoon - Search engine for Indian Law

1.1 For the sake of convenience, Mohammed Yusuf Saifulla Shaikh, who was original accused No. 1 in Sessions Case No. 26 of 1998, is referred to as "A1" Likewise, Abdul Rashid Saifulla Shaikh, who was original accused No. 2, is referred to as "A2" and Akram Ramzan Dhuldhoya, respondent in Criminal Appeal No. 1295 and original accused No. 3, is referred to as "A3" in this judgment.

2. The prosecution case, in brief, is that police received an information that two Kashmiri persons sporting beard, having in their possession bags containing certain quantity of Charas, are going to arrive near Shaking Minarets located near Sarangpur AMTS Bus Stand in Ahmedabad, and are going to be received by one Gulubhai Sofawala of Pathar'ni Chawl, Kalol or by his man-Akram and, thereafter, they are to go towards Kalol. This information was received by P.S.I.-C.N. Rajput which, in turn, was passed over to P.I.-Barot, who made an entry in the Station Diary of DCB Police Station, Ahmedabad and, thereafter, arranged for a watch to be kept at the place after calling Panch witnesses. After calling the Panch witnesses and explaining to them the details, a team went to the place and organized a watch. They noticed two persons coming from Kalupur Bus Stand side and standing at Sarangpur AMTS Bus Station. They were carrying bags as per the description received in the information. After the duo waited for some time, a third person arrived at the Bus Station and there was some discussion inter se. At that point of time, the watch party raided on them and inquired about their identity and other aspects after disclosing their own identity. It is further the case of the prosecution that option of being searched in presence of a Magistrate or any other Gazetted Officer was given to the three persons detained, to which they said no. Thereafter, their bags were searched and were found to carry contraband-Charas weighing about 39.825 kgs. For weighing the contraband, a witness was called so also an officer from Forensic Science Laboratory (FSL) was summoned at the spot for obtaining a primary opinion about the nature of material seized. It was opined that the material seized was Charas. Thereafter, sampling was done. The seized material as well as samples was sealed and then, at a later point of time, sent to FSL for examination. The investigating agency, having found sufficient material against the accused persons, filed charge sheet against them in the Special Court, Ahmedabad and Sessions Cases No. 26 of 1998 and 360 of 1998 came to be registered. Charge in Sessions Case No. 26 of 1998 was framed under Sections 8, 20, 21, 23 and 29 of the NDPS Act against A1, A2 and A3, to which they pleaded not guilty and claimed to be tried.

7. Now, coming to the case of the prosecution, the prosecution has examined Police Inspectored-Tarunkumar Amrutlal Barot at Exhibit 29. He speaks of having been informed by P.S.I.-Rajput around 10.15 hours on 23.10.1998 that two persons named Rashid and Yusuf from Kashmir are to come with two Army uniform colour cloth covered bags containing Charas at Sarangpur AMTS Bus Station and for receiving them, either Akram from Kalol or his employer-Gulu Sofawala is to come. He, therefore, informed his superior officer in writing. He says that Raput had given this information to him in writing. Thereafter, he called two Panch witness through Head Constable-Gopalsinh. He says that he made entry in the Station Diary and then left for the watch/raid. After explaining the procedure to the Panch witnesses, they started from Gaekwad Haveli Police Station at about 12.30 P.M., after drawing a Panchnama and verifying that there was not contraband with any of the raiding party members. At Sarangpur Police Chowky, they parked their police vehicle and then went towards the Bus Stand and organized a watch. They were all dressed in plain clothes. Around 2.15 P.M., they noticed two persons coming from Kalupur Railway Station side, whose bags were hanging from their shoulders. The came to the Bust Stop of Bus Route No. 37/117 and stood their waiting. After some time, one person came to them and started talking. They were persons of the description given in the information and, therefore, the raiding party went near them and introduced themselves. He then goes to say that option was given under Section 50 of the NDPS Act, to which they denied and, on being asked in Hindi, they gave their names to be Mohammed Yusuf, Rashid and Akram. The witness says that Yusuf was asked to open his bag, which he did with the help of key from his pocket. There were four packets wrapped up in newspaper and were bound with jute thread. Those packets were opened and it was found that there were plastic packets inside and when the packets were opened, they were found to contain brown coloured oblong pieces. Thereafter, bag of Rashid was got opened, which he opened with his keys. There again, three packets wrapped up in newspaper and bound with jute thread were found and, on opening, they were found to carry plastic packets containing brown coloured oblong material. He says that FSL Officer was summoned for spot inspection through Head Constable-Dilubha and a person was summoned for weighing the material seized through Police Constable-Ghanshyamlal Gadhavi. Later on, from the pocket of trouser worn by Yusuf, a wallet was found containing a card certifying that he is an Ex-Army man. An amount of Rs. 1400/- was also found. The witness identified Yusuf as A1.

8.1 An interesting point raised by learned Advocate, Mr. Saiyed, is that the entry made in the Station Diary (Exhibit 32) contains a description of the suspects to be persons sporting beard, whereas it is found that neither A1 nor A2 spotted a beard when they were intercepted, searched and arrested and there is no dispute on this aspect so far as the prosecution is concerned. Mr. Saiyed, therefore, submitted that, why these two persons were raided is not coming on record. The answer has come in deposition of P.I.-Barot as well as Panch witness. The information was detailed. The persons were to come near AMTS Bus Stand, Sarangpur, near Shaking Minarets, carrying two bags with covers made of Army uniform coloured cloth and that they were to be received by either Gulubhai Sofawala or one Akram from Kalol and that the were to go towards Kalol. It has come in evidence that these persons came from Railway Station side towards AMTS Bus Stand, at Sarangpur and stopped there. Considering the topography, if one goes towards AMTS Bus Stand, Sarangpur, from Kalupur Railway Station, one has to pass by the Shaking Minarets. Therefore, directionwise it is the same. That apart, the witnesses have said that they noticed persons with the same description as was given. The description need not necessarily be cent percent correct. Except beard, the persons were Kashmiries and were carrying bags as per the description. The raiding party still waited for some time even after the arrival of these two persons and the raid was conducted only after the third person arrived, as per the information and, thereafter, on searching the bags, contraband was found. As such, there seems no flaw in the prosecution case so far as information, raid, search and seizure are concerned. Obviously, the nexus between A1 and A2 both of whom were found to be actually carrying bags containing contraband-Charas has been duly established by the prosecution beyond any doubt and the Trial Court was, therefore, justified in recording conviction.

12. As a consequence of foregoing discussion, Criminal Appeal No. 1159 of 1999 stands partly allowed. The conviction of A1 and A2 under Section 8 read with Section 21 of the NDPS Act is hereby confirmed. A1 and A2 each shall pay a fine of Rs. 2 lakh, in default, they shall undergo further imprisonment for a period of 18 months.

13. So far as Criminal Appeal No. 1295 of 1999 against acquittal of A3 is concerned, from the foregoing discussion, it is clear that there is no evidence to show that there was any nexus between A1 and A2 on the one hand and A3 on the other hand. A3 has just reached the Bus Stand and was talking to A1 and A2 when the raid was committed. What transpired amongst them is not brought on record. The contraband was still with A1 and A2 when the raid was committed. It has not changed the hands and, therefore, nexus has rightly been not believed by the Trial Court so far as A3 is concerned. We do not see any glaring mistake having been committed by the Trial Court in recording acquittal and there are no compelling reasons to come to a conclusion that the Trial Court was wrong in recording acquittal. The grounds stated in the acquittal appeal do not appeal to us and the appeal, therefore, must fail and stands dismissed.