Mohd. Taj s/o. Mohd. Yakub v. State of Maharashtra
2007-10-11
C.L.PANGARKAR
body2007
DigiLaw.ai
JUDGMENT:- By this appeal, the appellant challenges his conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances (N.D.P.S.) Act. He has been sentenced to undergo imprisonment for a period of five years and fine of Rs.10,000/ -. The appellant shall hereinafter be referred to as an accused. 2. On 18-8-2004, P.S.I. Pathan received an information that one person who deals in Ganja was coming by Guard Line Road and he is from Andhra Pradesh. He took down the said information which was received by him. He also took entry in the station diary. He informed his superior Officer. The Superior officer permitted him to carry out the raid. P.S.I. Pathan then directed head constable Rajesh to call two panchas. He took entry in that regard in the station diary. Head constable brought two panchas. Information was disclosed to them and they gave their consent to act as panchas. He once again took entry in the station diary and left for the spot. He carried with him the weights and measures and the balance and other articles required for sealing the samples etc. The police party and the panchas went to the Railway Guard Line Road and were in the wait for the accused to come. One person came by the road matching the description given by the informant. He was carrying a yellow coloured plastic bag. He was accosted. On enquiry, he told his name as Mohd. Yakub, resident of Warangal. The Police Officer disclosed him the reason for taking search of himself and the bag carried by him. He was also told that he can have a search taken before the magistrate or Gazetted Officer and a written information was given to the accused. The accused told that he did not want either Magistrate or the Gazetted Officer. As a result, the Police took search of his person after giving their own search. The plastic bag which was with the accused was opened. It was found that it contained Ganja. The weight of ganja was 3 kgs. 400 gms. Four samples of 25 gms. each were taken from the Ganja. They were separately sealed. Similarly, the bag with the remaining ganja was also sealed. The panchanama was drawn. The accused and the property were brought to the Police Station. It was sent for Chemical Analyser. It was found, upon analysis, that the sample contained ganja.
400 gms. Four samples of 25 gms. each were taken from the Ganja. They were separately sealed. Similarly, the bag with the remaining ganja was also sealed. The panchanama was drawn. The accused and the property were brought to the Police Station. It was sent for Chemical Analyser. It was found, upon analysis, that the sample contained ganja. Thereafter a charge-sheet was filed against the accused. 3. The Sessions Judge framed a charge against the accused. The accused pleaded not guilty and claimed to be tried. The sessions Judge, upon consideration of the evidence, held the accused guilty and sentenced him to imprisonment as stated earlier. Being aggrieved by that order of sentence, this appeal has been preferred. 4. I have heard learned counsel for the accused and the learned Additional Public Prosecutor for the State. 5. Shri. Deshpande, learned counsel for the accused, assailed the conviction of accused on two grounds. Firstly, that the provisions of Section 50 of the N.D.P.S. Act were not adhered to and secondly the property was not produced before the court and there was a breach of Section 52-A of N.D.P.S. Act. Since no other point was urged, I need not consider rest of the things. 6. It may be mentioned even otherwise that as far as seizure of the ganja is concerned, not only the Inspector i.e. P.W.6 Afiz Khan Pathan has stated about the same but even an independent panch witness namely P.W.2 Dhiraj has fully supported the case of the prosecution. P.W.2 Dhiraj - the panch positively identifies the accused. He states of accused having been found in possession of the ganja and the sample having been taken in his presence and panchanama having been drawn in his presence. His cross-examination does not show that he is not a reliable witness. In view of the evidence of P.W.6 P.S.I. Pathan and D.W.2 Dhiraj, it has to be held that the prosecution has positively proved the seizure of the ganja in possession of the accused. The prosecution has also examined the Chemical Analyser P.W.1 Shivangi. She has stated that she had received sealed samples for analysis and she had examined those samples and had carried out three Tests namely; Blue Salt B Test, Negm's Test and TLC Test. She states that all these tests are positive for ganja and then she issued a report (Exh.9).
The prosecution has also examined the Chemical Analyser P.W.1 Shivangi. She has stated that she had received sealed samples for analysis and she had examined those samples and had carried out three Tests namely; Blue Salt B Test, Negm's Test and TLC Test. She states that all these tests are positive for ganja and then she issued a report (Exh.9). There is nothing in the cross-examination of this witness also to hold that the analysis that was carried out by her was in any way defective. 7. This takes me to consider the submissions of Mr. Deshpande, the learned counsel. It may be stated here that the prosecution is required to comply with the provisions of Section 50 of the N.D.P.S. Act only when a personal search is required to be taken. In the instant case, the ganja was found packed in a plastic bag which was with the accused. Since the search of the bag was taken, there was no question of compliance of Section 50 at all. On this point, the Supreme Court has held in A.I.R. 2000 S.C. 402 (Kalema Tumba Vs. State of Maharashtra) and A.I.R. 2001 S.C. 1002 (Gurbax Singh Vs. State of Haryana) that where a search of any bag in possession of the accused is required to be taken, there is no need to comply with the provisions of Section 50 of the N.D.P.S. Act. As said earlier, in the instant case, the search of the bag was taken and the ganja was found in the bag and therefore there was no question of compliance of Section 50 of the Act. 8. As far as compliance of Section 52-A of the Act is concerned, it may be mentioned here that the evidence of P.W.6 P.S.I. Mr. Path an shows that he had identified the sample packets in the court as well as had actually produced the entire property that was seized from the possession of the accused in the com1. It was duly sealed. In view of the fact that the sample as well as the entire property that was seized from the possession of the accused was produced before the court, it has to be said that there was due compliance of Section 52-A of the N.D.P.S Act. In view of this, there is no substance in the appeal. Hence, the appeal is dismissed.
In view of this, there is no substance in the appeal. Hence, the appeal is dismissed. Lawyer's fee is quantified at Rs.3,000/- which would be payable by High Court Legal Aid Services, Sub-Committee, Nagpur. The order be communicated to the High Court Legal Aid Services, Sub-Committee. Nagpur. Appeal dismissed.