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2012 DIGILAW 1868 (BOM)

Nafisa Mohd. Hussain Syed v. State of Maharashtra

2012-10-01

R.C.CHAVAN

body2012
JUDGMENT :- This appeal is directed against the conviction of the appellants, by the learned Special Judge for trial of cases under N.D.P.S. Act at Mumbai, for offence punishable under Sections 21 read with Section 29 of the N.D.P.S. Act and sentence of rigorous imprisonment for 10 years with fine of Rs. 1,00,000/- or in default further rigorous imprisonment for 1 year, imposed upon the appellants, on conclusion of trial of Special Case No.1043 of 1989. 2. During the pendency of the appeal, appellant No.2 expired on 5th January, 2003 and therefore, the appeal by him has been abated. 3. On 29th March, 1989, Officers of the Excise Department claimed to have received specific information about transaction in gard heroin, going on in the hut of the appellants. The panchas were called and raid was immediately arranged. At the raid, apart from 12 grams of gard in a pocket, 10 liters of illicit liquor was also found. Necessary samples were drawn and the property was seized and sealed. Offence was registered. The samples were sent to the Forensic Science Laboratory. On receipt of report from the Laboratory, complaint was filed before the learned Special Judge for trial of cases under N.D.P.S. Act, by the Inspector of Excise. The learned Judge, to whom the case was assigned, charged the appellants of offence punishable under Section 21 read with section 8(c) and Section 29 of the N.D.P. S. Act and section 66(1) (b) read with section 81 of the Bombay Prohibition Act. 4. After considering the evidence of three witnesses examined at the trial in the light of defence of denial raised, the learned Judge seem to have stated nothing about the offence under Sections 66(1)(b) read with Section 81 of the Bombay Prohibition Act, but convicted and sentenced the appellants of offence under Section 21 of the N.D.P.S. Act as indicated above. Being aggrieved thereby the appellants are before this Court. 5. I have heard learned counsel for the appellant No.1 and learned Additional Public Prosecutor for the State. With the help of both I have gone through the evidence on record. 6. P.W.1 Ramrao Shejole Sub Inspector State Excise claimed that on 29th March, 1989, he received information which led to the trap in this case. Curiously P.W. 3 Inspector Ayub Ismail Sahib, who was working in the same department claimed that he had received information. With the help of both I have gone through the evidence on record. 6. P.W.1 Ramrao Shejole Sub Inspector State Excise claimed that on 29th March, 1989, he received information which led to the trap in this case. Curiously P.W. 3 Inspector Ayub Ismail Sahib, who was working in the same department claimed that he had received information. Thus both of them seem to have received the information, but none bothered at any point of time to transmit the same information to any official superior, before proceeding to conduct the raid. P. W.1 Ramdas Shejole unabashedly stated that after going to the place he did not feel it necessary to offer to the occupants of the hut their personal search or no efforts made to tell them that their search could be taken in presence of a Magistrate. The learned APP states that since there was no personal search to be taken, there was need to call the Magistrate. All the same, it was necessary for the Officers to offer to appellants their personal search. Thus, without offering personal search by the raiding party, a raid was conducted. Mercifully P. W. 3 who also claimed to have received the information stated in his deposition that he was not present at the time of raid and had left after dropping the raiding party at Andheri Railway Station. Thus, we have evidence of P.W. 1 Ramdas Shejole the Excise Sub-Inspector and P.W. 2 panch Hemant Surve, who stated about the raid. Considering the manner in which raid was conducted giving a go-bye to elementary requirement of such raid by not even offering their personal search before hut was searched, the learned trial Judge could not have held the appellants guilty of possession of heroin. The conviction of the appellant No.1 is, therefore, is unsustainable. 7. The appeal is, therefore, allowed. The conviction of the appellant No.1 for offence punishable under Section 21 read with Section 29 of the N.D.P.S. Act and sentence of rigorous imprisonment for 10 years with fine of Rs. 1,00,000/- or in default further rigorous imprisonment for 1 year, imposed upon the appellant No.1 is set aside. The appellant No.1 is acquitted of the said charge. Appeal allowed.