Shiva Dhanesh Yadav vs The State Of Maharashtra
2003 Latest Caselaw 221 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by the Special Judge fore Mumbai in NDPS Special Case No. 316 of 1997 wherein the appellant has been convicted for the offences punishable under the provisions of Section 21 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short referred to as NDPS Act). The appellant has been sentenced to undergo RI for 10 years and to pay fine of Rs. 1 lac, in default to undergo further SI for four months.

2. The prosecution case, in brief, is that on 28.3.1997 at 6.00 p.m. Natu was present in Andheri area and at that time he received the information for his informant that the appellant was to come near Natraj Studio for giving narcotic drug to some other persons. He went to Andheri Police Station and gave that information to PI Chavan Incharge of that police station who asked API Sawant to write it in information register. Accordingly, the said information was written in information register. The copy of the said information was sent to their superiors and thereafter panch witnesses were called, and all of them proceeded to Natraj Studio area for effecting the raid. The appellant came there, he was apprehended. When he was informed about his right as indicated by Section 50 of the NDPS Act and was asked whether he wished to be searched before a magistrate or a gazetted officer. He declined the said offer and preferred to be searched by the members of the raiding party. The search was taken. Heroin was found in polythene bag which was weighed and it weighed 500 gms. Sample packets were prepared for chemical examination and the said powder was seized under a panchanama in presence of the panch witnesses which was signed by the panch witnesses. The said sample packets were deposited in Andheri Police Station and, thereafter, constable Gaikwad took it to chemical analyser. The FSL chemical analyzer reported that it was heroin (Diacetyl morphine), the narcotic and psychotropic substance. The investigation resulted in trial which ended in an order of conviction and sentence which has been assailed by this appeal.

3. Mrs. Pranali Kakade, appearing for the appellant, submitted that the information has not been recorded by PW-1 Natu when it was received by him and, therefore, provisions of Section 42 of the NDPS Act have not been complied with. Shri Saste, Additional Public Prosecutor, pointed out that there is no substance in the submission advanced on behalf of the appellant because PW-1 Natu gave that information to PI Chavan who directed API Sawant to record it in information registered. He contended that the copies of the said information were dispatched to their superiors. This Court holds the submission advanced on behalf of the prosecution and dismisses the submissions advanced on behalf of the appellant. It is not necessary that the police officer who receives the said information in the public place or on the street should immediately record it there and there only. He can go and give that information to his superior and he may either himself reduce it in writing or direct somebody, his subordinate, to record it. What is important is that immediately it should be reduced into writing so as to give the authenticity to it and thereafter it should be dispatched to the superiors so as to assure the Court that the said information has been reduced into writing and thereafter has been verified by the superiors and thereafter the raid has been effected.

4. Mrs. Pranali Kakade thereafter submitted that there has been over writing in the entires in the station dairy in respect of the present raid. She read out the sentences to that effect from the judgment and from the cross-examination of PW-1 and PW-4. Counsel appearing for the defence and Mrs. Pranali Kakade have been misled by the over writing exhibited by Xerox copies which were supplied to the accused at the time of trial. This Court saw the original from the record and there is no over writing as indicted by the cross examination of those witnesses. Therefore, this submissions has to be also dismissed.

5. Mrs. Pranali Kakade thereafter submitted that there is no mention in the station diary in respect of taking of vehicle for the members of the raiding party to go to Natraj Studio area. True, it is so. But that does not make any dent in the prosecution case when prosecution case is strongly standing on its feet on other counts.

6. Mrs. Pranali Kadade further submitted that Rs. 15000/- were recovered from the person of the appellant, as per the prosecution case, but, there is no mention of it in the FIR. Shri Saste pointed out that FIR mentions it. Not only that but the panchanama also mentions it. The omission at one place in that context in the FIR does not wash out the prosecution case when it is free from infirmity, if assessed as a whole.

7. Mrs. Pranalai Kakade submitted that proper compliance has not been effected so far as the important right which has been granted to the accused in such cases in view of provisions of Section 50 of the NDPS Act, is concerned. Shri Saste submitted otherwise. This Court dismisses the submission advanced on behalf of the appellant and upholds the submission which has been advanced by the prosecution. In marathi "Nyaydandadhikari" connotes the meaning which has been indicated by "Magistrate". It does not cause any prejudice to the accused and in fact in this case it has not caused any prejudice to the appellant. The appellant declined the said offer and preferred to be searched by the members of the raiding party.

8. The search was taken, samples were sealed in presence of the panch witnesses. The sample was carried by PW Gaikwad to FSL for chemical examination. From FSL examination it was found that it was containing Diacetyl morphine - heroin. The samples were stored in proper custody. Therefrom the sample packet was taken to FSL. All necessary provisions of NDPS Act have been complied within in this case.

9. The learned trial Judge has appreciated the evidence in detail. He has quoted the sentences from the evidence of the prosecution witnesses and thereafter scanned it and has recorded his conclusions. They are borne out by the evidence on record. This Court does not find any error whatsoever in the way in which the trial Judge has appreciated the evidence on record and recorded his conclusions. Thus, this Court concludes that the order of conviction and sentence is correct, proper and legal and therefore the appeal deserves to be dismissed. It will have to be dismissed.

10. In the result, the appeal stands dismissed. The appellant has to undergo the sentence inflicted on him in appropriate proceedings. No interference in the order of disposal of the property.