Mariyam Yakub Malik vs Union Of India Thro Intelligence ...
2023 Latest Caselaw 6595 Guj

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     R/CR.A/2309/2019                            JUDGMENT DATED: 08/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL APPEAL NO. 2309 of 2019
                            With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                          1 of 2019
                              In
              R/CRIMINAL APPEAL NO. 2309 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          MARIYAM YAKUB MALIK
                                  Versus
                UNION OF INDIA THRO INTELLIGENCE OFFICER
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Appearance:
MR MAHESHB BARIYA(2234) for the Appellant(s) No. 1
MR SHITAL D CHITARIA(5017) for the Appellant(s) No. 1
MR KARTIK V PANDYA(2435) for the Opponent(s)/Respondent(s) No. 1
MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 08/09/2023

                            ORAL JUDGMENT

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1. The appellant has preferred this appeal under Section

374(2) of the Criminal Procedure Code, 1973 against the

judgment and order of conviction dated 24.07.2019 passed by

the learned Special Judge (N.D.P.S.), Court No.16, Ahmedabad

city (hereinafter be referred to as "the Trial Court") in Special

Case (NDPS) No. 12 of 2013, whereby present appellant (accused

no.2) has been convicted for the offence punishable under

Sections 8(c), 20(b)(ii)(c) r/w. Section 29 etc of the Narcotics

Drugs and Psychotropic Substances Act, 1985 (hereinafter be

referred to as "the Act") and directed her to undergo sentence of

rigorous imprisonment of ten years for the said offence with fine

of Rs.1,00,000/- and in default of payment of fine, to undergo

simple imprisonment for six months.

2. The case of the prosecution briefly is that on 06.07.2013 at

about 8.00 a.m., the officers of the Narcotic Control Bureau,

A.Z.U., Ahmedabad received a secret information and

consequently, the raid was carried out on 06.07.2013 and the

alleged contraband charas weighing 21.340 kilogram was found

from the joint possession of the present appellant and the co-

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accused. After following necessary procedure, the said

contraband article was seized and, thereafter, she was arrested

and panchnama was prepared regarding seizure of the

muddamal articles as well as body condition of the accused and

the same was sent to the FSL and after necessary investigation,

the concerned police authority has filed the charge-sheet before

the learned Judicial Magistrate, First class.

2.1 That as the case was exclusively triable by the Court of

Sessions, the learned Judicial Magistrate, First Class has

committed the same to the Court of Sessions wherein it was

registered as Special Case (NDPS) No.12 of 2013.

2.2 After verifying the documentary evidence, the learned

Special Judge has framed the charge against the accused and it

was explained to the accused, the accused has pleaded not

guilty and the evidence of the prosecution was recorded. After

recording of the evidence of the prosecution, a statement under

Section 313 of the Code of Criminal Procedure was recorded

wherein the accused has denied of having committed any such

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offence and has pleaded that she is innocent.

2.3 After considering the evidence on record and after hearing

both the sides, the Trial Court has ultimately convicted the

accused from the charges leveled against her.

2.4 Being aggrieved and dissatisfied with the said judgment

and order of conviction, the appellant has preferred this appeal

inter alia contending that the Trial Court has committed serious

error of law and fact. It is prayed by the appellant to quash and

set aside the impugned judgment and order.

3. Heard Mr.Mahesh Bariya, learned counsel for the appellant,

Mr.Kartik Pandya, learned counsel for respondent no.1 - Union of

India and Ms.Chetna Shah, learned Additional Public Prosecutor

for respondent no.2 - State of Gujarat.

4. Mr.Bariya, learned counsel for the appellant has submitted

the same facts which are narrated in the memo of appeal. He

has submitted that though the appellant has been released by

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the jail authority on completion of the period of conviction, the

appeal be decided on its own merits and the impugned judgment

and order of conviction be quashed and set aside on the

following three counts;

(1) The prosecution has failed to establish the fact that the

contraband article is opium or not, which was not

examined by the FSL and there is no report with regard to

the same.

(2) The prosecution has not followed the proper procedure

while intercepting the accused as the concerned police

authority received a secret information with regard to

travelling some passengers from Jaipur to Ahmedabad,

which information was not registered and even not

disclosed the name of the person who gave a secret

information and, therefore, the whole process of search

and seizure is against the settled principles of law.

(3) The contraband article was found from the possession of

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one Abdulalim Rashid Shaikh, who was travelling along

with the present appellant and no contraband article was

found from the possession of the present appellant and,

therefore, the conviction recorded by the Trial Court is

unjust and illegal.

4.1 Mr.Bariya, learned counsel for the appellant has submitted

that the impugned judgment and order of conviction deserves to

be quashed and set aside and the present appeal deserves to be

allowed.

5. Mr.Pandya, learned counsel for respondent no.1 has

strongly objected the present appeal and submitted that the Trial

Court, by relying upon the evidence led by the prosecution, has

convicted the appellant - accused and, therefore, no interference

is required to be called for in the impugned judgment and order

of conviction. He has submitted that the appellant was travelling

along with other co-accused from Jaipur to Ahmedabad and

ticket was issued in the name of one Alim Shaikh wherein the

names of the present appellant and other accused were

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mentioned and such fact is observed by the Trial Court in

paragraph no.46 of the impugned judgment and order. He has

submitted that the accused were carrying bags in which almost

21.340 kilogram opium was found and the said bag was in

conscious possession of the present appellant and, therefore, the

Trial Court has not committed any error of facts and law in

convicting the present appellant. He has submitted that the

contraband article sent from Jalandhar and from where, the

accused were carrying the article along with them. He has

submitted that the police personnel seized the tickets from the

accused and drew the panchnama, which came to be proved by

the prosecution beyond reasonable doubt. He has emphasized

the observation made in paragarph no.26 by the Trial Court with

regard to the deposition of P.W.5 at Exhibit 22 and submitted

that on the basis secret information, the Intelligence Officer has

intercepted the accused and seized the contraband articles from

the conscious possession of the accused. He has submitted that

the Trial Court has rightly dealt with the provisions of Section

42(1) and 42(2) of the Act and even the police authority has

complied with the statutory provisions and, therefore, there is no

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reason to interfere with the findings recorded by the Trial Court.

He has submitted that after considering the oral as well as

documentary evidence produced by the prosecution, the Trial

Court has rightly passed the impugned judgment and order of

conviction and sentence. He has submitted that the appeal being

meritless deserves to be dismissed.

6. I have perused the judgment and order of conviction

rendered by the Trial Court and carefully considered the rival

contentions, evidence and material placed on record. I have

perused the proceedings and record of the case minutely. It

appears that the appellant is found along with the contraband

article, which has been seized by the concerned police authority

after complying with the provisions of Section 42(1) and (2) of

the Act and after complying with the provision of Section 50 of

the Act, the concerned police authority has intercepted the

accused and searched and seizure of the contraband article has

been carried out. It also reveals that the Trial Court has rightly

dealt with the contentions raised on behalf of the appellant and

even the appellant has also raised defence, which has also been

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dealt with by the Trial Court. It is pertinent to note here that the

accused has already completed the conviction and sentence and

she is released by the jail authority on 02.01.2023 and,

therefore, the present appeal has become infructuous.

7. On perusal of the impugned judgment and order of the Trial

Court, it clearly transpires that the Trial Court has minutely

appreciated the evidence on record and has not committed any

error of facts and law in convicting the accused from the charges

levelled against her. This Court is in complete agreement with

the reasoning and ultimate, conclusion arrived at by the Trial

Court. The impugned judgment and order of the Trial Court

cannot be termed as perverse one. Therefore, this Court is of the

considered opinion that the impugned judgment and order of the

Trial Court does not warrant any interference by this Court.

8. In view of the above foregoing reasons, the present appeal

is devoid of merits and it deserves to be dismissed. Resultantly,

it is dismissed. The impugned judgment and order dated

24.07.2019 passed by the learned Special Judge (N.D.P.S.), Court

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No.16, Ahmedabad city in Special Case (NDPS) No. 12 of 2013 is

hereby confirmed. Record and proceedings be sent back to the

concerned Trial Court forthwith.

9. Learned counsel for the appellant has submitted that the

fine imposed by the Trial Court be reduced as the appellant is

poor and unmarried and since last ten years, she is behind the

bar. Considering the submissions made on behalf of the

appellant and considering the seriousness of the offence and

provisions of law, the amount of fine shall remain unaltered.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL