Banobi & Anr. Vs. State of Maharashtra & Ors.
EmailAppeal: Criminal Appeal No. 405 of 1997
(From the Judgment and Order dated 21.7.93 of the Bombay High Court in Crl. A. No. 164 of 1990)
(From the Judgment and Order dated 21.7.93 of the Bombay High Court in Crl. A. No. 164 of 1990)
Petitioner: Banobi & Anr.
Respondent: State of Maharashtra & Ors.
Apeal: Criminal Appeal No. 405 of 1997
(From the Judgment and Order dated 21.7.93 of the Bombay High Court in Crl. A. No. 164 of 1990)
(From the Judgment and Order dated 21.7.93 of the Bombay High Court in Crl. A. No. 164 of 1990)
Judges: G.T. NANAVATI & S.N. PHUKAN, JJ.
Date of Judgment: Sep 15, 1999
Appearances:
Mr. K.V. Venkataraman, Mr. K.V. Viswanathan, Advocates for the appellants.
Mr. S.S. Shinde, Mr. Gopal Balwant Sathey Advocates for the Respondents.
Head Note:
CRIMINAL LAWs
NDPS Act, 1985
Section 21 – Conviction – Evidence – Charas found in hollow space near hearth of house – Search followed by recovery of 13 packets of heroin – Search witnessed by 3 witnesses – Statements consistent. Held that conviction u/s 21 was proper.(Paras 4, 7)
NDPS Act, 1985
Section 21 – Conviction – Evidence – Charas found in hollow space near hearth of house – Search followed by recovery of 13 packets of heroin – Search witnessed by 3 witnesses – Statements consistent. Held that conviction u/s 21 was proper.(Paras 4, 7)
Section 50 – Non-compliance – Search – Accused not informed about her right to be searched in presence of magistrate or a gezetted officer. Held that conviction of accused for possession of heroin is liable to be set-aside(Para 5)
Section 21 – Conviction – Charas found in hollow space of hearth – Accused wife present – Husband not present at that time – Husband found, and admitted, to be residing in house Held that conviction of husband was proper as his possession of charas was inferable and that was reasonable view.
Held:
Appellant No. 2 was not present in the house when it was raided and the packet containing charas was found. Both the trial Court and High Court have found that the appellant no. 2 was residing in the house along with his wife and the facts and the circumstances of the case justified such an inference. Appellant No. 1 has admitted that he was staying in that house. If considering these cricumstances the courts below thought it fit to believe the evidence and infer that he was also in possession of the packet containing charas, if cannot be said that the view taken by the courts below is unreasonable.(Para 6)
JUDGEMENT:
Nanavati, J.
1. The appellants are challenging in this appeal, their conviction under Section 21 of The Narcotic Drugs and Psychotropic Substances Act, 1985. They have been convicted for keeping charas in their possession without any licence or permit. Appellant No. 1 has been convicted also under Section 21 for possessing heroin.
2. The prosecution case was that acting on information that Banobi – appellant No. 1 and her husband appellant No. 2 were keeping in their possession brown sugar and opium in their house and selling the same, P.I. Sheikh along with Lady Police Constable Pramila and two panch witnesses raided their house about 2. 45 p.m. on 28.11.88. From the house one packet of charas containing 13 grams and 700 ml. grams was found concealed in a hollow space near the hearth in that house. On search by Lady Police Constable Pramila, 13 small packets containing heroin were also found from the person of appellant No. 1. Though appellant No. 1 was not present at that time, it was alleged that he alongwith his wife was in possession of those substances. On these allegations both the appellants were tried for the offence stated above.
3. The trial Court believed the evidence of P.W. 4 – P.I. Sheikh, P.W. 1 – Mohasin, the panch witness, and P.W. 2 Lady Police Constable Pramila and held that prosecution has successfully established that appellant No. 1 was in possession of heroin as well as charas and that appellant No. 2 was in possession of charas and that they did not have any licence or permit to possess the same. The trial Court convicted them. The High Court has confirmed their conviction as it also agreed with the appreciation of evidence by the trial Court and the findings recorded by it.
4. It was contended by the learned counsel for the appellants that the evidence as regards possession of charas by the appellants is inconsistent and ought not to have been relied upon. He submitted that as noted by the trial Court and also by the High Court, panch witness Mohasin has not referred to the recovery of packet containing charas and P.W. 2 Pramila has admitted that on search nothing was found from the house. This contention is really based upon misreading of the evidence of the three witnesses. P.I. Sheikh has deposed about recovery of one packet containing charas from a hollow place near the hearth and Lady Police Constable Pramila has also stated that though during the first search nothing was recovered on further search they did find one packet containing charas from a hollow place near the hearth in that house. The panch witness Mohasin has also stated that 13 small packets were found from the possession of appellant No. 1, in addition to one packet which was already found. He has further stated that panchnama was prepared on the site and whatever is stated in the panchnama is correct. He has admitted his signatures thereon. He has also proved the signatures of the accused on that panchnama. In his cross examination he denied that no search was made in his presence and nothing was found from house. Thus, if the evidence of the three witnesses is read closely and carefully it become apparent that their evidence is consistent as regards the find of the packet containing charas.
5. It was next contended by the learned counsel for the appellants that while conducting the search of the person of appellant No. 1 there was non-compliance with the requirement of Section 50 of the N.D.P.S. Act and therefore we should not accept the evidence with respect to recovery of 13 small packets of heroin. The learned counsel for the respondent submitted that P.I. Sheikh had not informed appellant No. 1 about her right to be examined in presence of a Magistrate or a gazatted officer. The learned counsel is right in this behalf and therefore, the conviction of appellant No. 1 under Section 21 of the Act for possessing heroin will have to be set aside.
6. It was next contended that the conviction of appellant No. 2 cannot be sustained as he was not present in the house when it was raided and the packet containing charas was found. Both the trial Court and High Court have found that the appellant no. 2 was residing in the house along with his wife and the facts and the cricumstances of the case justified such an inference. The only contention raised before the courts below in this behalf was that he had a dispute with his landlord and therefore he was falsely involved in this case at the instance of the landlord. Appellant No. 1 has admitted that he was staying in that house. If considering these cricumstances the courts below thought it fit to believe the evidence and infer that he was also in possession of the packet containing charas, it cannot be said that the view taken by the courts below is unreasonable.
7. We, therefore, partly allow this appeal. Conviction and sentence of appellant No. 1 for the offence punishable under Section 21 of the Act for possessing heroin is set aside. Conviction of both the appellants and their sentence for the offence punishable under Section 21 for possessing charas is confirmed.
1. The appellants are challenging in this appeal, their conviction under Section 21 of The Narcotic Drugs and Psychotropic Substances Act, 1985. They have been convicted for keeping charas in their possession without any licence or permit. Appellant No. 1 has been convicted also under Section 21 for possessing heroin.
2. The prosecution case was that acting on information that Banobi – appellant No. 1 and her husband appellant No. 2 were keeping in their possession brown sugar and opium in their house and selling the same, P.I. Sheikh along with Lady Police Constable Pramila and two panch witnesses raided their house about 2. 45 p.m. on 28.11.88. From the house one packet of charas containing 13 grams and 700 ml. grams was found concealed in a hollow space near the hearth in that house. On search by Lady Police Constable Pramila, 13 small packets containing heroin were also found from the person of appellant No. 1. Though appellant No. 1 was not present at that time, it was alleged that he alongwith his wife was in possession of those substances. On these allegations both the appellants were tried for the offence stated above.
3. The trial Court believed the evidence of P.W. 4 – P.I. Sheikh, P.W. 1 – Mohasin, the panch witness, and P.W. 2 Lady Police Constable Pramila and held that prosecution has successfully established that appellant No. 1 was in possession of heroin as well as charas and that appellant No. 2 was in possession of charas and that they did not have any licence or permit to possess the same. The trial Court convicted them. The High Court has confirmed their conviction as it also agreed with the appreciation of evidence by the trial Court and the findings recorded by it.
4. It was contended by the learned counsel for the appellants that the evidence as regards possession of charas by the appellants is inconsistent and ought not to have been relied upon. He submitted that as noted by the trial Court and also by the High Court, panch witness Mohasin has not referred to the recovery of packet containing charas and P.W. 2 Pramila has admitted that on search nothing was found from the house. This contention is really based upon misreading of the evidence of the three witnesses. P.I. Sheikh has deposed about recovery of one packet containing charas from a hollow place near the hearth and Lady Police Constable Pramila has also stated that though during the first search nothing was recovered on further search they did find one packet containing charas from a hollow place near the hearth in that house. The panch witness Mohasin has also stated that 13 small packets were found from the possession of appellant No. 1, in addition to one packet which was already found. He has further stated that panchnama was prepared on the site and whatever is stated in the panchnama is correct. He has admitted his signatures thereon. He has also proved the signatures of the accused on that panchnama. In his cross examination he denied that no search was made in his presence and nothing was found from house. Thus, if the evidence of the three witnesses is read closely and carefully it become apparent that their evidence is consistent as regards the find of the packet containing charas.
5. It was next contended by the learned counsel for the appellants that while conducting the search of the person of appellant No. 1 there was non-compliance with the requirement of Section 50 of the N.D.P.S. Act and therefore we should not accept the evidence with respect to recovery of 13 small packets of heroin. The learned counsel for the respondent submitted that P.I. Sheikh had not informed appellant No. 1 about her right to be examined in presence of a Magistrate or a gazatted officer. The learned counsel is right in this behalf and therefore, the conviction of appellant No. 1 under Section 21 of the Act for possessing heroin will have to be set aside.
6. It was next contended that the conviction of appellant No. 2 cannot be sustained as he was not present in the house when it was raided and the packet containing charas was found. Both the trial Court and High Court have found that the appellant no. 2 was residing in the house along with his wife and the facts and the cricumstances of the case justified such an inference. The only contention raised before the courts below in this behalf was that he had a dispute with his landlord and therefore he was falsely involved in this case at the instance of the landlord. Appellant No. 1 has admitted that he was staying in that house. If considering these cricumstances the courts below thought it fit to believe the evidence and infer that he was also in possession of the packet containing charas, it cannot be said that the view taken by the courts below is unreasonable.
7. We, therefore, partly allow this appeal. Conviction and sentence of appellant No. 1 for the offence punishable under Section 21 of the Act for possessing heroin is set aside. Conviction of both the appellants and their sentence for the offence punishable under Section 21 for possessing charas is confirmed.
