[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.829 OF 2007 Munna Kishori Sahani ] Age about 28 years, ] residing at Shirgaon, ] Shym’s Kohli, near Kalyanrao] Metal Bag, W-33, MIDC, ] Badlapur, Thane ]..Appellant [Accused No.1 Vs. State of Maharashtra ..Respondent ... Mr.Daulat G.Khamkar Advocate for Appellant Mr.Y.S.Shinde, A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 06, 2008 DATE : JUNE 06, 2008 DATE : JUNE 06, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-original accused has challenged the judgment and order dated 11.10.2001 passed by the learned Special Judge, N.D.P.S.Act, Thane in Special Sessions Case No. 966 of 1998. By the said judgment and order, the learned Special Judge convicted the appellant under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "N.D.P.S.Act") and sentenced the appellant to RI for ten years and pay [-2-] a fine of Rs.1,50,000/-. 2. On 16.9.1998, PW 1 Constable Shivaji Patil received information at about 1.00 p.m. that one person Munna Kishori Sahani was likely to arrive at Kohinoor Hotel near Thane Railway Station for sale of "charas". The informant gave the description of Munna Sahani. Immediately thereupon, constable PW 1 Shivaji Patil informed PW 4 PSI Jadhav. PSI Jadhav immediately reduced that information into writing and forwarded the same to his superior. He also deputed one constable to bring two panchas. After apprising the panchas about the necessary facts, the police and the panchas went to the spot. At about 2.50 p.m. one person as per the information received, arrived with bag in his hand. He came to be intercepted. He was the present appellant. The appellant was informed of his right under Section 50 of the N.D.P.S.Act. The appellant-accused declined to exercise the said right. During the search of a plastic bag in his hand, three bundles were found. They were found to contain "charas" of 1 kg. and 750 gms. Samples of 24 gms. from each bundle, were collected. [-3-] Thereafter, all the articles were sealed. Necessary panchnama was drawn and the report was submitted to the superiors by PSI Jadhav. Thereafter, complaint came to be lodged. After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the accused under Section 20(b)(ii) read with Section 8(a) of the N.D.P.S.Act. Accused pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial and false implication. On going through the evidence adduced by the prosecution, the learned Special Judge convicted the appellant as stated in para 1 above. Hence, this appeal. 4. I have heard the learned advocate for the appellant and the learned APP for the State. I have also perused the impugned judgment and order as well as the evidence in the present case. After anxiously considering the matter, I am of the opinion that the appeal deserves to be dismissed. 5. In order to prove its case, the prosecution has [-4-] examined five witnesses. PW 1 Shivaji Patil is the constable who received the information. PW 2 Gaikwad is the constable who carried the sample to the Chemical Analyser. PW 3 Gumate is the panch witness. PW 4 is the PSI Jadhav who reduced the information into writing. PW 5 PSI Vaze was present at the time of raid. 6. PW 1 Constable Patil received the information at about 1.00 p.m. that one person Munna Kishori Sahani was likely to arrive at Kohinoor Hotel near Thane Railway Station for sale of "charas". The informant gave the description of Munna Sahani. Immediately thereupon, constable PW 1 Shivaji Patil informed PW 4 PSI Jadhav. PSI Jadhav immediately reduced that information into writing and forwarded the same to his superior. He also deputed one constable to bring two panchas. After apprising the panchas about the necessary facts, the police and the panchas went to the spot. At about 2.50 p.m. one person as per the information received, arrived with bag in his hand. He came to be intercepted. He was the present appellant. The appellant was informed of his right under Section 50 of the N.D.P.S.Act. The appellant-accused [-5-] declined to exercise the said right. During the search, in a plastic bag in his hand, three bundles were found. They were found to contain "charas" of 1 kg. and 750 gms. Samples of 24 gms. from each sample, were collected. Thereafter, all the articles were sealed. Necessary panchnama was drawn and the report was submitted to the superiors by PW 4 PSI Jadhav. 7. PW 2 Gaikwad took the samples to Chemical Analyser. The C.A. report shows that the samples tested positive for "charas". The evidence on record shows that there is compliance of Section 42(2) of the N.D.P.S.Act. As the drug was found in the bag which was carried by the accused in his right hand, strictly speaking, compliance of Section 50 of the N.D.P.S.Act is not necessary. However, evidence of PW 4 PSI Jadhav and PW 5 PSI Vaze shows that Section 50 of the N.D.P.S. Act has also been complied with. 8. Mr.Khamkar, the learned advocate appearing for the appellant submitted that in fact, Section 50 of the N.D.P.S.Act has not been complied with as the panch witness has only stated that the accused was [-6-] apprised of his right under Section 50 of the N.D.P.S.Act. However, the panch witness has not stated that the accused declined to exercise right under Section 50 and hence, his search was taken. No doubt, panch witness does not state so. There are two aspects to this matter. The first is aspect is that as the drug was carried in a bag which was carried by the accused in his right hand, Section 50 of the N.D.P.S.Act would not be attracted. Assuming for the sake of argument that Section 50 is attracted, the evidence of PW 4 PSI Jadhav and PW 5 PSI Vaze which has not been shaken in the cross-examination clearly shows that the accused was apprised of his right under Section 50 of the N.D.P.S.Act and the accused declined to exercise the said right. The evidence of these two witnesses is also borne out by contemporaneous record i.e. panchnama Exhibit-17 which clearly states that fact. Hence, I find no merit in the submission made by Mr.Khamkar. 9. Looking to the evidence on record, I am of the opinion that the learned Special Judge has rightly convicted the appellant under Section 20(b)(ii) of the N.D.P.S.Act. [-7-] 10. As far as the sentence is concerned, Mr.Khamkar submitted that the accused is a young boy and besides this case, he had clean record. He submitted that accused has undergone almost 9 years and 8 months of actual imprisonment. He submitted that the appellant is from extremely impoverished family and hence, it is not possible for the appellant to pay fine. Mr.Khamkar submitted that at least indefault sentence may be reduced. Looking to these facts, I am inclined to reduce the indefault sentence to three months RI. 11. In the result, the conviction and substantive sentence of imprisonment and fine imposed on the appellant by the learned Special Judge, (N.D.P.S.Act), Thane by judgment and order dated 11.10.2001 in Special Sessions Case No. 966 of 1998 for the offence under Section 20(b)(ii) of the N.D.P.S.Act is maintained. However, in default sentence imposed thereunder, is reduced to three months R.I. 12. Appeal is partly allowed. [-8-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]