Nagpur: Justice Anil L Pansare at the Nagpur Bench of Bombay High Court acquitted the accused Sunil Basant Malvi and Sohel alias Sohail Khan who had been convicted by the Special Judge under Narcotic Drugs and Psychotropic Substances (NDPS) Act for the offence punishable under Sections 8(C), 20(b)(2)(C) and 29 of the NDPS Act on 23.03.2023 and had been sentenced to suffer 10 years imprisonment each and had been directed to pay fine of Rs 2 Lakhs each and in default to pay fine to suffer further imprisonment for six-six months each.
Adv Prakash Naidu, appearing on behalf of both the accused persons had solicited for final hearing in the matter, since in accordance with the bar contemplated by virtue of Section 32 of the Act, Section 32A prohibits suspension, remission or commutation in any sentence awarded under the NDPS Act and in consonance with the dictum passed by Supreme Court in the case of Maktool Singh V/s State of Punjab the apex court had directed the High Courts to direct the Registry to board appeals under the Act on a priority basis and dispose them of as early as possible. As such, the matter was taken up for final hearing.
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Sat 16 Nov. 2024
The prosecution had alleged that on 07.06.2021 the police had received secret information that the present appellants would be transporting ‘Ganja’ by Swift DZire Car from Koradi Road to Chhindwara. The prosecution claimed to have summoned Panchas. The prosecution claimed to have intercepted the said car. The prosecution further claimed that notice under Section 50 of the said Act was given to the appellants and the appellants refused to exercise the rights under Section 50 of the said Act to be searched in the presence of gazetted officer or a Magistrate and the police machinery found two plastic bags containing Ganja weighing about 35.390 Kg. in the dicky of the said car.
The prosecution further claimed that the appellants confessed that they had collected its delivery from another accused in the said crime namely Naresh alias Pappu Shrivastav and that the prosecution performed further course of action by seizing the vehicle and ‘Ganja’ and the appellants came to be arrested. The charge-sheet came to be filed against the appellants and after subjecting the accused persons to trial, the trial court sentenced the appellants to suffer 10 years imprisonment each and had been directed to pay fine of Rs 2 Lakhs each.
Assailing the judgment impugned, Adv Prakash Naidu pointed out to the court that, the property had not been produced in the court and had not been identified by anyone before the court. Likewise, the police machinery had disposed off the property in contravention to the directives of the Apex Court and the NDPS Act. The officer who had laid the trap was a constable and not empowered to do so. It was also pointed out that there was sheer non compliance of the mandated provisions of the NDPS Act and the officer who had arrested the accused had not sent the compliance report to the senior officer and that the compliance report was sent by some other officer on the next day. Likewise, the property which was sent to CFSL was not the property which was drawn before the Magistrate.
Appreciating the contentions argued upon and specifically the aspect that the samples which were drawn before the magistrate were not sent to CFSL for forensic examination and that some other samples were sent, the veracity and integrity of the investigation was cast under a grave cloud of doubt and since the prosecution had failed to comply with the mandated aspects as had been spelled out under the act and as per the directives of the Supreme Court, the High Court proceeded to acquit both the appellants. The third accused Naresh was already acquitted by the trial court.
Advocate Prakash Naidu, Joseph Bastian and Surabhi Godbole Naidu appeared on behalf of the accused/appellants. Adv Hema Dhande represented the State.
