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TMI Blog2007 (9) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... owder with abetment with accused no.2 Karim Patel i.e. under Section 15 read with Section 8(c) of the NDPS Act and sentenced to suffer RI for four years and to pay fine of ₹ 20,000/- in default RI for six months more. He also has been convicted for the offence of illegal sale of 30 kgs. poppy straw powder to accused no.2 Karim Patel who was not possessing valid license and permit i.e. under Section 15 read with Section 8(c) of the NDPS Act and sentenced to suffer RI for four years and to pay fine of ₹ 20,000/- in default RI for six months more. The appellant came to be acquitted for the offences punishable 465, 467, 468 and 471 of IPC. The substantive sentences have been directed to run concurrently. 2. As per the prosecution case the respondent no.1 received intelligence information on 26/2/2004 that accused no.1 was selling crushed opium poppy straw without any bills on cash basis from his premises at 6 Pravin Chambers, Keshvji Naik Road, Mumbai and that the accused no.2 was likely to purchase 30 kgs. of poppy straw at about 2.00 p.m. on that day. Accordingly a raid was arranged and the accused no.2 was allegedly apprehended with 30 kgs. of poppy straw. On the next d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the contents of the gunny bag. Thereupon the said person disclosed his name as Karim Ahmed Miya Patel (Accused NO.2) and informed that the gunny bag was containing 30 kgs. of poppy straw powder which he admitted that he had purchased without bills and on cash payment of ₹ 5400/- (at a rate of ₹ 180/- per kg.). Accused No.2 was informed by the officers about the intelligence and intention to conduct his search as well as the search of the gunny bag and he was also informed about his right under Section 50 of the NDPS Act for being searched before the Gazetted Officer of his choice. It is claimed that Karim Patel declined to exercise the said right and, therefore, he was taken to the Shop from which he was seen coming out situated in Pravin Chambers. When the raiding party entered the said shop a man and a lady were found present in the said shop and on inquiry by the officer, the man disclosed his name as Girish Raghunath Mehta (Accused No.1) and informed that he was the proprietor of the firm by name M/s. Mahakali Enterpriese and the lady disclosed her name as Leena Narayan Jagtap working as Manager of the said firm. Thereupon the officers informed both of them tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raiding party that he had purchased poppy straw power about 10 to 15 kgs. at several occasion from accused no.1 and sold the same in the pack of 450 gms. for ₹ 180/- each to the number of customers and also sold packs of 25 gms. for ₹ 60/- each to truck drivers. 4. Through the evidence of PW 11 Excise Inspector Rane, the registers maintained by accused no.1 and marked as Article Nos.7 and 8 were brought on record and page no.33 of Article No.8 was marked at Exh.92 and page no.71 in Article 9 was marked as Exh.93. As per PW 1 Shetty these registers and other documents were enlisted in Annexure "A" of seizure panchanama at Exh.10 which was signed by accused no.1 and below his signature he had written the date as 27/2/2004. Signatures of both the panchas with the same date were also noted. The License Exh.101 in the name of M/s. Mahakali Enterprises was also placed on record and as per the said license accused no.1 was authorised to possess and sale poppy straw at his shop and/or warehouse and the said license permitted to store 20,000 kgs. of poppy straw at any time. Though it had come in the evidence of PW 11 Rane that during his visit to the licensed premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppy straw and crushed poppy powder without issuing bills and on cash basis by the accused no.1 and the premises from which the sale was being carried out were specifically stated to be Shop No.1, Pravin Chambers, 6th Keshavji Naik Road, Mumbai 400 009. PW 11 Pramod Rane, PSI of State Excise, Mumbai in his cross-examination admitted that the application submitted by the accused no.1 for getting license for sale of poppy straw was submitted by the Excise Department to the Collector's office and the application of the firm of accused no.1 i.e. Mahakali Enterprises was verified by the Excise Department and thereafter license was issued. He admitted that the plan of the premises is to be approved by the Excise Department and the license was issued after approval of the plan. He also stated that the license Article 32 was valid for the period from 1/4/2003 till 31/3/2004 and it was issued for sale of poppy straw. He further stated that the licensed premises address was Shop No.6, Pravin Chambers, Keshavji Naik Road, Mumbai -9 and he had visited the said premises on three different occasions for verification of the address for the purpose of license. PW 9 Dhiren Mota is the owner of Prav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for import pass forwarded by the said letter furnished the address of Mahakali Enterprises as under:- "Mahakali Enterprises C/o. Jeevraj Ranchhoddas Shop No.6, Pravin Chambers Keshvaji Naik Road Chinch Bunder, Mumbai-400 009." 7. Mr. Mundargi, therefore, rightly pointed out that the whole confusion arose by wrongly describing the address of the licensee firm i.e. Mahakali Enterprises. The submissions of Mr. Mundargi will have to be accepted and it is important to note the consequence of writing the address as under:- (a) Mahakali Enterprises C/o.Jeevraj Ranchhoddas Shop No.6, Pravin Chambers (b) Mahakali Enterprises C/o. Jeevraj Ranchhoddas Shop No.6, Pravin Chambers The address at (a) above clearly went to show that Mahakali Enterprises was being run from Jeevraj Ranchhoddas Shop and not Shop No.6, Pravin Chambers, whereas the address at (b) above indicated that it was being run from the premises of Jeevraj Ranchhoddas in Shop No.6, Pravin Chambers. It is apparent that the State Excise Authority did not notice the implications of such an aberration which was obviously not deliberate. It appears even the accused no.1 could never have the capacity to understand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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