Shayara Babulal Shaikh v. The State of Maharashtra

The State of Maharashtra ----- Mr. V.Y. Jadhav for the applicant. Mr. D.P. Adsule, APP for the State. ----- ...... Respondent. CORAM: V.M. KANADE, J. DATE : 10th December, 2008 P.C.:

Heard the learned Counsel appearing on behalf of the applicant and the learned APP for the State.

Applicant has been convicted for the offence punishable under section 8(c) read with section 20(b) (II)(B) of the NDPS Act, 1985 and is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs 5000/- and, in default, to suffer further rigorous imprisonment for three months.

Prosecution case is that the information was received by the concerned Police Station that two people who were at the S.T. Stand of Phaltan at Platform No.1, were carrying contraband ganja. After the said information was reduced in writing, the Investigating Officer went to the said S.T. Stand alongwith panchas and found that two persons were sitting at 2 Platform No.1 of the said S.T. Stand. The accused were informed about their right to be examined by the Gazetted Officer or an Executive Magistrate and after the accused informed the police that they had no objection if they were searched by the officers of the raiding party, the bags which were carried by both these accused were searched and, in all, 3 Kg. 853 gms of ganja was found in the said plastic bags. Trial Court has convicted the applicant for the aforesaid offence.

Counsel appearing on behalf of the applicant submitted that the panch witness did not support the prosecution case. He submitted that rest of the three witnesses are Police Officers and the mandatory provision of section 42 has not been complied with by the Investigating Officer. He invited my attention to evidence of P.W.1 and P.W.4. He further submitted that, even otherwise, applicant is in jail since May, 2007 and has undergone 1/3rd of the total sentence imposed by the Trial Court. He submitted that the appeal is not likely to be heard in near future and that will be an additional ground for releasing the applicant on bail.

In the present case, the panch witness has turned hostile and the entire prosecution case is based on the evidence of Police Officers. Prima facie, there is some doubt regarding the fact whether accused No.1 and 2 were travelling together and whether the bags were in possession of accused Nos.1 and 2. Apart from this, the applicant has already undergone one year and six months of sentence out of the four years imposed by the 3 Trial Court. Applicant is a lady and she has two minor children. Appeal, in any case, may not be heard in near future. In my view, taking an overall view of the matter and after perusing the evidence of P.W.1 and P.W.4, applicant has a good chance of succeeding in this case.

Under these circumstances, therefore, applicant be released on bail in the sum of Rs 5000/- with one or two sureties in the like amount. Applicant shall report to Phaltan Police Station once in a month.