Criminal Appeal No.315 of 2006

6th June, 2008

Petitioner Counsel: Mr. R. P. JOSHI
Respondent Counsel: Mr. D. B. PATEL

Cases Cited:
Mohan Ganesh Kristaiyya Vs. State of Maharashtra, 2007 ALL MR (Cri) 367=2006(2) Mh.L.J. (Cri.) 942 [Para 5,11]
Hanamantu Gangaram Badawat Vs. State of Maharashtra, 2007 ALL MR (Cri) 3359=2007(2) Mh.L.J. (Cri.) 991 [Para 5,11]
Jitendra Vs. State of M.P., (2004)10 SCC 562 [Para 5,12]
Durgo Bai Vs. State of Punjab, AIR 2004 SC 4170 [Para 6,16]
State of Punjab Vs. Makhanchand, (2004)3 SCC 453 [Para 6,16]

JUDGMENT

JUDGMENT :- By this appeal, the appellant challenges his conviction and sentence for the offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short N.D.P.S. Act). He has been sentenced for this offence to suffer R.I. for 10 years and to pay fine of Rs.1,00,000/-, in default to suffer R.I. for six months by the judgment dated 23-3-2005 in Special Criminal Case No.38/2003 by the Judge, Special Court designated under N.D.P.S. Act, Nagpur.

2. Brief facts which are necessary to be stated for the disposal of this appeal, are thus.

Appellant/accused Anilkumar along with one other accused Gopal s/o. Tejilal were prosecuted for the offence under N.D.P.S. Act, particularly Section 20(b)(ii)(c) and Section 29 of the said Act. The prosecution case was that on 6-7-2003, the Investigating Officer, P.I. Abdul Sattar Shaikh Ismail (PW-7) was attached to Narcotic Cell of Crime Branch, Nagpur. At about 6 O'clock in the morning, he left his office for search of persons dealing in narcotics. He had some other police constable with him and also weights and balance and other material, necessary for sealing. When his party was patrolling, he received information that two persons were standing on a road in front of S.T. Stand, Ganeshpeth, Nagpur, and they were in possession of huge quantity of Ganja. Their looks and appearances was also informed. On the basis of that information, he along with other police officials visited the said spot. He noticed two persons, answering the said description received from the informer. The appellant and the other accused Gopal were the same. The appellant was having one suitcase in his right hand and shoulder bag on his left shoulder. One gunny bag was kept on the road in front of accused Gopal. It is alleged that P.I. Abdul Sattar suspected that these persons i.e. the appellant and the other accused Gopal are the same persons who were in possession of Ganja. Panchas were called, namely PW-2 Jagdish Chinchalkar and PW-3 Sunil Bhoyar. It is alleged that thereafter this P.I. Abdul Sattar informed the appellant as to whether his search needs to be taken in presence of the Gazetted Officer or the Magistrate, to which he declined. Then search was taken and Ganja was found in the suit case as well as in the shoulder bag. The same was weighed. It was found 20 Kg. [in the suitcase and the shoulder bag] with appellant Anilkumar. Cash amount of Rs.200 was also found during his personal search. Similar procedure was followed in respect of accused Gopal. In his personal search, nothing was recovered, however, the gunny bag which was found kept in front of accused Gopal, was found containing 20 kg. of Ganja. The P.I. Abdul Sattar then took out the samples from suitcase, shoulder bag and gunny bag of 20 gms., each. They were kept in separate packet and duly sealed. They were sealed with the signature of Panchas etc. Panchanama was prepared. Thereafter all the seized articles i.e. the samples, suit case, shoulder bag and gunny bag containing Ganja were taken to the Police Station Ganeshpeth. They were handed over to the concerned Officer In the Police Station and then P.I. Abdul Sattar lodged report to the police station. PSI Lilhare (PW-5) received the said complaint and those articles including suitcase containing Ganja, one rexine bag and other bag containing Ganja along with samples. The offence was registered. Thereafter, during investigation, the sealed samples were sent to C.A. through PW-4 HC Dhanraj. He deposited the same with C.A.'s Office on 7-7-2003 as per Duty Pass Exh.20. The chemical analysis of the said samples were carried out by PW-1. Gurudeo Ramteke, Assistant C.A., Nagpur. According to him, vide his report Exh.11, Ganja was detected in the said samples. After due investigation, the accused i.e. present appellant and accused Gopal were charge-sheeted for the aforesaid offences.

3. Learned Special Judge (NDPS) Nagpur, framed charge against the appellant and accused Gopal for the offence u/s.20(b)(ii)(c) of the N.D.P.S. Act and also under Section 29 of the said Act. The appellant and the said accused Gopal pleaded not guilty. Their defence is that of total denial. According to them, the accused had stone hot exchange of words at the relevant time. Because of that the police and the present P.I. Abdul Sattar were annoyed. The police had objected and arrested them and brought them to the Police Station and then framed them in a false case. According to them, they did not carry and Ganja with them, not any Ganja was seized from them; muchless as alleged.

4. Learned trial Judge recorded the evidence of the witnesses led by the prosecution. He found that the possession of Ganja to the tune of 20 Kg. was found with the appellant Anilkumar. The factum of it being a Ganja has been duly established. He, however, found that the possession of Ganja in gunny bag could not be related to accused Gopal as the said bag was found at some distance from him. As such, be held appellant guilty of the offence under Section 20(b)(ii)(c) of the N.D.P.S. Act and sentenced him accordingly. He acquitted accused no.2 Gopal by his judgment dated 20-03-2005. This judgment of conviction and sentence is challenged by the present appellant.

5. Learned counsel for the appellant (appointed) Shri. R. P. Joshi, has contended that there is serious lacunae in the present case as the seized property was not produced before the Court. The drawing of samples and sealing the same on the spot is not established. According to him, as the property seized from the appellant is not produced before the Court and there is no proper justification for the same, in view of judgment of this Court in 2006(2) Mh.L.J. (Cri.) 942 : [2007 ALL MR (Cri) 367] Mohan Ganesh Kristaiyya and another Vs. State of Maharashtra and 2007(2) Mh.L.J. (Cri.) 991 : [2007 ALL MR (Cri) 3359] Hanamantu Gangaram Badawat Vs. State of Maharashtra and the judgment of the Apex Court in (2004)10 SCC 562, Jitendra and another Vs. State of M.P., the appellant would be entitled for acquittal. According to him, the learned trial Judge has failed to appreciate that both the Panchas in the present case have turned hostile and none of the other police witnesses who had accompanied the raiding officer P.I. Abdul Sattar has been examined. According to him, weighing of the said Ganja is not at all properly proved. Therefore, the appellant cannot be held guilty for the offence of possessing Ganja of commercial quantity and more so because the other accused has been acquitted and the State has not preferred any appeal to challenge the acquittal, the benefit of doubt needs to be given to the present appellant.

6. As against this, learned A.P.P. Shri. D. B. Patel, while supporting the reasons recorded by the learned trial Judge for coming to the conclusion of the guilt of the appellant, relied on the observations of the Supreme Court in Durgo Bai and another Vs. State of Punjab, AIR 2004 SC 4170 and State of Punjab Vs. Makhanchand, (2004)3 SCC 453 & contended that the challenge on the ground that the property was not produced before the Court cannot be taken in appeal and provisions of Section 50 of the N.D.P.S. Act are not attracted inasmuch as in the present case the Ganja was found in suit case, shoulder bag and the gunny bag. Therefore, according to him, the conviction rendered by the learned Special Judge, against the appellant, is proper and correct. As such, he submitted that the appeal should be dismissed.

7. Few facts before considering the contentions of the rival parties need to be noted. Here is the case where the appellant and other accused were prosecuted for the offence under Section 20(b)(ii)(c) of the N.D.P.S. Act for possession of Ganja which was allegedly found in suit case, shoulder bag and gunny bag. P.I. Abdul Sattar had taken 2 panchas with him namely Jagdish Chinchalkar and Sunil Bhoyar. Allegedly samples were drawn, covered in packets and then sealed in presence of these panchas. Accused No.2 Gopal has been acquitted and the State has not preferred any appeal to challenge that acquittal.

8. In the present case, PW-2 Jagdish Chinchalkar and PW-2 Sunil Bhoyar are the panch witnesses to the raid and seizure of the contraband, so also for its weighing, drawing of samples & sealing the same with Panchanama. PW-2 Jagdish in his evidence has stated that he runs his hair cutting saloon at Ganeshpeth. He had not read the contents of the Panchanama etc., and the police took his signature on some papers. He stated that in his presence no search was taken, nor any seizure was made. He was declared hostile and cross-examined by learned A.P.P., however, nothing substantial was brought on record to show that he is deposing false. Similar is the nature of the evidence of other panch witness PW-3 Sunil Bhoyar.

9. Here is the case where accused were in custody during trial. They are from other State. There is nothing on record to suggest that they knew these panchas and they can influence them. In these circumstances, their non supporting the prosecution case would make vital impact on the credibility of the prosecution case.

10. No doubt, the evidence of I.O. and Raiding Officer, can be believed if it is sufficiently cogent and convincing for basing the conviction. But unless there is some reason to believe that Panchas are deposing false to save the accused, merely because they are hostile, the evidence of raiding officer cannot be believed as gospel truth. It will have to be tested on the strength of probabilities & legal canons. I am aware that there is no strong reason in the present case to disbelieve the testimony of P.I. Abdul Sattar, but fact that he had left his office at 6 a.m., in search of persons dealing in narcotics, and therefore, possibility of his tracing out some cases to boost his career has to be ruled out. I am doubtful whether in such circumstances, it can be said that he would not be tempted to book the persons even on suspicion.

11. Here is the case where admittedly seized property is not produced before the court. The suit case, shoulder bag and gunny bag containing large quantity of Ganja were not produced before the court. The impact of the observations of this Court in 2006(2) Mh.L.J. (Cri.) 942 : [2007 ALL MR (Cri) 367] Mohan Ganesh Kristaiyya and another Vs. State of Maharashtra, wherein it has been observed thus;

"13. ............ The learned counsel for the appellants drew my attention to a judgment of the Supreme Court in the case of Jitendra and another Vs. State of M.P., reported in 2004 Criminal 52, where the Court held that it was necessary for the prosecution to produce the seized material before the Court. In this case, neither was the property produced before the Court nor was an inventory done, as required under Section 52-A of the NDPS Act.

14. In view of this, the convictions of the appellants recorded by the learned Special Judge cannot be sustained. Hence, the following order is passed."

So also in 2007(2) Mh.L.J. (Cri.) 991 : [2007 ALL MR (Cri) 3359], Hanamantu Gangaram Badawat Vs. State of Maharashtra, wherein it has been observed in para 4, thus;

4. ............. Thus, what section 52-A mandates is preparation of inventory and certification thereof by the Magistrate. In the instant case admittedly no inventory was prepared and if prepared the same is not placed on record before the Court, Learned Sessions Judge in para 12 of his judgment observed that only samples of Ganja were produced before the Court and not the bags actually containing the Ganja that were allegedly seized. It is thus clear that the property in question is not produced before the Court at all. The production of such property before the Court could have been dispensed with had the inventory been drawn and copy thereof been produced. No witness therefore has identified the property that is allegedly seized. The penalty under the act is very severe. Law is well established. Higher the penalty stricter the proof. This court in an unreported decision in Criminal Appeal No.414 of 2006 Shiva Narayan Mohite and Ors. Vs. State of Maharashtra at Nagpur decided on 6-6-2007 has held as follows:

In Jitendra's case (supra) the Apex Court dealing with the case under the N.D.P.S. Act held that in the trial under the N.D.P.S. Act it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband were seized from the possession of the accused and the best evidence would have been the seized materials which ought to have been produced during the trial and marked material objects. The Apex Court also found unsustainable the finding of the High Court that the non-production of the contrabands before the Court was not fatal to the prosecution. In my opinion, the ratio laid down by the Apex Court in Jitendra's case (supra) is squarely applicable in the present case. Non-production of the contraband before the trial Court has caused serious prejudice to the accused and moreover the prosecution has not given any reason for non-production of best evidence before the trial Court. In my opinion, non production of the contrabands before the trial Court is fatal to the prosecution case. On this ground only the accused are entitled to be acquitted.

This court therefore relied on a decision of the Supreme Court in Jitendra and another Vs. State of M.P., 2004 SCC (Cri.) 2028 and held as above."

is obvious.

12. It is necessary to bear in mind that in (2004)10 SCC 562, Jitendra's case, the Apex Court has observed thus:

"5. The evidence to prove that Charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathal (PW-7), Angad Singh (PW-8) and Sub-Inspector D.J. Rai (PW-6), there is no independent witnesses as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the prosecution of the accused were not even produced before the trial Court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner, in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced. The High Court relied on Section 465, Cr.P.C. to hold that non production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.

6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized material which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchanama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in whey they were living. Finally, we notice that the investigating office were also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating office and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained is far fetched."

13. No doubt, in the present case, I.O. has been examined, and the learned trial Court has observed thus in his judgment in para 36 that,

"36. ............ In this case, the articles P-1 to P-3 have not been produced before the Court during the trial. But a suggestion given to the prosecution witnesses by the learned counsel for the accused that those articles are not available at the police station even now has been firmly denied by the prosecution witnesses. Further, the prosecution evidence not shown any doubt about the sealed condition of samples S-1 to S-3 that were sent to C.A. office. The investigating officer's (PW-7) evidence has also been found to be of reliable nature in this case. The accused persons could have applied to the Court for production of the said articles if anything in the nature of prejudice was to be proved by them. They did not do so. Therefore, in my respectfully submission said case would not be applicable to the facts of the present case."

In my opinion, in view of the view taken by this Court in Mohan's case and Hanumant's case, referred above, merely because I.O. is examined in the present case, that would not save the prosecution case from blowing into pieces and lead to the inference of guilt of the appellant. The burden is on prosecution to prove the case. Accused cannot be asked to move the court for production of property, which is necessary in view of above said authorities, considering seriousness of the offence. It can be dispensed with only if relevant provisions of N.D.P.S. Act are complied. I must say that in the circumstances of the case, it was duty of the Court to ask for production of Muddemal before the Court at the time of trial for identification of the same by I.O., if prosecution did not produce the same, to avoid unjust acquittal and perhaps; to prevent the possibilities of misuse of such property.

14. I have already pointed out above, that in the present case, panchas are from Nagpur. There appears no possibility of their being tampered by the appellant or the other accused who are from other State. They were in jail during trial. The panchas have categorically stated that no search or seizure had taken place in their presence. During cross-examination by the learned A.P.P. nothing could be brought on record to show that they had any reason to depose false in favour of the accused. The other police officers who had accompanied the raiding officer were not examined. The muddemal property allegedly seized from the accused was not produced except the samples. The taking of sample is sought to be proved only through the raiding officer, who is apparently an interested witness in the circumstances referred above. To top all this, it would be seen that the I.O. has stated in the cross-examination that the order was passed by the trial court to produce the case diary, but the same was not produced. It has been admitted by the said P.I. Abdul Sattar that there are several shops by the side of Adhyapak Bhawan i.e. near the spot. There is auto-rickshaw stand, traffic police booth. There was crowd of passengers on the bus stand, because on an average 1 bus arrives every 2 minutes. He has also stated in the cross-examination that people had gathered on the spot of incident at the time of raid, but he did not record the statement of any of those persons. In my opinion, when such is the situation, there was no dearth of the witnesses to support the testimony of P.I. Abdul Sattar and as such, only on the strength of his evidence, though there can be thick suspicion, it cannot be held that the case for the serious offence under NDPS Act for possession of commercial (large) quantity of Ganja has been established beyond reasonable doubts.

15. It is not the case of the prosecution that the appellant had any time before had indulged in such activities. No further investigation seems to have been done by the prosecution as to how he could possess such a large quantity of Ganja, nor there is any material to show that he was indulged in selling of such contraband either at Nagpur or at some other places. No investigation seems to have been done as to from where he might have brought this Ganja. All these things would certainly make appellant entitled for benefit of doubt as regards seizure of Ganja from his possession.

16. I may add that the facts of the case referred by the learned A.P.P. i.e. AIR 2004 SC 4170, Durgo Bai and another Vs. State of Punjab and (2004)3 SCC 453, State of Punjab Vs. Makhanchand, are quite distinguishable. There cannot be any dispute that the provisions of Section 50 are not applicable in the present case, inasmuch as the contraband was not found in the personal search. It was found in the articles which were allegedly carried by him. The plea of benefit for non production of muddemal property in the trial Court would be available in the appeal inasmuch as in Durgo Bai's case Apex Court has observed in para 6 thus :

"6. It is contended that none of these points were raised or argued before the trial Court or the High Court. Even in the memorandum of SLP, no ground is taken about non production of case property or the custody of the goods during the intervening period or the possibility of tampering the seals of sample packets. Not even relevant questions were put in the cross-examination to cover these aspects. We cannot for the first time, in this appeal under Art.136 of the Constitution, go into these factual aspects especially when there is no clear pointer one way or the other from the recorded evidence."

Therefore it cannot be said that said plea would not be available in the appeal, merely because it was not raised in the trial Court. However, it cannot be forgotten that in the present case; this plea was considered by the learned trial Judge, though, for his reasons, he has rejected the same. Therefore, the principles laid down by the Apex Court in AIR 2004 SC 4170 i.e. Durgo Bai's case, are not attracted.

17. In my opinion, it is not possible to say in the circumstances of the case that the evidence of P.I. Abdul Sattar is sufficient to substantiate the conviction against the appellant.

18. In the result, therefore, the appeal needs to be allowed. Accordingly the same is allowed. The conviction and the sentence rendered by learned Special Judge on 23-03-2005 in Special Criminal Case No.38/2003 are hereby set aside. The appellant is acquitted of the charges levelled against him. He be set at liberty if not required in any other case. Fine, if any, deposited by him be refunded.

The order regarding disposal of property needs no change, as nothing is claimed by appellant.

19. The Fee of learned counsel for appellant (appointed) is quantified Rs.2,000/-.

Appeal allowed.