Criminal Appeal No.475 of 2007

27th August, 2008

Petitioner Counsel: Mrs. S. S. JADHAV
Respondent Counsel: Mrs. R. R. MANE

Cases Cited:
Gurbax Singh Vs. State of Haryana, 2001 AIR (SC) 1002 [Para 5,18]
Valsala Vs. State of Kerala, 1993 Supp (3) SCC 665 [Para 5,19]
State of Rajasthan Vs. Gurmail Singh, (2005)3 SCC 59 [Para 5,20]
Mohd. Akram Mohd. Majij Shaikh Vs. State of Maharashtra, 2006 ALL MR (Cri) 3336=2006(2) Mh.L.J. (Cri) 1035 [Para 5,21]
Vinayak s/o. Dnyanoba Gaikwad Vs. State of Maharashtra, 2004 ALL MR (Cri) 1922 [Para 5,22]
Joseph Fernandes Vs. State of Goa, 1996 Cri.L.J. 822 [Para 22]
Ramji Duda Makwana Vs. The State of Maharashtra, 1994 Cri.L.J. 1987 [Para 22]

JUDGMENT

JUDGMENT :- The appellants have assailed the finding of conviction and sentence recorded by the learned Additional Sessions Judge, Ahmednagar, dated 24th October, 2007, in Sessions Case No.179/2006. By the said order, accused no.1 Babaji is convicted of the offence punishable under Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short, "the NDPS Act") and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.20,000/-, in default of payment of fine, to suffer further rigorous imprisonment for six months. Accused no.2 Santosh and accused no.3 Vijay are convicted of the offence punishable under Section 20(c) of the Act and each of them are sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, each, in default of payment of fine, to suffer further rigorous imprisonment for one year each.

2. The prosecution case, in nutshell, can be summarized as under :-

(a) API Suryawanshi, who was attached to Nagar Taluka Police Station, received a secret information on 25th June, 2006, at around 8 a.m., that accused no.1 Babaji was selling Ganja at his residential house at village Bhoyare Pathar. Immediately after receipt of the information, he communicated the same to his superior officer i.e. Sub-Divisional Police Officer (For short, "S.D.P.O.") and sought permission for raid. He arranged for two Panch witnesses, weighing man and a photographer. He briefed the raiding party consisting of the aforesaid persons and the Police Staff about the information received and the raid to be carried out. Thereafter, the raiding party went to village Bhoyare Pathar in two vehicles. They halted their vehicles near temple of village Bhoyare Pathar. After making preliminary enquiries regarding the whereabouts of the house of accused no.1 Babaji which was at a distance of around 100 feet from the temple. They went to the house where accused was present. On being enquired, he disclosed his name as Babaji.

(b) API Suryawanshi disclosed his identity to accused Babaji and informed him about the purpose of the house search. He also asked accused Babaji as to whether he desires to have house search in the presence of Executive Magistrate, to which Babaji denied. The house consisting of two rooms was raided. During the search, the contraband article was found beneath the cot in tin container and in some bags. The said contraband article was weighed and found to be 5 Kg. 250 Gms. Out of the said contraband article, 100 Gms. each were taken in two separate packets. These packets were labelled with the signatures of the Panchas and sealed. The remaining quantity of Ganja was also labelled and seized. The Ganja was seized in the presence of Panch witnesses under panchanama. After completion of the raid, the raiding party returned to the Police Station along with accused no.1 Babaji and seized articles. PSI Shaikh Anwar who participated in the raid, lodged report at 2 p.m. on the basis of which offence was registered as Crime No.66/2006.

(c) API Suryawanshi enquired with accused no.1 Babaji as to from whom he had brought contraband articles, to which Babaji disclosed that, he brought Ganja from accused no.2 Santosh and accused no.3 Vijay who were from village Kangoni (Taluka : Newasa). After receipt of this information, again arrangements were made for carrying out raid at village Kangoni. On the basis of information received from accused no.1 Babaji, the raiding party consisting of Panch witnesses, weighing man and photographer along with Police personnel went to village Kangoni. On the instructions of accused Babaji, they traced accused no.2 Santosh and accused no.3 Vijay who were found selling Ganja in the Polythene bags. Police also informed them the purpose of search and seized Ganja which was kept in gunny bags. On weighing, Ganja was found to be 85 Kg.. Thereafter 500 Gms. Ganja each was taken in two separate bags for the purpose of sample. The said packets were labelled and sealed. The Ganja was seized under the panchanama. After the raid, the Police party returned to the Police Station.

(d) API Suryawanshi deposited the seized articles with Malkhana Clerk. On the next date, sample packets were sent to Chemical Analyser for examination at Nashik through carrier. API Suryawanshi submitted detailed report to the S.D.P.O. and the concerned Judicial Magistrate (First Class). During the investigation, Chemical Analyser's report was received demonstrating that the seized articles fall in the category of contraband article under the NDPS Act. At the conclusion of the investigation, final report came to be submitted to the Sessions Court. The charges were framed. The accused pleaded not guilty and claimed to be tried.

3. At the conclusion of the trial, the trial court convicted the appellants / accused and sentenced them as aforesaid. Being aggrieved thereby, the present appeal.

4. Mrs. S. S. Jadhav, learned Counsel appearing for the appellants / accused, submits that the samples which were taken were bearing seal of API Suryawanshi and not officer in charge of Police Station. She submits that the prosecution has not brought on record as to whether API Suryawanshi or API Dange were in charge of the Police Station. In the submission of the learned Counsel for the appellant, therefore, there is non-compliance of Section 55 of the NDPS Act, which in the submission of the learned Counsel, is mandatory. It is submitted that taking the evidence led on behalf of the prosecution at its face value, it could be seen that the samples were given to the carrier of Malkhana Clerk and, therefore in the submission of the learned Counsel, there was missing link which could give scope for tampering with the samples. She further submits that the sample of the seal of the Police Station was also not sent along with the sample and as such, it was not sure that the sample which was sent was the same which was seized by the raiding party.

5. Learned Counsel for the appellants relies on the judgment of the Apex Court in the case of Gurbax Singh Vs. State of Haryana (2001 AIR SC 1002), in the case of Valsala Vs. State of Kerala (1993 Supp (3) Supreme Court Cases 665) and in the case of State of Rajasthan Vs. Gurmail Singh ((2005)3 Supreme Court Cases 59).

Learned Counsel for the appellants further relies on the judgment of learned Single Judge of this court in the case of Mohd. Akram Mohd. Majij Shaikh Vs. State of Maharashtra (2006(2) Mh.L.J. (Cri) 1035 : 2006 ALL MR (Cri) 3336). She also relies on the judgment of learned Single Judge of this court in the case of Vinayak s/o. Dnyanoba Gaikwad & others Vs. State of Maharashtra (2004 ALL MR (Cri) 1922).

6. Mrs. R. R. Mane, learned Additional Public Prosecutor appearing for the respondent/State, on the contrary, submits that the prosecution has proved beyond reasonable doubt, that the articles which were seized from the accused were in the category of contraband articles under the NDPS Act. She submits that the prosecution had established a complete chain right from the raid, seizure, deposit in Police Station, handing over samples to the carrier, receipt of the samples by the Chemical Analyser from the carrier and report of the Chemical Analyser establishing the goods to be contraband goods. She submits that minor non-compliances would not vitiate the prosecution case. In any case, it is submitted that there was sufficient compliance with the mandatory provisions of the Act and, therefore, no interference was warranted in the order of conviction and sentence as recorded by the trial court.

7. With the assistance of the learned Counsel for the appellants and the learned Additional Public Prosecutor, I have scrutinized entire evidence on record. Though the prosecution has examined in all twelve witnesses, it would be sufficient to discuss the evidence of the complainant Shaikh Anwar (PW-1), Police Constable Shaikh Jamir (PW-4), the carrier Janku Vidhate (PW-5), ASI Dattatraya Dange (PW-8), Assistant Chemical Analyser Suhas Bakre (PW-11) and API Kishor Suryawanshi (PW-12).

8. Shaikh Anwar (PW-1), who was at the relevant time PSI and a member of the raiding party, has stated about the preparations at the Police Station prior to raid. He states that after taking entry in the Station Diary, all of them proceeded to village Bhoyare Pathar. He states about the raid carried out at the house of Babaji. He states that 5 Kg. 250 Gms. Ganja was found from his house. 100 Gms. of Ganja was packed separately in two packets and sealed. Labels containing signatures of Panchas were affixed. The remaining Ganja was stored, sealed and labelled. The seizure was done under the panchanama and thereafter returned to the Police Station. Though he has been cross examined at length, nothing damaging has been brought on record from his evidence.

9. The evidence of API Suryawanshi (PW-12) would be the most vital evidence. He has stated that he received information in the morning on 25th June, 2006 informing about the same. He reported the information to the S.D.P.O. and sought his permission for raid. He has proved the letter written to the S.D.P.O. and the permission granted on it by the S.D.P.O. He states about calling of the Panch witnesses, weighing man and photographer. He has narrated about briefing entire information to the members of the raiding party. He states that thereafter they went to village Bhoyare Pathar and went to the house of Babaji. He further states that he asked the accused whether he desires to have house search in the presence of Gazetted Officers or he should proceed with the raid, to which accused Babaji conceded to conduct the raid. The said enquiry was made by a written letter. The office copy of the said letter which also bears signature of the said witness, so also, thumb impression of the accused, is duly exhibited at Exhibit 69. He further states that the members of the raiding party also gave their personal search to Babaji and then entered the house. He states that on raid, Ganja admeasuring 5 Kg. 250 Gms. was found in the containers. Sample of 100 Gms. each in two packets were taken. Sample packets were sealed at the said place and taken in his custody. The photographs of the said places were also taken. The panchanama Exhibit 29 was also recorded. Thereafter, seized articles, so also, accused were brought to Nagar Taluka Police Station. Thereafter, crime was registered. Muddemal receipt was prepared and handed over to ASI Dange. The said Muddemal is exhibited below Exhibit 70.

10. ASI Suryawanshi (PW-12) further states that said Babaji was enquired in the presence of Panchas as to from where he brought the articles. He disclosed that he brought the said Ganja from accused no.2 Santosh and accused no.3 Vijay, resident of Kangoni. He states that accused Babaji was ready to show the concerned place. Thereafter, the raiding party consisting of Panchas, photographer and weighing man went to village Kangoni. Babaji took the raiding party to the residential place of accused Santosh. He states that they noticed that accused Santosh and Vijay were filling Ganja in bags in adjacent agricultural land. They were taken in custody. On enquiry, they disclosed their names in the presence of Panchas. He asked them in writing whether they desire to have search in presence of another Gazetted Officer, on which they consented the search to be taken by the said witness. The letters addressed to them to that effect are proved and are exhibited at Exhibits 71 and 72. He states that upon taking search, 85 Kgs. Ganja was found in gunny bag and polythene bag. Two sample packets containing 500 Gms. each Ganja were prepared. The sample packets and rest of the Ganja was sealed. Seals containing signature of the said witness and Panchas were affixed to the said samples. At the said place, panchanama Exhibit 30 was drawn. After that, the seized articles were brought to the Police Station and Muddemal was handed over to A.S.I. Dange by preparing Muddemal receipt. The Muddemal receipt was duly proved at Exhibit 73. Thereafter, the accused were arrested under panchanama. He further states that on the next day, sample packets were sent to Chemical Analyser at Nashik with staff members. Thereafter, report was sent to S.D.P.O. and the Judicial Magistrate (First Class). He further states that the further investigation was carried out by him. Nothing damaging also could be brought on record in the cross-examination of this witness.

11. Janku Vidhate (PW-5), who was also a member of the raiding party, has also deposed to the same effect and corroborated the testimony of API Suryawanshi (PW-12).

12. The panchanamas below Exhibits 29 and 30 regarding the raid and seizure at the house of accused Babaji and in the field of Santosh also give complete corroboration to the evidence of the Investigating Officer.

13. ASI Dattatraya Dange (PW-8) states that on 25th June, 2006 at around 2 to 2.30 p.m., API Suryawanshi had handed over Ganja to him which he had brought from raid. He states that he handed over two gunny bags, one iron tin and two sample packets. He further states that he has made entry of these articles in Muddemal register. He further states that on the said date, at around 8 to 8.30 p.m., again 5 bags containing Ganja, one bag containing other material and 2 sample packets were given to him. He further states that all sample packets and other Ganja were in sealed condition. He had prepared Muddemal receipt when Muddemal was brought at night. He had again taken such entry in the register. He had also brought original Muddemal register in the court. The contents of true copy of the concerned page of Muddemal register has been exhibited at Exhibit 46. He has specifically denied the suggestion in his cross-examination, that in the Muddemal room besides the aforesaid Muddemal of Ganja, Ganja sample of other cases was also kept.

14. The next important piece of evidence would be that of Police Constable Shaikh Jamir (PW-4), who has acted as a carrier. He has stated that on 26th June, 2006 at around 10 a.m., API Suryawanshi had given him written order asking him to carry concerned Muddemal for examination by Chemical Analyser. He states that at the same time, he handed over two sealed packets along with the letter to Chemical Analyser. He states that on the same day, he went to Nashik by bus and reached at Nashik around 4.30 p.m. Thereafter, he immediately went to the office of Chemical Analyser and handed over two sealed envelopes and the letter. He states that the Chemical Analyser's office got assured that the Muddemal articles were in accordance with the letter. Hence, they accepted the same by giving endorsement on the said letter. The said letter bearing the signature of the Chemical Analyser Authority and stamp is at Exhibit 35. He also states that the necessary entries in the Police Station were also made in the register.

15. Assistant Chemical Analyser Suhas Bakre (PW-11) states that on 26th June, 2006, the office had received a forwarding letter along with Muddemal sent from Nagar Taluka Police Station. He has clearly stated that initially he had checked that packet and parcel which was in sealed and intact position having labels containing signature of Panchas. Thereafter, he kept the articles under lock and key in his possession. He states that on 18th July, 2006, he had started analysing the said articles. On that day, again he verified seal and intact position of the articles and started the process. He states that after conducting tests, he found the articles to be contraband and accordingly he prepared result of analysis and issued report under his signature and stamp which is at Exhibit 60. In the cross-examination of this witness, he has fortified the prosecution version. He has stated thus :-

"I have noticed that seals on Muddemal articles and specimen seal on forwarding letter were the same and there was no tampering of Muddemal articles. The seal device was like P.S.I. Nagar Taluka Police Station."

Though he has stated in his evidence, that no separate specimen seal or signature of Panchas were sent along with the letter, in my view, that would not affect the prosecution case for the reasons to be discussed hereinafter.

16. It can thus be seen that the prosecution has established a complete link. The evidence of API Suryawanshi (PW-12) corroborated by the evidence of complainant PSI Shaikh Anwar (PW-1) and Janku Vidhate (PW-5) along with the panchanamas at Exhibits 29 and 30 would establish beyond doubt the factum regarding the raid, search and seizure of the contraband articles. The evidence of API Suryawanshi (PW-12) along with the evidence of ASI Dange (PW-8) would clearly establish that the seized articles and the samples were handed over by him in the custody of Muddemal Clerk - ASI Dange on 25th June, 2006 and that he had regained the custody of sample from ASI Dange on 26th June, 2006 in the morning. This is also corroborated by the entries in the Malkhana register which are duly exhibited. It is further established that on the morning of 26th June, 2006, the custody of the sample packets was taken again by API Suryawanshi and that he had handed over the sample along with forwarding letter to the Chemical Analyser to Shaikh Jamir (PW-4).

17. The evidence of Police Constable Shaikh Jamir (PW-4) would establish that he has received the sample packets in the sealed condition along with the letter addressed to the Chemical Analyser. The evidence of Shaikh Jamir (PW-4) along with the evidence of Suhas Bakre (PW-11) would reveal that the Chemical Analyser had received the sample packets in a sealed and intact position having labels containing signatures of Panchas. The evidence of Suhas Bakre (PW-11) would establish that after receipt of the said sample, the said witness had kept the article under lock and key in his possession and that before starting analysing process, he has further verified seals and intact position of the articles. It would establish that after analysing the articles, the same were found to be of contraband nature. I, therefore, find that the prosecution has established a complete link leaving no scope for doubt.

18. In so far as the reliance placed by the learned Counsel for the appellants on the judgment of the Apex Court in the case of Gurbax Singh Vs. State of Haryana (supra) is concerned, in the said case, the Investigating Officer had admitted that the seal which was affixed to the Muddemal article was handed over to PW-1. The said witness was a Panch witness. The Investigating Officer also had admitted that the Muddemal was not sealed by the officer in charge of the Police Station. In the said case, the prosecution had not led any evidence, as to whether the Chemical Analyser had received the samples with proper intact seal. The Apex Court, therefore, found that it created a doubt as to whether the same sample was sent to the Chemical Analyser. It was further found that there was non-compliance of the provisions of Section 57 of the NDPS Act. It has been further found that the conduct of panch witness was unusual as he himself offered to be a witness for search and seizure. In these set of facts, the Apex Court has found that it was not safe to convict on the basis of such evidence.

19. In the case of Valsala Vs. State of Kerala (supra), the sealed article was produced in the court after a period of more than three months and there was no evidence whatsoever to show with whom seized article was lying. The Apex Court has further observed that even assuming that it was in the custody of PW-6, the Officer in charge of the police station who seized it, there was again nothing to show whether it was sealed and kept there. The Apex Court in the said case did not find it necessary to go into the question as to whether the provisions of Section 55 of the NDPS Act are mandatory or directory. The Apex Court has found that it was suffice to say that the articles seized appear to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. It was found that there was a big gap and an important missing link.

20. In the case of State of Rajasthan Vs. Gurmail Singh (supra), the seized articles were kept in Malkhana on 20th May, 1995. However, Malkhana register was not produced to prove that it was kept in Malkhana till it was taken over by PW-6 on 5-6-1995. The Apex Court has further observed thus :-

"We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur, for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."

However, it can be seen that in the present case, Suhas Bakre (PW-11) has clearly stated in his evidence, that he had noticed that the seals on the Muddemal article and the seals on forwarding letter were same. It could thus be seen that the sample seal was very much available on the forwarding letter with which the Chemical Analyser has compared the seal on the sample and found the same to be the one and the same.

21. In so far as the judgment of the learned Single Judge of this court in the case of Mohd. Akram Mohd. Majij Shaikh Vs. State of Maharashtra (supra) is concerned, the learned Single Judge on the facts of the said case has found that there was no evidence on record to establish that the Investigating Officer had withdrawn the same samples from the store which related to the said case and handed over to PW-2 with instructions to deliver the same to the FSL. In the said case, no contemporaneous record was placed on record to suggest that the same articles which were stored in the Store Room were withdrawn by him on 2nd June, 2000.

In the said case, it has further been found that it was also not established by leading any evidence that seal on the envelope containing the sample was the same as that of the officer in charge of the Police Station. The same is not the case in the present case.

As already discussed herein above, Suhas Bakre (PW-11), Chemical Analyser, has clearly stated in his evidence, that he has compared the seal on the samples along with the seal on the forwarding letter and found to be the same.

22. Learned Counsel for the appellants has strongly relied upon the judgment of learned Single Judge of this Court in the case of Vinayak s/o. Dnyanoba Gaikwad & others Vs. State of Maharashtra (supra) in support of the proposition that the provisions of Section 55 of the NDPS Act are mandatory. No doubt, that the learned Single Judge in the aforesaid case has observed that the provisions of Section 55 of the NDPS Act are mandatory. However, it appears that the learned Single Judge has not noticed the earlier two judgments rendered by the Division Benches of this court. A Division Bench of this court in the case of Joseph Fernandes Vs. State of Goa (1996 Cri.L.J. 822), relying on the earlier judgment of Division Bench of this court in the case of Ramji Duda Makwana Vs. The State of Maharashtra (1994 Cri.L.J. 1987) has held thus :

"The learned Counsel for the appellant contended that the provisions of Section 55 of the Narcotic Drugs and Psychotropic Substances Act are mandatory and they are violated in this case and therefore, the trial is vitiated. Reliance was placed on "Md. Jainulabdin alias Nahamacha Vs. State of Manipur" reported in 1991 Cr.L.J. 696, where the Gauhati High Court has no doubt held that Section 55 of the Narcotic Drugs and Psychotropic Substances Act is mandatory. We are unable to subscribe to this view. A plain reading of Section 55 itself shows that it is only an enabling provision and not a mandatory provision. It only provides that an Officer who seizes a property may deposit the seized contraband article with an Officer in charge of a Police Station. In fact, the words used in the Section are "which may be delivered to him", which clearly show that if some articles are delivered to him, then the Officer in charge of the Police Station shall keep them in his custody and allow the officer depositing the same to take packed samples, etc. It is only to safeguard the interest of the Officer who may deposit the contraband articles in a Police Station, an enabling provision is made in Section 55 of the Act. We are also fortified in our view by two decisions on this point.

In "Namdi Francis Nwazor Vs. Narcotics Control Bureau" reported in (1994) (1) Crimes 579, the Delhi High Court has clearly pointed out that Section 55 is only an enabling provision and gives an option to the Officer making seizure to deposit the articles in the local Police Station. A similar view is taken by a Division Bench of the Bombay High Court in "Ramji Duda Makwana Vs. State of Maharashtra" reported in 1994 Cri.L.J. 1987, where they have referred to Section 56, which is obviously a mistake and should be read as Section 55, as pointed out by the learned Editor of the Journal. It is further pointed out in the said decision that when a specialized authority like a Narcotic Control Bureau does investigation, there is nothing to preclude the authority to keep the contraband articles in its safe custody."

Therefore, we are of the view that the provisions of Section 55 are not mandatory and they are only enabling provisions and therefore violation of the same will not and cannot vitiate the trial, unless of course the defence could establish any prejudice being caused to the appellant accused. We find that no prejudice has been caused to the appellant due to any violation of Section 55 of the Act."

23. In that view of the matter, I am unable to accept the contention of the learned Counsel for the appellants, that due to non-affixing of the seal of the officer in charge of the Police Station, on the sample, the accused is entitled to be acquitted. As held by the Division Bench of this court, it is necessary for the defence to establish that by non-compliance of any of the provisions of Section 55 of the NDPS Act, any prejudice has been caused to the accused. In the present case, I find that the appellants have not been in a position to establish that any prejudice has been caused to them by non-compliance of any of the provisions of Section 55 of the NDPS Act. In the present case, immediately after seizure, API Suryawanshi had put the seal of the Police Station along with the label containing his signature and the signature of Panchas. The seized articles were kept in the custody of Malkhana Clerk Dange (PW-8) immediately on 25th June, 2006. The entry to that effect in the Malkhana register is duly exhibited. The samples were regained in the custody of ASI Suryawanshi on the morning of 26th June, 2006 in a sealed condition. On the same day, API Suryawanshi handed over the same to Shaikh Jamir (PW-4) who received them in a sealed condition and handed over on the same day to Suhas Bhakre (PW-11) who has received the same in a sealed and intact condition. He has also compared the seal of the Police Station on the forwarding letter along with the seal on the sample.

24. I find that the prosecution has established complete link by adducing the clinching evidence. I am, therefore, of the considered view that the prosecution has proved the case beyond all reasonable doubt. Appeal is, therefore, without any merit and deserves to be dismissed.

25. Hence, the appeal is dismissed.

Appeal dismissed.