Criminal Appeal No.118 of 2008

30th April, 2009

Petitioner Counsel: Mr. V. N. DAMLE,Mr. S. K. BARLOTA
Respondent Counsel: Mr. DEELIP BANKAR PATIL

Cases Cited:
State of Rajasthan Vs. Gurmail Singh, 2005 Cri.L.J. 1748 [Para 12,13]
Babubhai Odhavaji Patel Vs. State of Gujarat, 2006 ALL MR (Cri) 598 (S.C.)=AIR 2006 SC 102 [Para 14,16]
Sorab Khan Gandhkhan Pathan Vs. State of Gujarat, (2004)13 SCC 608 [Para 15]
Dinesh Palyekar Vs. State of Goa, 2007 Cri.L.J. 106 [Para 16]
Deepak Narsimha Bhatt Vs. State, VII 1994(2) Crimes 788 [Para 17]
Mohammad Sheriff Sheikh Mohammad Isak Sheikh Vs. State of Maharashtra, 2005(2) Bom.C.R. (Cri.) 594 [Para 18]
Union of India Vs. Munna, 2004(7) SCC 512 [Para 18]

JUDGMENT

JUDGMENT:- Challenge in this Appeal is to Judgment rendered by learned Sessions Judge, Aurangabad in Special (NDPS) Case No.14/2006, whereby the appellant has been convicted for offence punishable under Section 8 (c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act") and is sentenced to suffer Rigorous Imprisonment for Ten (10) years and fine of Rs.1,00,000/- (Rupees One Lakh only) in default to undergo Rigorous Imprisonment for (6) six months.

2. Briefly stated, the prosecution case is that Police party headed by A.P.I. Jeevan Mundhe was doing patroling duty on Aurangabad - Paithan road in the night between 21st and 22nd July, 2006. While they were proceeding from near Nath Paper Mills in a police jeep vehicle, at about 3.00 a.m., they noticed that one Uno Fiat car vehicle was coming from Paithan side. A.P.I. Jeevan Mundhe intercepted the car vehicle on the road. The appellant was driving the car vehicle bearing registration No.MH-31/Z-9656. No one else was in the car. On enquiry, the appellant gave his name and address, but, gave evasive replies to other querries. A.P.I. Jeevan Mundhe asked the appellant to open dickey of the car vehicle with a view to check the contents. The appellant opened the dickey. A.P.I. Jeevan Mundhe and other police officials found that there were two (2) gunny bags in dickey of the car. Those bags gave repugnant smell of ganja. On further enquiry, the appellant informed that it was stock of " ganja". So, A.P.I. Jeevan Mundhe informed P.S.I. Waghmare and also gave information to his superior authority that 'ganja' was found in the car vehicle. Thereafter two (2) panch witnesses were called. A scrap dealer from nearby place was also called to weigh the contents of the gunny bags. The appellant was informed of his right to have the search in presence of a Gazetted Officer. The appellant declined to exercise such right. The ganja that was found in both the gunny bags was thereafter weighed. It was found to be 44 Kg. A sample of 100 Gms. of ganja was collected from the stock. The samples were separately filled in two (2) brown packets. The brown packets were separately put in two (2) polythene bags. The mouths of the polythene bags were closed by means of flame of candle. Each of the sample packet was affixed with labels signed by the panchas and the police Officer. The sample packets were affixed with Lac seals. Thus, two (2) sample packets marked S-1 and S-2 were prepared. The remaining ganja was refilled in the gunny bags, which were sealed and marked as P-1 and P-2. The appellant was found in possession of Rs.295/- (Rupees Two Hundred Ninety Five only). The cash amount was seized and was put in a separate packet, which was sealed. A Photographer was called to take photographs of the process of conducting the recovery panchanama. The appellant was lateron taken to the M.I.D.C. Police Station at Paithan. A.P.I. Jeevan Mundhe gave report against the appellant. Crime No.6006/2006 was registered on the basis of his report. The appellant was arrested. Further investigation was carried out by P.S.I. Waghmare. One of the sealed sample packets was sent to the Chemical Analyser through a carrier. The Chemical Analyser gave report to the effect that the sample contained greenish flowering tops, pieces of greenish leaves seeds and stalks. The Chemical Analyser reported that it was 'ganja', which falls within the meaning of definition Under Section 2(III)(b) of the N.D.P.S. Act. The appellant was thereafter charge-sheeted and tried before the learned Special Judge for the offence punishable under Section 20 of the N.D.P.S. Act.

3. To the Charge (Exh.3), the appellant pleaded not guilty. His defence was of total denial. He asserted that on 23/7/2006,he had come to M.I.D.C. area at Paithan from Pune and was awaiting for boarding a vehicle. He had been to a nearby hotel for a cup of tea when the police caught him due to suspicion. He was not driving the car vehicle nor was transporting ganja in the relevant wee hours. He claimed to have been falsely framed up in the criminal case due to suspicion. Hence he sought acquittal from the Charge.

4. At the trial, the prosecution examined in all seven (7) witnesses in support of its case. The prosecution also relied upon certain documents. On appreciation of the evidence tendered by the prosecution, the learned Special Judge held that the appellant was found in conscious possession of the huge stock of ganja, which was being transported in the dickey of the Uno fiat car vehicle No.MH-31/Z-9656 in the wee hours. The appellant was, therefore, convicted and sentenced as described hereinabove.

5. Mr. Damle strenuously argued that the recovery panchanama (Exh.19) is only a farce. He would submit that when the Ganja was found in the dickey of the car, the subsequent recovery panchanama in presence of panchas is rather a formality which was performed to complete the process. He argued that in absence of proper evidence to prove recovery of the Ganja, it could not have been held that the appellant was in conscious possession of the same. He pointed out that there is no tangible evidence to attribute ownership of the car vehicle to the appellant. The learned Advocate would further submit that when Malkhana register was not produced to prove that the samples of ganja and seized stock had been duly deposited with the proper custodian, the link between the report of the Chemical Analyser and the sample collected from the stock was missing. Mr. Damle further argued that versions of the police officers are not worthy of credence. A.P.I. Jeevan Mundhe did not locate identity of the car owner. He points out that no driving licence was recovered from the appellant. He urged to give benefit of reasonable doubt to the appellant. The learned A.P.P., however, supports the impugned Judgment.

6. Before I embark upon scrutiny of the prosecution evidence, it may be stated that the prosecution has come out with a case that it was a chance recovery effected during the course of patroling on the road in the wee hours of 22nd July, 2006. Obviously, the road was without much traffic. There are no residential houses in the proximity of the place. It is but natural that presence of independent witnesses could not have been secured immediately at such odd hours. The members of police party, including A.P.I. Jeevan Mundhe, were not knowing the appellant before the relevant morning. The appellant did not attribute any animus to the members of the police party. What he states is that he was picked up from a road side hotel on account of suspicion.

7. Adverting to the oral evidence of P.W.1, A.P.I. Jeevan Mundhe, it may be gathered that he was accompanied by Head Constable Khandagale, Head Constable Dighole, Head Constable Quadri, Police Constable Madane and two (2) Home guards namely Magare and Kharat. All of them were engaged in patroling duty. They were travelling in the police jeep vehicle. His version purports to show that at about 3.00 a.m., the car vehicle No. MH-31/Z-9656 was intercepted due to suspicion. His version further shows that the appellant was driving the said car vehicle at the material time. The appellant was, thus, the only custodian of the said car vehicle. The version of P.W. 1 A.P.I.Jeevan Mundhe reveals that after preliminary enquiry, the appellant was called upon to open the back side dickey of the car vehicle. The appellant opened the dickey and then it was noticed that there were two (2) gunny bags, which smelled sour and pungent. The stock of Ganja was, thus, located. The version of P.W.1, A.P.I. Jeevan Mundhe further shows that he informed the higher authority (S.D.P.O.) vide letter (Exh.15). He then conducted the recovery panchanama. The Ganja was weighed together and was found 44 Kg. His version reveals that he served a notice on the appellant to exercise right of search in presence of a Gazetted Officer if he so desired. The appellant declined to exercise such right under Section 50 of the N.D.P.S. Act. He states that the appellant gave an endorsement on the office copy of the notice (Exh.17) to such an effect. He identified hand writing and signature of the appellant (Exh.18) on the notice. Though it was contended that the appellant was not conversant with Marathi language, yet, the hand writing and signature of the appellant on the notice (Exh.18) would falsify such after-thought contention raised in this Appeal. It is pertinent to note that no such contention was put-forth during the course of trial before the learned Special Judge. It was never the contention of the appellant that he did not understand the proceedings and Marathi language. The mere fact that he hails from Andhra Pradesh, does not mean that he is not conversant with Marathi language.

8. The version of P.W.1, A.P.I. Jeevan Mundhe reveals the manner in which sample packets were drawn. He corroborates the recovery panchanama (Exh.19). He corroborates the F.I.R. (Exh.20). He also deposed that he gave further information to the S.D.P.O., Paithan under Section 57 of the N.D.P.S. Act. Nothing of much significance could be gathered from his cross-examination. His version reveals that the spot of incident is about half furlong away from premises of Nath Paper Mills. It was suggested to him that the persons travelling in the car vehicle had fled away and thereafter on the next day, the appellant was picked up from a hotel due to suspicion. The version of P.W. 1 A.P.I. Jeevan Mundhe is corroborated by the version of P.W. 4 Kishor Khandagale, Police Head Constable, who had accompanied him in the police jeep vehicle at the relevant time. He narrated the same story of chance recovery after interception of the car vehicle driven by the appellant. His version purports to show that two (2) gunny bags were found in the dickey of the car. His version has remained unimpeached for want of effective cross-examination. There is no tangible reason to dislodge his version.

9. The versions of P.W. 3 Ruplal S/o. Welji Joshi and P.W.5, Sk. Ahemad Sk. Baba lend corroboration to the fact that Ganja was recovered from gunny bags found in the dickey of the car. They are the panch and measurer. Both of them corroborated the recovery panchanama (Exh.19). The version of P.W. 3 Ruplal shows that he runs a hotel on Aurangabad - Paithan road. He admits that he was not served with written requisition letter to act as panch. He further admits that usually there is heavy traffic on the road. The subsequent panchanama may be a formality, because already the police received information that two (2) gunny bags contained stock of ganja. It is difficult to say that such a huge stock of ganja was planted in the dickey of the car vehicle without there being any animosity against the appellant.

10. Coming to the version of P.W. 7 P.S.I. Waghmare, it can be gathered that he received information about detection of the ganja in the dickey of the car vehicle. He received telephonic information from A.P.I. Jeevan Mundhe. He recorded entry of such information in the station diary and went to the place, where the fiat (Uno) Car was detained. He too attended the recovery panchanama. He took over the investigation after the F.I.R. was lodged by A.P.I. Jeevan Mundhe. His version reveals that on 25th July, 2006, the samples were sent to the office of the Chemical Analyser through police constable Nikam along with a forwarding letter (Exh.25). In his cross-examination, it has brought on record that the seized muddemal (Ganja) was kept in the custody of the muddemal clerk at the police station.

11. The testimony of P.W.2 Dhanraj Nikam (P.C.B. No.680) purports to show that on 25/7/2006 he carried the muddemal sample in Crime No.6/2006 to office of the Chemical Analyser along with requisition letter. He obtained necessary acknowledgement from the concerned clerk of the Chemical Analyser's office. He corroborates the acknowledgement (Exh.24) issued by the concerned clerk on the office copy of the requisition letter (Exh.25). The report of the Chemical Analyser (Exh.35)shows that the sample packet was received by the Chemical Analyser with seals intact. It also shows that the sample was reached to the office of the Chemical Analyser by constable Nikam (P.C.B. No.580). There is no reason as to why the description of the sealed packet as given in the report of the Chemical Analyser be not accepted.

12. Mr. Damle points out that neither A.P.I. Jeevan Mundhe nor P.S.I. Waghmare gave details of custody of the sample packets after the seizure. He would point out that they did not state that sample of seal was sent along with the sample to the Chemical Analyser and, therefore, there is no satisfactory evidence to show the link between the seizure and the sample, which was analysed by the Chemical Analyser, was not established. He seeks to rely on State of Rajasthan Vs. Gurmail Singh (2005 Cri.L.J. 1748). In the given case, the Apex Court noticed that malkhana register was not produced to prove that the seized articles had been kept in the malkhana on 20th May, 1995 up till 5th June, 1995. It was also noticed that no sample of the seal was sent with the sample to the Excise Laboratory Jodhpur, for the purpose of comparing of the seal appearing on the sample bottles. It was noticed that the said loopholes in the prosecution case caused acquittal of the respondent (accused) vide Judgment of the High Court.

13. One can not be oblivious of the fact that while deciding the Criminal Appeal in State of Rajasthan Vs. Gurmail Singh (Supra), the Apex Court confirmed the acquittal due to lapses found in the investigation. The fact situation of the given case is, however, not explicit from the report of Judgment though it may be gathered that dispute related to keeping of the seized articles in safe custody for period between 20th May, 1995 to 5th June, 1995. It appears that a specific defence was raised during the trial as regards safe custody of the articles and probability of the tampering with the sample. In the present case, however, no such specific defence was raised during course of the trial. It was never the contention of the appellant that the seized articles were not kept in the malkhana of the M.I.D.C. Police Station, Paithan. It was not suggested by the defence that the sample packets were tampered with in any manner. All along, the appellant asserted that he was picked up from a hotel on next day and, therefore, had no concern with the seized muddemal articles.

14. In Babubhai Odhavaji Patel and others Vs. State of Gujarat (2005)8 SCC 725 : AIR 2006 SC 102 : [2006 ALL MR (Cri) 598 (S.C.)], the Apex Court dealt with a similar fact situation. It has been held that in such a case of chance recovery, there was no necessity to follow procedure laid down in Section 42 of the N.D.P.S. Act. It has been observed:

"The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of Section 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala Vs. State of Kerala. We do not think that there is much force in this contention. This Court in Gurbax Singh Vs. State of Haryana held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case."

15. In the fact situation of the present case, there is due compliance of Section 50 of the N.D.P.S. Act though it is not essential. It is well settled that Section 50 of the N.D.P.S. Act would be attracted only when personal search of the accused is required to be taken. The expression " search of a person " as used in Section 50 of the N.D.P.S. Act does not cover search of baggage or search of the place, over which the accused has domain. The appellant opened the dickey of the car vehicle when he was called upon to do so. In case of chance recovery, compliance of Sections 42 and 50 of the N.D.P.S. Act is not necessary in view of "Sorab Khan Gandhkhan Pathan Vs. State of Gujarat" (2004)13 SCC 608.

16. Mr. Damle seeks to rely upon a Single Bench Judgment of this Court in "Dinesh Palyekar Vs. State of Goa" 2007 Cri.L.J. 106 in support of his contention that, where there was no evidence to show entries in the register of malkhana to prove onward dispatch of the sample packet to the Chemical Analyser, serious doubt could be raised as to whether what was seized, was actually sent for analysis. The learned Single Judge noticed that the cross-examination of P.W.4, P.S.I. Mardolkar indicated that he was unable to recall whether the sealed envelop was handed over to P.W.7, P.I. Petes. The discussion enumerated in para 5 of the given Judgment shows that there was specific cross-examination directed against the witnesses on the question of safe custody of the sample packet and the seized muddemal. The learned single Judge analysed the versions of the witnesses including that of P.W.4, P.S.I. Mardolkar and reached the conclusion that serious doubt was created about the fact regarding dispatch of the sample packet to say that it was of the articles actually seized. As stated herein before, no such specific cross-examination was directed against the witnesses nor it was the contention raised before the trial Court that the same sample was not subjected to analysis by the Chemical Analyser. More over, it appears that the view taken in case of "Babubhai Odhavaji Patel Vs. State of Gujarat" [2006 ALL MR (Cri) 598 (S.C.)] (Supra) was not brought to the notice of the learned Single Judge. Needless to say, the Case law cited by the learned Advocate for the appellant is based on different fact situation and in the absence of appropriate semblance and specific plea raised during the trial, it would not be appropriate to hold that the prosecution case is rendered doubtful.

17. The sum - total of the foregoing discussion is that the prosecution has duly proved the fact that the appellant was found in conscious possession of the two (2) gunny bags containing 44 Kg. ganja stored in the dickey of the car vehicle. It is duly proved that he was having exclusive domain over the ganja which was being transported in the wee hours of the relevant morning. His conviction for the offence punishable U/s.20 (b) (i) (c) is, therefore, quite sustainable. Mr. Damle would alternatively submit that the sentence awarded by the trial Court is quite harsh. He invited my attention to "Deepak Narsimha Bhatt Vs. State" VII 1994(2) Crimes 788. A Single Bench of this Court held that " ganja" appears to be least offensive amongst the other substances like Brown Sugar and Charas. The sentence was reduced to the period already undergone, which was of two (2) years Rigorous Imprisonment. I find it difficult to countenance the argument. It appears that no special reasons are assigned by the learned Single Judge while reducing the sentence except the observation that "ganja" appears to be least offensive amongst the other Narcotic substances. This case law is no more relevant after amendment of the N.D.P.S. Act. It is unfortunate that reliance on obsolete case law is placed in the context of sentence. The sentencing policy is to be adopted in keeping with the intention of the Legislature and the trend of the recent Judgments of the Apex Court.

18. The above case law was handed down before amendment of the N.D.P.S. Act by Act 9 of 2001. The amendment is effected vide Sec.7 of the Act 9 w.e.f. 2/10/2001. The amended provision is thus:

"Sec.20(b)(i)(c):

"20. Punishment for contravention in relation to cannabis plant and cannabis - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:-

(a) xxxxx

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable, -

(i) xxxxx

(ii) where such contravention relates to sub-clause (b) -

(A) xxxxx

(B) xxxxx

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees."

The imposition of the sentence shown in sub-clause (c) is mandatory when Commercial Quantity of the narcotic substance is found with the accused. The table given in S.O. 1055 (E) dated 19/10/2001 shows that for "ganja" 20 Kg. above is the Commercial Quantity.

In Mohammad Sheriff Sheikh Mohammad Isak Sheikh Vs. State of Maharashtra (2005(2) Bom.C.R. (Cri.) 594), a Single Bench of this Court confirmed the sentence of Rigorous Imprisonment for 10 years and fine of Rs.1,00,000/- (Rupees One Lac only), wherein two (2) gunny bags containing ganja weighing about 20 Kg. had been recovered. The learned single Judge held that after amendment of Section 54 w.e.f. 2/10/2001 presumption is raised against the accused regarding possession of illicit articles. Relying on Union of India Vs. Munna and another (2004(7) SCC 512), it has been held that Section 54 of the N.D.P.S. Act raises presumption in relation to the possession and the burden has to be discharged by the accused in relation to the said presumption.

19. For the aforestated reasons, I am inclined to hold that the impugned Judgment of the conviction and sentence is legal and proper. The appeal is destitute of merits. Consequently, the appeal is dismissed. The impugned Judgment of conviction and sentence is confirmed. The appellant is in Jail. He shall serve out his remaining sentence.

Appeal dismissed.