Criminal Appeal No.262 of 2008

23rd March, 2009

Petitioner Counsel: Shri. R. M. DAGA
Respondent Counsel: Shri. D. P. THAKARE

Cases Cited:
Mohan Vs. State of Maharashtra, 2007 ALL MR (Cri) 367 [Para 7]
Hanamantu Vs. State of Maharashtra, 2007 ALL MR (Cri) 3359 [Para 7]
Shahaji Vs. State of Maharashtra, 2009 ALL MR (Cri) 3634 [Para 7]
Jitendra Vs. State of M.P., (2004)10 SCC 562 [Para 7,9]
Sau. Parwatabai Vs. State of Maharashtra, 2008 ALL MR (Cri) 3016 [Para 9]

JUDGMENT

JUDGMENT :- Appellant-original accused has challenged judgment and order dated 7-12-2007 passed by the Special Judge, NDPS Court, Nagpur in Special Case No.44 of 2006 whereby the appellant was convicted for the offence punishable under section 20(b)(ii)(C) read with section 29 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default, to suffer further rigorous imprisonment for one year on both counts.

2. Fact, according to prosecution, briefly stated, are -

On 5-3-2006 at about 05.15 p.m.. One white Tata Sumo bearing No.MH-04-AA-9519 was suspected and stopped by police. Appellant Dayakar was driving the vehicle while another accused Sadaiyab, who died during the pendency of trial, was sitting on backside of vehicle. Ten gunny bags containing ganja weighing 184 kg. was found. Police took sample of 24 gms. from each gunny bag and sealed. Remaining ganja was also sealed and labeled. Seizure panchanama was prepared (Exhibit 23). Accused along with vehicle and the property was brought to Jaripatka Police Station, Nagpur. Head Constable Deokumar Mishra lodged report (Exhibit 31). Crime was registered vide FIR No.6038/06 under section 20 of the NDPS Act, PSI Nagre received property and re-sealed it. Tata Sumo vehicle was also deposited at the Police Station. Custody of the accused was handed over to PSI Nagre. Later, property was sent to Chemical Analyser who reported that ganja was detected in the samples. After completed of investigation, accused were charge-sheeted under section 20(b)(ii)(C) and section 29 of the NDPS Act before Special Judge, NDPS Court at Nagpur.

3. Charge (Exhibit 4) was framed on 7-10-2006 to which accused pleaded not guilty and claimed to be tried. Accused No.2 Sadaiyab died during the pendency of trial and case abated as against him.

4. Prosecution examined six witnesses. Statement of the accused under section 313, Criminal Procedure Code was recorded on 16-10-2007. His defence appears to be of total denial.

5. The trial ended in conviction and sentence of the accused, as stated in paragraph 1 above.

6. In support of the appeal, learned Advocate for the appellant submitted that non-compliance of mandatory provision is fatal to the prosecution case. Under section 52-A(2) of the NDPS Act provides where any narcotic drug and certifying the correctness of any list of samples so drawn. It is provided under sub-section (3) that where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

7. According to learned counsel for appellant, non-compliance with the aforesaid statutory provision goes to the root of the prosecution and the accused is, therefore, was entitled to an order of acquittal. He placed reliance on the judgments of this Court in Mohan and Anr. Vs. State of Maharashtra, reported in 2007 ALL MR (Cri) 367; Hanamantu Vs. State of Maharashtra, reported in 2007 ALL MR (Cri) 3359 and Shahaji and Ors. Vs. State of Maharashtra, Criminal Appeal No.234 of 2008 decided on 30-6-2009 (since reported in 2009 ALL MR (Cri) 3634). All these judgments are based on the judgment of the Apex Court in Jitendra and Anr. Vs. State of M.P., reported in (2004)10 SCC 562.

8. In the present case, it is not in dispute that the property was not produced before the Court and it was not inventoried, as required under section 52-A of the NDPS Act. It is well-settled position of law that it is necessary for the prosecution to prepare an inventory of narcotic drugs and psychotropic substances containing the relevant details; produce the seized material before the Court and make application to the concerned Magistrate for certifying the correctness of inventory or to draw photographs or for allowing to draw representative samples of such drugs and substances in presence of such Magistrate. In the present case, none of these things was done.

9. Learned Additional Public Prosecutor, on the others hand, placed reliance on the judgment of this Court in Sau. Parwatabai Vs. The State of Maharashtra, Criminal Appeal No.36 of 2008 decided on 24th September, 2008 (since reported in 2008 ALL MR (Cri) 3016) to contend that matter may be referred back to the trial Court to enable the prosecution cure defect and comply with mandatory requirement contained in section 52-A of the NDPS Act. Prayer made by learned Additional Public Prosecutor cannot be accepted. Remand in Sau. Parwatabai's case was ordered owing to the peculiar facts and circumstances which prevailed therein. Besides this, in view of ratio laid down by the Supreme Court in Jitendra and Anr. Vs. State of M.P. (supra) which is binding on this Court on all fours, judgment in Sau. Parwatabai's case is distinguishable and it cannot be applied in this case. Mr. Daga was right when he contended in reply that prosecution cannot be allowed to fill in lacunae after having violated the statutory requirement and what section 52-A of the NDPS Act Mandates.

10. It cannot be disputed that non-compliance with the statutory provision held mandatory of the Apex Court goes to the substratum of the prosecution case and entitles the accused to claim acquittal in such case.

11. Hence, appeal has to be allowed. Impugned judgment and order is set aside. Appellant-accused is acquitted of the offence with which he was charged. He be released forthwith if his contention is not required in any other case. Fine deposited, if any, be refunded to the appellant-accused.

Appeal allowed.