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2001 Supreme(Bom) 67
IN THE HIGH COURT OF BOMBAY
N.V. Dabholkar, J.
Abdul Rehman Fakir Mohd. Durani another.... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 248 and 332 of 1997, decided on 25-1-2001.
Advocates appeared :
S.B. Keswani and E.S. Sasi, in Cri.A. No. 248 of 1997, for the appellant.
Ms. Usha Kejriwal, A.P.P., in Cri.A. No. 248 of 1997, for the State.
A.P. Mundargi with S.V. Marwadi, in Cri.A. No. 332 of 1997, for the appellant.
Ms. P.H. Kantharia, A.P.P., in Cri.A. No. 332 of 1997, for the respondent.
Headnote:Section 21-Evidence Act, 1872, Sections 45 and 61-Contents found to be narcotics-Non-examination of analyst-Contention colour of samples recovered-Was different-Analyst hold the colour of both samples as brownish, though it was brownish and yellowish another-Analyst report doubtful-Held, the samples sent in sealed cover-No scope of missing possibility mixing nil-Non-examination not relevant.
Sections 21 and 42(2)-Evidence Act, 1872, Sections 5, 9 and 61Information to seniors-Conviction challenged-Grounds-No documentary proof to show information was given to superior officers-Held-In case of total non-compliance case shall get vitiated-Documents show that it was recorded by officer concerned sent to authorities but proof is also there that it reached the office of ACP-As despatched and sent to superiors on same day.
Section 42-Proof of compliance of Section 42-Information about Narcotic received and mentioned in records-Translated by P&I -Contention the translation was not upto mark-Not even in prescribed forms-Held-Factually it can not be said that information was cryptic and not a true copy giving proper sense in recorded version.
Sections 42 and 43-Evidence Act 1872, Sections 59 and 61-obligation to give information to immediate officer--Challenged-Plea-Just mentioning about it in police record means to inform to authorities-Contention-Search committed on road-Section 42 need not complied with -Held-5ection 42 covers both case of seizure from public place as well as enclosed place-Section 42 had to be complied with.
Sections 50 and 21-Search and seizure-Non-compliance of-Accused alleged as not having been informed about his right to search before Gazetted officer-Though it was mandatory to be informed-Held -Police evidence prove, he was duly informed-Merely non-reference to such information does not mean noncompliance of Section 50 of NDPS Act.
Sections 34 and 120-A-Proof of criminal conspiracy-Contention-No agreement between accused person for committing alleged offence-Held-Prosecution failed to prove any agreement-RightIy adjudged as not a case of conspiracy.
N.V. DABHOLKAR, J.:---These two appeals are by two accused who were tried together before the Court of Special Judge for Greater Bombay. In N.D.P.S. Case No. 196 of 1955 the two accused were charged and tried for offences punishable under sections 21 r/w 8(c) as also section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Having held that conspiracy is not proved, the learned Special Judge acquitted both the appellants, as far as offence punishable under section 29 of the Act. However, both the accused appellants are held guilty for unlawful possession of heroin and therefore both of them are sentenced to suffer rigorous imprisonment for 10 years, to pay a fine of Rs. 1 lac in default further rigorous imprisonment for one year. Being in custody since 1st August, 1995 they are also given set off towards under trial detention.
This conviction and sentence is being challenged in two appeals by the two accused.
2. As per prosecution story Kandivili unit of Narcotic Cell, on 1st August, 1995 at 10.15 Hrs. in the morning received information. It was received by P.S.I. Landge through one informant. The information was that one Shabbir Khan (accused No. 2) r/o. Nai Abadi Bhaisuda Mandi (M.P.), an associate of drug trafficker Umraosingh of Bhavani Mandi (Rajasthan) had brought heroin to Bombay. He has supplied the same to drug peddlar Abdul Rehman @ Khanssab (accused No. 1) (For the sake of brevity appellants are being referred by their status in the trial Court as accused No. 1 and accused No. 2). It was further informed that Abdul Rehman @ Khanssab would be coming near the entrance of Bandra Railway Terminus compound for delivering heroin to street drug peddlars at about 1.30 to 2.00 p.m.
Prosecution claims to have complied with all the formalities as required by section 42 of the Act and also having taken precautions for search and seizure, as required under the provisions of Code of Criminal Procedure. The raiding party consisting of Police Inspector Shri Mehta, P.S.I. Shri Landge (P.W. 1), P.S.I. Shri Wahadankar (P.W. 4), three head-constables, couple of panchas and informant proceeded to the spot at about 11.35 a.m.
At about 1.50 p.m. accused No. 1 arrived and was identified by the informant. He was nabbed after watching his activities for short time. In the personal search, carried out after complying formalities required by section 50 of the Act, as also provisions of Code of Criminal Procedure, 150 Gms. material was recovered from the right side pocket of his Kurta and was confirmed to be heroin on testing by Drug Identification Kit carried out by the raiding party. Prosecution claims to have withdrawn two samples. Thereafter the contraband, two samples, empty container and cash recovered from accused No. 1 were packed separately and sealed with paper seals signed by police and panchas.
Accused No. 1 is said to have expressed his willingness to point out the person from whom he had received the contraband. While accused No. 1 was leading the party towards lodge in Naupada area, accused No. 2 was seen coming out from the building and was identified by accused No. 1. Accused No. 2 was apprehended. On his search, again after compliance of all legal formalities, 350 gms. material was recovered from him and the same was confirmed to be heroin on testing it by Drugs Identification Kit. Again two samples were withdrawn from this stock. The stock, two samples empty polythene bag and the cash recovered on the person of the accused were separately packed and sealed.
All the occurrences beginning with call for panchas preparation for, till completion of search seizure from both accused are recorded in the form of a panchanama.
After recoveries from both the accused persons, accused and the seized articles were brought to Kandivili Office of the Narcotics Cell, where P.S.I. Shri Landge lodged F.I.R. It was recorded by P.W. 4 P.S.I. Shri Wahadankar.
Two samples marked as A-1 and B-1 were sent t
