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2004 Supreme(Bom) 991
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Brahme P.S., J.
Mahadeo Motiram Gawai another .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal Nos. 134 203 of 2002, decided on 19-7-2004.
Advocates appeared :
Tiwari in Cri.A. No. 134/2002, for appellant.
Y.B. Mandape A.P.P. in Cri.A. Nos. 134, 203/2002, for respondent/State.
Shyam Dewani in Cri.A. No. 203/2002, for appellant.
Headnote:Criminal Procedure Code, 1973 - Section 165 - Raiding officer - Investigating the case - Whether correct. - Held, provisions of Criminal Procedure Code till not inconsistent with provisions of N.D.P.S. Act, will apply to cases under N.D.P.S. If Officer concerned also authorised to act under N.D.P.S. he can continue investigations as provided under. Contention not tenable.
Evidence Act, 1872 - Sections 3, 8, 9 and 59 - Panch witnesses - Whether stock witnesses - Case of search and seizure of contraband prior information - Panchas persons known to police and even had worked under the officers of raiding party. - Held, merely because panch known to police were selected does not by itself render them as stock witnesses. Absence of independent evidence does not bring out any infirmity in evidence.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 18, 8(c) and 50 - Seizure and recovery - Validity of possession in consciousness - Opium 5 kg. recovered from a suitcase belonging to appellant in the hut and another packet containing 5 kg found in a heap of onions in the field outside - Besides other accused appellant with possession of 5 kg. found in the field outside - Held, as regards appellant is concerned as nothing is found from his person, compliance with Section 50 of N.D.P.S. Act i.e. search before Gazetted Officer was not necessary in his case. - But to hold that he was in conscious possession of the opium found in a so many onions in his field is concerned cannot be said to be in his possession simply because he was owner of the field and was present there when raid was conducted. Trial Court accepting case against him merely because prior information report indicated that he indulged in dealing with contraband cannot be accepted. Even if it is taken as acceptable that seizure in open filed was at instance of accused Mahadeo, it having been recovered from an open field accessible to all, accused cannot be said to be in exclusive conscious possession of the same. 2000 Cri LJ 18 (SC); 1996 (3) Bom CR 410 - Referred.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 8(c) - Panch witnesses - Whether is a stock witnesses - Search and seizure of contraband on prior information - Panchas selected from amongst persons known to police and even had worked under the officers of raiding party. - Merely because panch known to police were selected does not by itself make witness them as stock witnesses. Absence of independent does not being out any infirmity in evidence.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 8(c) - Raiding officer - Also investigation the case - Whether justified. - Held, provisions of Cri PC are not inconsistent with provision of N.D.P.S. Act - Applicable to cases under N.D.P.S. - If Officer concerned is also authorised to Act under N.D.P.S. he can continue with investigations as provided thereunder. Con tention is not sustainable.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21, 8(c) and 42 - Conveyance of information - To immediate superior - Obligation to - Seizure of 5 kg. of opium from a suitcase lying side of accused from a hut in a filed - Facts show that information about some persons dealing in opium in an open field was verified by police constable and report was also recorded and conveyed to Senior Officers. - Held, provisions of Section 42 were complied with.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21, 8(c) and 50 - Search before Gazetted Officer - Provision whether are mandatory - Opium packet (wt. 5 kg) found from a suitcase lying by side of accused in a hut in the field - Accused declined the option to be searched before a Gazetted Officer - Trial Court holding because contraband was found in a suitcase and not from person of the accused compliance with Section 50(1) of the Act was not necessary - Held, in given circumstances recovery was not from person of accused and compliance with Section 50(1) was not necessary. 1996 (4) Bom CR 185 - Referred.
BRAHME P.S., J.: - Both the appellants stood trial for the offence under section 18 of the Narcotic Drugs and Psychotrophic Substances Act (hereinafter referred to as "the N.D.P.S. Act"), or in the alternative, for the offence under section 29 of the said Act for having found in possession of open weighing 5 kg. and 2 kg. respectively without any license, permit or authorization in the field commonly known as "Gadhemari" at village Ridhora Shiwar within the jurisdiction of Police Station, Belapur in Sessions Trial No. 28 of 2001 before the IIIrd Additional Sessions Judge, Akola, who by his judgment dt. 29-1-2001, convicted appellant Mahadeo s/o. Motiram Gavai (original accused No. 1) under section 18 r/w section 8(c) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs. 2,00,000/- in default to undergo rigorous imprisonment for two years, while appellant Sk. Noor Sk. Jama @ Noor s/o. Ajmeri @ Noormohammad Jama Ajmeri (original accused No. 2) was also convicted under section 18 r/w section 8(c) of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for the period of 15 years and to pay a fine of Rs. 2,00,000/- in default to undergo further rigorous imprisonment for two years. Both the appellants have challenged their conviction and sentence in these two appeals. Since in both the appeals the same judgment of conviction and sentence is under challenge, both these appeals are disposed of by this common judgment.
2. The prosecution case, as revealed from the evidence on record, is that on 26-11-2000, at about 8.00 a.m. Police Constable Subhash Awachar (P.W. 4) and Rajendra Wankhede (P.W. 5) attached to the Police Station, Belapur, while they were at Belapur bus stand, received an information that some persons from Madhya Pradesh are indulged in selling opium at the field of accused Mahadeo Gavai, by providing said narcotic drug to the truck drivers who come to Calcutta Dhaba situated on the National Highway No. 6 at Rilhora Shivar. These Police Constables, upon getting this information, went to the Police Station, Belapur and informed the said information to the Police Inspector Ramdas Patil (P.W. 7), who was then Police Station Officer at Police Station, Belapur. P.I. Patil asked them to give the information received by them in writing and accordingly, Police Constable Subhash gave information received by them in writing vide Exh. 31.
3. P.I. Patil then asked both the Police Constables to test veracity of the information so received after bandobast of bandh called on 27-11-2000. On 28-11-2000, P.I. Patil issued duty pass directing both these Constables to verify truthfulness of the said information secretly by disguising themselves as Shepherds. Accordingly, Police Constables Subhash and Rajesh went to Janta Petrol Pump situated on National Highway No. 6. They disguised themselves as Shepherds and on the pretext that their cow has been strayed, they went in the field of accused Mahadeo and when they entered the field, they found two persons present there and one of them asked them "Maal Hona kya?". Taking him from this query, both constables returned to the Police Station and submitted a detailed report to P.I. Patil on 28-11-2000 itself to the effect that the information received by them on 26-11-2000 was truthful and that they saw two persons in the field of accused Mahadeo having contraband opium with them. P.I. Patil them prepared his report in writing comprising therein written information received by him through Police Constable Subhash. He also took entry in the station diary at Sana Entry No. 27 vide Exhs. 15 and 17 about this information which was reduced into writing vide Exh. 46 and this report (Exh. 16) was immediately sent by him to the S.D.P.O., Akola through Police Constable Rajendra (P.W. 5), who, in turn, after getting duty pass, went to Akola and delivered the report and brought the acknowledgement on the duty pass (Exh. 35) and retur
