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2009 Supreme(Bom) 71
IN THE HIGH COURT OF BOMBAY
V.R. KINGAONKAR, J.
Naim S/o Jamiroddin Sheikh - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No.47 of 2008 with Criminal Appeal No.48 of 2008
Decided On : 01/15/2009
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c), 20(1)(b)(ii)(c) - Posses sion of ’ Ganja ’ - Conscious possession of - Proof of - Huge quantity of ’ Ganja ’ recovered from car - Accused himself opened back side dicky of car by using key of dicky - Key of car and dicky with accused - Clearly established his "control’ ’ over vehicle - Possession is conscious pos session. - Here is a case in which appellant Sk. Naim is step brother of the car owner. He was incharge of the Ambassador car vehicle at the material time. He was having keys by which the dicky was opened. He was not in the employment of Shabana Begum (PW 3). There is adequate material to attribute "conscious possession" at least to appellant Sk. Naim, inasmuch as he was found transporting the contraband ganja in the Ambassador car vehicle. It cannot be even remotely said that without his knowledge the ganja bundles were being transported in the Ambassador car vehicle. The circumstances on record go to prove his custody and control over the gunny bags containing huge quantity of the contraband ganja. Consequently, I have no hesitation in holding that he has been rightly convicted by the learned Special Judge of the charge levelled against him. There is no substantial reason to interfere with the finding of his guilt. Considering the huge quantity of ganja (91 Kgs.) found in his custody, the sentence awarded to him is also quite proper.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 55 - Safe custody of contraband seized - Evidence of Police Officer - He delivered Muddamal articles including sealed sample packets in custody of Muddamal clerk - Sealed sample packets sent to office of Chemical Analyser immediately without making any delay - Chemical Analyser received sealed sample packets with seals intact - No violation of Section 55 of Act.
1. Both the above appeals arise out of the same judgment rendered by learned Special Judge, Latur in Special Case No.3/2006. By the impugned judgment, both the appellants have been convicted for offence punishable U/s 8(c) read with Section 20(1)(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (For short "the NDPS Act"). They were each sentenced to suffer rigorous imprisonment for ten (10) years and to pay fine of Rs.1,00,000/-(Rupees one lac), in default to suffer rigorous imprisonment for six (6) months.
2. Briefly stated, the prosecution case is that Police Inspector Suryawanshi (P.W.7) who was then attached to Rural Police Station, Latur, received an information in the morning of 28.1.2006 to the effect that two persons by name Sk.Naim and Dhiraj were transporting contraband ganja in an Ambassador Car vehicle No.MH-20-Y-8308 from Nilanga towards Aurangabad. As per the information, the said car vehicle was to pass via Latur. Therefore, he decided to arrange for a trap. He passed on the information to the S.D.P.O. Shri Khandare. The latter reached the Police Station after a short while. P.I. Shri Suryawanshi then called for two Panch witnesses and a small trader alongwith weights and scale. He also requisitioned presence of a Gazetted Officer, namely, Tahsildar to attend the search and seizure. He took necessary entries in the Station diary at the Police Station and thereafter alongwith the members of the raiding party, the S.D.P.O. Shri Khandare and Naib-Tahsildar Shri Suresh Shewale, he went near bridge situated within the precincts of village Bhatkheda. At about 10-35 a.m. they noticed the Ambassador car which was coming towards the bridge. The Police personnel gave signals to the driver and stopped the car vehicle. P.I. Shri Suryawanshi, introduced himself to the driver and the person who were inside the Ambassador car vehicle. It was noticed that the appellant Sk.Naim was driving the car vehicle, whereas appellant Dhiraj was sitting by his side in front seat. They were informed intention to search the car vehicle. The search was thereafter carried out. Appellant Sk.Naim opened the dicky of the car vehicle with a key which was with him. Inside the dicky three fully loaded gunny bags were found stacked. There was one fully loaded gunny bag and one half filled gunny bag in front of the rear seat. The search also revealed that an amount of Rs.17,250/- (Rupees seventeen thousand two hundred fifty) was concealed below the driver’s seat. The appellants did not possess any document pertaining to the car vehicle. The mouths of the gunny bags were opened. They were found to contain ganja. The ganja was weighed. The total weight of ganja was 91 Kgs. P.I. Shri Suryawanshi, collected ten (10) samples of 250 grams each from the stock of ganja found in the gunny bags. The sample packets were duly packed and sealed. The remaining stock of ganja was thereafter sealed and a seizure panchanama was carried out. The Ambassador car vehicle was also attached. Both the appellants alongwith the Muddemal articles and the sealed sample packets were taken to the Rural Police Station. A report was lodged by P.I. Shri Suryawanshi, against both the appellants. They were arrested in pursuance to registration of the crime. The Muddemal articles and the sample packets were handed over by P.I. Shri Suryawanshi to the Muddemal Clerk. On 3l.1.2006, the five (5) sealed sample packets alongwith a forwarding letter were sent to the Office of the Chemical Analyser, Aurangabad, in sealed condition through Head Constable Gopal (P.W.6). Upon analysis of the samples, the Chemical Analyzer gave report to the effect that the samples contained ganja which was contraband article within the meaning of Section 2(iii) of the NDPS Act. On the basis of material collected during course of investigation, both the accused were charge-sheeted for the offence punishable U/s 8(c) read with Section 20(1)(b)(ii)(C) of the NDPS Act.
3. A Charge (Exh
