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2017 Supreme(Bom) 2401
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Swapna Joshi, J.
Sheikh Mehboob Sheikh Hussain – Appellant
Versus
State of Maharashtra Through P.S.O, Crime Branch – Respondent
Criminal Appeal No. 340 of 2003
Decided On : 21-08-2017
For the Appellant :Mr. A.K. Bhangde, Advocate.
For the Respondent: Mr. S.B. Bissa, Additional Public Prosecutor.
Headnote:Evidence Act, 1872 - Section 3-Testimony of witness.-Uncorroborated testimony of witness, inspiring confidence, can be relied upon.
It is well-settled law that uncorroborated testimony of witness can be relied upon provided it inspires confidence. The contemporaneous documents prepared by officer during course of investigation can be used for corroboration as well as contradiction, to ascertain the veracity of the evidence of the officer in raiding party.
Narcotics Drugs And Psychotropic Substances Act, 1985 - Sections 20(b)(i), 42(1)(2), 50, 52-A, 55 and 57-Conviction for possession of "ganja".-Non-compliance of mandatory provisions of Section 52-A of Act by prosecution in its entirely, renders conviction for possession of contraband "Ganja" un- sustainable.
Non-production of the contraband before the trial Court has caused a serious prejudice to the appellant. No plausible explanation comes forward from the prosecution for non-production of the contraband. It is certainly fatal to the case of the prosecution. It is well-settled law that higher the penalty stricter is the requirement of proof.
In view of the fact that the mandatory provision under Section 52-A of NDPS Act has not been followed in its entirety by the prosecution the appellant is entitled for acquittal.
Swapna Joshi, J.
By this Appeal, the appellant/accused has challenged the judgment and order dated 7.5.2003 passed by the learned Special Judge (NDPS Court), Nagpur, in Special Criminal Case No. 47/2001 whereby the learned Judge convicted the appellant/accused under Section 20(b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act', in short) and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 10,000/-, in default, to suffer further R.I. for three months.
2. I have heard Shri A.K. Bhangde, learned counsel for the appellant as well as Shri S.B. Bissa, learned Additional Public Prosecutor for the respondent-State. I have carefully gone through the record and proceedings of the case.
3. The prosecution case as unfolded during the trial, is as follows:
On 6.8.2001, Head Constable-Deorao Thorat (PW 6) who was attached to Narcotic Cell of Crime Branch at Nagpur, was on patrolling duty along with PSI Deokar and other police staff. When PW 6-Deorao along with the staff reached to Manewada Chowk, he received a secret information at about 8.30 a.m. that a person by name, Sheikh Mehboob, aged about 30-35 years, having beard and wearing brownish colour full-pant and round skull cap, would be proceeding with a bag containing 'ganja' at about 9.30 a.m. near Ring Road Square. PW 6-Deorao reduced the said information into writing (Ex. 37). PW 6-Deorao then prepared a report under section 42 (1) and (2) of the NDPS Act addressed to P.I. of Crime Branch, Nagpur (Exh.38). PW6-Deorao sent the said report to P.I. Jadhav of Crime Branch. PW 6 then called for two panchas and laid a trap near Manewada Ring Road Bridge. PW 6-Deorao noticed a person as per the description received and he was apprehended. The raiding party introduced themselves to the said person and he was also apprised about the information and the proposed raid. The person told his name as Sheikh Mehboob Sheikh Hussain. The appellant/accused was apprised of his right to be searched in the presence of Gazetted Officer or a Magistrate under section 50(1) of NDPS Act orally as well in writing (Exh.34). The appellant was holding a bag which was searched and it was found that the said bag was containing about 7 kg. of ganja. The contraband was taken charge by PW 6-Deorao. 24 grams was separated as a sample and the remaining ganja was duly packed and sealed with the seal of PW 6-Deorao. The sample was marked as 'S1' and remaining ganja as 'P1'. The appellant was arrested and informed about the grounds of arrest. The Panchnma (Exh.25) was drawn by PW 6. The appellant along with the seized articles was taken to Ajni Police Station, Nagpur. The complaint was lodged by PW 6 (Exh.30). On the basis of said complaint, offence was registered by the Day Officer, P.S.I. Nandanwar (PW 4). The seized articles were sealed with the seal of Head Constable, Pathan, and kept in the safe custody at Malkhana. The sample was sent to the C.A. office for its analysis (report-Exh.22). The sample tested positive for containing ganja. The charge-sheet was filed against the appellant. After completion of investigation, PW 6-Deorao sent a compliance report (Exh.39) to P.I. Jadhav.
4. The learned Special Judge framed the charge against the appellant and conducted the trial. After recording the evidence and hearing both the sides at length, the learned Special Judge convicted the appellant, as aforesaid.
5. Shri A.K. Bhangde, the learned counsel for the appellant vociferously argued that the prosecution has not followed the mandatory provisions under section 52A(1) & (2) of the NDPS Act, by not preparing the inventory of the articles. Per contra, Shri S.B. Bissa, the learned APP contended that the prosecution has followed all the mandatory provisions contemplated under NDPS Act and, therefore, the learned Special Judge has rightly convicted the appellant.
6. In order to bring home the guilt of the appellant, the prosecution examine
