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2018 Supreme(Bom) 988
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
SWAPNA JOSHI, J.
Baldeosingh s/o Jagannathsingh Sengar – Appellant
Vs.
The State of Maharashtra, Nagpur - RESPONDENT
CRIMINAL APPEAL NO.12 of 2018
Decided on : 05-07-2018
Advocate Appeared:
For the Appellant :Shri A.K.Bhangde, Advocate
For the Respondent: Mr. H.D. Dubey, Adv.
Headnote:
Narcotics Drugs and Psychotropic Substances Act, 1985 - Section 29 - Jurisdiction of Police Station – Investigation - Prosecution case in brief is that complainant was attached to Police Station - When he was on patrol duty along with his staff in jurisdiction of Police Station private vehicle at Bellona found one person accused carrying bunch green leaves over his head - Those green leaves were like leaves of marigold flowers - Complainant suspected some foul play and therefore he made enquiry with that person about those leaves - On this accused threw bunch on road and fled away – Held, In case of reported in was that it must be proved that accused had cultivated prohibited plant voluntarily and in substantial quantity - Plants sprouted naturally do not amount to cultivjation - Thus in instant casein is not clear from evidence as to how many plants were taken charge by investigating agency - Furthermore it is not proved that land from which ganja plants were taken charge belongs exclusively to accused no Is had exclusive right over said property and those plants were voluntarily cultivated by him - In case of State of Rajasthan reported in that though seized articles claimed to have been kept in however register was not produced in support thereof - Similarly no sample of seal was sent along with sample to Excise Laboratory for comparing with seal appearing on sample bottles and thus there was no evidence to prove that seals found were same as were put on sample bottles immediately after seizure of contraband - It was held by Honble Apex Court that link evidence adduced by prosecution is not satisfactory and ultimately accused was acquitted - In instant case also there is no satisfactory evidence on record to show that seized articles were kept - He failed to produce register in order to prove that those articles were kept in till they sent to CA office – Appeal allowed
1. The instant Appeal has been directed against the judgment and order dated 06.01.2018 passed by the learned Judge, Special Court under NDPS Act, Nagpur in Special Criminal Case No.10/2014 convicting the appellants of the offence punishable under Section 20 read with Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”) and sentencing them to suffer RI for three years and to pay a fine of Rs. 10,000/- each, in default, to further suffer SI for three months.
2. The prosecution case in brief is that, complainant-API Santosh Shegaonkar (PW5) was attached to Police Station Narkhed on 10.10.2013. When he was on patrol duty along with his staff in the jurisdiction of Police Station, Narkhed, in a private vehicle, at Belona, he found one person (accused No.1) carrying a bunch of green leaves over his head. Those green leaves were like leaves of marigold flowers. The complainant suspected some foul-play and, therefore, he made enquiry with that person about those leaves. On this, accused no.1 threw the bunch on the road and fled away. The complainant stopped one person who was passing through the road and made enquiry with him. The said person told his name as Jaipal Rathod (PW3). The complainant made enquiry about the person who fled away. PW3 informed the complainant that the name of that person was Baldeosingh Sengar (accused no.1). The complainant suspected that those leaves must be of the contraband ganja therefore, he informed the said fact to PSI-Gotmare of Police Station, Narkhed. The complainant then called for two. Panchas. He issued a written intimation letter to the panchas as well as to the photographer. In the meantime, PSI-Gotmare reached the place of the incident. He recorded the spot-cum-seizure panchnama of those leaves (Exh.7). On weighing those leaves, he found it to be 23.300 kg. The complainant then separated one plant from those leaves and sealed it. The weight of the same was 300 gms. The sample was sent to the Chemical Analyser for analysis. The complainant then recorded the detailed. panchnama. On the next day, the complainant arrested accused no.1-Baldeosingh. It is the case of the prosecution that on 12.10.2013, accused no.1 Baldeosingh showed his willingness to point out the place where he had brought those cannabis plants. The accused no.1 brought the Police and Panchas to the field of accused no.2-Ishwarsingh. In the said field some ganja plants which were in dry condition, were found. Those dried ganja plants were taken charge by the complainant in the presence of panchas and accordingly seizure panchnama was prepared (Exh.38). The complainant then collected the 7/12 extract in respect of the agricultural field (Exh.39). The C.A. report in respect of the ganja plants was collected by the complainant. The complainant then informed PSI Gotmare about the incident (Exh.32). The offence was registered vide C.R. No. 3058/2013. The statements of the witnesses were recorded. After completion of investigation, the chargesheet came to be filed in the Special Court; charge was framed; trial was conducted. On analysis of the evidence on record and after hearing both sides, the learned Judge, Special Court convicted the appellants, as aforesaid.
3. I have heard Shri A.K.Bhangde, learned Advocate for the appellants; and Shri H.D. Dubey, learned APP for the respondent-State. With their assistance I have carefully gone through the record of the case. The learned Advocate for the appellants strenuously argued that the mandatory provisions of Sections 52-A, 55 and 57 of the NDPS Act have not been complied with by the investigating agency. He further submitted that no nexus has been established by the prosecution between accused no.1 and the contraband article. He further submitted that the prosecution has also failed to establish any nexus between accused no.1-Baldeosingh and accused no.2-Ishwarsingh. It was further submitted that the prosecution has failed to prove that t
