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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
P.N. Deshmukh, J.
Majjidkha – Appellant
Vs.
State of Maharashtra – Respondent
Criminal Appeal No. 431 of 2005
Decided On : 12-10-2018
NDPS Act - Conviction under Section 20(b)(ii) - Sections 20 and 22 of the NDPS Act - Summary of Acts and Sections: The court discussed the compliance of mandatory provisions of Section 42(1) and (2) of the NDPS Act, the requirement of taking down information in writing, and the need for corroboration of evidence from independent witnesses. The court also highlighted the non-production of seized contraband before the trial court and the insufficiency of evidence to establish the accused's involvement in the crime.
Fact of the Case:
The prosecution alleged that the accused illegally possessed 7.4 kgs of ganja in his house. The evidence presented by the prosecution was challenged by the defense, citing lack of corroboration and non-compliance with mandatory provisions of the NDPS Act.
Finding of the Court:
The court found non-compliance with mandatory provisions of Section 42(1) and (2) of the NDPS Act, lack of corroboration from independent witnesses, and non-production of seized contraband. As a result, the court granted the benefit of doubt to the accused and acquitted him of the charges.
Issues: Compliance with mandatory provisions of the NDPS Act, corroboration of evidence, and non-production of seized contraband were the key issues in the case.
Ratio Decidendi: The court's decision was based on the non-compliance of mandatory provisions of the NDPS Act, lack of corroboration from independent witnesses, and non-production of seized contraband, leading to the grant of benefit of doubt to the accused.
Final Decision: The appeal was allowed, and the appellant/accused was acquitted of the charges.
P.N. Deshmukh, J.
This appeal takes exception to judgment and order dated 9/8/2005 passed by Special Judge, Chandrapur in Special Case No.10/2004 by which appellant/accused came to be convicted for the offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 50,000/- and in default, to suffer rigorous imprisonment for six months.
2. It is noted that vide charge (Exh. 2), accused was charged for the offences punishable under Sections 20 and 22 of the NDPS Act, but the impugned judgment does not reveal that accused is either acquitted or convicted for the offence punishable under Section 22 of the NDPS Act.
3. In brief, it is the case of prosecution that on 17/8/2004, P.W.5 Ashok Jot, Police Inspector, who was attached to Police Station, Ballarsha, received secret information at 21.10 hours that accused had stored contraband ganja in his house for the purpose of sale. As per the information, house is stated to be situated near Puja Colour Lab at Dadabhai Nouraji Ward, Ballarsha. Information was reduced into writing in the station diary and was given to Shri Walve, Sub-Divisional Police Officer, Chandrapur. Based on information as aforesaid, P.W.5 Ashok Jot, P.I. arranged for two panch witnesses, P.W.7 Suresh Dhage, Naib Tahsildar, photographer, etc. and on collecting necessary articles for effecting raid, effected raid on the house of accused on the same day at 22.40 hours and in the presence of accused, seized 7.4 kgs. of ganja from his house. One sample of 250 grams came to be drawn from the seized quantity and remaining ganja was sealed separately and deposited in Malkhana after taking entry in the muddemal register. Panchanama of all these facts was drawn vide Exh. 6.
4. Thereafter, P.W.5 Ashok Jot, P.I. lodged report, upon which Crime No. 3058/2004 came to be registered for the offence punishable under Sections 20 and 22 of the NDPS Act. Printed First Information Report is at Exh. 56. P.W.5 Ashok Jot effected arrest of accused and took steps for ascertaining ownership of house wherefrom contraband ganja came to be seized by issuing requisition letter (Exh. 60) to Municipal Council and collected house tax receipt as well as electricity bill in respect of house of accused, which are at Exhs. 61 and 62. It is the case of prosecution that in compliance to requisition by Investigation Officer, it was informed by Municipal Council, Ballarpur vide Exh. 63 that the house wherefrom contraband article came to be seized was owned by wife of accused.
5. It is the further case of prosecution that in compliance to Section 52 of the NDPS Act, though P.W.5 Ashok Jot had applied for issuing certificate to the Court of Judicial Magistrate, First Class, Rajura, his application was rejected on the ground that such certificate is already obtained by the Investigating Officer from Executive Magistrate and as such, no other certificate was required. Order as aforesaid is on record at Exh. 64. After recording statements and on sending samples to Chemical Analyser for analysis vide requisition memo (Exh. 65), Chemical Analyser's report was received vide Exh.66. On completion of investigation, charge-sheet came to be filed before Special Court.
6. Charge was framed against accused vide Exh. 2 for the offences punishable under Sections 20 and 22 of the NDPS Act, to which he denied and claimed to be tried. Defence of the accused is of total denial and false implication.
7. To establish the charge, prosecution in all examined eight witnesses and commenced its evidence by examining P.W.1 Baban and P.W.2 Sachin, both panch witnesses on house search of accused, who did not support the case of prosecution and were declared hostile, P.W.3 Ramesh, Police Constable (carrier), P.W.4 Narendra, photographer, P.W.5 Ashok Jot, Investigating Officer, P.W.6 Kishor, panch witness in whose pre
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