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2018 Supreme(Bom) 1890
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S. JADHAV, J.
Pratap Bhimsingh Parera – Appellant
Versus
The State of Maharashtra & Anr. – Respondents
Criminal Application No. 1428 of 2018, 1106 of 2017 with Criminal Appeal No.541, 313, 433 of 2014, 253 of 2015
Decided On : 07-12-2018
For the Appellant : Ms. Ameeta Kuttikrishnan
For the Respondent: Mr. S.H. Yadav, A.P.P.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b) – Conviction – Search and Seizer of contraband – Ganja – Possession of Ganja – Whether proved – held, prosecution has failed to establish that the bags containing contraband belonged to the accused persons-Indian Constitution is rooted in Democracy and Rules of Law and it is committed in providing a free and fair trial. This forms a part of the cardinal principle of Criminal Law revolving around the Natural Justice wherein, even the accused or guilty person is treated with a human treatment. The concept of fair trials emanates from the basic understanding that State and its agencies are entrusted with the duty to bring offenders to justice. The investigation should be a fair investigation and persecution should not take the place of prosecution. A right to fair trial includes a right to fair investigation. At this stage, it is necessary to record that a bias investigation, in violation of the procedures laid down, false implication and ill-treatments to the accused is in violation of the principles of human rights. The State would be responsible for violation of such rights and therefore the negligent, insensitive and irresponsible officers need to be cautioned and their activities need to be enquired into – Appeals allowed
JUDGMENT
Sadhana S. Jadhav, J. - The appellants herein are convicted for the offences punishable under Sections 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short) and sentenced to suffer rigorous imprisonment for ten years. They are further sentenced to pay a fine of Rs.10,000/- each and in default of payment of fine, rigorous imprisonment for six months by the Special Court, Solapur in Special (NDPS) Case No. 23 of 2011 vide judgment and order dated 15th July 2013.
2. Being aggrieved by the said judgment, the appellants herein have filed the present appeals, through Jail.
3. It is the case of the prosecution that on 11th May 2011, PW-3- Pandurang Suryabhan Bandgar was working with Railway Protection Force ("RPF"), Solapur Division and was deputed on Bhubaneshwar-Mumbai Konark Express from Gulbarga to Dound on patrolling duty. When he reached Bogie No. S-4, one woman sitting on Berth no.39, informed him that there was an unclaimed red coloured bag below her seat and it does not belong to any passenger in the coach. Therefore, he enquired with the passengers. That appellant- Savita Parera informed him that the bag belonged to her. She was accompanied by one female and two male persons, who are other appellants and they claimed the ownership of other bags. Upon enquiry, the said persons informed him that the bags contained domestic articles and clothes. He inspected the bags and he found pungent smell emanating from the bags. Therefore, he asked them to open the bags. He found polythene bags containing material like ganja. He immediately informed the Control Room, Solapur on phone. At about 7.45 pm, the train reached Solapur station. P.S.I., Khandare (PW-1) was present on the platform alongwith the Staff. The said four persons were made to alight from the train. The panchanama was prepared on the Railway Station. They all proceeded to G.R.P. Police Station, Solapur and thereafter he gave a written information, which is marked at Exhibit 64.
4. The investigation was set in motion and undertaken by PW-1, Vinayak Mahadeo Khandare, who was attached to Solapur Railway Police, as Police Inspector. He had summoned two persons to act as panchas and one person with weighing machine. They had seized the bags from below the Berth no. 39 in Bogie no. S-4. There were four persons. He informed them that whether they have any objection to seize the bags or whether they wanted to be searched before the Gazetted Officer or Executive Magistrate. They had no objection for the bags to be seized at the hands of PW-1 and accordingly they had signed the consent letters. The letters are collectively marked from Exhibits 53 to 56. They had weighed the material seized from the bags and weight of the same was found to be 43kg., 500 gms. Five samples of 500 gms. each were taken for chemical analysis in separate packets. They were sealed and labelled in presence of panch witnesses, seized property was deposited with Muddemal Clerk and thereafter PW-1 lodged a report at the police station on behalf of the State of Maharashtra. On the basis of the said report, Crime No.1 of 2011 was registered against the accused at Solapur Railway Police Station for the offence under Section 20(b) of NDPS Act. The appellants/accused are in Jail since then.
5. After completion of investigation, the charge-sheet was filed on 8th August 2011. The case was registered as Special Case No. 23 of 2011. The prosecution has examined eight witnesses to bring home the guilt of the accused.
6. Pw-3 Pandurang Suryabhan Bandgar was the person who had set the law into motion. He has admitted in the crossexamination that Konark Express halts at Solapur station for 10 minutes. On that day, his duty was from Gulbarga to Dound and that he has completed his escort duty from Gulbarga to Dound. It is admitted that Bogie no. S-4 was reserved bogie. Berth No. 39 was not reserved in the name of any of the accused. All the berths in the said train were reserved on that
