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2018 Supreme(Bom) 2665
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sadhana S. Jadhav, J.
Mangalsingh @ Mangesh Chatursingh Onavale - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 810 of 2013, 887 of 2013, 989 of 2013
Decided On : 26-10-2018
Beerta H Bajwa, Adv., Lalla & Lalla, Adv., Aman Singh, Adv., Pooja Yadav, Adv., P.P. Shinde, Adv.
Compliance with Section 50 of the NDPS Act is essential, and conscious possession and control over the contraband must be established for conviction.
Headnote:
NDPS Act - Conviction under Sections 8(c) read with Section 20 (C) - [Sections 8(c), 20(C)] - The accused were convicted under Sections 8(c) read with Section 20 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The judgment discusses the compliance of Section 50 of the NDPS Act, conscious possession of contraband, and the failure of the prosecution to establish ownership and control over the contraband.
Fact of the Case:
The accused were convicted for possession of contraband ganja based on a raid conducted by the police. The prosecution presented evidence including witness testimonies and seizure of the contraband.
Finding of the Court:
The court found that there was non-compliance with Section 50 of the NDPS Act, doubts regarding the conscious possession of the accused, and failure to establish ownership and control over the contraband.
Issues: Non-compliance with Section 50 of the NDPS Act, conscious possession of contraband, and failure to establish ownership and control over the contraband.
Ratio Decidendi: The court held that compliance with Section 50 of the NDPS Act is essential, and conscious possession and control over the contraband must be established for conviction.
Final Decision: The appeals were allowed, and the accused were acquitted with the benefit of doubt.
JUDGMENT
Sadhana S Jadhav, J. - The accused herein are convicted for the offences punishable under Sections 8(c) read with Section 20 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short) and sentenced to suffer rigorous imprisonment for 10 years. They are further sentenced to pay a fine of Rs.1,00,000/- each and in default of payment of fine, simple imprisonment for six months by the N.D.P.S. Special Court, Mumbai in NDPS Special Case No. 87 of 2012 vide judgment and order dated 4 th and 5th July 2013.
2. Being aggrieved by the said judgment, the accused herein have filed the present appeals
3. Such of the facts necessary for the decision of these appeals are as follows :
According to the prosecution on 26th March 2012 at about 9.30 am., Police Inspector and In-charge of Anti Narcotic Cell ("ANC") Unit, Worli had received a secret information that the persons namely Tanaji Mohite and Shivaji Chavan are dealing in the business of Ganja and that Ambadas Pawar and Sunil Mohite, who are their associates would be reaching Mumbai to sell the contraband. It was also informed that they are travelling in a grey colour Bolero Jeep bearing registration No. MH-17-V-2466 from Thane to Mumbai road near Priyadarshini Bus stop and they would reach Chunabhatti, Mumbai at about 2.00 pm. to 2.30 pm. for selling contraband. Accordingly, the information was reduced into writing in the Station Diary. The information was conveyed to Police Inspector, Mr. Sangle. The information was further conveyed to A.C.P., and Senior Police Inspector. P.I., Sangle had then called upon other members of the staff and had apprised them of the information which he received. PI Sangle directed PN Mohite to call panch witnesses and then the raiding party alongwith panchas had proceeded to the spot as informed by the secret informant. Pre-Trap panchanama was prepared.
4. At about 2.05 pm., the raiding party had seen Bolero jeep bearing registration No. MH-17-V-2466 and three persons were found sitting in the said vehicle. The raiding staff had found their movements suspicious and therefore they were apprehended. An enquiry was made with them individually. With the permission of inmates of the said jeep, PW-6- PI Sangle alongwith his staff had taken inspection of the said jeep. The rear seats were found folded and raiding staff found three gunny bags in the said jeep. There were two gunny bags weighing about 30 kgs. each and third bag was weighing about 10 kgs. The gunny bags were brought down and on opening, it was seen that the gunny bags were loaded with green coloured leaves, flowering and fruiting tops and seeds attached to the stalks with strong smell. The raiding staff was satisfied that it was "Ganja", a contraband which falls under Section 2(b) of the NDPS Act, 1985.
5. In compliance of Section 50 of the NDPS Act, the officer had asked the accused persons individually as to whether they would like to be examined by a Magistrate. PW-6, who is P.I. also informed the accused that he happens to be a gazetted officer and whether they would like to be searched by him. They had given no objection and therefore their personal search was taken. Accused no.1 was found in possession of Rs.300/-, accused no. 2 was found in possession of Rs.250/- and accused no. 3 was found in possession of Rs.500/-. They had also seized registration book of the vehicle and a Toll receipt of the toll charges paid at Vashi Toll Naka and the key of Bolero jeep. The said contraband was seized in presence of the panchas. Thereafter the muddemal was produced before P.I. Koyande, Cuffe Parade, ANC. On 27th March 2012, PW-6 prepared special report of the crime and forwarded the same to the superior officer. Crime was registered being C.R. No.68 of 2012 against the accused and after completion of the investigation, the charge-sheet was filed against the accused.
6. The prosecution has examined seven witnesses to bring home the guilt of the accused. PW-8 was examined
