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2018 Supreme(Bom) 2770
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Sunil K. Kotwal, J.
Pradeep Sakharam Jadhav - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 129 of 2002
Decided On : 16-03-2018
P.B. Bachate, Advocate holding for Mr. R.B. Raghuwanshi, Advocate, for the Appellant; R.V. Dasalkar, A.P.P, for the Respondent/State
Headnote:
Narcotics Drugs and Psychotropic Substances Act, 1985 - Section 20 (b) (i), 50 – Appeal Against Conviction - Suffer rigorous imprisonment - Appeal are that - on Police Station received secret information that one person was sitting with two bags, in front of Yogesh Hotel, in one - Therefore, considering urgency of situation, A.P.I. Molvane (PW-9) without obtaining search warrant under Section 41 of N.D.P.S. Act, informed his superior officer S.D.P.O. Nanded about the said secret information and by writing a request letter to Tahsildar, he requested him to remain present on the above-said spot for raid. API Molvane (PW-9) rushed on the spot with other police staff and panchas, at about 10.45 a.m. The raiding party found accused No.1, who was sitting on Cot in front of Dhaba with two bags - Therefore, A.P.I. Molvane (PW-9) disclosed his identity and identity of Tahsildar to accused No.1 and after giving personal search of all the members of the raiding party, he seized two bags containing Ganja from accused No.1. 7.25 kilo-grams Ganja was found in one bag and 3.50 kilo-grams Ganja was found in another bag. From each bag sample of 50 gms Ganja was obtained and it was separately sealed in separate bags, in presence of panchas. Seizure memo and separate spot panchnama were drawn on the spot. Accused No.1 was taken to Police Station alongwith seized muddemal articles. (PW-9) lodged F.I.R. against accused at Police Station - In the result, offence was registered against accused Nos.1 and 2 at Police Station under Section 20 (b) (i) of N.D.P.S. Act – Held, A.P.I. (PW-9) nowhere deposes that after returning to Police Station from raid, the seals of Police Station used by him at the time of sealing of Ganja samples, were handed over in the safe custody of in-charge of muddemal properties (PW-7), to rule out tampering of muddemal samples, before referring it to Chemical Analyzer. Thus, possibility of tampering of the sample packets by A.P.I. (PW-9) cannot be ruled out by prosecution and in such circumstances benefit of doubt goes in favour of the accused - Prosecution miserably fails to prove accused No.1 was found in conscious possession of Ganja which is narcotics drug within meaning of N.D.P.S. Act. Unfortunately while convicting the accused under Section 20 (1) (b) of N.D.P.S. Act learned trial Court did not consider the above lacunas emerged in the prosecution evidence. Therefore, conviction of the accused for offence punishable under Section 20 (1) (b) of the N.D.P.S. Act being bad in law, deserves to be set aside, by allowing this appeal - Criminal Appeal is allowed.
JUDGMENT
Sunil K. Kotwal, J. - The original accused No.1 in Special Case No.9/2000 has challenged his conviction under Section 20 (b) (i) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "N.D.P.S. Act" for short), recorded by Special Judge, Nanded dated 21.01.2002, sentencing accused No.1 to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/-, in default rigorous imprisonment for one year. Respondent is the State of Maharashtra.
2. Facts leading to institution of this appeal are that - on 04.05.2000 Police Station, Ardhapur received secret information that one person was sitting with two bags of Ganja, in front of Yogesh Hotel, in one Dhaba at ''Bhokar Phata''. Therefore, considering urgency of situation, A.P.I. Molvane (PW-9) without obtaining search warrant under Section 41 of N.D.P.S. Act, informed his superior officer S.D.P.O. Nanded about the said secret information and by writing a request letter to Tahsildar Ardhapur, he requested him to remain present on the above-said spot for raid. API Molvane (PW-9) rushed on the spot with other police staff and panchas, at about 10.45 a.m. The raiding party found accused No.1, who was sitting on Cot in front of Dhaba with two bags. Therefore, A.P.I. Molvane (PW-9) disclosed his identity and identity of Tahsildar, Ardhapur to accused No.1 and after giving personal search of all the members of the raiding party, he seized two bags containing Ganja from accused No.1. 7.25 kilo-grams Ganja was found in one bag and 3.50 kilo-grams Ganja was found in another bag. From each bag sample of 50 gms Ganja was obtained and it was separately sealed in separate bags, in presence of panchas. Seizure memo (Exh.18) and separate spot panchnama (Exh.38) were drawn on the spot. Accused No.1 was taken to Police Station, Ardhapur alongwith seized muddemal articles. A.P.I. Molvane (PW-9) lodged F.I.R. (Exh.34) against the accused at Police Station, Ardhapur. In the result, offence was registered against accused Nos.1 and 2 at Police Station, Ardhapur under Section 20 (b) (i) of N.D.P.S. Act.
3. A.P.I. Molvane (PW-9) conducted investigation of this Crime. He referred the seized sample bags to Chemical Analyzer, Aurangabad. On examination of both the samples, Chemical Analyzer submitted report (Exh.39) that Ganja was detected in both the samples. After completion of the investigation, charge-sheet was submitted before Special Court, Nanded for the offence punishable under Section 20 (b) (i) of N.D.P.S. Act.
4. Charge (Exh.11) was framed against accused Nos.1 and 2 for the offence punishable under Section 20 (b) (i) of N.D.P.S. Act. Accused pleaded not guilty and claimed trial.
5. Defence of the accused is of total denial.
6. After considering the evidence placed on record by prosecution, trial Court pleased to convict accused No.1 for the offence punishable under Section 20 (b) (i) of N.D.P.S. Act and above-said sentence was imposed against him. Therefore, this appeal arises.
7. Heard strenuous argument submitted by Shri Bachate Advocate for appellant and
8. Learned Counsel for appellant pointed out my attention towards inconsistencies emerging in the evidence of prosecution witnesses as to when Tahsildar (PW-11) arrived at the spot of raid.
He pointed out that in the cross-examination of witnesses it emerges that the bags from which Ganja was seized were found below the cot on which the accused was sitting. According to learned Counsel for the appellant, such type of evidence is not sufficient to prove that Ganja was seized from conscious possession of accused No.1.
9. His next submission is that in compliance with Section 50 of N.D.P.S. Act, written notice was not served on accused No.1 before taking his personal search and therefore, for breach of Section 50 of N.D.P.S. Act the entire trial vitiates. He placed reliance on the judgment of Apex Court in the case of "Megh Singh vs. State of Punjab" in Criminal Appeal No.452/2003 and " State of Ra
