2021 Supreme(Bom) 1220

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Bharati Dangre, J.
Shaikh Salman Shaikh Khalil - Appellant
Versus
The State Of Maharashtra - Respondent
Criminal Appeal No. 182 of 2018 Along With Bail Application No. 1883 of 2018
Decided On : 03-08-2021

The provisions contained in Chapter V are intended for providing certain checks on exercise of the powers of authority concerned and to avoid misuse and arbitrary exercise of the power, in absence of its compliance. The Act mandates that the prosecution must ensure compliance of certain provisions, one of them being Section 50.

Headnote:

CRIMINAL - NDPS ACT - SECTION 8(C) - POSSESSION OF 60 KGS OF GANJA - CONVICTION - APPEAL - CHALLENGING CONVICTION AND SENTENCE - ABSENCE OF WRITTEN AUTHORIZATION UNDER SECTION 41(2) OF THE NDPS ACT - NON-COMPLIANCE OF SECTION 42 OF THE NDPS ACT - NO DOCUMENT FOUND IN THE VEHICLE OR IN POSSESSION OF THE APPELLANT ESTABLISHING HIS NEXUS WITH THE CAR - NO TOLL RECEIPT IS PRODUCED BY THE PROSECUTION REFLECTING THAT THE VEHICLE HAS CROSSED TOLL PLAZA BEFORE ENTERING MUMBAI - NON-EXAMINATION OF PSI SANAP AND NATUSKAR - MANNER OF SEALING OF SAMPLES AND PACKING OF BULK - IDENTIFICATION OF SEIZED ARTICLES - NON-COMPLIANCE OF SECTION 50 OF THE NDPS ACT - INVESTIGATION BY PW-5 KATWANI IS AN ABUSE OF PROCESS OF LAW - CONVICTION WITH THE AID OF THE PANCHA WITNESS IS ERRONEOUS - APPEAL DISMISSED.

Fact of the Case:

The Appellant was convicted under Section 8(c) of the NDPS Act, punishable under Section 20(b)(ii)(c) thereof, by the judgment delivered in NDPS Special Case No.214 of 2015 dated 22/12/2017. On being convicted, the Appellant has been sentenced to suffer RI for 10 years and to pay fine of Rs.1,50,000/-, in default of payment of fine, to undergo RI for one year and six months. Set off is given for the period he was in judicial custody in terms of Section 428 of the Cr.P.C.

Finding of the Court:

The prosecution has succeeded in establishing its case by cogent and reliable evidence, which the defence has not been able to refute and nullify. The learned Special Judge has carefully scrutinized all the relevant documents with testimony of PW 1, PW3, PW 4, PW 5 and PW 6 and held that prosecution has established compliance of Sections 41 and 42 of the NDPS Act and mere contradictions in the evidence of PW 1 do not take case of the Appellant any further. Provision of Section 50 of the NDPS Act has also been adhered to is the finding rendered by the Special Judge, based on the evidence on record. Recording that huge quantity of ganja, being 60 Kg., was found in possession of the Appellant and since the Appellant was not in a position to rebut the case of the prosecution, a finding of guilt is recorded.

Issues: 1. Whether there was an absence of written authorization under Section 41(2) of the NDPS Act? 2. Whether there was non-compliance of Section 42 of the NDPS Act? 3. Whether there was no document found in the vehicle or in possession of the Appellant establishing his nexus with the car? 4. Whether there was no toll receipt produced by the prosecution reflecting that the vehicle has crossed toll plaza before entering Mumbai? 5. Whether there was non-examination of PSI Sanap and Natuskar? 6. Whether there was improper manner of sealing of samples and packing of bulk? 7. Whether there was improper identification of seized articles? 8. Whether there was non-compliance of Section 50 of the NDPS Act? 9. Whether the investigation by PW-5 Katwani was an abuse of process of law? 10. Whether the conviction with the aid of the pancha witness was erroneous?

Ratio Decidendi: 1. The prosecution has proved the authorisation granted by the superior officer (PW 6), ACP to PI Belge (PW 4) and from the aforesaid evidence brought on record, the submission of the learned counsel that there is no authorisation for conducting the raid in terms of sub-section (2) of Section 41 cannot be accepted. 2. The compliance of sub-section (2) of Section 42 ensure that the power which is exercised by the officer is subject to supervision. The said provision is in form of additional check and balance and it applies to an officer contemplated by sub-section (1) of Section 42 but does not apply to a Gazetted Officer contemplated by sub-section (1) and when such an Gazetted Officer himself makes an arrest and take search and seizure. A Gazetted Officer has been differently dealt with and some trust is posed in him and, therefore, if the search is to be carried out by the Gazetted Officer, sub-section (2) is not attracted. 3. The prosecution witnesses have narrated the case of the prosecution in a consistent manner. PW 1, who is the complainant, coupled with PW 4, In-charge of the raid, PW 5, the Investigating Officer, who was part of the raid, speak in sync with one another coupled with panch, PW 2. PW 6 PI Bharat Jadhav, the superior Gazetted Officer also corroborate PW 5, who has received the information and transmitted the said information to his superior, who gave instructions to carry the raid, which was accordingly carried out by PW 4. 4. The panchanama record that when the Appellant was about the car, he categorically informed that although he purchased the car, registration was not done in his name and, therefore, he has no papers of the said car. In any case, the cloud created on the ownership of the car has no bearing in projecting guilt of the Appellant for the simple reason that the panchanama clearly record that the Appellant was seen disembarking from the vehicle and as found in possession of the contraband. 5. The persons, who were called to act as panchas and who expressed their readiness and willingness to act as such when the trap has been laid, are not incompetent witnesses. 6. The prosecution has examined PW 7 Constable Sonavane in respect of carrying samples A-1 and B-1 from ANC storeroom to C.A. Laboratory. The C.A.Report (Ex-10) and Data Sheet (Ex-11) are admitted by defence and the learned Special Judge in para 169 has recorded as to why the entire exercise was undertaken. 7. The Appellant was afforded opportunity and his statement is recorded under Section 313 of the Cr.P.C. When asked, why prosecution witnesses are deposing against him, he responded by saying, he do not know. He chose not to examine himself or examine any witness in his favour. 8. The Appellant, who was found driving a vehicle with gunny bags containing ganja, the possession stands established and give rise to presumption, which is permitted to be rebutted by the Appellant, which he miserably failed to do.

Final Decision: Appeal dismissed.