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2022 Supreme(Bom) 1308
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH
R. G. Avachat, J.
Shaikh Masood Shaikh Aziz & Ors. - Appellants
Versus
State Of Maharashtra - Respondent
Criminal Appeal No.745 of 2016, 37, 69 of 2017
Decided On : 26-04-2022
Joydeep Chatterji, Advocate, G.L. Deshpande, Advocate, Satej S. Jadhav, Advocate, Govind A. Kulkarni, Advocate
The prosecution must prove conscious possession of contraband substances, and there is a distinction between possession and ownership.
Headnote:
NDPS - Conviction under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances act - [Section 20(b)(ii)(c)] - The court discussed the content of the narcotic drug, conscious possession, and the applicability of previous judgments to the case. The judgment highlighted the need for the prosecution to prove conscious possession and the distinction between possession and ownership. The court ultimately allowed one appeal and dismissed the others, reducing the in-default sentence for the appellants.
Fact of the Case:
The appellants were convicted for possession of Ganja in an autorickshaw during an election squad check. They claimed unconscious possession and challenged the judgment.
Finding of the Court:
The court found that the prosecution had failed to prove conscious possession of the contraband by the appellants. It noted the absence of evidence showing the appellants' knowledge of the contents of the polythene bags.
Issues: The main issue was whether the appellants were in conscious possession of the contraband Ganja found in the autorickshaw.
Ratio Decidendi: The court emphasized the need for the prosecution to prove conscious possession and distinguished between possession and ownership. It also considered previous judgments on possession of contraband substances.
Final Decision: One appeal was allowed, quashing the conviction and setting the appellant at liberty, while the other appeals were dismissed with a reduction in the in-default sentence for the appellants.
JUDGMENT
R. G. avachat, J. - This group of three appeals is being decided by this common judgment and order since common questions of facts and law arise therein. Moreover, the challenge in all these three appeals is to a judgment and order dated 25/11/2016, passed by additional Sessions Judge, Vaijapur in Special (NDPS) Case No.2/2014, whereby the appellants herein have been convicted for offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances act (NDPS act) and, therefore, sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- each. In default of payment of fine, they are directed to undergo simple imprisonment for one year.
2. Facts giving rise to the present appeals are as follows :-
Those were the days of Maharashtra State Legislative assembly elections. The Election Commission had, therefore, constituted squad/s (team of officials) for checking of vehicles with a view to avoid malpractice/s at election. P.W.1 anil Khoche was the head of the squad. He along with the squad members was assigned duty to check vehicles moving on aurangabad-Nagar Road. It was on 2/10/2014 at 3.45 p.m. The informant noticed an autorickshaw (No. MH-20/W-3537) approaching from Pune side towards aurangabad. The autorickshaw was, therefore, intercepted. The appellants were travelling therein. appellant Shaikh Moinoddin (Criminal appeal No.37/2017) was driving the autorickshaw. On search of the autorickshaw, two yellow colour polythene bags were found. The bags were opened to find therein 12 brown colour packets each containing 2 Kgs. Ganja. The informant, therefore, telephonically approached Gangapur Police Station and reported the matter. P.W.12 Vijaykumar Sonawane (Police Inspector) attached to Gangapur Police Station along with some of his staff and two other persons to act as panch witnesses came to the spot. 25 gms. Ganja from each of the brown packets was collected for examination by Chemical analyser. The seizure panchanama in that regard was drawn vide Exh.66. The informant lodged the F.I.R. (Exh.67). The seized samples were sent to CSFL. The C.a. report (Exh.114 & 115) indicates the seized articles (samples) were of Ganja. Investigation was made so as to ascertain to whom the Ganja belonged and wherefrom it was obtained. Involvement of two more persons in this crime was found. Statements of the persons acquainted with the facts and circumstances of the case were recorded. On completion of the investigation, the appellants and two more persons were proceeded against by filing the charge sheet.
3. The learned Judge of the Special Court framed the charge (Exh.51). all of them pleaded not guilty. To bring home the charge, prosecution examined 12 witnesses and relied on number of documents. On appreciation of the evidence in the case, the learned Special Judge convicted the appellants as stated hereinabove. The other two were acquitted. The State has not preferred any appeal against their acquittal.
4. Learned advocates Mr. Chatterji and Mr. Jadhav for appellants in Criminal appeal No.745/2016 and Criminal appeal No.69/2017 respectively would submit that the C.a. Reports (Exhs.114 & 115) indicate the sample contained greenish, brownish, leaves, flowering tops, seeds and stalks put in parcel. Relying on apex Court judgment in case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau [ aIR 2008 SC 1720 ], it was submitted that, when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. The learned advocates meant to say that the actual contents of Ganja was smaller in quantity and the appellants were, therefore, liable for lesser punishment.
5. The learned a.P.P. relied on a three judge judgment of the Hon'ble apex Court in case of Hira Singh & anr. Vs. Union of India & anr.
