IMPORTANT POINT
When the prosecution chose to not to examine the independent panch witness who was available it would be improper to hold offence duly proved against accused.   

JUDGMENT (ORAL)

Dani, J.- The order dated 14th January 1992 passed by the Sessions Judge, Thane in Sessions Case No. 145 of 1989 holding the appellant accused guilty of the offence punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentencing him to suffer R.I. for 10 years and a fine of Rs. 1,00,000/- in default to suffer R.I. for one year, is being challenged in the present appeal by the appellant-accused.

2. The facts giving rise to this trial and appeal are stated thus:

P.W. 1 - Dattatray Narayan Pandhare (Ex. 7) was the constable attached to Ulhasnagar Police Station while P.W. 2 - Abhimanyu Raghunath Sonavane (Ex. 8) was attached as a Head Constable to the said Police Station at the time of the incident. P.W. 3 - Kedu Ragho Devare (Ex. 11) was working as a P.S.I. at the said Police Station. The incident is alleged to have taken place on 11/10/1987. P.W.2 - Abhimanyu and P.W. 3 - Kedu received the information on that day in the evening that the appellant-accused Tulashidas was dealing in opium. On receiving the said information, the arrangements for raiding the shop styled as 'Kismat Laundry' at Shivaji Road were made. Shri Bhagwan Samanmal Shevlani and Shri Pama Dwarkadas Kewalramani both residents of Ulhasnagar were called to the Police Station to act as panchas. The Police Officers and the panchas then proceeded towards the shop of the accused. The accused was present in the shop. He was informed about the raid and he was also offered the personal search of the panchas and the police before his personal search was taken. The appellant-accused however, declined to take the personal search of the persons engaged in the raiding party. The personal search of the accused was then effected in the presence of the panchas and a packet containing opium, weighing about one Tola, was discovered under a panchanama (Ex. 10) in the shop itself. The accused and the muddemal article were then brought to the Police Station and P.W. 2 - Abhimanyu then lodged his complaint (Ex. 9). The article in question was then carried over to C.A. by P.W.4 - Ramkishore Pande (Ex. 12). On receiving the report (Ex. 15) and on completion of the other necessary investigation, the appellant-accused was charge sheeted on 5-2-1988 for the alleged offence. The accused stood his trial in Sessions Case No. 145 of 1989 before the Sessions Judge, Thane and he denied the charge and claimed to be tried. It is the case of the defence that the concerned constable of the Police Station was demanding damages as his shirt was torn in the laundry process and the accused denied to pay any amount and, therefore, he was falsely implicated. On consideration of evidence on record, the Sessions Judge found that the accused was in possession of the said quantity of opium at about 6.45 p.m. on 11-10-1987 and was thus answerable to the charge under section 18 of the said Act. Accepting the prosecution evidence, the Sessions Judge, therefore, held the accused guilty for the alleged offence and by an order dated 14-1-1992 convicted and sentenced the appellant -accused as aforesaid. It is this order of conviction and sentence that has been challenged by way of the present appeal.

3. The prosecution adduced the evidence of four witnesses and admittedly they all are the Police Officers. P.W. 1 - Dattatray Pandhare, P.W. 2 - Abhimanyu and P.W. 3 - Kedu are the Police Officers attached to the said Police Station and who have taken part in raid. While P.W. 4 Ramkishore Pande is the Police Inspector who forwarded the article to C.A. for examination and on receiving the report (Ex. 15) had charge sheeted the accused. It is an admitted position in this case that the prosecution has not adduced the evidence of any of the panch witnesses. The panchanama in question is placed on record at Exhibit 10 and it is also in the evidence of the Police Officer that Shri Bhagwan Samanmal Shevlani and Shri Pama Dwarkadas Kewal