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2003 DIGILAW 1141 (BOM)

Abdul Gaffar Tota Patel v. State of Maharashtra

2003-11-03

J.G.CHITRE

body2003
JUDGMENT - CHITRE J.G., J.:-Heard the Counsel for the parties at length. The appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by Additional Sessions Judge, Malegaon in Sessions Case No. 42 of 1998 wherein the learned Judge convicted the appellant for the offence punishable under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act for convenience) and sentenced him to undergo RI for 10 years and to pay fine of Rs. 1,00,000/-, in default to suffer further RI for one year. 2. The prosecution case in brief is that on 9-1-1998 when PSI Navale was on P.S.O. duty of Azad Nagar Police Station, he received an information at 5.00 p.m. that the appellant was possessing an selling ganja on large scale in his godown of tin sheets situate near Meera Datar Nagar Darga adjacent to Bombay Agra Road. He made an enquiry to that effect in the station diary and submitted that information to Superior Officer i.e. PI Ahirrao. Thereafter P.W. 3 PSI Navale called the panch witness and his colleagues and informed them about the said information. Thereafter the raiding party went to the said spot and found that the frontal door was closed. As the frontal door was closed, they went to the left side of the said godown and found that the side door was half open and the appellant was present there with another person. By taking the advantage of the darkness and the melee, the said associate ran away. The appellant was caught on the spot along with 90 kgs. of ganja which included green leaves, flowering tops, seeds, etc., The panchanama was prepared. Samples were taken for chemical analysis and appellant was arrested. Investigation proceeded in which 7 x 12 extract was procured from the concerned authority by the Investigating Officer which showed that the said plot was in the name of the daughter-in-law of the present appellant. The appellant, his son and daughter-in-law were prosecuted before the trial Court. In the trial, the appellant and co-accused set up the defence of denial. The trial Court acquitted the son of the appellant and his daughter-in-law. The appellant was convicted and sentenced as stated above and that judgment and order of conviction and sentence is put to challenge by the appellant in this appeal. 3. In the trial, the appellant and co-accused set up the defence of denial. The trial Court acquitted the son of the appellant and his daughter-in-law. The appellant was convicted and sentenced as stated above and that judgment and order of conviction and sentence is put to challenge by the appellant in this appeal. 3. Shri Dhakephalkar, Counsel appearing for the appellant, submitting firstly that the substance which has been seized by the Investigating Agency was not in accordance with the definition of ganja provided by section 2. In this context, he pointed out to the report of the chemical analyser. Shri, Saste submitted that the report of the Chemicals analyzer shows that the flowering tops were also in the samples which were sent for chemical analysis and, therefore, the substance which was seized from the appellant and was sent to the Chemical Analyser was nothing but ganja, narcotic drug and psychotropic substance. 4. Section 2(1)(iii)(b) of the N.D.P.S. Act defines "ganja" as "the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated. The chemical analyser's report shows that the sample which was examined by him was having stalks bearing greenish leaves, greenish flowering tops and seeds. Thus, there cannot be any doubt that the substance which was seized from the appellant was ganja as defined by section 2(1)(iii)(b) of N.D.P.S. Act. Because it has been proved, as pointed out herein under, that prosecution has established it beyond reasonable doubt that some leaves, flowering tops, seeds were seized from the possession of the appellant. 5. It has been submitted by Shri Dhakephalkar that the appellant was not in conscious possession of the material which was seized by the prosecution and the sample from which was sent to the chemical examiner for analysis. He placed reliance on two judgments of this Court:--(i) (Antony Sauri Pilley v. State of Maharashtra)1, reported in 1993(1) Bom.C.R. 153 and (ii) (Sajid Khan s/o Sayeed Khan v. State of Maharashtra)2, reported in 1995(2) Bom.C.R. 650 . 6. He placed reliance on two judgments of this Court:--(i) (Antony Sauri Pilley v. State of Maharashtra)1, reported in 1993(1) Bom.C.R. 153 and (ii) (Sajid Khan s/o Sayeed Khan v. State of Maharashtra)2, reported in 1995(2) Bom.C.R. 650 . 6. In both those judgments, this Court has not considered the provisions of section 35 of N.D.P.S. Act which provides that in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect of the act charged as an offence in that prosecution. In those two cases, the spot from where narcotic drug was found was not in proximity with the accused. Therefore, it was possible to say that the accused was not in conscious possession of the narcotic drug as he had no knowledge of the said narcotic drug and he has no dominion over that. But, in the present case the appellant was sitting in close proximity of the narcotic drug and he was sitting in its proximity with a weighing scale and weights. In the present case, the prosecution had collected 7 x 12 extract from the appropriate authority which shows that the said property was owned by the family in which his daughter-in-law was the member. In his examination under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), the appellant did not state that he had no knowledge of the said commodity nor he was having dominion over it. He also did not state that he was residing separately from his son and daughter-in-law. When the evidence on record is showing unequivocally that the appellant was very much the member of the said family which included himself, his son and daughter-in-law, he being the elder, he will have to be presumed to be owner and possessor of the said property. Besides that, the prosecution could not prove that the person, who ran away, as per the prosecution case, was the son of the appellant. Therefore, it cannot be denied that the appellant was the person found in close proximity of the said commodity with weighing scale and weights and he was caught on the spot. 7. Besides that, the prosecution could not prove that the person, who ran away, as per the prosecution case, was the son of the appellant. Therefore, it cannot be denied that the appellant was the person found in close proximity of the said commodity with weighing scale and weights and he was caught on the spot. 7. Shri Dhakephalkar submitted that the evidence of panch witness has been erroneously accepted by the trial Court. When his evidence did not support the prosecution on all points, this Court dismisses the submission advanced by Shri Dhakephalker for the appellant because the evidence of the panch witness if read as a whole corroborates the evidence of PSI Navale. Apart from that, there is nothing in the evidence of PSI Navale to make his evidence discardable. Police Officers by their designation and job cannot be said to be unreliable witnesses unless their evidence shows that way. They are competent witnesses like other witnesses and if their evidence is inspiring the confidence, they deserve to be treated to be creditworthy witnesses. It their evidence is free from blame, motivation and infirmity, the evidence of PSI Navale and panch witness Jadhav if read together establishes the nexus of the appellant with the said narcotic drug which was found in the said godown. His daughter-in-law was the owner and when he was caught the appellant was the person in possession of that godown as well as the narcotic drug which was found in near proximity of the appellant. 8. The trial Court has appreciated the evidence by considering its merits and demerits on all points. This Court does not find any flaw in the way of appreciation of evidence followed by the trial Court. This Court confirms the conviction. 9. Shri Dhakephalkar prayed for leniency by submitting that the appellant happens to be an aged 73 years old. Shri Saste submitted that the quantity of narcotic drug is 90 kilo grams and, therefore, leniency be not shown. The age of the appellant has been shown as 66. Today he may have been at the most 71 years old. That age cannot make that huge quantity of narcotic drug found in his possession. It cannot also be ignored that it is the prosecution case that he was selling the said narcotic drug ganja in large scale. The age of the appellant has been shown as 66. Today he may have been at the most 71 years old. That age cannot make that huge quantity of narcotic drug found in his possession. It cannot also be ignored that it is the prosecution case that he was selling the said narcotic drug ganja in large scale. Thus, this Court finds that the appellant needs to be sentenced in accordance with the sentence which has been indicated by the provisions of section 20 of the N.D.P.S. Act. Section 20 has been amended on 2-10-2001. In the year 1998 possession of ganja was punishable with RI extending to five years and fine which was indicated was Rs. 50,000/-. Therefore, the appellant should have been sentenced for imprisonment of RI of five years and fine which was indicated was Rs. 50,000/-. Therefore, the appellant should have been sentenced for imprisonment of RI of five years and fine of Rs. 50,000/-. The sentence in default of fine which has been inflicted on the appellant is correct and appropriate to the quantity of narcotic drug found his possession. 10. Thus, the appeal stands dismissed. 11. Parties to act on ordinary copy of this order duly authenticated by the Private Secretary/Sheristedar of this Court. Appeal dismissed. -----