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2006 DIGILAW 1006 (BOM)

Firoz Gafur Shaikh v. State of Maharashtra

2006-07-04

P.V.HARDAS

body2006
JUDGMENT The appellant who stands convicted for an offence punishable under section 20(b) and 25 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to R.I. for 10 years and to pay fine of Rs.l.00,000/- each with a default stipulation to undergo further S.I. for three years in default of payment of fine by the learned Additional Sessions Judge, Kopargaon by judgment dated 14-2-2005 in Special Case No.3 of 2004, by this appeal challenge their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal can briefly be stated thus: P.WA A.P.I. Shrikant Jawle who was attached to Shirdi Police Station as an A.P.I. received information on 1-11-2003 that one Gafur Jainuddin Shaikh was illicitly selling Ganja in his house. Upon receipt of the said information, P.WA A.P.I. Jawle contacted his, immediate superior i.e. Sub Divisional Police Officer P.W.5 in respect of the information which he had received and sought permission from him for conducting the raid. Thereafter an entry in the station diary came to be effected at Sr.NoA8 at 3.45 p.m. regarding the oral communication to the Sub Divisional Police Officer regarding the information which had been received by P.W.4 A.P.I. Jawle. The two panch as were thereafter summoned and their consent was obtained for acting as a panch at the time of raid. The entry in this behalf was also accordingly taken in the station diary at Sr.No.19 at Exh.47. The members of the raiding party which consisted of the police officers and the two panchas then proceeded for the purpose of raid and reached near the house of the accused at Kalikanagar at about 4.15 p.m. son of the accused No.3 and wife of accused No.3 were found in the house. The members of the raiding party introduced themselves and informed them the reason of the raid. Accordingly the request for searching their house was communicated to original accused Nos.1 and 2 vide Exh.28 and 29. Signatures of both the accused were obtained at Exh.28 and 29. Thereafter search of their house was taken in the presence of the accused and 10 plastic bags of 1 kg. each was found at one place and two plastic bags containing 5 kg. of ganja were found at two different places in the house. Coupled with this, cash of Rs. 4,900/- was also found in the said house. Thereafter search of their house was taken in the presence of the accused and 10 plastic bags of 1 kg. each was found at one place and two plastic bags containing 5 kg. of ganja were found at two different places in the house. Coupled with this, cash of Rs. 4,900/- was also found in the said house. Said ganja came to be weighed and it was found to weigh 20 kgs. Accordingly, entire ganja and cash of Rs.4.900/- which were found in the house of the accused came to be seized under a panchanama. Three samples of 100 grams each was obtained and it was sealed with the signature of the police and the panchas. The said three samples bore the signatures of P.W.5 Sub Divisional Police Officer Kisan Pawar and the two panch as. The remaining ganja also came to be seized and sealed in the presence of the panchas. The panchanama in respect of the entire event came to be drawn. The members of the raiding party returned to the Police Station and a complaint came to be lodged against the appellants' at Exh. 36. Upon lodging of the said complaint, an offence came to be registered and the investigation was handed over to P.W. 5 Sub Divisional Police Officer Kisan Pawar. P.W. 5 Sub Divisional Police Officer Kisan Pawar deposited the seized property in the Malkhana. Thereafter the seized property was sent through Carrier P.W.3 Balasaheb to the Chemical Analyser along with the requisition at Exh. 33. The report of the Chemical Analyser is at Exh. 53. The report of the Chemical Analyser at Exh.53 shows that the samples were tested and found to be ganja. Upon completion of the investigation, a charge-sheet against the appellant came to be filed. 3. Trial Court vide Exh.3 framed charge against the appellants for offence punishable under sections 20(1)(b) and 25 of the NDPS Act. The appellants denied their guilt and claimed to be tried. Prosecution in support of its case examined seven witnesses. On consideration of the evidence, the trial Court found that the prosecution had been able to establish the offence against the appellants beyond reasonable doubt and accordingly convicted and sentenced them as a fore stated. 4. Prosecution in its endeavor to bring home the offence against the appellants accused had examined panch P.W.1 Subhash and the other panch P.W.6 Fakirchand. On consideration of the evidence, the trial Court found that the prosecution had been able to establish the offence against the appellants beyond reasonable doubt and accordingly convicted and sentenced them as a fore stated. 4. Prosecution in its endeavor to bring home the offence against the appellants accused had examined panch P.W.1 Subhash and the other panch P.W.6 Fakirchand. Both the panch witnesses did not support the prosecution and were declared hostile. The pivot of the prosecution case therefore revolves around the evidence ofP.W.2 Jayram, P.W.4 Shrikant Jawle and P.W. 5 Kisan. Prosecution also draws same support from the testimony of P.W.7 Rohidas who at the relevant time was an A.P.I. Before I advert to the submissions advanced by Mr. Malte, learned Counsel appearing on behalf of the appellants and Mr. Patil learned A.P.P. appearing on behalf of the respondent State, it would be useful to refer to the evidence of these police officers. 5. P.W.2 Jayram states that he was attached to the office of the Sub-Divisional Police Officer, Kopargaon Division, Shirdi. On 1-11-2003 at about 3.45 p.m. P.W. 4 P.I. Jawle received information that one Gafur Shaikh was selling Ganja in the area of Kalikanagar. P.W.2 Jayram states that he was called by P.W.4 P.I. Jawle along with the other members of the raiding party. P.W.4 P.I. Jawle then informed him about the information which he had received. A constable was deputed to secure the presence of two panchas. Accordingly the two panchas arrived at the police station and the P.W.5 Sub-Divisional Police Officer Kisan Pawar also arrived. P.WA P.I. Jawle narrated the information which he had received to the panch as and requested them to accompany the police party for conducting the raid. Panchas consented for the same and accordingly on being armed with the weighing scale, weights and the sealing material, the members of the raiding party proceeded in a jeep to Kalikanagar. The raiding party divided themselves into two groups. One group proceeded towards Kalikanagar on foot while the other group proceeded from the western direction. Upon reaching the said house, they noticed one women and a boy sitting in front of the house. Upon seeing the members of the raiding party, the said two persons started running. The members of the raiding party, however, chased them and apprehended them. One group proceeded towards Kalikanagar on foot while the other group proceeded from the western direction. Upon reaching the said house, they noticed one women and a boy sitting in front of the house. Upon seeing the members of the raiding party, the said two persons started running. The members of the raiding party, however, chased them and apprehended them. The said two persons disclosed their names as Firoz Gafur Shaikh and Suraiya Gafur (accused Nos. l and 2 respectively). P.W.5 Sub Divisional Police Officer Kisan Pawar informed the said two persons the purpose of raid. Accordingly, written intimation was given to them vide Exh.28 and 29 and members of the raiding party then entered the house of the accused and they had noticed one plastic bag containing 5 kgs. of ganja and one plastic gunny bag containing 10 bags of 1 kg. ganja each and another plastic bag containing 5 kgs. of ganja. The said contraband was weighed and it was found to weigh 20 kgs. Currency notes of RsA,900/- was also found in the house. Three samples of 100 grams each were drawn and were sealed at the scene of the offence itself. The remaining quantity of ganja was also sealed. A detailed panchanama in respect of the events, which had taken place, came to be drawn. The members of the raiding party thereafter returned to the Police Station along with the said two accused and the seized property. P.W.4 P.I. Jawle then lodged his complaint and an offence came to be registered. In cross-examination P.W.2 Jayram has admitted that it did not happen that the sample was sealed with the signature of the panchas. He has admitted to have deposed portion marked “A” in his statement. Portion marked “A” with which P.W.2 Jayram was contradicted is to the effect that the samples for analysis were seized and sealed in the presence of the panchas. 6. P.W.4 A.P.I. Jawle states about the receipt of the information and he going to the office of the Sub-Divisional Police Officer and informing the Sub-Divisional Police Officer about the receipt of the said information and taking a station diary entry at Exh.48. He then further deposes about securing the presence of the two panchas for the purpose of raid and an entry being taken at Exh.49 in the station diary. He then further deposes about securing the presence of the two panchas for the purpose of raid and an entry being taken at Exh.49 in the station diary. He then deposes about proceeding for raid at the house of the accused. He further states that accused No.1 and accused No.2 were found in their house. The members of the raiding party introduced themselves and the accused were informed the purpose of the raid and the need for search of their house. The said intimation was given vide Exh.28 and Exh.29. The premises of the accused were thereafter searched and the contraband weighing 20 kgs. along with cash of Rs. 4,900/- came to be seized. He further states that three samples of 100 grams each were drawn for the purposes of analysis. Thereafter a panchanama in respect of the events which had occurred came to be drawn. The remaining quantity of ganja also came to be seized and sealed in the presence of the panchas. P.W.4 P.I. Jawle further states that on return to the Police Station he has lodged the complaint at Exh.36. In cross-examination he has admitted that he had deposited the seized property with the Muddemal clerk. He has admitted that there was no seal of the Police Station on the seized property. He has admitted that it was not mentioned in his complaint that the sample packets were sealed under the signatures of the panchas. He had also not stated in his complaint that the sample packets also bore the signature of Sub Divisional Police Officer Kisan Pawar. He has admitted that it is not mentioned in his complaint that the accused were asked if they wanted to take search of' the members of the raiding party. 7. P.W.S Sub-Divisional Police Officer Kisan Pawar states about P.W.4 P.I. Jawle informing him that he had received secret information that one person by name Gafur Shaikh was selling ganja. He states that the members of the raiding party and the panch proceeded for raiding and stopped the jeep at some distance from the house of the accused. The members of the raiding party were divided into two groups and one group proceeded from the eastern side while the other group proceeded from the western side. When they reached the house of the accused they saw one women and one boy sitting in front of the house. The members of the raiding party were divided into two groups and one group proceeded from the eastern side while the other group proceeded from the western side. When they reached the house of the accused they saw one women and one boy sitting in front of the house. Immediately on seeing the police. the said two persons attempted to flee. The members of the raiding party were successful in apprehending the said two persons. The said two persons were accused Nos. l and 2 respectively P.W.5 Sub-Divisional Police Officer Pawar further states about intimation being given to accused Nos. l and 2 at Exh.28 and 29. He then deposes about the seizure of Ganja weighing 20 Kgs. from the house of the accused. He also deposes about seizure of cash of Rs. 4.900/- from the house of the accused. Sub-Divisional Police Officer P.W.5 Pawar further states about drawing of the three samples each weighing 100 grams each for the purposes of analysis. He then states that the entire events were evidenced by drawing a panchanama at Exh. 44. He has stated that the three plastic bags which were found to contain ganja do not bear the signatures of the panchas or his signature. In cross-examination he has admitted that he himself has handed over the muddemal to the writer of shirdi Police Station. He could not tell who was the P.S.O. attached to the Shirdi Police Station at that time. He has admitted that he had deposited the seized property with the Head Constable Salim Raje who was Writer at that time. He has admitted that as per the NDPS Act, he was supposed to deposit the seized property with the Muddemal clerk. He states that he handed over the seized property to Muddemal Clerk and obtained receipt from him and thereafter returned to his office. 8. P.W.7 Rohidas Pawar, an A.P.I. who was also attached to Shirdi Police Station who states about the presence of panchas being secured for the purpose of raid and also about information being taken down in the station diary at Exh.47 and 48. He states that he along with the police officers then proceeded in a jeep to Kalikanagar for the purpose of raid. They had noticed accused Nos. l and 2 in the house and on seeing the members of the raiding party the accused had attempted to flee from the house. He states that he along with the police officers then proceeded in a jeep to Kalikanagar for the purpose of raid. They had noticed accused Nos. l and 2 in the house and on seeing the members of the raiding party the accused had attempted to flee from the house. The police party successfully apprehended both the accused. He then states that on search of the house 20 kgs. ganja came to be seized and the currency notes of Rs. 4,900/-. Thereafter three samples each containing 100 grams ganja came to be drawn. He states that upon returning to the Police Station, he deposited the seized property with the Muddemal Clerk. He states that he had obtained the receipt from the Muddemal Clerk at Exh. 49. He states that on 15-11-2003, he had sent the sample to the Chemical Analyser along with the forwarding letter at Exh. 33. He states that after completion of the investigation he had filed charge sheet against the accused. In cross-examination he has admitted that except the sample the entire seized property was deposited with the Muddemal Clerk. He corrected himself to state that the sample packets were also handed over to the Muddemal Clerk. He has then admitted that the receipt in respect of the sample packet was not taken in order to avoid any tampering of the seized property. This witness has further admitted that he had not followed the procedure laid down in Section 52-A of the NDPS Act. Curiously, this witness gives the following admission: “I have not sent separate seal impression to Chemical Analyser, Aurangabad along with the sample”. He then states that on 15-11-2003 he had handed over the seized property to constable Ghadge at about 8.15 a.m. as per Exh.32. He has stated that he did not hand over the seized property to Ghadge on 16-112003 at 8.15 a.m. A brief reference to the evidence of P.W.3 Balasaheb Ghadge is necessary. P.W.3 Police Constable Ghadge states that the seized property was handed over to him and he had carried the seized property along with the forwarding letter to the Chemical Analyser. He states that the property was deposited with the Chemical Analyser on 1611-2003. In cross-examination he has admitted that on 15-11-2003 at 8.15 p.m. Muddemal property was handed over to him and he had delivered it at the office of the Chemical Analyser on 16-11-2003. He states that the property was deposited with the Chemical Analyser on 1611-2003. In cross-examination he has admitted that on 15-11-2003 at 8.15 p.m. Muddemal property was handed over to him and he had delivered it at the office of the Chemical Analyser on 16-11-2003. He was confronted with the portion in his statement in which it was stated that the seized property was handed over to him on 16-11-2003 in the morning. 9. Mr. Malte, learned Counsel appearing on behalf of the appellants has urged before me that there is total non compliance of Section 42(2) of the NDPS Act. According to Mr. Malte, learned Counsel for the appellant, information was received by P.W.4 Shrikant Jawle and P.W.4 Shrikant Jawle had not immediately recorded the said information in writing. The evidence of P.W.4 Shrikant Jawle clearly indicates that upon receipt of the said information he had gone to the office of P.W.S Sub Divisional Police Officer Kisan Pawar and had informed him about the information and thereafter a station diary entry at Exh.48 came to be taken. Perusal of station diary entry at Exh.48 clearly reveals that this entry has been taken after P.W.4 P.I. Jawle had a talk with P.W.5 S.D.P.O. Kisan Pawar. Thus the information which was received by P.W. 4 Shrikant Jawle had not been taken down by him in writing immediately as per the mandate of section 42(2) of the NDPS Act. It was also urged before me by Shri. Malte, learned Counsel for the appellants that the report of the Chemical Analyser loses all its sanctity in view of the fact that the specimen seal impression was not sent along with the samples to the office of the Chemical Analyser and thus the possibility that the samples could have been tampered with cannot be ruled out. Mr. Patil, learned A.P.P. appearing on behalf of the respondent State has supported the judgment of the trial Court and has prayed for dismissal of the appeal. 10. Evidence ofP.W.4 Shrikant Jawle clearly reveals that he had not immediately taken down the information, which he had received from his secret sources. According to P.W.4 Shrikant Jawle, after he had received the information he proceeded to the office of P.W.5 SDPO Kisan Pawar and informed SDPO Kisan Pawar about the receipt of the said information. Thereafter entry at Sr.No.18 in the station diary at Exh.48 came to be made. According to P.W.4 Shrikant Jawle, after he had received the information he proceeded to the office of P.W.5 SDPO Kisan Pawar and informed SDPO Kisan Pawar about the receipt of the said information. Thereafter entry at Sr.No.18 in the station diary at Exh.48 came to be made. Perusal of the said entry at Exh.48 clearly reveals that the station diary entry was not taken down immediately when the information was received by P.W.4 Shrikant Jawle. Thus, there is total non- compliance of Section 42(2) of the NDPS Act. A reference may usefully be made at this juncture to the judgment of the Supreme Court in State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 in which the Supreme Court has held that the provisions of Section 42 were mandatory and non-compliance thereof would vitiate the trial. Division Bench of this Court in Baliram Vs. State of Maharashtra, 1996(4) Crimes 128 has held that since there was non compliance of Section 42(2) of the NDPS Act, the trial was vitiated and the accused was acquitted. Mr. Malte, learned Counsel appearing on behalf of the appellants has invited my attention to the other judgment of the Supreme Court in State of West Bengal Vs. Babu Chakraborthy, AIR 2004 SC 4324 in which Supreme Court has held that on account of non compliance of the mandatory provisions of Section 42, accused was entitled to be acquitted. My attention was also invited my attention to the judgment of the Supreme Court in Beckodam Abdul Rahiman Vs. State of Kerala, AIR 2002 SC 1810 in which the Supreme Court acquitted the accused the ground of non compliance of section 42 of the NDPS Act. 11. Non compliance of Section 42(2) of NDPS Act is writ large upon perusal of evidence of P.W.4 Shrikant Jawle and P.W. 5 Kisan Pawar. The information which was received by P.W.4 Shrikant Jawle was not reduced to in writing immediately as per the mandate of Section 42(2) and a copy thereof had not been communicated to his immediate superior. In view of that matter, according to me appeal deserves to succeed on this ground alone. 12. Perusal of the evidence of the police officers also indicates that a copy of specimen impression seal was not forwarded to the Chemical Analyser. P.W.4 Shrikant Jawle in his cross-examination had stated that he had deposited the property in the Malkhana. In view of that matter, according to me appeal deserves to succeed on this ground alone. 12. Perusal of the evidence of the police officers also indicates that a copy of specimen impression seal was not forwarded to the Chemical Analyser. P.W.4 Shrikant Jawle in his cross-examination had stated that he had deposited the property in the Malkhana. P.W.5 SDPO Kisan Pawar also states that he had deposited the property in the Malkhana. P.W.7 Rohidas claims to have deposited the property in the Malkhana and obtained a receipt there of. The receipt is at Exh.49. In the said receipt there is no reference at all to the deposit of three sealed samples each weighing 100 grams. Thus from the evidence of the prosecution, prosecution has not been able to establish that the three samples each weighing 100 grams also came to be deposited in the Malkhana. Curiously the evidence of P.W.7 Rohidas is that he had not obtained the receipt from the Malkhana Mohrir in order to ensure that there was no tampering of the property. This reason given by P.W.7 Rohidas is wholly inexplicable. If the property was deposited it is expected that a receipt would be obtained evidencing the deposit of the said property. Receipt at Exh.49 only refers to the property minus the samples which were drawn. In view of that fact and also in view of the fact that each officer claims to have deposited the property himself, according to me, non sending of the specimen seal impression to the Chemical Analyser assumes importance. The Chemical Analyser had no specimen seals before him to compare the seals on the property, which had been received by him. If the prosecution has not been able to prove safe custody of the property and the transmission of the samples from the police station to the office of the Chemical Analyser unhampered, benefit thereof must go to the accused. In this case, the prosecution has failed firstly to prove that the samples were in the safe custody of the Malkhana Mohrir and secondly that from the safe custody of the Malkhana it was transmitted for analysis to the Chemical Analyser. In the absence of the specimen seal impression, the possibility that the samples could have been tampered with cannot be ruled out. The benefit in such situation must go to the accused. 13. In the absence of the specimen seal impression, the possibility that the samples could have been tampered with cannot be ruled out. The benefit in such situation must go to the accused. 13. In the light of what has been held by me above, according to me, the appellants are entitled to be given the benefit of doubt. Prosecution has not been able to establish that the property which was seized from the possession of the accused was upon analysis found to be ganja. The report of the Chemical. Analyser therefore stands vitiated and for non-compliance of the provisions of Section 42(2) of the NDPS Act, the trial thus stands vitiated and the accused are entitled to be given the benefit of doubt. 14. Accordingly, Criminal Appeal No.l36 of 2005 is allowed. The conviction and sentence of the appellants is hereby quashed and set aside and they are acquitted of the offences with which they were charged and convicted. Fine, if paid, be refunded to the appellants. The amount of Rs 4,900/-, which came to be seized from the house of the appellants be returned back to them. Since the appellants are in jail, they be released forthwith if not wanted in any other case. Appeal allowed.