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2007 DIGILAW 1612 (BOM)

Sk. Tassu S/o Sk. Anwar v. State of Maharashtra

2007-11-20

V.R.KINGAONKAR

body2007
ORAL JUDGMENT 1. This Appeal arises out of judgment rendered by Adhoc Additional Sessions Judge, Nanded, in Special Case (NDPS) No.9/2003) whereby original accused Nos.l and 2 were convicted for offence punishable U/s 20 (1) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and were sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/-, in default, to suffer S.I. for two years. The learned Special Judge was pleased to acquit original accused Nos.3 and 4. 2. Though, this common appeal was preferred by the convicted accused Nos.l and 2 yet, the appeal needs consideration only as regards appellant No.l - Sk.Tassu, inasmuch as appellant No.2 Ashok died during pendency of the appeal. 3. The prosecution case is that P.S.I. Dattatraya Kumbhar received a secret information to the effect that two men and two women were standing in an open space by side of Railway track and hutment at Nanded, having gunny bags of Ganja. This information was received at 8-15 p.m. on 8.6.2003. He took entry regarding information in the Station diary. He called for two panchas, a shop keeper with a weighing scale and weights and Shri Taware, who was working as a Supervisor in Yeshwant College, Nanded, at the material time. He alongwith above mentioned persons and staff members proceeded to the spot in a Police jeep vehicle. The jeep vehicle was stopped at a short distance from the hutment. The members of the raiding party reached the spot on foot by about 9-15 p.m. They noticed that two men were standing under a street light situated between Railway track and hutment area. There were two women standing at a short distance. There were two bags which were half filled and each of them was in possession of the men standing at the spot. On seeing the Police party, the two women fled away and disappeared in the darkness. Though, the two men attempted to flee alongwith gunny bags yet they were immediately nabbed. They gave written consent for taking the search when P.W. Shri Taware informed them that he desired to conduct the search. Thereupon, search of the gunny bags was taken. The gunny bags contained greenish leaves with pungent smell. One of the gunny bag contained 8 Kgs. and another contained 27 Kgs. of the Ganja. They gave written consent for taking the search when P.W. Shri Taware informed them that he desired to conduct the search. Thereupon, search of the gunny bags was taken. The gunny bags contained greenish leaves with pungent smell. One of the gunny bag contained 8 Kgs. and another contained 27 Kgs. of the Ganja. The P.S.I. collected sample of 700 grams Ganja from each of the gunny bag and sealed the sample bags after filling of the same in two separate polythene bags. The samples were subsequently sent to office of the Chemical Analyser with a special messenger alongwith a forwarding letter. As a result of analysis, the samples were reported to be that of Ganja which falls within the definition of Section 2(iii)(b) of the N.D.P.S. Act, 1985. The Police Officer collected certain evidence during course of the investigation, arrested the women accused and charge-sheeted all the four accused to stand their trial before the Special Judge. 4. The accused were charged for offence punishable U/s 20 (1)(b)(i) of the N.D.P.S. Act, vide Exh.2. They entered plea of not guilty. They denied truth into the accusation. Their defence is that of total denial besides that of non-compliance of certain mandatory provisions of the N.D.P.S. Act. 5. At the trial, the prosecution examined in all seven (7) witnesses in support of the charge. Out of them, P.W.3 Mohd. Sharif and P.W. 4 Sanjay did not support case of the prosecution. They are panch witnesses. The learned Special Judge, however, came to the conclusion that the prosecution evidence is worthy of reliance. He rejected the contention of the appellants regarding non-compliance of the mandatory provisions contained in Section 41, 42, 50 and 52 of the N.D.P.S. Act. He held that there was no need to give option to the appellants for effecting of the search before the Gazetted Officer inasmuch as it is not a case of personal search. He further held that the conviction can be arrived at inspite of the fact that both the panchas were declared hostile. Thus, he held that the charge was duly proved and convicted both the first accused persons and sentenced them as stated at the outset. 6. Mr.Mandlik, learned Senior advocate, would submit that the impugned judgment is unsustainable inasmuch as there is no reliable evidence regarding actual possession of the gunny bags with the appellant. Thus, he held that the charge was duly proved and convicted both the first accused persons and sentenced them as stated at the outset. 6. Mr.Mandlik, learned Senior advocate, would submit that the impugned judgment is unsustainable inasmuch as there is no reliable evidence regarding actual possession of the gunny bags with the appellant. He would submit that unless conscious possession of the appellant is proved, beyond a reasonable realm of doubt, he could not have been convicted for alleged possession of the narcotic substance (ganja). He argue that the Police Officer failed to carry out the raid as required U/s 42 of the N.D.P.S. Act. He would further submit that unless procedure required U/s 42 in respect of taking down the information in writing and giving of report to the superior Officer was followed, the search could not be accepted as valid one. He would further submit that the evidence on record does not establish possession of Ganja of the commercial quantity with the appellants and hence, the sentence is quite harsh. He pointed out that the charge was framed for offence punishable U/s 20 (1)(b)(i) of the N.D.P.S. Act, whereas the conviction is rendered U/s 20(1)(C) of the N.D.P.S. Act on the assumption that the quantity is of more than 20 Kgs. Mr.Mandlik, would submit that when there was no joint possession of the gunny bags, the possession in any case, ought to have been bifurcated and the appellant should not have been convicted for being in possession of commercial quantity of Ganja. His another limb of argument is that the oral evidence tendered by the prosecution does not show that the appellants were found in possession of flowering tops or fruiting tops of cannabis plant and hence, mere assertion that there were greenish leaves in the gunny bags will not lead to conclusion that the appellant was, in fact, having possession of contraband substance. He contended that the impugned judgment is unsustainable in view of deficiencies as well in view of the facts which do not prove conscious possession of the contraband substance with the appellant. As against this, Mr.K.J.Ghute Patil, learned A.P.P. supports the impugned judgment. 7. He contended that the impugned judgment is unsustainable in view of deficiencies as well in view of the facts which do not prove conscious possession of the contraband substance with the appellant. As against this, Mr.K.J.Ghute Patil, learned A.P.P. supports the impugned judgment. 7. The points for determination in this appeal may be formulated as follows : "(i) Whether the prosecution has proved that on 8.6.2003, the appellant (orignal accused No.1) was found in conscious possession of a gunny bag containing contraband Narcotic substance, namely, Ganja which comes within the definition of Section 2(iii)(b) of the N.D.P.S. Act, 1985.? (ii) Whether search and seizure procedure as adopted by the Police Officer - P.W. Dattatraya Kumbhar is legal and due compliance of Sections 42, 43 and 50 and Section 57 of the N.D.P.S. Act is proved.?" 8. At the outset, let it be noted that the alleged search was carried out on the basis of prior information received by P.S.I. Dattatraya Kumbhar. His version reveals that he took entry of the said information in the Station diary. He states that he gave information regarding proposed raid to his superior Officer on telephone. He did not prepare a written report regarding giving of such information to the superior Officer. He deputed Police Head Constable (B.No.125) Boinwad to call for two Panchas. The version of P.W. Dattatraya Kumbhar reveals that P.W. Shri Taware, Vice Principal of Yeshwant College was also called and the Police party alongwith panchas, a shop keeper by name Yakub Pathan and P.W. Shri Thavre, proceeded towards the spot at about 8-55 p.m. The information was to the effect that two persons were standing near the hutment and the Railway line with gunny bags of Ganja. So, it is prima facie, difficult to believe that those two persons were in standstill position since 8-15 p.m. till the Police party reached the place around 9-15 p.m. The prosecution case is that for about one hour those persons were standing in the same position at that place with those gunny bags. 9. According to P.S.I. Dattatraya Kumbhar, two male accused persons attempted to run away but were held then and there. His version purports to show that P.W. Shri Taware, asked both the accused whether they desire to have personal searches in presence of the Gazetted Officer or Police Officer or Magistrate. Their consent was obtained in writing. 9. According to P.S.I. Dattatraya Kumbhar, two male accused persons attempted to run away but were held then and there. His version purports to show that P.W. Shri Taware, asked both the accused whether they desire to have personal searches in presence of the Gazetted Officer or Police Officer or Magistrate. Their consent was obtained in writing. The consent letters (Exh.23 and Exh.24) are scribed in Marathi and it is shown that P.W. Shri Taware, is Gazetted Officer. The consent appears to have been given under the impression that P.W. Shri Taware is Gazetted Government Officer. The appellant - Sk.Tassu is illiterate person and gave his thumb impression on the consent letter (Exh.23). 10. The version of P.W. Dattatraya Kumbhar purports to show that a panchanama of seizure was drawn at the place of incident. He corroborates recitals of the Panchanama (Exh.20). His version reveals that he subsequently lodged F.I.R. (Exh.21) regarding the incident. His version also shows that sample of 700 grams from each of the gunny bag was collected and the sample packets were sealed at the spot. He admits that there are houses on one side of the road near the place of the incident. He states that a report was submitted to the superior Police Officer after completion of the raid but copy of the same is not produced on record. He verified the record and stated that such a copy of the report is not filed alongwith the charge-sheet. It is the version of P.W. Dattatraya Kumbhar that when the Police party reached near the place, the accused Nos.l and 2 were on heels but were nabbed immediately. The recitals of seizure Panchanama (Exh.20) shows that the appellant was sitting by side of the half filled gunny bag. The recitals of the panchanama also shows that the accused were given option of searches in presence of Gazetted Officer, namely, P.W. Shri Taware. It is further stated in the seizure panchanama that P.W. Shri Taware spelt out his name and told the accused whether they had objection to conduct the search in his presence and further informed them that he is a Gazetted Officer. 11. It is in the above background that version of P.W. Shri Sakharam Taware, needs to be examined. It is further stated in the seizure panchanama that P.W. Shri Taware spelt out his name and told the accused whether they had objection to conduct the search in his presence and further informed them that he is a Gazetted Officer. 11. It is in the above background that version of P.W. Shri Sakharam Taware, needs to be examined. His testimony purports to show that when the Police party reached at the spot then they noticed two men who were sitting near an electric pole. There were two bundles kept aside in plastic bags. He states that except those two men, he had not seen any other person at the place of the incident. His version further purports to show that Police party caught hold of both the persons, opened the mouth of the bundles and told him that the bags contained Ganja. Thus, his version is to the effect that immediately the search was carried out. Needless to say, the so-called option given to the accused U/s 50 of the N.D.P.S. Act is illusory and farcical. He does not say that he is a Gazetted Government Officer. His version purports to show that sample of 750 grams was collected from each of the bag and the samples were sealed. He corroborates the seizure panchanama (Exh.20). He admits, unequivocally, that he is not a Gazetted Government Officer. His version purports to show that he has disclosed to P.S.I. P.W. Dattatraya Kumbhar that he is not a Gazetted Officer but even then he was asked to accompany the Police party as Gazetted Officer. Thus, though he is not a Gazetted Officer yet, it was falsely represented that he is a Gazetted Officer and after the actual search so-called consent statements were recorded. Therefore, obtaining of the consent from the appellant is a redundant formality without any real intention to give him option of taking search in presence of any authorised Gazetted Officer. 12. The version of P.W. Shri Taware, reveals that the appellant was sitting about two feet away from the gunny bag. Thus, the appellant was not found in possession of the gunny bag when the Police party reached the spot. His presence in the proximity of the said gunny bag is of no much avail. It is important to note that nothing else was recovered from the appellant besides the said gunny bag. Thus, the appellant was not found in possession of the gunny bag when the Police party reached the spot. His presence in the proximity of the said gunny bag is of no much avail. It is important to note that nothing else was recovered from the appellant besides the said gunny bag. Had the appellant been indulging in sale of the Ganja, ordinarily, there would have been some weighing scale or like article with him. He might have been in possession of some cash amount if he had transacted the sale of Ganja prior to the raid. Nothing of the sort is stated by the witnesses. It appears from cross-examination of P.W. Taware, that occasionally he used to invite P.W. P.S.I. Dattatraya Kumbhar to Yeshwant College as a guest. Considering the tainted version of P.W. Taware and particularly when though he is not a Gazetted Officer and yet allowed himself to be represented as such, his credentials are rather seriously impaired. 13. As stated before, the independent panchas - P.W.3 Mohd.Sharif S/o Mohd.Salim and P.W.4 Sanjay Waghmare, did not support the case of prosecution. So also, P.W. 5 Yusufkhan, who was called as a trader alongwith weighing scale and weights, did not support the case of the prosecution. Nothing of much importance could be gathered from the cross-examination of these hostile witnesses. 14. The version of P.W.6 Bapurao Mhaske (B.No.1758) is formal. He is carrier of the sealed packets which he said to have reached to the office of the Chemical Analyser at Aurangabad. According to him, he received the sealed sample packets on 9.6.2003 which he delivered at the office of Chemical Analyser on the next day. He obtained acknowledgment of the concerned clerk (Exh.30) on the forwarding letter. The last witness is P.W.7 Sheshrao Thumbre (P.S.I.) who conducted the investigation. 15. Mr.Mandlik, learned Senior advocate would submit that when the witnesses have vaguely stated that greenish leaves were found in the gunny bags then offence punishable U/s 20 (1)(b)(i)(B) or (C) cannot be held as proved. He referred to the definition of the word "ganja" as used in Section 2(iii) (b) of the N.D.P.S. Act. (It is true that definition of the word "Ganja" imply the flowering tops. However, the definition by itself does not exclude the green leaves when they are accompanied by the flowering tops or fruiting tops of cannabis plant. He referred to the definition of the word "ganja" as used in Section 2(iii) (b) of the N.D.P.S. Act. (It is true that definition of the word "Ganja" imply the flowering tops. However, the definition by itself does not exclude the green leaves when they are accompanied by the flowering tops or fruiting tops of cannabis plant. The definition may be reproduced as follows : "2. Definitions. - In this Act, unless the context otherwise requires - (i) x x x x (ii) x x x x (iii) cannabis (hemp) means - (a) x x x x (b) ganja, that is, the flowering or 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 : and (c) x x x x A bare reading of the above definition would make it manifest that the seeds and the leaves are excluded from the operation of the definition of word "ganja" only when the same are not accompanied by the flowering tops or the fruiting tops. The report of the C.A. (Exh.35) reveals that greenish flowering tops and pieces of greenish leaves, seeds and stalks were noticed at the time of analysis. Thus, when the leaves and seeds were accompanied by the fruiting tops then it will have to be said that the seized stock was of ganja. 16. Though independent panchas might have withdrawn their support yet the case of the prosecution can be accepted subject to condition that other evidence is credit worthy. In the present case, P.W. P.S.I. Dattatraya Kumbhar in fact, did not follow the procedure required U/s 50 of the N.D.P.S. Act, though P.W. Shri Taware, is not a gazetted Officer and accordingly so-called consent was obtained from the accused by misrepresentation. Moreover, the search was already taken before writing of the said consent letter (Exh.23). Thus, the prosecution evidence is not free from embellishment. Secondly, the version of P.W. Shri Taware, reveals that the appellant was present at a distance of 2 ft. away from the gunny bag. It also does not appear that the appellant was found in possession of any instrument like weighing scale or any document pertaining to sale transaction. Considering these aspects, the charge levelled against the appellant is not free from a reasonable doubt. In "Dilip and another Vs. away from the gunny bag. It also does not appear that the appellant was found in possession of any instrument like weighing scale or any document pertaining to sale transaction. Considering these aspects, the charge levelled against the appellant is not free from a reasonable doubt. In "Dilip and another Vs. State of M.P." (2007) 1 Supreme Court Cases 450, the Apex Court held that the search carried out in violation of the provisions of law may not be vitiated but it would be a bar on the credibility of the evidence of the official witnesses which needs to be considered on facts and circumstances of each case. The testimony of P.W. Dattatraya Kumbhar does not show that he complied with the requirement of Section 57 of the N.D.P.S. Act. He did not forward any written report regarding arrest and seizure within 48 hours next after the arrest and seizure, with full particulars, to his immediate superior official nor a copy of such report is placed on record though, P.W. Dattatraya Kumbhar very assertively attempted to state that he had made such report to the superior officer. Mr.Mandlik, seeks to rely on "Gurbax Singh Vs. State of Haryana" (2001 Cri.L.J.1166). The authorities are to the effect that forwarding of the copy of information and making of report U/s 57 of the N.D.P.S. Act, is the procedural safeguards which ought to be followed by the concerned Police Officer while conducting search and seizure. In the present case, the necessary procedural safeguards are not followed by P.W. P.S.I. Dattatraya. The evidence of the witnesses is not sufficient and reliable. Hence, in view of the above deficiencies and discrepancies, the learned Special Judge committed patent error while convicting the appellant for the offence punishable U/s 20(1)(b) (i) of the N.D.P.S. Act. The charge is unsustainable and as such I deem it proper to acquit the appellant. 17. In the result, the appeal is allowed. The impugned judgment and order is set aside. The appellant is acquitted from the charge. He shall be released immediately. The order as regards disposal of the Muddemal property is maintained.