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2007 DIGILAW 891 (BOM)

Majid Baig Naser Baig v. State of Maharashtra

2007-07-04

C.L.PANGARKAR

body2007
JUDGMENT:- This is an appeal by accused who was convicted for offence under Sections 20 and 22 of the Narcotics Drugs And Psychotropie Substances Act and is sentenced to imprisonment for a period of 5 years. 2. Few facts giving rise to this appeal are as follows: On 14-7-05 Head Constable Vinayak was on patrolling duty along with other policemen. When they came near the Head Post Office they found a person coming from opposite side. He was carrying a bag in his hand. He was accosted. He was asked his name and place of residence and was also asked about the contents of the bag. He told that it contains Ganja. There was also one shawl in the bag. After removal of the shawl and nylon bag smelling Ganja was found. The accused was therefore brought to the police station. Head Constable Mr. Tale handed over the accused to API Chakre and lodged a report. API Chakre then sent an information to his superior and took search of the accused. It was found that the bag contained 5 Kg. 200 Gms. of Ganja. Therefore, he called two panchas and one Dinesh Thakre with weights and balance. Sample of Ganja was taken, it was sealed in presence of the panchas with their signatures and that of the API. Panchanama was drawn. Before taking search, it is alleged that accused was informed whether he is willing to have his search before Gazetted Officer. The accused declined and permitted the search to be taken in the absence of Gazetted Officer. The samples were taken and sent to the Chemical Analyser. It was reported that sample contained Ganja. As inventory was also prepared which was also sent to Judicial Magistrate to certify its correctness. After completion of the investigation charge-sheet was filed against the accused. 3. The Sessions Judge framed charge against the accused. Accused pleaded not guilty. Upon recording of the evidence Sessions Judge found the accused guilty of the offence under Section 20 and 22 of the N.D.P.S. Act and sentenced him to imprisonment for a period of 5 years. Being aggrieved by that order this appeal has been preferred. 4. I have heard the learned counsel for the appellant and the State and have perused the record. The prosecution has examined 5 witnesses. Being aggrieved by that order this appeal has been preferred. 4. I have heard the learned counsel for the appellant and the State and have perused the record. The prosecution has examined 5 witnesses. They include Carrier of the sample, Panch, Head Constable who had apprehended the accused, Investigation Officer Shri. Chakre and incharge of Malkhana. 5. It is the case of the prosecution that accused was accosted near Rachana Travels office on suspicion and was brought to police station where search was taken and Ganja was found. It is deposed by P.W. Vinayak Tale H.C. that he was on patrolling duty with other constables and when they came near the post office they found one person carrying a bag. He states that he stopped him and questioned him about his name residence and the contents of the bag. It is in his evidence further that the person disclosed him name as Majid Baig and he also disclosed that the bag contained Ganja. It is in his evidence further that he, therefore, opened the bag, found one shawl therein and one nylon bag and then brought the accused to the police station. In has further come in his evidence that he lodged a report EX.15 with the police and handed over the custody of the accused. There is nothing in the cross-examination to discard testimony of the witness. On the other hand it is suggested to the witness that he took search of the bag of the accused on the spot. This suggestion itself goes to show that the accused admits that he possessed a bag and that it was searched. It is also suggested that API Chakre took search of the bag with the accused in the police station and that panchas were called. With this suggestion to the witness it is clear that the accused virtually does not dispute that he was accosted near Rachana Travels office, brought to the police station and search having been taken in presence of panchas. Further more the testimony of P.W. 2 is also corroborated by the contents of the F.I.R. Ex.I5. 6. With this suggestion to the witness it is clear that the accused virtually does not dispute that he was accosted near Rachana Travels office, brought to the police station and search having been taken in presence of panchas. Further more the testimony of P.W. 2 is also corroborated by the contents of the F.I.R. Ex.I5. 6. P.W. 5 API Chakre has stated that he was on duty in the police station when H.C. Vinayak brought the accused to the police station at 4.15 a.m. He states that he was told by head constable that accused possessed Ganja and thereafter he satisfied himself that the accused possessed Ganja and he informed his superior. He has stated further that he then called panchas, and one Thakre with weights and balance. He states further that he told the accused that he has a right to take his search in presence of a Gazetted Officer and the accused declined. He testified also that he then took search of the bag and found Ganja in it. He further stated that Ganja was weighed and it was found that it was 5.200 kgs. He further states that a sample of 100 gms was taken and it was sealed with the signature of panchas and himself. Further he states that it was also sealed with a sealing wax. Panchanama of the same was drawn vide Ex.23 and a form of search and property (Ex.24) was also filed. Even to this witness there is no cross-examination worth the name. There are only two suggestions to the witness, one is that the accused did not decline to have his search in presence of Gazetted Officer and second is that a false panchanama was prepared. Since there is no cross-examination worth the name and the suggestion have been denied by the witness, the credit of the witness is no where shaken. 7. Although P.W. 3 Sudhakar is declared hostile, it appears from his evidence that he is reluctant to make a clean breast. It appears from his evidence that he was certainly present and search was taken in his presence. He admits his signature on both the panchanamas and identifies the accused as the person present in the police station. He admits his signature on the sealing paper also. He also admits that panchanama and sealing paper bear the signature of other pancha. It appears from his evidence that he was certainly present and search was taken in his presence. He admits his signature on both the panchanamas and identifies the accused as the person present in the police station. He admits his signature on the sealing paper also. He also admits that panchanama and sealing paper bear the signature of other pancha. He further admits having been taken to the spot of incident and panchanama was drawn there. With this admission it appears that the witness was reluctant to tell the whole truth for reasons best known to him but the fact remains that he does admit the sample packets being sealed and panchanama having been drawn. Thus the testimony of P.W. 5 is quite corroborated by independent witness. 8. It was contended that there is nothing on record to show that accused was made to understand that search can be taken in presence of Gazetted Officer. The statement is not correct. There is an intimation' which was given to the accused that he can have the search in the presence of the Gazetted Officer. Even otherwise Ganja was found in the bag of the accused. His person was not being searched and therefore, there was no question of search being taken in presence of Gazetted Officer. It is only when the search of a person is sought to be taken, it needs to be taken in the presence of Gazetted Officer. There was, therefore, in fact no need of compliance of Section 50 of the N.D.P.S. Act. EX.32 is copy of intimation sent to the superior officer. P.W.4, the in-charge of Malkhana, has stated that he had handed over the sample in Crime No.3155/05 to P.C. Ashok for being lodged with the Chemical Analyser on 25-705. He also states that due to some reason Ashok brought sample back and again took it on 27th and lodged it on 29th. Copy of Malkhana Register is placed on record at Ex.62 which corroborates the version of P.W.4 Ex.30 is the requisition letter which is proved by the carrier i.e. P.W.1 Ashok. It shows that sealed packet was lodged with the Chemical Analyser. Report of the Chemical Analyser is Ex.31. It shows that Ganja was detected in the sample. Learned Additional Public Prosecution for the State submitted that even the provisions of Section 52-A have been complied in this case. It shows that sealed packet was lodged with the Chemical Analyser. Report of the Chemical Analyser is Ex.31. It shows that Ganja was detected in the sample. Learned Additional Public Prosecution for the State submitted that even the provisions of Section 52-A have been complied in this case. Ex.28 is the letter written by the API to the Magistrate for the purpose of inventory and Ex.29 is the certificate issued by the Magistrate after having weighted and sealed the Ganja. It is, therefore, obvious that provisions of Section 52-A also have been strictly followed in this case. I, therefore, find no substance in the appeal. It is dismissed. Appeal dismissed.