Judgment: 1. Both the above appeals arise out of the same judgment rendered by learned Special Judge, Latur in Special Case No.3/2006. By the impugned judgment, both the appellants have been convicted for offence punishable U/s 8(c) read with Section 20(1)(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (For short "the NDPS Act"). They were each sentenced to suffer rigorous imprisonment for ten (10) years and to pay fine of Rs.1,00,000/-(Rupees one lac), in default to suffer rigorous imprisonment for six (6) months. 2. Briefly stated, the prosecution case is that Police Inspector Suryawanshi (P.W.7) who was then attached to Rural Police Station, Latur, received an information in the morning of 28.1.2006 to the effect that two persons by name Sk.Naim and Dhiraj were transporting contraband ganja in an Ambassador Car vehicle No.MH-20-Y-8308 from Nilanga towards Aurangabad. As per the information, the said car vehicle was to pass via Latur. Therefore, he decided to arrange for a trap. He passed on the information to the S.D.P.O. Shri Khandare. The latter reached the Police Station after a short while. P.I. Shri Suryawanshi then called for two Panch witnesses and a small trader alongwith weights and scale. He also requisitioned presence of a Gazetted Officer, namely, Tahsildar to attend the search and seizure. He took necessary entries in the Station diary at the Police Station and thereafter alongwith the members of the raiding party, the S.D.P.O. Shri Khandare and Naib-Tahsildar Shri Suresh Shewale, he went near bridge situated within the precincts of village Bhatkheda. At about 10-35 a.m. they noticed the Ambassador car which was coming towards the bridge. The Police personnel gave signals to the driver and stopped the car vehicle. P.I. Shri Suryawanshi, introduced himself to the driver and the person who were inside the Ambassador car vehicle. It was noticed that the appellant Sk.Naim was driving the car vehicle, whereas appellant Dhiraj was sitting by his side in front seat. They were informed intention to search the car vehicle. The search was thereafter carried out. Appellant Sk.Naim opened the dicky of the car vehicle with a key which was with him. Inside the dicky three fully loaded gunny bags were found stacked. There was one fully loaded gunny bag and one half filled gunny bag in front of the rear seat. The search was thereafter carried out. Appellant Sk.Naim opened the dicky of the car vehicle with a key which was with him. Inside the dicky three fully loaded gunny bags were found stacked. There was one fully loaded gunny bag and one half filled gunny bag in front of the rear seat. The search also revealed that an amount of Rs.17,250/- (Rupees seventeen thousand two hundred fifty) was concealed below the driver’s seat. The appellants did not possess any document pertaining to the car vehicle. The mouths of the gunny bags were opened. They were found to contain ganja. The ganja was weighed. The total weight of ganja was 91 Kgs. P.I. Shri Suryawanshi, collected ten (10) samples of 250 grams each from the stock of ganja found in the gunny bags. The sample packets were duly packed and sealed. The remaining stock of ganja was thereafter sealed and a seizure panchanama was carried out. The Ambassador car vehicle was also attached. Both the appellants alongwith the Muddemal articles and the sealed sample packets were taken to the Rural Police Station. A report was lodged by P.I. Shri Suryawanshi, against both the appellants. They were arrested in pursuance to registration of the crime. The Muddemal articles and the sample packets were handed over by P.I. Shri Suryawanshi to the Muddemal Clerk. On 3l.1.2006, the five (5) sealed sample packets alongwith a forwarding letter were sent to the Office of the Chemical Analyser, Aurangabad, in sealed condition through Head Constable Gopal (P.W.6). Upon analysis of the samples, the Chemical Analyzer gave report to the effect that the samples contained ganja which was contraband article within the meaning of Section 2(iii) of the NDPS Act. On the basis of material collected during course of investigation, both the accused were charge-sheeted for the offence punishable U/s 8(c) read with Section 20(1)(b)(ii)(C) of the NDPS Act. 3. A Charge (Exh.13) was framed against the appellants. Both the appellants denied truth into the accusations. They did not raise any specific defence. They simply denied that they were found in conscious possession of the contraband ganja. According to them, they were falsely implicated in the Criminal case at instance of Abdul Qayyum (P.W.2), who owned the car vehicle. 4. The prosecution examined in all seven (7) witnesses in support of its case. They did not raise any specific defence. They simply denied that they were found in conscious possession of the contraband ganja. According to them, they were falsely implicated in the Criminal case at instance of Abdul Qayyum (P.W.2), who owned the car vehicle. 4. The prosecution examined in all seven (7) witnesses in support of its case. The learned Special Judge came to the conclusion that both the appellants were having control and were in conscious possession of contraband ganja, which was being transported in the Ambassador car vehicle No.MH-20-Y-8308 at the material time. The learned Special Judge held that the Charge against them has been duly proved. Consequently, both of them came to be convicted and sentenced as stated earlier. 5. Mrs. Jadhav, learned advocate, would submit that the impugned conviction is unsustainable inasmuch as the evidence of the prosecution does not indicate due compliance of Section 55 of the NDPS Act. She would submit that the version of the Panch of seizure, namely, Suresh (P.W.4) does not show that one fully loaded gunny bag and one partly filled up gunny bag were recovered from the front portion below the rear seat and as such recitals of the seizure panchanama (Exh.31) are doubtful. It is pointed out that version of Panch -Suresh (P.W.4) further creates a reasonable doubt inasmuch as he admits that 4/5 persons might be travelling in the car vehicle. The learned advocate would submit that there is no substantial reason to attribute conscious possession of the contraband ganja to appellant Dhiraj. It is argued that even that presence of appellant Dhiraj is proved then also his "control" over the contraband goods can not be assumed. The learned advocate would further submit that the ownership of the contraband goods is not proved and, therefore, both the appellants deserve benefit of reasonable doubt. The learned advocate would submit that appellant Sk.Naim was mere driver and could have driven the car vehicle as per instructions of his master but without proof of his conscious possession of the contraband ganja, he could not have been convicted for the alleged offence. Hence, the learned advocate Smt.Jadhav, urged to allow the appeals and to set aside the impugned judgment. Per contra, learned A.P.P. Mr.Dighe, supports the impugned judgment. He argued that the search and seizure is duly proved. Hence, the learned advocate Smt.Jadhav, urged to allow the appeals and to set aside the impugned judgment. Per contra, learned A.P.P. Mr.Dighe, supports the impugned judgment. He argued that the search and seizure is duly proved. He contended that the learned Special Judge has given adequate reasons in support of the impugned judgment. He urged to dismiss the appeal. 6. Thematerial points for determination are thus: "(i) Whether in the facts and circumstances of the present case, both the appellants or either of them were/was found in conscious possession of contraband ganja weighing 91 Kgs. in the morning of 28.1.2006. (ii) Whether compliance of Section 55 of the NDPS Act, is mandatory? If yes, whether the appellants are entitled to seek acquittal due to non-compliance of Section 55 of the NDPS Act.?" 7. Before I embark upon scrutiny of the prosecution evidence, it may be stated that though the appellants vaguely asserted that they have been falsely implicated at instance of Abdul Qayyum (P.W.2), yet, no such defence was suggested to him. There appears no enmity between Abdul Qayyum and the appellants. The alleged search and seizure took place on public road in the outskirts of village Bhatkheda. There is a bridge at the place where the car vehicle was intercepted. There was no hustle and bustle of public members at that place. 8. The evidence tendered by Abdul Qayyum (P.W.2) and Shabana begum (P.W.3) purports to show that the Ambassador car No.MH-20-Y-8308 was previously owned by Abdul Qayyum. He sold it to Shabana begum on 16.5.2005, vide sale deed (Exh.24). The version of Shabana begum reveals that she use to let out the car vehicle. Obviously, though Abdul Qayyum was registered owner of the car vehicle, yet, the sale was effected and, therefore, ownership of the car vehicle had passed in favour of Shabana begum. She is the step sister of appellant Sk.Naim. It is highly improbable, therefore, that Abdul Qayyum had any substantial reason to frame the appellants in a false case. It is amply clear that the control of the car vehicle was with appellant Sk.Naim at the material time. He could not be treated as employee of Shabana begum (P.W.3) nor it is her version. 9. So far as the factum of search and seizure is concerned, versions of Suresh (P.W.4) and P.I Shri Suryawanshi (P.W.7) are most relevant. It is amply clear that the control of the car vehicle was with appellant Sk.Naim at the material time. He could not be treated as employee of Shabana begum (P.W.3) nor it is her version. 9. So far as the factum of search and seizure is concerned, versions of Suresh (P.W.4) and P.I Shri Suryawanshi (P.W.7) are most relevant. The testimony of Suresh, reveals that in the morning of 28.1.2006, he and another panch by name Mr.Indrale, were called at the Police Station. They were asked to accompany the Police party to Bhatkheda. His testimony reveals that the members of raiding party awaited for arrival of the car vehicle by side of bridge at Bhatkheda. He narrated as to how the Ambassador car vehicle was intercepted by the Police party members. His version purports to show that four and half gunny bags were recovered from the dicky of the car. He states that the gunny bags contained ganja, which was weighed and was found to be approximately 91 Kgs. He further deposed that the Police Officer obtained samples from contents of the bags and thereafter they were sealed. He corroborated the recitals of the seizure panchanama (Exh.31). He also identified his signatures on the Muddemal sample packets, which were produced before the Court. He admits that the contents of all the gunny bags were collectively weighed. He further states that the Police collected the samples in 4/5 packets. He deposed that 4/5 persons might be present in that car vehicle. One can not be oblivious of the fact that his deposition was recorded after more than one year of the alleged raid. It is but natural that he could have forgotten certain details in respect of the search and seizure. He blurted out that 4/5 persons might be present in the car. However, this would not cause serious impediment in accepting the case of the prosecution. For, he did not give definite number of persons found in the car vehicle. Moreover, when he has corroborated the recitals of the panchanama (Exh.31), it will have to be said that the testimony given by him on the basis of memory may be tainted due to the fact that the human memory is likely to fade up after lapse of about one (1) year from day of the incident. 10. Moreover, when he has corroborated the recitals of the panchanama (Exh.31), it will have to be said that the testimony given by him on the basis of memory may be tainted due to the fact that the human memory is likely to fade up after lapse of about one (1) year from day of the incident. 10. The version of P.I. Shri Suryawanshi (P.W.7) would make it amply clear that about 9-10 a.m., he received secret information to the effect that both the appellants were transporting ganja in the Ambassador car, which was scheduled to proceed towards Aurangabad by Latur - Nanded road. His version purports to show that he gave information to his superior and, thereafter, the superior Police Officer, namely, S.D.P.O. Shri Khandare, arrived at the Police Station. He narrated as to how two panch witnesses were called and also the presence of the Naib-Tahsildar was requisitioned. His version purports to show that Naib-Tahsildar Mahesh Shewale, attended the search and seizure as a Gazetted Officer. The members of the raiding party thereafter went to a place near side of bridge of Manjra river at Bhatkheda. His version reveals further that he had taken entries of the information and the steps taken by him before leaving the Police Station for Bhatkheda in the Station diary. 11. He narrated as to how the Ambassador car vehicle was intercepted at about 10-35 a.m. His version reveals that appellant Sk.Naim was at the driver’s seat and appellant Dhiraj was sitting by his side on the front seat. He categorically deposed that appellant Sk. Naim then was called upon to open the dicky of the car vehicle. Then three fully loaded gunny bags were recovered from the dicky, whereas one loaded gunny bag and half filled gunny bag were recovered from the space between rear seat and the front seat of the car vehicle. The version of P.I. Shri Suryawanshi (P.W.7) lends assurance to the recitals of the recovery panchanama (Exh.31). His version further shows that the panchanama is signed by Naib Tahsildar Shri Shewale, who attended the search and seizure. His version further purports to show that he collected samples of 250 grams each from the gunny bags and also collected 5 separate samples for the purpose of preservation at the Police Station. Then the sample packets were independently sealed and thereafter, the gunny bags were separately sealed. His version further purports to show that he collected samples of 250 grams each from the gunny bags and also collected 5 separate samples for the purpose of preservation at the Police Station. Then the sample packets were independently sealed and thereafter, the gunny bags were separately sealed. He lodged F.I.R. (Exh.38) after reaching the Police Station. 12. True, there is some variance between version of P.I. Shri Suryawanshi and Panch Suresh in respect of manner in which the ganja was weighed. It is also true that Panch Suresh did not specifically state that one loaded gunny bag and half filled gunny bag were recovered from the space between the rear seat and the front seat of the car vehicle. The discrepancies are of minor nature. There is no rule of law to dislodge version of a witness only because he is a Police Officer. There was no substantial reason for P.W. P.I. Shri Suryawanshi, to falsely implicate either of the appellant. He collected necessary information about ownership of the car vehicle. Nothing of much importance could be gathered from his cross-examination. The recitals of the seizure panchanama (Exh.31) and recitals of the F.I.R. (Exh.38) consistently indicate that appellant Sk.Naim opened the back side dicky of the car vehicle by using the key which was with him. The very fact that key of the car vehicle and the key of the dicky was with appellant Sk.Naim is most significant. It goes to clearly establish his "control" over the car vehicle. 13. The testimony of Mehtab Lalkhan Pathan (P.W.5) is of no much avail to the prosecution. He is a trader. He was called upon to weigh the ganja at the material time. He was declared hostile. He did not support the case of the prosecution. Nothing of significance was elicited from his cross-examination. The version of Nitin (P.W.1) is formal. He corroborated the panchanama (Exh.21), under which the sale deed (Exh.24) was seized from possession of Shabana begum. There is no serious dispute about the panchanam (Exh.21). 14. The prosecution sought to rely upon version of Gopal (PHC -P.W.6). His testimony reveals that on 31.1.2006, he was given five (5) sealed samples with direction to reach the same to the Chemical Analyzer along with the forwarding letter. He carried the five (5) sample packets to the Office of the Assistant Chemical Analyser, Aurangabad. 14. The prosecution sought to rely upon version of Gopal (PHC -P.W.6). His testimony reveals that on 31.1.2006, he was given five (5) sealed samples with direction to reach the same to the Chemical Analyzer along with the forwarding letter. He carried the five (5) sample packets to the Office of the Assistant Chemical Analyser, Aurangabad. He claims to have reached the same to the said office on 1.2.2006. The carrier of the sample packets made it clear that the packets were delivered at the office of the Chemical Analyzer in sealed condition in which he had received them at the Police Station. He admits that the Muddemal Clerk at the Police Station delivered the same sample packets to him in the morning of 1.2.2006, though the forwarding letter was received by him in the earlier evening. It is quite clear, therefore, that till the morning of 1.2.2006 the sealed sample packets were in the custody of the Muddemal Clerk. The report of Assistant Chemical Analyser (Exh.43) reveals that the five (5) sealed sample packets were received with seals intact. The report of the Assistant Chemical Analyser leaves no manner of doubt that the contents of each sealed packet showed presence of ganja. The report further makes it manifest that it was contraband substance within the meaning of Section 2(iii)(b) of the NDPS Act. The version of P.I. Shri Suryawanshi (P.W.7) reveals that he had delivered the Muddemal articles including the sealed sample packets in the custody of the Muddemal Clerk vide receipt-cum-yadi (Exh.4) on the same day. 15. Mrs.Jadhav, seeks to rely on "Mohammad Salim Bashir Shaikh Vs. State of Maharashtra" (2004 ALL MR (Cri.) 53). A Single Bench of this Court held that leader of raiding party should not be the Officer-in-charge of the Police Station in which such seized samples are kept for "safe custody". The learned Single Judge held that necessary safeguards enumerated U/s 55 of the NDPS Act, 1985, were not taken in the circumstances of the given case. So, it was held that the case of the prosecution was not acceptable. I find it difficult to countenance the arguments of Mrs. Jadhav. The learned Single Judge held that necessary safeguards enumerated U/s 55 of the NDPS Act, 1985, were not taken in the circumstances of the given case. So, it was held that the case of the prosecution was not acceptable. I find it difficult to countenance the arguments of Mrs. Jadhav. Unless there is some tangible material to infer that the Police Officer was interested in tampering with the seals of the sample packets due to some enmity with the accused or for some other reason, it is difficult to say that there was intentional breach of Section 55 of the NDPS Act. 16. The Apex Court in "Babubhai Odhavji Patel and others Vs. State of Gujarat" (2005) 8 Supreme Court Cases 725), held that provisions of Sections 52,55 and 57 of the NDPS Act, are only directory. The Apex Court held that in view of "Gurbax Singh Vs. State of Haryana (2001) 3 SCC 28 ), the said provisions could not be regarded as mandatory provisions. The version of P.I. Shri Suryawanshi (P.W.7) shows that the custody of the sealed sample packet was delivered to the Muddemal Clerk immediately after returning to the Police Station. Needless to say, P.I. Shri Suryawashi, was no more custodian of the sealed sample packets. There was no inordinate delay in sending the sample packets to the office of the Chemical Analyzer. Under the circumstances, I find it difficult to hold that there is violation of Section 55 of the NDPS Act. Mrs.Jadhav, also referred to "Valsala Vs. State of Kerala" (1993 Supp (3) Supreme Court Cases 665). In the given case the sample packets remained in the custody of the Police Officer for over three (3) months and, therefore, it was held that the evidence created doubt whether the very article that was seized was sent to the Chemical Examiner. The investigation was also found perfunctory. That is not the fact situation in the present case. Therefore, it can not be said that the sealed packets examined by the Chemical Analyzer were different from those which were seized during course of the alleged raid. 17. Mrs. Jadhav, invited my attention to "Avtar Singh and others Vs. State of Punjab" (2002 Cri.L.J.4330 (Supreme Court) and "Premnarayan Prabhulal Mina and another Vs. State of Maharashtra" (2008 ALL MR (Cri.) 599). 17. Mrs. Jadhav, invited my attention to "Avtar Singh and others Vs. State of Punjab" (2002 Cri.L.J.4330 (Supreme Court) and "Premnarayan Prabhulal Mina and another Vs. State of Maharashtra" (2008 ALL MR (Cri.) 599). The Apex Court held that the driver of the truck vehicle and the persons who were found sitting on gunny bags which contained poppy husk could not be attributed "conscious possession" of such bags unless there was proof of the concern of those persons with the goods. This Court too in "Premnarayan Prabhulal Mina and another Vs. State of Maharashtra" held that mere presence of the accused in the truck vehicle, which contained bundles of ganja would not clinch the issue of "conscious possession". 18. The fact situation obtained in the present case is on different footings. Here is a case in which appellant Sk.Naim is step brother of the car owner. He was incharge of the Ambassador car vehicle at the material time. He was having keys by which the dicky was opened. He was not in the employment of Shabana begum (P.W.3). There is adequate material to attribute "conscious possession" at least to appellant Sk.Naim, inasmuch as he was found transporting the contraband ganja in the Ambassador car vehicle. It cannot be even remotely said that without his knowledge the ganja bundles were being transported in the Ambassador car vehicle. The circumstances on record go to prove his custody and control over the gunny bags containing huge quantity of the contraband ganja. Consequently, I have no hesitation in holding that he has been rightly convicted by the learned Special Judge of the charge levelled against him. There is no substantial reason to interfere with the finding of his guilt. Considering the huge quantity of ganja (91 Kgs.) found in his custody, the sentence awarded to him is also quite proper. 19. The case of appellant Dhiraj, however, stands on different footings. He was only present by side of appellant Sk.Naim in the front seat of the car. Nothing was seized from his custody. He was not found to possess any document to show that he was concerned with the gunny bags containing the contraband ganja. His mere presence in the Ambassador car vehicle will not be an act of culpable nature. Unless it is proved that he was the owner or transporter of the contraband ganja, the conviction could not be rendered against him. His mere presence in the Ambassador car vehicle will not be an act of culpable nature. Unless it is proved that he was the owner or transporter of the contraband ganja, the conviction could not be rendered against him. In this view of the matter, I find that the conviction and sentence rendered against appellant Dhiraj is unsustainable. 20. For the reasons aforestated, the impugned judgment will have to be partly set aside to the extent of appellant Dhiraj. However, it will have to be maintained to the extent of appellant Sk.Naim. The appeal preferred by Dhiraj (Criminal Appeal No.48/2008) is, therefore, allowed. The impugned conviction and sentence rendered against him is set aside. He stands acquitted for the offence punishable U/s 8(c) read with Section 20(1)(b)(ii)(C) of the NDPS Act, 1985. The fine amount, if deposited, be refunded to him. He shall be set free forthwith, if not required in any other case. 21. The appeal preferred by appellant Sk.Naim (Criminal Appeal No.47/2008) is, however, dismissed. The impugned judgment of conviction and sentence rendered against him stands confirmed. The directions of the Special Judge about disposal of the Muddemal articles and the car vehicle are maintained.