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2013 DIGILAW 1231 (BOM)

Premsingh Dhondu Chavan v. State of Maharashtra

2013-07-04

M.L.TAHALIYANI

body2013
JUDGMENT This is an appeal against the judgment and order passed by the Sessions Judge, Amravati on 14.12.2009 in Special (NDPS) Case No.05/2007. The appellant has been convicted for the offence punishable under Section 20(b)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the N.D.P.S. Act"). The appellant was allegedly found in possession of ganja weighing 4.5 kilograms. The case of the prosecution is that Police Head Constable B.No.1062 of Local Crime Branch, Amravati and other three policemen were on patrolling duty in Kawadgavan area. The appellant was intercepted at Kawadgavan road around 08-00 p.m. on 02.03.2007 and he was found in possession of 4.5 kilograms of ganja. The intimation was therefore, given to Police Inspector Mr. K.V. Kale who was attached to Local Crime Branch in the year 2007-2008. He immediately rushed to the spot and found that the appellant was detained by the police officials of Local Crime Branch. The intimation of interception of the appellant and the possession of ganja by the appellant was given to the Police Inspector Mr. Hafiz Shaikh who was attached to Tiosa Police Station. The place where the appellant was intercepted lies within the jurisdiction of Tiosa Police Station. Police Inspector Mr. Hafiz Shaikh immediately rushed to the spot and apprehended the appellant and panchnama was drawn on the spot, ganja was seized. Sample of 300 grams of ganja was collected from the spot. The said sample was forwarded to the C.A. through Police Naik Ajabrao Gulade. The duty pass was given to Police Naik Ajabrao at 00-30 hrs. on 03.03.2007 for depositing Ganja at Forensic Science Laboratory, Nagpur. It is the case of the prosecution that ganja was deposited in the office of Forensic Science Laboratory, Nagpur at 10-30 a.m. on 03.03.2007. 2. On the same day i.e. on 03.03.2007 the Police Inspector Mr. Hafiz Shaikh moved the learned Judicial Magistrate First Class, Chandur Railway within whose jurisdiction the appellant was apprehended and inventory of seized article was prepared by Police Inspector Mr. Hafiz Shaikh. The Judicial Magistrate was requested to certify correctness of the inventory as provided in Section 52-A (2) of the N.D.P.S. Act. The learned Magistrate issued a certificate at about 03-30 p.m. on 03.03.2007 certifying that the ganja packets produced before him contained 4.5 kilograms of ganja. Hafiz Shaikh. The Judicial Magistrate was requested to certify correctness of the inventory as provided in Section 52-A (2) of the N.D.P.S. Act. The learned Magistrate issued a certificate at about 03-30 p.m. on 03.03.2007 certifying that the ganja packets produced before him contained 4.5 kilograms of ganja. It was further certified by the learned Magistrate that a sample weighing 300 grams of ganja was collected from the packets produced by Police Inspector Mr. Hafiz Shaikh. The Chemical Analyzer report was received from the Forensic Science Laboratory. The Chemical Analyzer has reported that the sample received by him was ganja and the sample certified by him falls under Section 2(iii) b of the N.D.P.S. Act. After completion of investigation charge-sheet was submitted in the Court of Sessions Judge. 3. The learned Sessions Judge had framed a charge against the appellant for the offence punishable under Section 20(b)(B) of the N.D.P.S. Act vide Exh.28. The appellant had pleaded not guilty and had claimed to be tried. The defence of the appellant was that he was involved in a false case by the police. 4. The respondent had examined five witnesses in support of their case. P.W.1 Eknath Sadashivrao Agashe, is the Police Head Constable who had intercepted the appellant. P.W.2 Kawadu Vithobaji Kale is a Police Inspector who was attached to Local Crime Branch and had reached the spot on receiving intimation from P.W.1. P.W.3 Sharad Uttamrao Thakare was one of the panch witnesses, who was present at the time of seizure of ganja. P.W.4 Ajabrao Wamanrao Gulade is the Police Naik who carried the sample of ganja to the Forensic Science Laboratory and P.W.5 Mr. Hafiz Gulam Nabi Shaikh is the Police Inspector who was attached to Tiosa Police Station and who had carried out investigation of this case. 5. P.W.1 has stated in his evidence that the appellant was found moving on Kawadgavan road and his activities appeared to be suspicious. Therefore, he was intercepted. He was found in possession of a bag which contained 4.5 kilograms of ganja. He therefore, intimated P.W.2 Mr. Kale. P.W.2 has stated that he reached the spot on the intimation received from P.W.1. P.W.2 has further stated that since the place of incident was within the jurisdiction of Tiosa Police Station, he had intimated P.W.5 who was in-charge of Police Station. He therefore, intimated P.W.2 Mr. Kale. P.W.2 has stated that he reached the spot on the intimation received from P.W.1. P.W.2 has further stated that since the place of incident was within the jurisdiction of Tiosa Police Station, he had intimated P.W.5 who was in-charge of Police Station. P.W.5 Hafiz Shaikh had reached the spot and had seized the said ganja. He had also called Naib Tahsildar (Executive Magistrate) and photographer for effecting the panchnama. It is stated by P.W.5 that sample of 300 grams ganja was separately sealed and remaining ganja was sealed separately. The panchnama in respect of the seizure was drawn at Exh.43. Thereafter, he went to Tiosa Police Station and registered F.I.R. Exh.41. P.W.3 Sharad Thakare has stated that he was agriculturist by profession and that he was called by Police at Kawadgavan - Tiosa road. It appears from the evidence of this witness that the appellant was already intercepted before the arrival of the panch witnesses. Panch witness was only asked to sign seizure panchnama. This witness has also stated that ganja was seized by police in his presence and before sealing the ganja sample of 300 grams was drawn from the packet. P.W.4 in his evidence has stated that he was attached to Tiosa Police Station and was on duty on the night intervening of 02.03.2007 and 03.03.2007. He was handed over sample at about midnight of 02.03.2007 and 03.03.2007 and was directed to deposit the same in the office of Chemical Analyzer. P.W.4 has further stated that he had deposited the sample in the office of Chemical Analyzer. He has produced the duty pass Exh.45, copy of forwarding letter Exh.46 and invoice challan Exh.47. 6. P.W.5 had moved the learned Judicial Magistrate First Class Chandur Railway for certifying the correctness of inventory prepared by him. P.W.5 had prepared inventory of the seized articles. A request letter was addressed to the learned Judicial Magistrate First Class to certify the correctness of inventory of the following property: (i) 4 Kg. 500 grams of moist ganja valued at Rs.4500=00 (ii) One rexine bag valued at Rs.20/-. It was stated that sample weighing 300 grams had already been forwarded to the Forensic Science Laboratory through P.W.4. A request letter was addressed to the learned Judicial Magistrate First Class to certify the correctness of inventory of the following property: (i) 4 Kg. 500 grams of moist ganja valued at Rs.4500=00 (ii) One rexine bag valued at Rs.20/-. It was stated that sample weighing 300 grams had already been forwarded to the Forensic Science Laboratory through P.W.4. The learned Magistrate on the same day i.e. 03.03.2007 had issued a certificate that the inventory produced before him was correct and had also issued certificate of sample weighing 300 grams ganja was drawn in his presence and it was separately sealed in a separate polythene bag. 7. As already stated, the Chemical Analyzer report states that sample received by the Forensic Science Laboratory contains ganja. 8. During the course of argument, the learned Trial Judge believed all these witnesses and convicted the appellant for the offence punishable under Section 20(b)(B) of the N.D.P.S. Act and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.10,000/- (Rs. Ten Thousand), in default to suffer further simple imprisonment for six months. 9. The learned counsel Mr. Patwardhan has submitted that evidence of all the witnesses gives clear impression that the case was manipulated against the appellant. The learned counsel has submitted that in the first place there was no necessity for P.W.2 to call P.W.5 Mr. Hafiz. P.W.2 being officer of Local Crime Branch was empowered to prepare panchnama himself. That apart, what is brought to my notice is that the sample of ganja weighing 300 grams was drawn separately at the time of preparing the panchnama on the spot itself. As such the property seized had kept in police custody should have weighed 4.2 kilograms. It is brought to my notice that the sample packet of ganja was sent on the midnight of 02.03.2007 and 03.03.2007 itself and that the Forensic Science Laboratory had received the sample at 10-30 a.m. on 03.03.2007. The learned Magistrate was approached on 03.03.2007 at about 03-30 p.m. and as such the ganja produced before the learned Magistrate could not have weighed 4.5 kilograms as the sample of 300 grams ganja had already reached to Forensic Science Laboratory. The learned Magistrate was approached on 03.03.2007 at about 03-30 p.m. and as such the ganja produced before the learned Magistrate could not have weighed 4.5 kilograms as the sample of 300 grams ganja had already reached to Forensic Science Laboratory. The certificate Exh.65 issued by the learned Magistrate clearly shows that the ganja produced before the Magistrate was weighing 4.5 kilograms and the sample of 300 grams was drawn in presence of the Magistrate. 10. The learned Additional Public Prosecutor Mr. Jaiswal, found it difficult to explain these glaring discrepancies in the prosecution case. The learned counsel Mr. Patwardhan has submitted that it gives clear impression that the documents were prepared at one and the same place and formality of signing the documents was carried out later. After having gone through the evidence of P.Ws.3, 4 and 5 and after having gone through the certificate issued by the learned Judicial Magistrate First Class, I find that the certificate issued by the learned Judicial Magistrate First Class is not in consonance with the prosecution case that sample of ganja was drawn on the spot. The sample of ganja was drawn in presence of the Magistrate. The evidence of P.W.5 cannot be believed. It seems that the learned Magistrate did not apply his mind and had issued certificate mechanically. He did not realize the importance of certifying correctness of the inventory. He should have realized that Section 52-A of the N.D.P.S. Act has been introduced later on in the N.D.P.S. Act, 1985 and it was introduced with a view to see that the innocent person is not involved in a false case. 11. Considering the evidence of prosecution witnesses the learned Trial Judge should not have convicted the appellant for the offence punishable under Section 20(b)(B) of the N.D.P.S. Act. The judgment and order cannot be sustained. Hence, I pass the following order. The appeal is allowed. The judgment and order passed by the learned Sessions Judge, Amravati in Special (NDPS) Case No.05/2007 decided on 14.12.2009 is set aside. The appellant is acquitted for the offence punishable under Section 20(b)(B) of the N.D.P.S. Act. The appellant shall be released from the prison if not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. The fees of learned Counsel Mr. R. M. Patwardhan is quantified at Rs.5000/-. The appeal accordingly stands disposed of. The appellant shall be released from the prison if not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. The fees of learned Counsel Mr. R. M. Patwardhan is quantified at Rs.5000/-. The appeal accordingly stands disposed of. Appeal allowed.