1
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1378 OF 2003
1. Maruti G. Gund, age 70
years, resident at
Tungat, District
Solapur.
2. Chandrakant Babu
Bitkar @ Chandrakant
Dattatraya Godke, age
52 years, residing at
Tungat, District
Solapur.
3. Shahaji Trimbak
Bhadakwad, age 55
years, residing at
Bhimnagar, Angaar,
Taluka Mohol, District
Sholapur.
Appellants/Ori.Accused
Nos. 1 to 3.
Versus
1. The Inspector of
Customs Preventive
Narcotic Cell, 41-A,
ICE House, Sasoon
Road,Pune.
2. The State of
Maharashtra.
Respondents.
Shri Prakash Naik, Advocate with Ganesh Bhujbal,Advocate
for the Appellants.
Mr, H. V. Mehta, for the Respondent No.1.
Mr A.S. Shitole, A.P.P.for the Respondent No.2-State.
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CORAM: A.R.JOSHI,J.
DATE : 11TH JUNE,2009.
ORAL JUDGMENT.
1. Present appeal is preferred by all three original
accused against their conviction in Sessions Case No. 245
of 2002 in the matter of offences punishable under Sections
8 (c), 20 (b)(ii) (c) and also for the offence punishable
of the N.D.P.S.Act,
under Section 29 r.w.s. 8 (c) and also 27 (A) r.w.s. 8 (c)
1985 on which count accused were
sentenced for ten years imprisonment and fine of Rs. 1 lac
each and in default of payment of fine further imprisonment
for one year each. The said impugned judgment and order
came to be passed on 24.9.2003 by the Special Court under
the Narcotic Drugs and Psychotropic Substances Act,
(N.D.P.S.Act for short) at Sholapur.
2. Being aggrieved by the impugned judgment and
order, the present appeal came to be filed before this
Court and yesterday rival arguments were heard at length.
Prior to appreciating such arguments, certain factual
position and the materials produced before the Special
Court as to the case of the prosecution i.e. Customs
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Department, can be narrated, as under:-
3. The Customs Department on 17.7.2002 received
information regarding one Chandrakant Dattatraya Ghodke
( i.e. Accused no.2) resident of post Tungat, taluka
Pandharpur, District Sholapur had stored eight gunny bags
of Ganja weighing about 200.5 kgs in the residence of one
Shahaji Trimbak Bhadakwad, accused no.3 at and post Angar
village, Taluka Mohol, District Sholapur. In the said
information it was mentioned that if the said premises is
raided on 17.7.2002
igduring night time,
Preventive Narcotic Cell can recover the Ganja. The said
the Customs
information was recorded in writing in the form DRI-I; and
was placed before the Superiors and requisite permission
was obtained for conducting the raid at the given premises.
As such on the next date i.e., on 18.7.2002 at the said
given premises at Post Angar, Taluka Mohol, District
Sholapur, purported to be the premises belonging to accused
no.3, raid was conducted and contraband Ganja, totally
weighing 200 kilograms and 500 grams, kept in seven gunny
bags and one polythene bag, was found. Requisite samples
were taken out in the presence of panch witnesses including
P.W.1 panch. Said search was conducted at the early hours
of 18.7.2002 just after midnight. Usual procedure was
adopted as per the requirements of the conducting the trap
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under N.D.P.S.Act. At the time of such search and seizure,
accused no.1 was found in the premises. He was apprehended
and subsequently his statements were recorded u/s 67 of
N.D.P.S.Act At this juncture, it must be mentioned that
contents of such statements are significant and also
relevant so far as the establishment of case against the
accused persons is concerned. as through such statements
names of accused nos. 2 and 3 were revealed including their
roles inasmuch as accused no.2 was the employer of accused
no.1 and accused no.1 was working as a servant and selling
the Ganja on retail basis from the said premises for and on
behalf of accused no.2. It was also revealed through such
statements and also through the statements of accused no.2
who was subsequently put under arrest as to the involvement
of accused no.3 as the person who had engaged accused no.2
to deal with the bulk Ganja.
4. After the first search and seizure as mentioned
above and after revealing the address of the premises
belonging to accused no.2 at Pandharpur, said house was
also searched on 31.7.2002 and narcotic contraband Ganja
weighing 2 kgs was recovered in presence of panch
witnesses under a panchnama. During the said house search
panchnama, one old woman was found and her statement was
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also recorded. Requisite samples were taken and samples
and contraband were taken charge of and during the
investigation the samples were sent for chemical analysis
through carrier P.W.no.5, an employee from the office of
the Customs Department. C.A.,report was obtained which
show the samples show positive for the presence of Ganja
being a narcotic contraband.
5. It is admitted position that during the first
raid conducted on 18.7.2002 only accused no.1 was present
and was apprehended.
ig However, certain documents connecting
accused no.3 with the said premises were recovered such as
the Ration Card in his name. During the said search and
seizure one receipt was found showing the name of accused
no.1 Maruti Gund issued by some sugar mill of Muldhar
village, Taluka Mohol,District Sholapur. The said documents
were seized by the raiding party members.
6. It is also the factual position during the search
and seizure of the house of one Mangal alias Suwarna Raju
Chavan at Akulj, Tq. Pandharpur which was conducted on
31.7.2002 though accused no.2 was not present when 2 kgs
Ganja was seized, the statement of a woman, Mangal alias
Suwarna Raju, who was found in a room, connects the
accused no.2 with the room. So also during investigation it
was found out that the owner of that room had rented the
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same to accused no.2 and said owner Shri Shelke has been
examined as P.W.3. Again it may be mentioned that so far as
whereabouts and residence of accused no.2 is concerned at
Tungat, Taluka Pandharpur, District Sholapur, there is
substantive evidence of P.W.4, one Gram Sevak of the said
village who identified and connects accused no.2 with the
premises at Tungat. At this juncture, it must be mentioned
that the secret information received by the Customs
contains the name of said accused no.2 Chandrakant Ghodke,
resident
Sholapur.
of post
Tungat, Taluka Pandharpur, District
7. Next prosecution witness is P.W.5 carrier of the
samples to the office of the Chemical Analyser (C.A.).
P.W.no.6 is Rural Development Officer and who identified
accused no.3 as the resident of the house at Solapur and
which was raided in the first search and seizure of
18.7.2002 by customs. P.W.7 is also the another witness
Nursing Mhatre examined in order to connect accused no.3
with the said house at Solapur and which bear No. 628 and
the said number appearing on the said house which was
searched at early hours of 18.7.2002. P.W.8 is the godown
incharge in whose custody the bulk contraband was given and
the material was stored. P.Ws. 9, 10 and 11 are the
officers from the Customs Department and virtually they
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narrated the same story as to the seizure at both the
premises and connection of all three accused with the said
search and seizure of 200 kgs and 500 grams Ganja and
connection of accused no.2 with the seizure of 2 kgs Ganja
on 31.7.2002.
8. Finding the substantive evidence of these
prosecution witnesses and mainly placing reliance on the
statements of the witnesses recorded under section 67 of
N.D.P.S. Act and also the statements of the accused persons
so recorded under the said Act and being relevant in the
matter, learned Special Court came to the conclusion as to
the involvement of three accused in the offences charged
and accordingly convicted them. At this juncture, it must
be mentioned that the charge was framed against all three
accused vide Exh.3 on 27.2.2003.
9. During the arguments learned Advocate for the
appellant-accused raised the main objection and exception
to the substantive evidence of both the panch witnesses. It
is pointed out by referring to the answers given by these
witnesses through their cross-examinations, as to the
pancha P.W.1 was relative of the raiding party member, P.W.
10 Officer Ram Tonpe. So also, P.W.2 in the cross-
examination admitted that Inspector Tonpe had seized 2 kgs
Ganja from the house of accused no.2 and as such said panch
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had acted on the directions of said Tonpe. By pointing out
such evidence of panch witnesses P.W.Nos. 1 and 2, it is
strongly submitted that their evidence cannot be accepted
as trustworthy and as such the search and seizure on both
the relevant dates is required to be discarded. It is also
further argued that in fact for want of absence of accused
Nos. 2 and 3 during both the said searches and seizures,
said accused Nos. 2 and 3 cannot be held responsible and
cannot be linked with such seizures of Ganja. It is also
argued
brought
on
on
behalf
record
of
in
the appellants
the substantive
that nowhere
evidence of
it
P.W.2
is
panch that for what purpose he had been to the place of the
raid at village Angar at the house of accused No.3 Shahaji
after mid-night on 18.7.2002 i.e.,at early hours and as
such the presence of said panch during such search and
seizure can be termed as concocted, further argued.
10. Counter to the aforesaid arguments, learned
A.P.P.,for the Customs Department placed reliance on the
ratio propounded by the following authority.
2009 Cr.LJ 1752 Mahipati and Ors vs. State of M.P.
11. It is submitted that if at all there is any
relationship between the Officer and the panch the same in
itself cannot be treated as a ground for disbelieving the
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panch witness. In other words, without there being any
foundation led for affecting the credibility of the
witness and such foundation must be by way of appropriate
materials brought on record by the accused, the testimony
of such panch witness cannot be discarded.
12. In the opinion of this Court, mere admission of a
panch witness as to having relation with one of the raiding
party members may not per se affect the credibility of the
said witness and when there is another corroborative
evidence by way of
statements recorded under Section 67 of
the N.D.P.S.,Act connecting the accused persons with the
offence of storing and possessing narcotic contraband
Ganja.
13. On going through the reasonings given by the
Special Court after assessing the substantive evidence of
the prosecution witnesses, it can be said that the Trial
Court had rightly reached to the conclusion as to the
involvement of the accused persons for the offences
charged. Needless to mention that in order to establish
the guilt of the accused there need not be hundred percent
proof required to be established but what is required to be
proved is the proof which is beyond reasonable doubt so as
to connect the accused persons with offences charged.
Considering the cumulative effect of the substantive
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evidence brought before the Trial Sessions Court it must be
said that the prosecution has gathered the evidence which
has reached to that standard of proof, which is beyond
reasonable doubt to link the accused-appellants with the
offences charged. Under these circumstances, there is
nothing to view the impugned order differently or to alter
the same in any manner and consequently the present appeal
must fail and accordingly disposed of.
14. In the result, the following order is passed.
ig ORDER:
Criminal Appeal No. 1378 stands dismissed.
(A.R.JOSHI,J)
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