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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 392 OF 2009
Rajaram s/o. Tulshiram Mane .. Appellant
Age. 68 years, Occ. Labour, [original
Resident of Kashti (Bk.) accused]
Tq. Lohara, Dist. Osmanabad.
ig Versus
The State of Maharashtra .. Respondent
Mrs. S.S. Jadhav, Advocate for the appellant.
Shri K.M. Suryawanshi, A.P.P. for the respondent.
CORAM : P.R. BORKAR,J.
DATED : 03.03.2010
ORAL JUDGMENT :-
1. This is an appeal filed by the accused person being
aggrieved by the order of conviction and sentence passed by
the Special Judge, Omerga, in Special Case (NDPS) No. 03 of
2008, decided on 29.07.2009, whereby the appellant/accused
was convicted of offence punishable under section 20 (b) of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
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short “N.D.P.S. Act”) and sentenced to suffer rigorous
imprisonment for five years and to pay fine of Rs. 10,000/-,
in default, to undergo rigorous imprisonment for six months.
2. Briefly stated it is case of the prosecution that
P.W.1-P.I. Wadaje of Lohara Police Station got information on
20.08.2008 at about 01.00 p.m. that the accused/appellant,
who was resident of village Kasti, Tal. Lohara, was illegally
selling ganja at his residence. Accordingly, he gave
information to the Superintendent of Police on telephone,
made entry thereof in the station diary and thereafter called
two persons as panch witnesses. Third person was called to
act as punter and fourth person with weights and scales.
After telling the information to those persons, Ameerlal
Fakir agreed to act as punter. Hujur Shaikh had brought
weights and scales. Bhagwan and Sarwade were panch
witnesses. The P.I. prepared panchanama in which number of
the currency note of Rs. 20/- denomination was mentioned and
said currency note of Rs. 20/- was handed over to punter.
Thereafter, along with said panch, the punter went to village
Kasti. At some distance vehicle was stopped. punter –
Ameerlal Fakir (P.W.4) and Police Constable – Suryawanshi
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(P.W.3) went to the house of the accused. P.W.4-Ameerlal
Fakir purchased two packets of ganja from the appellant and
paid him Rs. 20/-. Thereafter, signal was given to other
members of raiding party. All went into the house of the
appellant to arrest him. There was one steel cupboard and in
that cupboard ganja was found kept in a bag. It was found to
be 9.5 kg. Out of it 100 grams sample was taken. Said sample
of 100 grams, so also the two packets, which were purchased
by punter Ameerlal Fakir (P.W.4) were separately packed,
labelled and sealed. Remaining quantity of ganja was also,
labelled and sealed. During search of the accused, currency
note of Rs. 20/-, which was given to him by P.W.4-Ameerlal
Fakir was found. In the custody of the appellant, his
voter’s identity card, ration card and two pipes were also
found. All these articles were attached under a panchanama.
3. P.I. Wadaje, thereafter, lodged complaint (Exh.60).
He produced the accused along with muddemal articles before
P.S.O. Phule (P.W.5). P.S.I. Phule visited the spot of
incident. He recorded statements of material witnesses. The
muddemal was sent to the Chemical Analyzer. After C.A.
Report was received, the charge-sheet was sent against the
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appellant.
4. The prosecution examined in all six witnesses, they
are P.W.1-P.I. Laxman Wadaje, P.W.2-panch-Bhagwan Maktedar,
P.W.3 – P.C. Gangadhar Suryawanshi, P.W.4-punter Ameerlal
Fakir, P.W.5-P.S.I. Phule and P.W.6-Sajay Khilare, Assistant
Chemical Analyzer.
5.
Except P.W.4-Ameerlal Fakir, all other witnesses
supported the prosecution case. It is argued before this
Court that conscious possession is not proved, in as much as
the house raided as per evidence of P.W.1-P.I. Wadaje was
house No.M-460/C-257, whereas the Assessment Extract of
Village Form No. 8 produced by I.O. P.S.I. Phule was in
respect of house No. 99, which was in the name of Vijaykumar
Yashwantrao Chavan. The learned A.P.P. Shri K.M. Suryawanshi
pointed out that though the number of house given by the I.O.
and as shown in the Assessment Extract are different, but
abuttals are same. It is also argued by the learned advocate
for the appellant Mrs. Jadhav that in this case as admitted
by P.W.2-Bhagwan Maktedar, besides the appellant, there was
one lady present. He did not ask name of the lady, nor he
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was aware if that lady was related to the accused. He did
not remember if P.I. Wadaje asked her name.
6. The learned advocate for the appellant relied upon
case of Premnarayan Prabhulal Mina & Anr., V/s. State of
Maharashtra, 2008 ALL MR (Cri) 599. In that case it is held
that it must be proved that the accused was in conscious
possession of bundles of ganja. In the facts of that case,
the bundles were found in the truck and the accused was
travelling in the truck. It is held that merely because the
accused was found in same truck, that would not be sufficient
to hold that the accused was in actual possession of those
bundles.
7. In Om Prakash @ Baba V/s. State of Rajasthan, 2009
AIR SCW 6385, there were large number of persons living in
the house searched. The ownership and possession of premises
by the accused was not proved. As observed in para 7 of the
said case, five brothers of the appellant, their children and
parents of the appellant were living together. So, in the
facts of the case, it was held that exclusive possession of
the accused was not proved.
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8. In this case though the house does not belong to
the appellant, as can be seen from the Assessment Register
produced on record, still two facts are relevant, which are
duly proved by the prosecution. Firstly, the information was
that it was accused who was selling ganja and accordingly
punter was sent and though the punter had turned hostile, the
currency note which was handed over to punter under
panchanama Exh. 17 was found in the custody of the accused
and the punter has produced two packets of ganja. So, in
absence of any explanation by the accused, it will have to be
held that it was accused who sold ganja to the punter. So,
the accused was not only in conscious possession but had also
control over ganja to sell part of it to punter. Secondly,
bag of ganja was found in the steel cupboard and as per
evidence of P.I. Wadaje the its was with the accused. So,
the accused was in the custody of ganja. So, even assuming
for a moment that the accused was not in possession of house,
he was definitely selling ganja and was in possession of
ganja.
9. In this case the learned advocate Mrs. Jadhav has
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argued that the link between C.A. Report and the article
attached is not established. There is no evidence of carrier
who had taken the muddemal articles to the C.A. There is
also no evidence of any witness who said that after raid he
was given custody of the articles and the articles were in
same condition until they were sent to C.A. Adv. Mrs.
Jadhav also rightly pointed out that in this case the letters
sent to the C.A. are not duly proved. It is not established
that specimen seals were sent to the C.A. along with samples.
10. In this case the evidence of P.I. Wadaje at Exh. 16
stops at lodging of the complaint. All that he said is that
after raid he lodged complaint Exh. 19 and handed over
muddemal articles to P.S.O. under intimation to the
Superintendent of Police. So, he did not say that he himself
had sent muddemal sample articles to C.A. Whereas P.S.I.
Phule who is examined on oath at Exh.25 has stated that he
recorded statements of material witnesses as per their say.
The muddemal articles were sent to the C.A. by P.I. in this
crime and C.A. report is received. So, P.S.I. Phule, who had
investigated the matter who was also P.S.O. when the crime
was registered, did not state that along with complaint, the
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muddemal articles were handed over to him; they were in
sealed condition; he kept them in Malkhana and thereafter he
sent the muddemal sample articles to C.A. in same condition.
Either there should have been such evidence of P.S.I. Phule
or of P.I. Wadaje. It is true that P.S.O. does change. In-
fact, various persons act as P.S.O. by rotation, but somebody
should have come forward to say that the muddemal sample
articles were handed over by him to some one else in sealed
condition for taking to C.A. and accordingly articles were
sent to the C.A. in same condition. Generally persons who
take samples from police station and hand over them to C.A.
are examined. Thus, there is vital missing link in this
case.
11. The learned A.P.P. pointed out the evidence of P.W.
6-Sanjay Khilare, Assistant Chemical Analyzer. He stated that
he received sample in C.R. No. 23 of 2008 from Lohara Police
Station for examination. He received two sealed parcels.
One of them contained two paper packets and there was also
other sample. He proved his report at Exh. 21. He did not
identify muddemal articles from this case as those received
and examined by him.
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12. In the case of State of Rajasthan V/s. Gurmail
Singh, 2005 AIR SCW 1333, in para 3 following observations
are made :-
“3. We have perused the judgment of
the High Court. Apart from other reasons recorded
by the High Court, we find that the link evidence
adduced by the prosecution was not at allsatisfactory. In the first instance, though the
seized articles are said to have been kept in themalkhana on 20th May, 1995, the Malkhana register
was not produced to prove that it was so kept in
the malkhana till it was taken over by PW-6 on June
5, 1995. We further find that no sample of the sealwas sent along with the sample to Excise
Laboratory, Jodhpur for the purpose of comparing
with the seal appearing on the sample bottles.
Therefore, there is no evidence to prove
satisfactorily that the seals found were in factthe same seals as were put on the sample bottles
immediately after seizure of the contraband. Theseloopholes in the prosecution case have led the High
Court to acquit the respondent.”
. In this case there is no evidence to show that
someone from police station had sent specimen seals along
with samples to C.A. No letter forwarded to C.A. is produced
on record. In this case, no doubt, there is evidence to show
that the samples were sealed on the spot and for that purpose
from the police station the seal was carried by P.I. Wadaje
to the spot before raid. He spoke about packing, laballing
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and sealing of samples.
13. In the case of State of Rajasthan V/s. Gopal,
(1998) 8 S.C.C.449, the seal of sample sent to the Analyst
was not produced in the Court for verification. In this case
also the specimen seal sent to Chemical Analyser and its
covering letter were not produced in the Court.
14. In the case of Ramakant Ganpat Vaiti V/s. State of
Maharashtra, 1980 Bom.C.R.488, it is observed that when a
criminal liability is sought to be spelt out, it must be
conclusively established that contraband article was found
with accused and that same article was ultimately analysed by
Chemical Analyzer and for that purpose it was necessary that
the person who had sent the samples for analysis should be
examined and state that he had sent the samples of articles
seized from the accused to C.A. or the person who carried the
samples from police station to office of C.A., should depose
that the samples from same crime were taken by him to the
office of C.A. and the samples were in same condition. On
this point, I may refer to the observations made in the case
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of Ramkrishna Narayan Patekar V/s. The State of Maharashtra,
1983 (1) Bom.C.R.280. In that case, it is observed that the
person who carries the article to the C.A. has to be
examined. In that case the muddemal article was not produced
eventhough asked for. There was overwriting on C.R. number
and therefore it was observed that the prosecution has to
prove the nexus between C.A. report and article attached
during raid and any benefit of doubt or infirmity should go
to the accused.
15. When suspected article is seized at the time of
search, it becomes necessary for the prosecution to establish
beyond doubt that seized article is same, which was analyzed
and found to be narcotic drug by analysis. When identity is
not established the benefit will go to the accused. P.W.6-
Sanjay Khilare, Assistant Chemical Analyzer did not identify
the muddemal articles from the Court as the same articles
which were analyzed by him. He also admitted in cross-
examination that he has not mentioned in respect of tests
done by him. In any case the Chemical Analyzer should have
been asked to identify if the sample articles produced in the
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Court were the same which he had analyzed so that on the
basis of evidence of P.W.1-P.I. Wadaje and P.W.6-Khilare, it
could have been said that the articles analyzed were one and
same. The muddemal articles were not shown or were
identified by P.W.2-Panch-Bhagwan Muktedar. In his
deposition, he simply proved the panchanama without
identifying the muddemal articles.
16.
In the case of Mainuddin Kasim Mulla V/s. State of
Maharashtra, 1991 (3) Bom.C.R.626, in para 9 following
observations are made :-
“9. ……………….. This clearly
means that the sample packets or the covers in which
the samples were collected were never returned to
the Court for facilitating the identification of the
sample packages at the hands of witnesses likeP.S.I. Abhyankar and panch Sarode. In order to
establish a clearcut link between the seized
articles and the report of the chemical analyser
stating that the analysed articles were contraband
articles, it was absolutely necessary to have
identified before the Court, as a substantive pieceof evidence, the packets in which the samples were
collected and were sent to the chemical analyser.
But for that, the sealing of the samples on the
“scene of offence under the wax seals as well as the
labels signed by the panchas had become totally
redundant. The labels signed by the panchas are
affixed on to the sample articles usually to enable
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some case, we have also noticed that the officer inwhose presence the seals were made also had
countersigned such seals to assure the Court that
the articles identified by the panchas were the same
articles which were sealed on the scene of offence
itself. In the present case, as the packetscontaining the samples were never brought before the
Court and as they were never got identified before
the Court, it was not established beyond reasonable
doubt that the articles which were analysed by the
chemical analyser were, indeed, the samplescollected from the articles which were allegedly
seized from the appellant on the scene ofoffence. ……………………”
17. In this case, it is argued that there is no
compliance of Section 50 of the N.D.P.S. Act. In-fact, no
personal search of the accused was taken for attachment of
contraband article. It is prosecution case that the accused
was selling ganja at his house. So, section 50 of the
N.D.P.S. Act would not be applicable in the present case even
though personal search of the accused was taken. The search
was taken to find out if the currency note given to punter
was with the accused. Similarly, the evidence of P.I. Wadaje
shows that there was compliance of Section 57 of the N.D.P.S.
Act, in this case. In this case, section 52-A of the said
Act is not applicable, because it is not case of anyone that
the articles were disposed of.
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18. In this case already samples were sealed with seal
of the police station on the spot itself, therefore, there
was no necessity of further compliance under section 55 by
P.S.O. In this case, the vital link is missing and it is not
established by the prosecution that after the samples were
taken on 20.08.2008, they remained in same condition without
tampering until they were received by the C.A.
19. After having considered all the circumstances, in
my opinion the appeal must succeed. Hence, the following
order is passed :-
(i) The Criminal Appeal is allowed.
(ii) The order of conviction and sentence dated
29.07.2009, passed by the Special Judge,
Omerga, in Special Case (NDPS) No. 03 of
2008, is hereby quashed and set aside.
The appellant – Rajaram s/o. Tulshiram Mane,
is acquitted of offence punishable under
section 20 (b) of the N.D.P.S. Act.
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(iii) The appellant be set at liberty, if not
required in any other crime.
(iv) Fine, if deposited, be returned to the
appellant.
(v) Muddemal property i.e. Ganja be sent to the
State Excise Department, Osmanabad, for its
disposal according to law.
(vi)
The Criminal Appeal accordingly stands
disposed of.
[P.R. BORKAR,J.]
snk/2010/MAR10/crap392.09
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