Bombay High Court
Sunil Mahadeo Kadam vs The State Of Maharashtra on 8 August, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:34865
Gokhale 1 of 17 801-apeal-622-98 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 622 OF 1998
Sunil Mahadeo Kadam ..Appellant
Versus
The State of Maharashtra ..Respondent
__________
Mr. Vaibhav V. Ugale (Appointed Advocate) a/w. Mayur Lodha and
Roshan Pandey for Appellant.
Ms. Sangita D. Shinde, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 8 AUGUST 2025
JUDGMENT:
1. The Appellant has challenged the Judgment and order dated 14.07.1998 passed by the learned Special Judge, under N.D.P.S. Act, Pune, in N.D.P.S. Sessions Case No.18 of 1994. The learned Judge convicted the Appellant for commission of the offence punishable U/s.20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and sentenced him to suffer R.I. for ten years and to pay a fine of Rs.1 lakh and in default to suffer R.I. for two years. VINOD BHASKAR GOKHALE Digitally signed by VINOD BHASKAR GOKHALE Date: 2025.08.13 11:17:16 +0530 ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 2 of 17 801-apeal-622-98 (J)
2. The prosecution case is that, on prior information the police officers had arranged to conduct raid at Pimpri on 20.01.1994; around 11:00p.m. The police arranged for two panchas. The police party and the panchas waited at the spot as per the information. According to the prosecution case, the Appellant came there. He was carrying a white bag. He was confronted. He was informed about his rights U/s.50 of the NDPS Act. His search was taken. The bag was found containing charas kept in a plastic bag It was weighing 1Kg. 300Gms. It was above the commercial quantity of 1Kg. The contraband was kept in a brown envelope and it was sealed. The white bag was separately seized and sealed. The I.O. prepared a report and lodged the F.I.R. vide the C.R.No.27 of 1994 at Pimpri police station. The investigation was carried out. The sealed packet was kept in the muddemal room by making an entry in the register. On 21.01.1994 it was handed over to P. C. Ware for taking it to the Forensic Science Laboratory (for short 'FSL') for chemical analysis. The C.A. report showed presence of charas. Accordingly, the charge-sheet was filed and the case was conducted before the learned Special ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 3 of 17 801-apeal-622-98 (J) Judge, as mentioned earlier.
3. During the trial, the prosecution examined five witnesses. PW-1 Shankar Sadawarte and PW-2 Bhanudas Landge were the panchas. According to the prosecution case, they were present at the time of conducting raid. PW-4 Head Constable Sudam Wabale was the muddemal clerk. PW-3 Police Constable Sainath Ware was the carrier of the articles to FSL and PW-5 PSI Maula Saiyyad was the investigating officer. The defence of the Appellant was of total denial.
4. The learned Judge considered the evidence on record. He believed the evidence led by the prosecution and based on that evidence, convicted and sentenced the Appellant, as mentioned earlier.
5. Heard Mr. Vaibhav Ugale, learned counsel for the Appellant and Ms. Sangita Shinde, learned APP for the State/Respondent.
6. PW-1 Shankar was examined as a pancha witness. However, he did not support the prosecution case. In his ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 4 of 17 801-apeal-622-98 (J) examination in chief, he stated that on 20.01.1994 he was called at Pimpri police station at 11:00 to 11:30a.m. He was passing from the road in front of the police station. He was called to the police station. The police asked him to sign on the panchanama and accordingly, he had put his signature on the panchanama. At that time, PW-2 Bhanudas Landge was also present there. After signing the panchanama, he went away. He identified his signature. But he categorically stated that the events described in the panchanama did not happen in his presence. The panchanama was produced on record at Exhibit-10. Since he did not support the prosecution case, he was declared hostile.
The learned Judge permitted the learned APP to conduct the cross-examination of PW-1. In the cross-examination, he denied all the suggestions put by the learned APP regarding the events that had taken place, according to the prosecution case. In the cross-examination conducted on behalf of the Appellant, he stated that he had signed as a pancha in many panchanamas in the police station at Pimpri. He admitted that, he was acquainted with the police officers, therefore, he had signed many panchanamas at ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 5 of 17 801-apeal-622-98 (J) that police station.
7. The panchanama produced at Exhibit-10 describes the events, as per the prosecution case, however, very significantly, the original panchanama Exhibit-10 shows that some portion was kept blank regarding starting and ending time of the panchanama. The panchanama shows that there are specific blank spaces in the last paragraph where it was mentioned that the panchanama was conducted between what time. It is not just a missing line. There is specific space left blank in the last paragraph of the panchanama.
8. PW-2 Bhanudas was the other pancha. He deposed that on 20.01.1994 he was called to Pimpri police station at 11:00 to 11:30a.m. At that time, PW-5 PSI Saiyyad told him that in the previous night they had arrested one person. Thereafter PW-5 Saiyyad obtained his signature on the panchanama-Exhibit-10. Since PW-2 was not supporting the prosecution case, he was declared hostile and he was also cross-examined by the learned APP.
After he was declared hostile, in his cross-examination ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 6 of 17 801-apeal-622-98 (J) conducted by the learned APP, he gave all the answers favourable to the prosecution. He accepted all the suggestions put by the learned APP describing the incident of conducting the raid, as per the prosecution case. The events mentioned in the panchanama and accepted in his cross-examination will be referred to while discussing the evidence of PW-5 Saiyyad to avoid the repetition.
In the cross-examination conducted on behalf of the Appellant, he stated that they were at the spot at some distance and were looking at the work done by the police. At the time of arresting the accused also they were at some distance. According to him, the contraband was seized and sealed in their presence. At that time, only one main packet was seized by the police. He could not recollect whether the panchanama was written by PSI Saiyyad himself or by his writer. He could not explain as to why he signed in English on the panchanama, but he had signed in Marathi on the sealed packet.
9. PW-4 Sudam Wabale was the muddemal clerk attached to Pimpri police station. He deposed that on 20.01.1994 he had ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 7 of 17 801-apeal-622-98 (J) received the property in this crime from PSI Saiyyad. He took the entry in the muddemal register at Sr.No.18. It was one sealed packet of the contraband article and one envelope containing cash amount.
In the cross-examination, he deposed that he had received one sealed packet of brown coloured paper and he did not know whether there was any cloth bag packed in it. The sealed packet was handed over to him by PW-5 Saiyyad in the midnight. But he could not tell the exact time.
10. The perusal of Exhibit-16 i.e. the entry in the Register shows that it described two articles. The first article was mentioned as a white coloured cloth bag containing a plastic bag and there were tablets of charas in that plastic bag. The weight was 1kg 300gms. The second article was a ring of the accused and the cash amount of Rs.23/-. It is described as one sealed parcel. The cash was deposited at State Bank, Pimpri and, a sealed packet was handed over to Police Constable Ware to send it to chemical analyzer. These are the entries made in the register. However, there ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 8 of 17 801-apeal-622-98 (J) is absolutely no reference to the white cloth bag, because, as per the prosecution case, a white cloth bag was separately seized and sealed, and a plastic bag containing charas tablets was separately seized and sealed as per the panchanama and as per the evidence. The panchanama specifically referred to two separate packets. In one of the brown paper packets, a plastic bag with charas tablets was kept in sealed condition and in the other, a white cloth bag was kept in brown envelope.
11. PW-3 P.C. Sainath Ware was the carrier who had taken the seized muddemal to the office of the chemical analyser. He deposed that on 21.01.1994 he received the muddemal from P.I. Mokashi for taking it to the office of C.A. He described the muddemal as a packet of brown coloured paper which was duly sealed. He deposited that muddemal with the C.A's office along with the office copy of the report bearing signature of P.S.I. Saiyyad.
In the cross-examination, he stated that he could not recollect the number of wax seals put on the said packet. The ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 9 of 17 801-apeal-622-98 (J) sealed packet was given to him at about 10:30 in the morning and he handed over the same to C.A. office at about 1:00p.m.
12. PW-5 PS.I. Maula Saiyyad had conducted the raid. His deposition is important. He stated that on 20.01.1994 he was attached to Pimpri police station as P.S.I. On that day, at about 9:30p.m. when he was present in the police station, he received an information that one person was to bring charas at Rockey Hotel on Mumbai Pune road. He took the entry of the information in the information book maintained in the police station. He wrote a report in the name of the police inspector about the information received and asked for permission to conduct a raid. Before taking entry in the information book, he wrote the said information on one paper. He produced that paper at Exhibit-19. The report addressed by him to the Police Inspector regarding the information and seeking his permission to conduct the raid was produced on record at Exhibit-20. He was granted the permission. He called two panchas. He prepared to conduct the raid. He arranged for weighing balance, measures etc. He along with other staff and panchas went to the spot mentioned in the information. At about ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 10 of 17 801-apeal-622-98 (J) 10:45p.m., one person as per the description in the information came there. He was apprehended. PW-5 identified the Appellant as the same person. He told the Appellant about the purpose of the raid. He asked the Appellant whether he wanted to take search of the police staff and the panchas. The Appellant declined. Then PW- 5 took search of the Appellant. He was carrying one cloth bag. On taking search of that cloth bag, PW-5 and others found that the bag was containing 1Kg 300gms of charas. PW-5 then packed the said charas in one brown envelope. It was closed and the seal bearing signature of PW-5 himself and the panchas was posted on it. He then put lakh seal on it. Thereafter he drew the panchanama of the raid and obtained signatures of the panchas. It was the same panchanama which is produced on record before the Trial Court at Exhibit-10. The Appellant's ring and cash amount of Rs.23/- was also seized. He took the Appellant and the property to Pimpri police station. The property was deposited in the muddemal room. The Appellant was arrested. The articles were sent to the office of C.A. with PW-3 Ware. PW-5 filed the report against the Appellant for commission of the offence under NDPS Act. That report is ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 11 of 17 801-apeal-622-98 (J) produced on record at Exhibit-23. The offence was registered at Pimpri police station vide the C.R.No.27 of 1994. Subsequently, the C.A. report was obtained which is produced on record of the trial Court at Exhibit-25. In the meantime, he recorded the statements of the witnesses.
In the cross-examination, he stated that they had reached the spot at about 10:45p.m. He admitted that the cloth bag in which the contraband article was kept was not before the Court. He denied the suggestion that since the panchanama was written in the police station, there was no timing mentioned in the panchanama.
The C.A. report produced by PW-5 at Exhibit-25 is an important document in this case. As per said report, the C.A. office had received one sealed parcel. The seals were intact as per the copy sent labelled C.R.No.27/94. Interestingly, the description further mentions that the parcel contained 71 pieces. The C.A. report further mentions those 71 pieces with their separate weights in one chart. The ultimate conclusion was that charas was ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 12 of 17 801-apeal-622-98 (J) detected in Sample Nos.1 to 71. This is an important aspect because neither in the oral evidence nor in the panchanama there is any reference whatsoever to these 71 pieces. If it was the prosecution case that charas was in the form of 71 tablets, none of the witnesses had mentioned those 71 tablets. Even the panchanama did not describe that charas was in the form of 71 separate tablets. A general statement is made in the evidence that charas weighing 1Kg. 300Gms. in total was found in a plastic bag. The panchanama mentions that the plastic bag contained charas tablets. PW-5 in his substantive evidence has mentioned that on search of the cloth bag it was found that the bag was containing 1kg 300gms of charas. He had not referred to the tablets at all. He has deposed that, weight of the charas was 1kg 300gms.
This, in short, is the evidence led by the prosecution.
13. Learned counsel for the Appellant submitted that the prosecution has failed to prove its case against the Appellant. Both the panchas were declared hostile. PW-1 Shankar has not supported the prosecution case at all. PW-2 Bhanudas in his cross- ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 :::
13 of 17 801-apeal-622-98 (J) examination, has given some answers favourable to the prosecution, but it also shows that he was an unreliable witness. PW-2 Bhanudas could not explain properly as to why the panchanama had his signature in English, whereas, the seals put on the packet had his signature in Marathi. There was no reason for him to put two different signatures at two difference places. PW-4 Wable, the muddemal clerk, has referred to a white cloth bag in the register entry at Sr.No.18 in Exhibit-16, but there is no trace of that white cloth bag at all. Even the panchanama mentions that a white cloth bag was separately put in the second parcel, but there is no further trace of that white cloth bag. There is specific reference to two separate parcels, but when it was deposited there was only one parcel in the form of cloth bag mentioned at Sr.No.18 in the muddemal register. Learned counsel submitted that PW-5 PSI Saiyyad has not explained all these discrepancies and, therefore, the Appellant deserves to be acquitted.
14. Learned APP submitted that the prosecution has proved that the I.O. has complied with all the mandatory provisions. PW-5 PSI Saiyyad had taken down the information in writing. He had ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 14 of 17 801-apeal-622-98 (J) sent a report to his superior containing the information. The compliance of Section 50 of the NDPS Act is not necessary because the contraband was found in a white cloth bag carried by the Appellant and it was not found on his person. She submitted that the panchanama mentions tablets and, therefore, there was no discrepancy in the description of the seized contraband and the articles sent to C.A. She, therefore, submitted that the prosecution has proved its case against the appellant.
15. I have considered these submissions. As rightly submitted by the learned counsel for the appellant, PW-1 Shankar and PW-2 Bhanudas are unreliable witnesses. PW-1 Shankar was declared hostile and he has not supported the prosecution case; even in the cross-examination conducted by the learned APP. As far as PW-2 Bhanudas is concerned, he was also declared hostile. He had stated in his examination in chief that he was called at Pimpri police station on 20.01.1994 at 11:00 to 11:30a.m. and he was told by PSI Saiyyad that on the previous night they had arrested one person and then they had obtained his signature on the panchanama. This deposition gets support from the fact that the ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 15 of 17 801-apeal-622-98 (J) panchanama shows that timing of carrying out the panchanama was left blank. There was a specific blank space in the last paragraph of the panchanama where it was to be described that the panchanama was conducted between the specific time. Therefore, there are indications that the panchanama was a mere paper work and not the faithful reproduction of the events that had taken place.
16. Another glaring feature in this case is that, as per the description in the panchanama, two separate packets were made. Both these packets were of brown paper. In one packet, plastic bag containing contraband charas was kept and in the other packet, white cloth bag was kept. However, the muddemal register mentions that there was only one parcel and it was kept in a white cloth bag. It contained a plastic bag containing charas. In a case of this serious nature, this discrepancy assumes importance and it has remained unexplained.
17. PW-5 PSI Saiyyad has nowhere stated that what was recovered from the Appellant was charas in the tablet form and ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 ::: 16 of 17 801-apeal-622-98 (J) they were 71 in numbers. He has merely stated that charas weighing 1Kg 300gms was recovered from a white cloth bag. It was kept in a plastic bag inside that white bag. Beyond that, there is no description of 71 tablets. Neither panchanama nor the muddemal register nor oral evidence makes any reference to these 71 tablets. All these are important features in this case. In this background, I find force in the submission of learned counsel for the Appellant that nothing was actually seized from the Appellant, only some paper work was made. The tampered samples were sent for C.A. There is absolutely no explanation as to what happened to the second parcel containing the white cloth bag. There is no reason as to why the muddemal register entry should refer to the white coloured bag when it was already kept and sealed in another brown paper packet. All these discrepancies are important and they have remained unexplained. In this view of the matter, sufficient doubt is created against the prosecution case. The benefit of doubt must go to the Appellant. He deserves to be acquitted.
18. Hence, the following order:
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17 of 17 801-apeal-622-98 (J) ORDER
i) The Appeal is allowed.
ii) The Judgment and order dated 14.07.1998 passed by the learned Special Judge, under N.D.P.S. Act, Pune, in N.D.P.S. Sessions Case No.18 of 1994, convicting and sentencing the Appellant, are set aside.
iii) The Appellant is acquitted from all the charges.
iv) The Appeal is disposed of.
(SARANG V. KOTWAL, J.) ::: Uploaded on - 13/08/2025 ::: Downloaded on - 15/08/2025 23:01:40 :::