Bombay High Court
Tirupati S/O Rajmalu Walal vs The State Of Maharashtra [Alongwith ... on 7 February, 2008
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
1. Challenge in these appeals is to judgement rendered by learned Special Judge, Latur, in Special Case No. 1 of 2005 whereby appellants have been convicted for offence punishable under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act") and sentenced to suffer rigorous imprisonment for ten (10) years and to pay fine of Rs. one (1) lac each, in default to suffer further rigorous imprisonment for one (1) year.
2. The long and short of the prosecution case is that on 01-12-2004, staff members of Local Crime Branch, including PW3 PSI Jagtap visited Murud (District Latur) in connection with investigation of some crime. While PW PSI Jagtap was at Murud, he received a secret information to the effect that a white Ambassador Car bearing registration No. AP-15-G-2244 was coming from Hyderabad and was proceeding towards Mumbai which was to pass through Murud around midday. The car was being used for transportation of ganja, which was being taken to Mumbai for sale, as per the secret information. He immediately recorded an entry of such information at Police Station Diary of Murud Police Station.
3. He called for panch witnesses by requesting Head Master of a local school to depute staff members of the school. On his request, two school teachers of the local school arrived at the Police Station and showed willingness to act as panch witnesses. He also called for Medical Officer - Dr. Malbhage of the Rural Hospital to attend the proposed raid. They all went to a place near hotel "Krishna", situated on Latur-Barshi road. At about 11.00 a.m., they noticed that a white Ambassador car was coming from direction of Latur. The car vehicle was intercepted. The white Ambassador car bore registration number as per the secret information and hence, the inmates were called upon to alight. At the relevant time, accused No. 1 Laxman was driving the car vehicle in question whereas the other three accused/present appellants were travelling therein. The car vehicle was searched. Though there was no contraband article found at the first blush, yet when the car vehicle was thoroughly searched, it was noticed that there were cushions (sheets of the seats) which were put in polythene covers. The cushions were found to be compressed. One of the cushions was near the bonnet of the car.
The cushion sheets were artificially prepared by pressing ganja leaves, flowering tops, etc. and were concealed in stead of seats. The cushions were then removed and the ganja was stocked at one place. The stock of ganja was weighed after removing the strings which were tied around the artificially prepared cushions of ganja. The total weight of ganja was found to be ninety (90) kilograms. Thereafter, two samples of 50 grams each were separated from the stock of ganja. They were sealed in two separate packets. The sample packets were pasted with paper-slip signed by panchas. The sample packets were also sealed by affixing seal of Murud Police Station and were marked as "S1" and "B1", separately. The remaining stock of ganja was filled in gunny bags which were sealed. The contraband ganja and other articles including the white Ambassador car were seized under a detailed panchanama drawn in presence of the panch witnesses. PSI Jagtap lodged F.I.R. at the Police Station. The sample packets were thereafter handed over to Police Station House Officer of Murud Police Station. The investigation was taken over by PSI Shaikh Hussain of Murud Police Station, after the relevant panchanama and the seized articles, etc. were given in his custody. He sent a forwarding letter to the office of Assistant Chemical Analyser, Aurangabad on the same day and deputed Police Constable Narayan to reach the sealed sample packets to the said office. The sample packets were reached to the office of Assistant Chemical Analyser in the next morning. Analysis conducted by the Assistant Chemical Analyser revealed that the samples were of contraband ganja which answered the description as enumerated in Section 2(iii)(b) of the NDPS Act. On basis of material gathered during course of investigation, all the four accused persons were made to stand their trial for offence punishable under Section 20(b)(ii) of the NDPS Act.
4. To the charge framed against them, the appellants pleaded not guilty. They denied truth into the accusations. They denied that they were engaged in transporting of the contraband ganja in the car vehicle No. AP-15-G-2244 on the relevant date. They further denied that the stock of ganja was found in their possession. Their defence was of simple denial.
5. At trial, in all five (5) witnesses were examined by the prosecution in support of its case. The prosecution also relied upon certain documents such as seizure panchanama, report of Assistant Chemical Analyser, xerox copy of the forwarding letter, etc. The learned Special Judge, on appreciation of the prosecution evidence, reached conclusion that all the accused were found in possession of the contraband ganja. They were transporting the said ganja by concealing the same compressed cushion sheets in stead of cushions of the regular seats used in the Ambassador car vehicle. The learned Special Judge, therefore, convicted them for the offence with which they were charged, and sentenced them as stated at the outset.
6. Mrs. S.S. Jadhav, learned Counsel, appearing for the original accused No. 3 and Mr. Kulkarni, learned Counsel, appointed for original accused Nos. 2 and 4, would submit that the prosecution evidence does not establish "conscious possession" of the contraband ganja with the appellants. They would submit that the version of PW5 PSI Shaikh Hussain cannot be accepted in as-much-as he was a member of the raiding party though he tried to conceal such a fact. They would submit further that there is infringement of Section 55 of the NDPS Act in as-much-as the samples of ganja were not properly deposited at the malkhana of Murud Police Station, nor the same were properly sealed as required under the law. They contended that the secret information received by PW3 PSI Jagtap was only in respect of original accused No. 1 i.e. the driver, namely, Laxman and, hence, there could be no reason for holding that the other inmates of the car vehicle were having conscious possession of the contraband ganja. It is argued that the appellants are not connected with the act of preparing the artificial cushions by using mechanical device to compress the ganja and conceal the same in the stead of seat cushions. It is contended that non-examination of the owner of the car vehicle and absence of investigation in relation to the ownership of the ganja, certainly would make the prosecution case doubtful as regards "conscious possession" of the ganja with the appellants. As against this, Mr. U.K. Patil, learned APP, supports the impugned judgement.
7. First, I would advert to the fact finding in relation to the recovery of the stock of ganja from the car vehicle in question. Thereafter, the question of "conscious possession" may be gone into. There is evidence of PW2 Arun in support of the seizure panchanama (Exh-34). He is a school teacher. He has no business to speak lie. He spelt out details of the raid conducted in the relevant morning by PW PSI Jagtap near Hotel Krishna, situated on Latur-Barshi road. His version purports to show that he and another co-worker by name P.K. Patil were deputed by the Head Master to attend the raid. So, both of them went to Murud Police Station. His version shows that PSI Jagtap informed them that a raid was to be conducted and thereafter, they all reached near Hotel Krishna in a police jeep vehicle. They awaited by side of the hotel. His version reveals that after a shortwhile, the white Ambassador car bearing registration No. AP-15-G-2244 came from Latur side and was intercepted. He narrated as to how search of the car vehicle revealed that eight (8) cushion sheets were artificially prepared by pressing the ganja with some mechanical devise. He states that the cushions were of plastic bags filled in with artificially pressed ganja. His version shows that the ganja was of 90 kilograms when weighed. He confirms the fact that sample packets were drawn by collecting samples of the ganja. He corroborates recitals of the seizure panchanama (Exh-34). His version further shows that the sample packets were signed by himself and another panch. Nothing of much significance could be gathered from his cross-examination. He admits that police inquired with the accused persons regarding the search. He did not personally make any inquiry with them after they were asked to alight from the car vehicle. He admits that the appellants were not knowing Marathi language. He further admits, unequivocally, that he did not get smell of ganja when he had gone near the car vehicle. He admits that PW PSI Shaikh Hussain was a member of raiding party.
8. Much capital is made of the admission given by PW Arun that PW PSI Shaikh Hussain being member of raiding party. The admission of PW Arun does not show that PW PSI Shaikh Hussain was personally present at the time of raid. His general statement that PW PSI Shaikh Hussain was member of raiding party, without further clarification, does not dislodge version of PW Shaikh Hussain regarding his being at the Police Station when the raid was conducted. The version of PW Arun, no doubt, shows that ganja could not be smelt even when he was in proximity of the car vehicle. Needless to say, the passengers of the car vehicle had no reason to suspect that the seats were artificially crafted by using compressed sheets of ganja. It is in this background that testimony of PW3 PSI Jagtap may be appreciated. His version tends to show that he recorded an entry regarding the secret information received by him while he was at Murud Police Station. The entry No. 25 in this behalf corroborates his version. His testimony further shows that he conducted the raid in presence of panchas - PW Arun and another school teacher by name Prabhakar Patil. According to him, at about 11.00 a.m., the white Ambassador car was intercepted on suspicion. He narrated as to how the car vehicle was searched. His version shows that accused Laxman was driver of the car vehicle whereas the other three accused/appellants were travelling therein. He states that the accused were given information regarding intention to search the car vehicle and were given option of search in presence of a Gazetted Officer. He states that a written intimation (Exh-38) was given to them. However, the option given to the accused was illusory. They were not knowing Marathi language. The letter (Exh-30) is scribed in Marathi. It is nobodys case that the appellants were given to understand the contents of the letter by any translator. Ofcourse, it does not have any serious impact on the merits of the matter in as-much-as Section 51 of the NDPS Act is not attracted in the present case. For, this is not a case of personal search. The search of the car vehicle was conducted on basis of prior secret information and as such, it was not necessary to give any option to the accused persons regarding exercise of the right to have search in presence of a Gazetted Officer or a Magistrate.
9. The version of PW PSI Jagtap reveals that nine (9) packets were found concealed in place of seat cushions in the car vehicle. There cannot be any duality of opinion that the ganja sheets were concealed. The fact that one of such artificially prepared sheets of ganja was concealed near bonnet of the car vehicle would clearly show that the driver had the knowledge about transportation of the contraband ganja. It cannot be said that such contraband ganja was being transported without any knowledge of the driver of the car vehicle.
10. The testimony of PW3 PSI Jagtap reveals that he prepared the seizure panchanama after the ganja was weighed. He corroborates recitals of the seizure panchanama (Exh-34). He states that he lodged F.I.R. (Exh-40) at Murud Police Station and handed over the seized ganja bags, two sealed sample packets and car vehicle, etc. to the Police Station Officer. He obtained muddemal receipt (Exh-4) after depositing the contraband ganja bags, the sample packets, etc. The version of PW PSI Jagtap also reveals that a letter (Exh-37) was issued in order to call upon Dr. Malbhage, Medical Officer to join the raid. The learned Special Judge disbelieved version of PW PSI Jagtap in this context. However, the core of his version has remained unimpeached inspite of searching cross-examination. It is duly proved that huge stock of ganja found in the car vehicle was being transported in the relevant morning. I do not find any substantial reason to dislodge the finding of the Special Court on this score.
11. So far as question of "conscious possession" is concerned, it may be mentioned that original accused Nos. 2 to 4 have been convicted by the learned Special Judge only on basis of the fact that they were travelling in the Ambassador car vehicle in the relevant noon. No investigation was carried out to locate the source of obtaining possession of the contraband ganja. No effort was made to find out whether the ganja sheets were prepared by using mechanical device. The investigation was not carried out in order to locate the place of loading the sheets of ganja and the person who prepared the sheets. One cannot be oblivious of the fact that the work must have been carried out at a place where cushions are crafted. Obviously, the Investigating Officer could have collected information regarding the craftsman and the place where the ganja was got pressed in order to prepare tailor-made cushions of the car vehicle in question. That was not done. The Apex Court in "State of Punjab v. Balkar Singh and Anr. 2004 AIR SCW 4223" , held that merely because the accused was sitting on a cluster of bags containing poppy husk, the conscious possession of such bags could not be attributed to him. So also, in "Avtar Singh and Ors. v. State of Punjab 2002 CRI.L.J. 4330" , the Apex Court considered the question of conscious possession in respect of bags of poppy husk. The relevant observations may be usefully quoted as follows:
The word possession no doubt has different shades of meaning and it is quite elastic in its connection. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants - one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods.
12. The fact that original accused Nos. 2 to 4 were sitting on the artificially prepared sheets of ganja which were concealed instead of cushions by itself cannot be sufficient to attribute conscious possession of the articles to them. It need not be reiterated that PW Arun categorically admits that the smell could not be perceived inspite of his proximity with the car vehicle and hence, the inmates of the car vehicle could not have smelt that the sheets were prepared of ganja. Nothing was found on their person during the search. Though two of them are from the same village from which original accused No. 1 Laxman hails, yet, that by itself is not sufficient proof about their conscious possession of the contraband ganja. It may be said that there are strong reasons to suspect their complicity since they were travelling in the same car vehicle. The suspicion is not enough to say that it would also be regarded as proof of the actual possession. As stated before, only in respect of the original accused No. 1 -Laxman, it can be said that he was in conscious possession of the ganja because he had concealed one of such cushion sheet near the bonnet. The testimony of PW PSI Jagtap reveals that he received the information to the effect that said Laxman was transporting the ganja in the car vehicle. He did not receive information regarding anybody else. The appellants/accused were not conversant with Marathi language. Considering all these reasons, I am inclined to hold that the appellants/original accused Nos. 2 to 4 deserve benefit of doubt as regards their actual possession of ganja and hence, they will have to be acquitted of the charge.
13. Another limb of the argument advanced on behalf of the appellants is that there is infraction of Section 55 of the NDPS Act. It is argued that the provision is of mandatory nature. Reliance is placed on certain observations of this Court in "Mohammad Salim Bashir Shaikh v. State of Maharashtra 2004 ALL MR (Cri) 53". A single Bench of this Court held that Section 55 of the NDPS Act requires that leader of the raiding party should not be an officer incharge of the Police Station in which such seized samples are kept for "safe custody". In the present case, PW5 PSI Shaikh Hussain was not "leader" of the raiding party. He received the sample packets while he was incharge of the Police Station.
14. The version of PW4 Narayan (P.C.B. No. 1049) reveals that he was attached to Murud Police Station on 01-12-2004. His version shows that on 01-12-2004, PW PSI Shaikh Hussain deputed him to carry the sample packets in connection with Crime No. 3045/2004 to office of the Chemical Analyser at Aurangabad. He carried the sealed sample packets alongwith forwarding letter (Exh-47). He reached the sample packets in the next morning after the overnight journey, in the office of Assistant Chemical Analyser at Aurangabad. He identified the sample packets (article 4). His version shows that he received the sample packets in a closed parcel. The office order received by him (Exh-47) reveals that two (2) sealed packets bearing No. "S1" and "B1" were to be carried by him. Thus, it is manifest that prompt action was taken by Police Station House Officer and both the sample packets in sealed condition were immediately despatched. The absence of any delay would surely rule out possibility of any tampering with the sample packets.
15. The version of PW5 PSI Shaikh Hussain reveals that he registered Crime No. 3045/2004 on receiving the F.I.R. lodged by PW PSI Jagtap. He carried out further investigation. He deputed the carrier to reach the sample packets to the office of Assistant Chemical Analyser at Aurangabad. He corroborates the fact that he received the report of Assistant Chemical Analyser (Exh-56). He chargesheeted the accused after completing the investigation. His version shows that he did not visit place of the raid. It is explicit that he was not a member of raiding party and he was not the leader of the raiding party. Nothing of much importance could be gathered from his cross-examination.
16. The purpose of Section 55 of the NDPS Act seems to ensure that the samples shall not be exposed to tampering. The Section 55 reads as follows:
55. Police to take charge of articles seized and delivered -an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
A plain reading of Section 55 reveals that the officer-in-charge of Police Station is required to take charge of the seized articles including the samples. The samples should be sealed by the Incharge of the Police Station after they are produced, is the requirement of law when they are not already sealed with the seals of the said Police Station. In the present case, the search and seizure was carried out by PW PSI Jagtap without using any separate seal of his office. He received the secret information while at Murud and, therefore, the seal of the Police Station at Murud was used at the time of sealing seized property articles as well as the sample packets. Therefore, it was not necessary to again put another seal of the Police Station when those sample packets were received by PW PSI Shaikh Hussain. Moreover, he did not keep the custody of such sample packets with the malkhana (muddemal room), but immediately deputed a carrier to reach the packets to the office of Assistant Chemical Analyser at Aurangabad. Under these circumstances, there is no substantial reason to hold that the provision of Section 55 of the NDPS Act has been violated in any manner.
17. Considering the foregoing discussion and totality of the circumstances available on record, it will have to be said that the prosecution evidence falls short to prove conscious possession of ganja with the appellants. They deserve benefit of reasonable doubt.
18. In the result, the appeals preferred by original accused Nos. 2 to 4 i.e. Tirupati s/o Rajmalu Walal, Tirupati Narsayya Bhusarak and Shiru Kunjo Bar, are allowed. The impugned order of conviction and sentence rendered against them is set aside. They shall be set at liberty immediately, if not required in any other case.