Bombay High Court
Mithun Pralhad Chavan And Another vs The State Of Mah. Thr. Pso Ps Railway ... on 19 October, 2022
Author: G. A. Sanap
Bench: G. A. Sanap
1 NDPS Appeal443.22+1 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 443 OF 2022
WITH
CRIMINAL APPEAL NO. 572 OF 2022
.............
CRIMINAL APPEAL NO. 443 OF 2022
APPELLANT : Akshay S/o Lalitrao Dhabale,
Aged about 22 years, Occu. Agriculturist,
R/o Lalkhed, Post Malkhed,
Tq. Chandur Rly., Dist. Amravati.
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station, Railway Nagpur, Dist. Nagpur.
WITH
CRIMINAL APPEAL NO. 572 OF 2022
APPELLANTS : 1] Mithun Pralhad Chavan,
Age 24 years, Occupation : Agriculturist,
R/o Lalkhed, Near Hanuman Mandir,
Tq. Chandur Rly., Dist. Amravati.
2] Shekhar Pratap Rathod,
Age 20 years, Occu. Agriculturist,
R/o Lalkhed, Post. Malkhed,
Tq. Chandur Rly, Dist. Amravati.
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station Railway Nagpur,
Tq & Dist. Nagpur.
2 NDPS Appeal443.22+1 (J).odt
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Mr. R. L. Khapre, Senior Advocate, assisted by Mr. Pushkar Deshpande,
Advocate for the appellant in Appeal No. 443/22
Mrs. Sapna S. Jadhav, Advocate for the appellants in Appeal No. 572/22
Mr. M. J. Khan, A.P.P. for the Respondent/State in both the appeals.
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CORAM : G. A. SANAP, J.
Date of Reserving the Judgment : 8th September, 2022.
Date of Pronouncement of Judgment : 19th October, 2022
JUDGMENT
1. These appeals arise out of the judgment and order dated 29.06.2022 passed by the learned Special Judge (NDPS Act), Nagpur in N.D.P.S. Special Case No. 31/2015 and therefore, they are disposed of by this common judgment.
2. Criminal Appeal No. 443/2022 is filed by appellant - Akshay Lalitrao Dhabale (original accused no.2) and Criminal Appeal No. 572/2022 is filed by appellants Mithun Pralhad Chauhan (original accused No.1) and Shekhar Pratap Rathod (original accused No.3). The learned Special Judge, by the impugned judgment and order convicted the appellants for the offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 3 NDPS Appeal443.22+1 (J).odt (hereinafter referred to as "the NDPS Act" for short). The appellants are sentenced to suffer rigorous imprisonment for three years and to pay fine of 25,000/- each and in default of payment of fine to suffer simple imprisonment for six months each, for the offence punishable under Section 20 of the NDPS Act ; and rigorous imprisonment for three years and to pay fine of 25,000/- each and in default of payment of fine to suffer simple imprisonment for six months each for the offence punishable under Section 29 of the NDPS Act.
3. The facts in brief are as follows :
On 30.03.2015, API N. S. Rajkumar (PW6), attached to Local Crime Branch (Railway), Nagpur, received a secret information from his informer that one person wearing dark blue T-shirt and other two persons, were carrying and transporting 'ganja' at Nagpur railway station platform no.2. He made an entry of the said information in the Station Diary. PW6 immediately conveyed this information to his superior officer and sought permission of the superior officer for proceeding further. The superior officer i.e. Sub Divisional Police Officer (SDPO), Lohmarg, granted him permission to workout the
4 NDPS Appeal443.22+1 (J).odt information. Accordingly, he made necessary entry to that effect in the Station Diary. API Rajkumar (PW6), with the help of PC Viraj Mate secured presence of a Gazetted Officer by making written request. PW6 deputed PC Naresh to secure presence of panch witnesses. PW6 deputed PC Santosh Chawre to procure weights and measures. On arrival of the panchas, PW6 apprised them of the secret information.
4. API Rajkumar (PW6) by making entry in the Station Diary, along with the Naib Tahsildar, panch witnesses, one Gendlal Dwiwedi, who had brought the weights and measures, a photographer and other police officers left the police station for the purpose of raid. On reaching the spot i.e. railway platform no.2, as disclosed by the informer, they found one person wearing blue colour T-shirt accompanied with two more persons. They were carrying school bags. PW6 accosted them. On enquiry they stated their names. PW6 introduced himself and the members of the raiding party to the accused persons. He apprised them about the information received by him. He told them that in order to workout the information, he had to take their search. He apprised them of their right to be searched 5 NDPS Appeal443.22+1 (J).odt before the Gazetted Officer or the Magistrate. He introduced Naib Tahsildar (Gazetted Officer) to them and informed them that they can give their search in presence of Naib Tahsildar (Gazetted Officer) or they have a right to take their search before another Gazetted Officer. The accused expressed their willingness to give their search before the Naib Tahsildar (Gazetted Officer). PW6 in that connection gave letters to them.
5. API Rajkumar (PW6) and his staff in presence of the panchas and the Gazetted Officer conducted search of the bags carried by the accused persons one by one. In the search of the bag carried by appellant Mithun (accused No.1), they found ' ganja' weighing 6 Kg 200 Grams. Out of it, PW6 drew two samples of 50 grams each in presence of the panchas. The samples were packed, sealed and labelled. In the search of the bag carried by appellant Akshay (accused No.2), 'ganja' weighing 3 Kgs 600 Grams was found. Two samples of 50 gram each were drawn from it. In the search of the bag carried by appellant Shekhar (accused No.3), 'ganja' weighing 8 Kgs 400 Grams was found. Out of it, two samples of 50 gram each were drawn by 6 NDPS Appeal443.22+1 (J).odt PW6. The remaining 'ganja' was kept in the same bags and the bags were packed, sealed and labelled. In the personal search of the accused, railway tickets to travel from Nagpur to Badnera were found. PW6 with the help of the photographer took photographs of the accused with the bags carried by them. In presence of the panchas, PW6 drew the panchnama. After coming back to the Railway Police Station, PW6 lodged written report. On the basis of the report, Crime No. 6006/2015 came to be registered against the accused persons.
6. The muddemal was deposited with the Muddemal Moharir. In due course, the samples were sent to the Chemical Analyser (CA), Nagpur for analysis. The CA, on analysis of the samples, opined that the samples contained ' ganja'. PW6 made a request to the learned Judicial Magistrate, First Class (Railway Court), Nagpur to verify the seized substance and prepare the inventory. The learned Magistrate accordingly verified the substance, took photographs and prepared the inventory. On completion of the investigation, PW6 filed charge-sheet in the Special Court, Nagpur.
7 NDPS Appeal443.22+1 (J).odt
7. The learned Special Judge, vide Exh.41 framed Charge against the accused persons. Accused pleaded not guilty. Their defence is of false implication. In order to bring home the guilt against the accused, the prosecution examined nine witnesses. The prosecution relied upon number of documents. The learned Special Judge, on scrutiny, appreciation and consideration of the evidence, convicted and sentenced the appellants as mentioned above. Being aggrieved by the said judgment, the appellants are before this Court.
8. I have heard Mr. Pushkar Deshpande, learned advocate for the appellant/accused no.2 in Cri. Appeal No. 443/2022 ; Mrs. Sapna S. Jadhav, learned advocate for the appellants/accused nos.1 and 3 in Cri. Appeal No. 572/2022 ; and Mr. M. J. Khan, learned Additional Public Prosecutor for the respondent/State in both the appeals. With their assistance, I have gone through the entire record and proceedings.
9. Mr. Deshpande, learned advocate appearing for appellant/ accused no.2 Akshay, submitted that in this case the prosecution has 8 NDPS Appeal443.22+1 (J).odt failed to establish compliance of the mandatory provisions of Section 50 of the NDPS Act. Learned advocate submitted that the panch witness, apart from being interested witness, is silent on all the material aspects in his examination-in-chief. The learned advocate submitted that the Naib Tahsildar (Gazetted Officer) was part of the raiding party and therefore, his evidence cannot be taken into consideration against the accused. The learned advocate, on the basis of the document in the form of notice given under Section 50 of the NDPS Act, submitted that the same creates doubt about the very exercise undertaken by the Investigating Officer (PW6). The learned advocate submitted that the prosecution has failed to describe the substance allegedly recovered from possession of the accused so as to attract the definition of 'ganja' as provided under Section 2(iii)(b) of the NDPS Act. The learned advocate took me through the First Information Report, panchnama , requisition letter to the C.A. and the inventory prepared by the learned Magistrate and submitted that in none of these documents, the description of seized 'ganja' has been provided. Learned advocate submitted that the substance described in all these documents is 'greenish leaves with stalks'. The learned advocate pointed out that in 9 NDPS Appeal443.22+1 (J).odt none of these documents, there is mention that the substance with flowering and fruiting tops accompanied by leaves, seeds and stalks was recovered from the possession of the appellants/accused. The learned advocate, therefore, submitted that the description of substance recovered from the possession of the accused and the substance analyzed by the C.A. is totally different. The learned advocate pointed out that the seized 'ganja' and the representative samples were not produced in the Court and therefore, the Court had no occasion to make note of the description of the substance. The learned advocate submitted that this is a serious flaw in the case of the prosecution and therefore, the substance allegedly recovered from the accused and mentioned in the investigation papers does not fall within the definition of 'ganja', provided under Section 2(iii)(b) of the NDPS Act. The learned advocate further submitted that the bags containing ' ganja' were also not produced in the Court. The learned advocate submitted that the colour of the bags has not been mentioned in the inventory. The learned advocate submitted that in this case there was no compliance of Section 57 of the NDPS Act. In the submission of the learned advocate, failure on the part of the Investigating Officer to 10 NDPS Appeal443.22+1 (J).odt place on record the reasons for non-compliance of the provisions of Section 57 of the Act, would go against the case of the prosecution and support the contention of the appellants with regard to their false implication. The learned advocate submitted that the railway tickets allegedly found in the possession of the accused were not produced before the Court. The learned advocate submitted that on the basis of the photographs, which are admitted by the learned advocate for the accused persons, it is not possible to record a concrete finding that the bags seen in the photographs contained ' ganja' with the description understood by the definition of 'ganja', provided under Section 2(iii)
(b) of the NDPS Act.
10. Mrs. Sapna Jadhav, learned advocate appearing for accused no.1 Mithun and accused no.3 Shekhar in Criminal Appeal No. 572/2022 made the submissions similar to one made by learned advocate Mr. Deshpande for accused no.2 Akshay in Criminal Appeal No. 443/2022.
11. Mr. M. J. Khan, learned Additional Public Prosecutor for the State submitted that in this case, by leading cogent and concrete 11 NDPS Appeal443.22+1 (J).odt evidence, the prosecution has proved that before conducting raid, at the time of conducting raid and while effecting the search and seizure, the mandatory provisions of sub-section 2 of Section 42 and sub- section 1 of Section 50 of the NDPS Act have been fully complied with. Learned APP submitted that the provisions of Sections 52-A and 57 are directory and therefore, violation of these provisions, even if accepted, would not ipso facto vitiate the trial or conviction. The learned APP submitted that the prosecution has proved beyond reasonable doubt that the samples drawn from the substance found in possession of the accused persons were sent to the C.A. in sealed condition. The learned APP submitted that the description of the substance contained in each sample packet has been mentioned in the C.A. report. In the submission of the learned APP, the description of the substance from the sample packets as recorded in the C.A. report clearly indicate that the substance contained flowering and fruiting tops. The learned APP, therefore, submitted that the prosecution has proved that the substance recovered from the person of the appellants/ accused was 'ganja', as understood by the definition of 'ganja' under Section 2(iii)(b) of the NDPS Act. In the submission of the learned 12 NDPS Appeal443.22+1 (J).odt APP, failure to describe substance in the investigation papers in view of the C.A. report, would not stand in the way of the prosecution. The learned APP submitted that the inventory prepared and certified by the Magistrate as per the provisions of Section 52-A of the NDPS Act is a primary evidence of the offence. In order to substantiate his submission, the learned APP has placed reliance on the decision of the Hon'ble Supreme Court in the case of State of Punjab .vs. Balbir Singh, reported in (1994) 3 SCC 299. In this case, it is held that the right under Section 50 of the NDPS Act is valuable right of the person to be searched in the presence of a Gazetted Officer or Magistrate. If the said person so requires, he is to be taken before the Gazetted Officer to give authenticity and creditworthiness to the proceedings. Relying on the decision of the Hon'ble Supreme Court in the case of Gurbax Singh .vs. State of Haryana, reported in AIR 2001 SC 1002, it is submitted that the provisions of Sections 52 and 57 of the NDPS Act are directory and violation of the same ipso facto would not vitiate the trial or conviction. Learned APP, in short, supported the impugned judgment and order passed by the learned Special Judge.
13 NDPS Appeal443.22+1 (J).odt
12. At the outset, it would be necessary to see the compliance of the mandatory provisions of Section 42 of the NDPS Act. The raid in this case was conducted on the basis of the secret information received by PW6 from his informer. He had reduced the said information in writing. He has deposed before the Court about the same. A document to that effect is at Exh.77. It was recorded at 14.20 hours on 30.03.2015. The document at Exh.78 is a copy of the station diary entry where this information was noted down. PW6 has deposed that in terms of the provisions of sub-section 2 of Section 42 of the NDPS Act, immediately upon receipt of the information he forwarded a copy of the information recorded by him and a copy of the station diary to his immediate superior officer. Exh.79 is the document in that respect. It was addressed to the SDPO Lohmarg, Nagpur. There is no dispute that the SDPO was the immediate superior officer of PW6. The document bears endorsement of the SDPO indicating that he had instructed PW6 to workout the information as per the provisions of the Act. Exh.79A is a copy of the station diary entry made to show compliance of sub-section 2 of Section 42 of the NDPS Act. PW6 was cross-examined on this point, 14 NDPS Appeal443.22+1 (J).odt however despite searching cross-examination, no material has been brought on record to discard and disbelieve the oral evidence and the contemporaneous documentary evidence prepared by PW6. In this case, therefore, the prosecution has proved that the provisions of Section 42 have been complied with in letter and spirit.
13. It would be necessary to consider the case of the accused on the point of non-compliance of the provisions of sub-section 1 of Section 50 of the NDPS Act. Mr. Deshpande, learned advocate for appellant - Akshay relied on the decision of the Hon'ble Supreme Court in the case of State of Rajasthan .vs. Parmanand and another , reported in (2014) 5 SCC 345 and submitted that since the Gazetted Officer was a member of the raiding party, the search made in his presence was vitiated. On the same point, reliance is placed on the decision of the Division Bench of Calcutta High Court in the case of Ali Hossain Sk. @ Ali Hussain Seikh .vs. Narcotics Control Bureau in Criminal Revision Application No. 90 of 2020 . In the case of State of Rajasthan .vs. Parmanand (supra), it is held that the idea behind taking the accused to the nearest Magistrate or nearest Gazetted Officer, if he 15 NDPS Appeal443.22+1 (J).odt so requires, is to give him an audience of being searched in the presence of an independent officer. It is held that the search of the accused person in the presence of Gazetted Officer, who is the part of the raiding party, vitiates the search. In the case before the Division Bench of the Calcutta High Court in Ali Hussain Sheikh's case (supra), the same principle has been followed. It is to be noted that in both the cases, Gazetted Officer was the police officer and the member of the raiding party. Reliance is placed on the above decisions to substantiate the submission that the search in this case has been vitiated inasmuch as the Naib Tahsildar (Gazetted Officer) was called well in advance and he accompanied the raiding party as it's member. In my view, simply because of the fact that Naib Tahsildar (Gazetted Officer) was called on receipt of the secret information and had accompanied the raiding party, would not vitiate the search in this case. Gazetted Officer (Executive Magistrate) was an independent person. Strictly speaking, the Executive Magistrate in the fact situation could not be said to be an integral part of the raiding party. He was called with a purpose. If sub- Section 1 of Section 50 of the NDPS Act is perused, it would show that if the accused on being given option of search before the Gazetted 16 NDPS Appeal443.22+1 (J).odt Officer or Executive Magistrate, exercises the option of being searched before a Gazetted Officer or a Magistrate, then the accused has to be taken, without unnecessary delay, to the nearest Gazetted Officer or the nearest Magistrate. In my view, the action of the Investigating Officer (PW6) to secure presence of the Executive Magistrate well in advance could not be said to be contrary to the spirit of Section 50 of the Act. The important aspect to be looked into is whether the search was carried out in presence of an independent Gazetted Officer or Magistrate. In the fact situation, the action of the Investigating Officer cannot be flawed. It was in compliance with sub-section 1 of Section 50 of the NDPS Act. It is to be noted that considering the place where the accused were supposed to be present as per the information, the Investigating Officer (PW6) might have thought it fit to avail the services of the Executive Magistrate well in advance to avoid any delay. In my view, the Executive Magistrate, in the fact situation, could not be said to be the member of the raiding party. He simply accompanied the raiding party. By accompanying the raiding party, he would not loose his status as an independent person for the purpose for which he was requested to accompany the raiding party. Therefore, in my view, 17 NDPS Appeal443.22+1 (J).odt on this point, the submission has no force and as such cannot be accepted. In the fact situation, the proposition of law would not support the submissions advanced by the learned Advocates for the appellants.
14. The next important part is the actual compliance of sub- section 1 of Section 50 of the NDPS Act when the accused persons were accosted by the Investigating Officer (PW6). PW3 Nandkishor Gautam is the Naib Tahsildar. He has deposed that pursuant to Exh. 54, a request was made by the Investigating Officer to the Tahsildar to make the services of Naib Tahsildar available. In his evidence, he has stated that after accosting the accused persons, introduction between the accused and raiding party took place. He has stated that PW6 apprised the accused persons about the information received by him and purpose of their search. He has stated that the Investigating Officer (PW6) gave written intimation separately to each accused and appraised them that PW3 was the Naib Tahsildar and they can give their search in his presence or they have an option to give their search before any other Gazetted Officer or Magistrate. He has stated that the 18 NDPS Appeal443.22+1 (J).odt accused, on being apprised, expressed their willingness to give their search in presence of Naib Tahsildar (PW3) and refused the option of giving search before the other Gazetted Officer or Executive Magistrate. Independent letters were given to the accused persons. The carbon copies of the letters are at Exhs.55, 56 and 57. Exh.55 is the letter given to accused Mithun. Exh. 56 is the letter given to accused Akshay and Exh.57 is the letter given to accused Shekhar. All the three letters bear endorsement of the respective accused persons as well as the signature of the Investigating Officer (PW6), Executive Magistrate (PW3) and panch witnesses. PW3 in his evidence has stated that in his presence search of the bags carried by the accused persons was taken and the quantity of 'ganja' mentioned in the panchanama was found in the respective bags carried by them. He was cross-examined. Perusal of his cross-examination would show that nothing has been brought in the cross-examination to disbelieve his statement on the point of his presence on the spot and apprisal of the right of the accused persons under Sub-section 1 of Section 50 of the Act to them. I do not see any reason to discard and disbelieve the evidence of this independent witness.
19 NDPS Appeal443.22+1 (J).odt
15. Evidence of the Investigating Officer (PW6) and panch witness namely Nitin Shrivastav (PW4) is in sync with the evidence of the Naib Tahsildar (PW3). Nitin (PW4) in his evidence has stated that the letters at Exhs.55 to 57 bear his signature and signature of another panch Mayur Sharma. He has categorically stated that before search, written intimation was given to the accused persons. PW6 has categorically deposed about this fact. On re-appreciation of their evidence, I do not see any reason to take a view different than the one taken by the learned Special Judge. On the basis of the evidence, the prosecution has proved that the Investigating Officer (PW6) had complied with the mandatory provisions of Section 42 of the NDPS Act before proceeding to conduct the raid and provisions of Section 50(1) before conducting the actual search of the accused persons.
16. It would now be necessary to advert to the second part of the prosecution case. The second part, in my view, would be more important. The fate of the case of the prosecution by and large would hinge upon the evidence of actual search, the nature of the substance 20 NDPS Appeal443.22+1 (J).odt found in the bags, description of the substance, drawing of the samples, drawing of inventory and the direct connection of the substance actually recovered and the substance analyzed by the C.A. Before proceeding to appreciate the evidence on record, the relevant facts having bearing with this part of the case of the prosecution need to be stated. 'Ganja' seized from the accused persons was not produced in the Court. The reserved sample packets in the custody of the police were not produced in the Court. Similarly, the remnant samples, which ought to have been received from the C.A. after analysis, were not produced in the Court. The description of the substance recovered from the accused persons was mentioned in the requisition to C.A. at Exh.96. The description is similar to the one mentioned in the panchanama. The description of the substance recorded is greenish leafy substance with moisture. The inventory prepared before the Magistrate is at Exhs.140 and 141. Perusal of the Inventory Certificate (Exh.140) would admittedly show that the Magistrate had taken separate photographs of three bags, three separate photographs of the substance found in each bag and mentioned the weight of the substance with bag and without bag, recovered from the accused. The 21 NDPS Appeal443.22+1 (J).odt main thing which is missing from the inventory is the description of the substance. It is an admitted fact that the photographs taken in presence of the Magistrate were not produced before the trial Court.
17. In the backdrop of the above stated admitted facts, it would be necessary to consider the settled legal position on the point and consequences of the failure to produce muddemal in the Court in NDPS cases. In the case of Gorakh Nath Prasad .vs. State of Bihar , reported in (2018) 2 SCC 305, it is held that the NDPS Act provides for a reverse burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with the requirement of the prosecution to first establish a prima facie case, only whereafter, burden will shift to the accused. Mere registration of a case under NDPS Act will not ipso facto shift burden on to the accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and must be put to stringent scrutiny. It is held that if there is any iota of doubt, benefit shall have to be given to the accused. In the case of Jitendra and another .vs. State of M. P., reported 22 NDPS Appeal443.22+1 (J).odt in (2004) 10 SCC 562, the material seized from the possession of the accused was not produced in the Court. It is held that the best evidence in such a case would be the seized material. The seized material has to be produced during the trial and marked material objects. In the absence of proper explanation for such a failure to produce the muddemal before the Court, the benefit obviously goes to the accused. It is held that in the absence of production of the material or drug, in the teeth of doubtful evidence, benefit has to be given to the accused. This decision in the case of Jitendra and another (supra) has been followed in the case of Ashok alias Dangra Jaiswal .vs. State of Madhya Pradesh, reported in (2011) 5 SCC 123, wherein the same legal principle has been reiterated.
18. In these appeals, it is the contention of the prosecution that inventory of the seized narcotic drug was prepared strictly in terms of Section 52-A of the NDPS Act and therefore, non-production of the muddemal seized in this case would not be fatal to the case of the prosecution. It is pointed out that the C.A. report proves beyond doubt that the substance seized from the possession of the appellants 23 NDPS Appeal443.22+1 (J).odt was 'ganja'. On minute perusal of the evidence and the material placed on record, I am of the view that in this case, in the teeth of oral evidence adduced by the prosecution, failure to produce the muddemal, reserved sample packets and remnant samples received from the C.A., is fatal to the case of the prosecution. The description of the substance recovered from the possession of the appellants, as per the case of the prosecution, was greenish leafy substance with stem. Nowhere it is stated that the substance recovered contained flowering and fruiting tops accompanied with seeds and leaves. At this stage, it would be profitable to reproduce the definition of ' ganja', provided under Section 2(iii)(b) of the NDPS Act, which reads thus -
"2. Definitions :-
(i), (ii) ......
(iii) "cannabis (hemp)" means -
(a) ........
(b) ganja, that is, the flowering and fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated ; and
(c) .....
19. It is seen that only the flowering and fruiting tops of the cannabis plant, excluding seeds and leaves when not accompanied by 24 NDPS Appeal443.22+1 (J).odt tops, fall within the definition of 'ganja'. If the whole plant is seized, then it would only be the cannabis plant and not ' ganja'. It was, therefore, necessary on the part of the prosecution to prove that the actual substance seized was flowering and fruiting part of the cannabis plant. Minute perusal of the oral evidence of all the witnesses examined by the prosecution and particularly, the panch witness (PW4) and the Investigating Officer (PW6), would show that their evidence is conspicuously silent about the description of the seized substance. Perusal of the evidence of panch witness (PW4) in entirety would show that he is an interested witness. The raid was conducted at platform No.2 of Nagpur Railway Station. He has admitted that he has been selling peanuts since 12 years prior to the incident at platform no.2 of the railway station. He has admitted that selling peanuts and other eatables is not permissible. He has stated that police arrest such unauthorized vendors 2 - 3 times in a month and after paying penalty, they are released and again they start their business on the platform. He has stated that due to this, he is well acquainted with the Railway Police. He has categorically stated that he is always subject to the command of the Railway Police. In his cross-examination, he has given 25 NDPS Appeal443.22+1 (J).odt very important admission. He has stated that he is not aware as to the contents of the seizure panchanama (Exh.58) and the written intimations given to the accused at Exhs.55 to 57. Perusal of his cross- examination would show that he is under the thumb of Railway Police. Police took the risk of summoning him as a panch in such an important case. Another panch was Mayur Sharma. PW4 has stated before the Court that Mayur is also selling miscellaneous articles at platform no.2. His examination-in-chief on all the relevant aspects is as vague as the vagueness could be. He has not stated where he was called for the first time. Perusal of his examination-in-chief would give an impression that he was summoned on the spot and not in the police station, as has been the case of the prosecution. His examination-in-chief is silent about the procedure followed by PW6 at the time of raid. As per the case of the prosecution, bags carried by the appellants were inspected one by one. This witness has not stated anything about it in his evidence and the quantity of the substance found in each bag. In his evidence, he has stated that 'ganja' was found from the accused persons in three bags. He has stated that the samples were drawn out of it. He has not stated the quantity of the samples and the number of sample 26 NDPS Appeal443.22+1 (J).odt packets. His evidence is silent about the procedure followed for packing, labelling and sealing of the samples. Most important fact, which is missing from his evidence is about the description of the substance found in the bags carried by the appellants. His evidence, therefore, is not in sync with the contents of the panchanama. In my view, his evidence cannot be made the basis of conviction of the appellants. The evidence of this independent panch witness (PW4) is vague. On the basis of his evidence, it is not possible to reach to a concrete conclusion that he was indeed present at the time of search and seizure of the substance.
20. PW6 is the Investigating Officer. On the basis of his evidence, at the most, one can accept the case of the prosecution with regard to compliance of Sections 42 and 50 of the NDPS Act. In his evidence before the Court, he has not at all described the substance recovered from three bags found with the appellants. The panchanama and the first information report at least contain some description of the substance, however it may not be sufficient to hold that the substance was 'ganja', as understood by the NDPS Act. In his evidence, PW6 has 27 NDPS Appeal443.22+1 (J).odt deposed about the procedure followed at the time of search, seizure and sealing. He has nowhere stated that labels with signatures of the panch witnesses and his signature were affixed to the sample packets and the bags containing the substance. The panch witness is also silent on the aspect of preparation of the sample packets, packing of the sample packets and pasting of the labels with their signatures on the sample packets. In my view, this is a very vital and important aspect in this case. In his cross-examination, the Investigating Officer (PW6) has categorically admitted that the panch witnesses in this case were working at railway platform. In the teeth of this evidence, it is not possible to conclude that the substance, as understood by definition of 'ganja', was proved to have been recovered from the possession of the appellants. It is apparent on the face of record that the muddemal with the bags, the reserved sample packets and the remnant sample packets received from the office of C.A. were not produced before the Court. If the muddemal and samples had been produced before the Court, then the Court would have recorded the description of the same in the evidence. The Court in the teeth of such a shaky evidence could have seen the substance before delivering the judgment. No reason has 28 NDPS Appeal443.22+1 (J).odt been placed on record for non-production of the muddemal before the Court.
21. The prosecution is mainly relying on the photographs at Exhs.105 and 106 to substantiate its case that at the time of the raid, these photographs were taken and the accused are seen with their respective bags in the photographs. In my view, the photographs show that three persons are carrying the bags. Other persons are also seen in the photographs. There is no whisper in the evidence of the Investigating Officer (PW6) as to who those persons are. It is unfortunate for the appellants that their Advocate, unmindful of serious consequences, admitted those photographs. The photographs do not depict the description of the substance. On the basis of oral and documentary evidence the description of the substance found from the bags has not been proved. The substance cannot be seen from the photographs. There is one more reason for not attaching much weightage to these photographs. Admittedly, at the request of the Investigating Officer, the inventory was prepared by the Railway Magistrate. At the time of the inventory in respect of each bag, three photographs were taken. First photograph was taken before opening 29 NDPS Appeal443.22+1 (J).odt the bags. Second photograph was of the substance 'ganja' at the time of weight. Third photograph was of the repacking and resealing of the bags. The description of the substance has not been mentioned in the inventory. It is mentioned in the inventory that the bags contained plastic packets of Cannabis (ganja). These photographs were not produced on record before the trial Court. It has come on record that these photographs were certified by the Magistrate in presence of two independent panch witnesses. Perusal of the inventory would show that the photographs of the substance from the three bags were taken. If these three photographs had been produced, the same would have extended great help to the case of the prosecution. The Court could have seen the description of the substance from the photographs.
22. At this stage, in this context, it would be necessary to see the provisions of Section 52-A of the NDPS Act. This provision has been made with an object and intent to preserve the evidence when the circumstances set out in sub-section 1 necessitate destruction of the narcotic drugs and psychotropic substances. Sub-section 2 of Section 52-A of the Act provides that the inventory shall contain such details 30 NDPS Appeal443.22+1 (J).odt relating to the description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs and psychotropic substances. The Magistrate has to certify the correctness of the inventory. The photographs of the drugs or substances are required to be taken in presence of the Magistrate and required to be certified as a true photograph by the Magistrate. It also provides that the Magistrate can allow the Investigating Officer to draw the representative samples of the drugs or substances in his presence. Sub- section 3 of Section 52-A provides that where an application is made for certifying the inventory, the Magistrate shall allow the said application. Sub-Section 4 of Section 52-A provides that if the procedure provided under sub-sections 2 and 3 of Section 52-A is followed, then the inventory, photographs of the narcotic drugs and psychotropic substances and the list of samples, if any, drawn and certified by the Magistrate, shall be the primary evidence in respect of the offence. The prosecution has neither produced the photographs taken in presence of the Magistrate and under the order of the Magistrate, nor placed on record plausible explanation in that regard. In my view, those photographs would have been the best evidence to 31 NDPS Appeal443.22+1 (J).odt take the case of the prosecution, to some extent, forward. In the backdrop of the above factual position, the photographs even if accepted as admitted, cannot be made basis of the conviction.
23. I have stated the purpose of preparation of inventory as spelt out from plain language of Section 52-A of the Act. It is not the case of the prosecution that the substance with bags was destroyed after preparation of the inventory. Mukund Jichkar (PW5) is the Muddemal Clerk, attached to Railway Police Station, Nagpur. In his evidence he has deposed about deposit of the muddemal and sample packets with him. He has also deposed about forwarding of three samples to the C.A. Nagpur for analysis. He has produced on record the extract of muddemal register at Exh.74. Exh.74 indicates that the substance with the three bags was deposited with him. Similarly, the sample packets were deposited with him. It also indicates that three sample packets were handed over to one Constable, who was deputed to carry it to C.A., Nagpur. The last entry from this extract dated 27.04.2015 is with regard to the withdrawal of three bags containing 'ganja' for the purpose of inventory pachanama. This entry does not 32 NDPS Appeal443.22+1 (J).odt show that the sample packets were withdrawn for the purpose of inventory. The next entry is of the even date in respect of deposit of three bags with 'ganja' after completion of the work of inventory. There is no entry after this with regard to the disposal or otherwise of the substance from three bags and the samples. Similarly, there is no entry of receipt of the remnant sample packets from C.A. with the seal of C.A., Nagpur. It is common knowledge that after analysis of the samples, the remnant sample packets are separately sealed by the C.A. and sent back to the concerned police station. This evidence clearly indicates that the substance from the three bags was not destroyed till the date of recording of the evidence. Therefore, in order to dispel doubt from the mind of the Court as to the actual description of the substance, the muddemal ought to have been produced before the Court. In my view, this is a serious lacuna in the case of the prosecution. The decisions relied upon by the learned advocate for the appellants in the cases of Jitendra and another .vs. State of M. P. (supra) and Gorakh Nath Prasad .vs. State of Bihar (supra) would squarely apply to this case. On the basis of the proposition of law, I conclude that failure on the part of the prosecution to produce the muddemal 33 NDPS Appeal443.22+1 (J).odt and the sample packets before the Court, is fatal to the case of the prosecution. It creates doubt about the case of the prosecution.
24. The case of the prosecution, as can be seen from the record, solely rests on C.A. report. The C.A. report is at Exh.67. Relying upon the C.A. report, it is submitted that the description of the substance found in the sample packets has been recorded in the C.A. report and the same squarely falls within the definition of ' ganja'. Perusal of the C.A. report would show that the C.A. found greenish brownish coloured leaves, flowering tops, seeds and stalks in separate three sample packets. The C.A. has not been examined in this case. It is not clear from the C.A. report (Exh.67) whether the greenish brownish coloured leaves, flowering tops, seeds and stalks were part of a stem or separate. Weight of the flowering tops has not been mentioned anywhere. If the C.A. had been examined, then he would have placed on record detailed description of the substance. In my view, this is one reason to discard this report. The second important reason for discarding the C.A. report is that there is discrepancy in what was seized and what was analyzed by the C.A. As per the case of the 34 NDPS Appeal443.22+1 (J).odt prosecution, greenish leafy substance was seized. The documentary evidence as well as oral evidence is silent about the seizure of flowering and fruiting tops accompanied by leaves, seeds and stalks. It is to be noted that the greenish leafy substance does not fall within the definition of 'ganja' as provided under the Act.
25. There is one more reason for not making C.A. report (Exh.67) the basis of conviction. It is seen from the statement of the appellants recorded by the learned Special Judge under Section 313 of the Code of Criminal Procedure that the incriminating material from the C.A. report with regard to the description of the substance found contained in the parcel, mentioned in the C.A. report, was not specifically put to the accused. Perusal of the statements under Sec. 313 of the Cr.P.C. of the appellants would show that it was not put to them that the substance with flowering and fruiting tops was either recovered from them or in the sample packets analyzed by the C.A., he found the greenish brownish coloured leaves, flowering tops, seeds and stalks. It is seen that without granting opportunity to the appellants to explain this vital evidence and circumstance, the C.A. report has been 35 NDPS Appeal443.22+1 (J).odt made the basis of conviction of the appellants. In the absence of appropriate description of the substance coming forth in the oral and documentary evidence, the C.A. report (Exh.67) in the above fact situation, cannot form the sole basis of conviction. In the facts and circumstances, I am of the view that the evidence on record is not sufficient to prove that the substance recovered from the possession of the appellants was in fact 'ganja' as defined under Section 2(iii)(b) of the NDPS Act. In my view, this being the crux of the case of the prosecution, the failure to prove the same cannot cast reverse burden on the shoulder of the appellants, as provided under Sections 54 and 35 of the NDPS Act. The above stated facts have not at all been taken into consideration by the trial Court. The evidence on record creates a doubt about the case of the prosecution.
26. In this case, the Investigating Officer (PW6) has not stated a word about compliance of the provisions of Section 57 of the NDPS Act. As per Section 57 of the Act, in case of any arrest or seizure under this Act, a full report of all particulars has to be made by the Investigating Officer within next 48 hours after such arrest or 36 NDPS Appeal443.22+1 (J).odt seizure, to his immediate official superior. In this case, such report was not made. No explanation has been placed on record to that effect. There is no iota of evidence to indicate that even a part compliance of Section 57 of the NDPS Act was made by the IO. In order to come out of this situation, reliance has been placed by the learned APP for the State on Gurbax Sing .vs. State of Haryana (supra), wherein it is held that the provisions of Section 57 are directory and violation of these provisions would not ipso facto vitiate the trial or conviction. In this case, it is also held that the Investigating Officer cannot totally ignore this provision and such a failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. In this case, in my view, the evidence is shaky. The seized substance has not been properly described, either in the documentary evidence or in oral evidence. In my view, therefore, failure to comply the provisions of Section 57 of the NDPS Act will have a bearing on appreciation of the evidence with regard to seizure of the articles. In my view, this is one more flaw in the case of the prosecution and this would go against the case of the prosecution. This ground is also sufficient to vitiate the trial or conviction.
37 NDPS Appeal443.22+1 (J).odt
27. It is necessary to state here and it must be remembered that the NDPS Act is a special enactment, which is a self-contained constituent, mainly relating to investigation, preservation of contraband, its certification, sampling and its production before the Court. The provisions are mandatory in nature and therefore, non- compliance of the mandatory provisions renders the conviction unsustainable. The NDPS Act has been enacted with an intention and object of controlling the menace of drug trafficking. Stringent punishment has been provided for commission of offence under the NDPS Act. In order to protect innocent persons from being maliciously prosecuted, the Legislature in its wisdom provided the appropriate measures in the form of mandatory provisions. At this stage it needs to be stated that when stringent is the provision, more stricter must be the compliance. Such approach can only avoid misuse of stringent provisions. To avoid the misuse of the stringent provisions, it can be said that when the punishment provided is stringent under the special enactment, more stricter must be the compliance of the mandatory provisions. In this view of the matter, on the basis of shaky evidence, the conviction and sentence is not sustainable. The 38 NDPS Appeal443.22+1 (J).odt appellants are, therefore, entitled for benefit of doubt.
28. Accordingly, Criminal Appeal No.443/2022 and Criminal Appeal No. 572/2022 are allowed.
i] The judgment and order of conviction and sentence, passed by the learned Special Judge (NDPS Court), Nagpur, in NDPS Special Case No. 31/2015, dated 29.06.2022, is set aside.
ii] Appellant - Akshay Lalitrao Dhabale in Cri. Appeal No. 443/2022 ; appellant no.1 - Mithun Pralhad Chavhan and appellant no.2 - Shekhar Pratap Rathod in Criminal Appeal No.572/2022, are acquitted of the offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
iii] They be set at liberty forthwith, if not required in any other crime/case.
iv] The muddemal property be disposed of as ordered by the trial Court.
v] The appeals stand disposed of in above terms.
( G. A. SANAP, J. )
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:19.10.2022
18:45