Bombay High Court
Babarao S/O Harishchandra Thakre vs State Of Mah. Thru Police Sub Inspector on 12 September, 2017
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.442.07+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 442/2007
with
CRIMINAL APPEAL NO. 449/2007
with
CRIMINAL APPEAL NO. 451/2007
CRIMINAL APPEAL NO. 442/2007
Abdul Kadir Abdul Hanif Deshmukh
Aged about 31 years, occu:Field worker
R/o Kutasa, Tq.Akot, Dist. Akola. .. APPELLANT
v e r s u s
State of Maharashtra
Through P.S.O. Dahihanda
Dist. Akola. .. RESPONDENT
CRIMINAL APPEAL NO. 449/2007
Babarao s/o Harichandra Ankurkar
Aged about 38 years, occu: Labourer
R/o Chhota Bazar
Tq. & Dist. Akaola. .. APPELLANT
v e r s u s
State of Maharashtra
Through Police Sub Inspector
Police Station Dahihanda
Tq. Akot, Dist.Akola. .. RESPONDENT
CRIMINAL APPEAL NO. 451/2007
1) Sk.Ibrahim @ Sk. Shadulla Sk.Maulana
Aged 56 years, occu: Labour
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CRI.APPEAL.442.07+
2
R/o Birkur, Tq. Banswada
Dist. Nizamabad (A.P.P)
2) Amjadkhan Nashirkhan
Aged 35 years, occu:Labour
R/o Balkonda, Tq. Armor
Dist. Nizamabad (A.P.) .. APPELLANTS
v e r s u s
State of Maharashtra
Through Police Sub-Inspector
Police Station Dahihanda
Dist.Akola. .. RESPONDENT
...........................................................................................................................
Mr. D.V. Chavan, Advocate (appointed) for appellants
Mr. S.B. Bissa, Additional Public Prosecutor for respondent-State
............................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 12th September, 2017
ORAL JUDGMENT:
1. The above-referred three Appeals are directed against the judgment and order dated 5th September, 2007 in Special Case No. 6/2005 delivered by the learned Ad-hoc Additional Sessions Judge, Akot thereby convicting all the four appellants (hereinafter referred to accused nos.1 to 4) under section 20(b)(ii)(b) of the Narcotics Drugs & Psychotropic Substances Act ('NDPS Act' in short) and sentencing them to suffer rigorous imprisonment for five years each and to pay a fine of ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 3 Rs.10,000/- each, in default, to suffer R.I. for one year.
2. The prosecution case, in brief, can be stated thus :
On 16.3.2005, PSI, Digambar Chavan (PW7), who was then attached to Dahihanda Police Station, was proceeding to conduct a prohibition raid at village Punda. Therefore he along with Police staff proceeded to village, Punda. They started from Dahihanda at about 7.30 am. From Dahihanda Bus Stop they took one Panch witness by name Pramod Rohte, with them. At Kutasa Bus Stop, they took another Panch witness by name, Sanjay Gavande, and then the police vehicle proceeded towards village Punda. While the vehicle was passing through village Kutasa, the raiding party saw accused no.1 Abdul Kadir Abdul Hanif who was having a loaded plastic bag on his shoulder, running away seeing the police party due to which a suspicion crept up and the police party started chasing the accused who reached to one house and entered inside it. PW7-Chavan along with police staff got down from the jeep. The accused no.1 was called out and he produced the loaded plastic bag before PW7-Chavan which was opened. It was noticed that the bag was filled with hemp (ganja). The said ganja was weighed and it was found to be 12.550 kg. PW7-Chavan, then, drew two samples for chemical analysis, each of the quantity of 100 gms. The sample packets were packed and sealed. The remaining quantity of ganja in the plastic ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 4 bag was also seized and sealed. Thereafter the raiding party proceeded to village Chhobota. It is the case of the prosecution that the accused no. 1 had purchased the said ganja from accused nos.2 and 3 who had reportedly gone to village Chohota. The raiding party then took accused no.1 with them and they proceeded to Chohota. The police vehicle halted in front of the house of accused no.4. Then the Raiding party along with Panch witnesses and accused no.1 went in front of the house of one Bhande. There was a house having structure of straws in front of house of Bhande. It is the case of the prosecution that accused nos.2 to 4 were found sitting inside the compound of that house and they were weighing ganja leaves by means of balance. PW7-Chavan then took charge of the said ganja which was with accused nos. 2 to 4 at Chohota. The weight of the said ganja was of 13 kg. PW 7-Chavan drew two samples each of the of the quantity of 100 gms for the purpose of sending it to the Office of Chemical Analyser. The sample packets were duly packed, signed and sealed by PW7. Similarly, the remaining quantity of ganja was also seized and sealed. It is the case of the prosecution that accused nos.2 and 3 are from Andhra Pradesh and they sold ganja to accused no.1 which was found with them at village Kutasa and accused nos.2 and 3 also sold ganja to accused no.4 who resides at village Chohota during the personal search of accused no.2. An ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 5 amount of Rs. 1850/- was found with him. As per the prosecution, it was the amount of the sale proceeds. PW7-Chavan, then, recorded the seizure panchnama (Exh.88). The accused nos.1 to 4 were arrested by PW 7. PW7-Chavan lodged the FIR Exh.110. He then produced the entire quantity of sealed ganja before the Court of learned Judicial Magistrate, First Class, Akot. The inventory panchnama was drawn before PW 6-Lahu Chavan, JMFC Akot. At that time two representative sample packets were drawn as per the direction of PW6. Those samples were sent to Regional Forensic Science Laboratory, Nagpur, along with one sample drawn at Kutasa and one drawn at Chohota, by PW7. On 17th March 2005 in all four samples packets were sent to C.A. Office.
The Chemical Analyser found that the ganja i.e.cannabis was detected in those articles. After completion of investigation, charge-sheet was filed in the Court of learned JMFC, Akot.The case was committed to the Court of sessions. The charge was framed by the learned Ad-hoc Additional Sessions Judge. The defence of the accused was of total denial and that they have been falsely implicated in the matter. After analysis of the evidence and after hearing both the sides, the learned trial Judge convicted the accused as aforesaid. Hence this appeal.
3. I have heard Mr. D.V.Chavan, the learned counsel for the appellants/accused (appointed) and Mr.S.B.Bissa, the learned Additional ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 6 Public Prosecutor for the respondent-State. I have meticulously gone through the record of the case.
4. Mr.D.V.Chavan, the learned counsel for the accused vehemently argued that the learned trial Judge has failed to notice the lacunae in the prosecution case inasmuch as he himself tried to fill up those lacunae which is not permissible under law. He further contended that the learned trial Judge has unnecessarily noted that PW2-Pramod Rothe, a panch witness, was won over by the accused. According to him, for the reasons best known to the learned Judge, PW2 has not been declared as hostile and unnecessary comments are made against the witnesses in the said judgment. The learned counsel pointed out the glaring discrepancies in the testimony of PW7-Chavan and PW2 -Pramod and contended that the learned trial Judge has overlooked those contradictions and relied upon the testimony of those witnesses and erroneously convicted the accused. Mr. S.B.Bissa, the learned A.P.P. contended that the learned trial Judge has rightly come to the conclusion and convicted the accused.
5. After considering the rival contentions of the both sides, it is noticed that the learned trial Judge has heavily relied upon the testimony of PW7-Chavan, PSI, the Investigating officer, PW2-Pramod Rothe, the panch witness and of PW6-Lahu Chavan, JMFC. ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 :::
CRI.APPEAL.442.07+ 7
6. PW 7-Digambar Chavan deposed that that on 16.3.2005 he was attached to Police Station, Dahihanda as P.S.O. At about 7.30 am, he along with the police staff started from Dahihanda by a police vehicle for conducting a prohibition raid at village Punda. Accordingly, the vehicle proceeded towards Punda. On the way, from Dahihanda Bus Stop they took one panch by name, Pramod Rothe (PW2) and at Kutasa Bus stop they took another panch by name-Sanjay Gawande. When they were in Kutasa, they noticed one person running away, seeing policemen in the jeep; he was having one bag on his shoulder. The said person entered in one house. PW 7-Chavan took the vehicle before the said house and halted it. They started giving call to that person. On this the person came out of the house and on interrogation he informed his name as Abdul Kadir s/o Abdul Hanif, R/o Kutasa (accused No.1). The accused no.1 brought the bag which was packed at its top and yellow in colour. On being asked, the accused no.1 opened the same. PW 7 found green colour leaves inside the bag and those were ganja leaves. PW 7-Chavan then informed the accused that he intends to take search of his house and asked him whether he desires that the said search should be taken in the presence of Gazetted Officer, to which the accused no.1 declined. Thereafter, PW 7-Chavan, the panchas and the raiding party offered their search to the accused. However, he refused to take ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 8 their personal search. Thereafter PW7 entered in the said house. However nothing incriminating material was found in the search of the house. According to PW7 he took charge of the said ganja which was in the bag of accused no.1. It was weighing about 12 kgs and 550 gms. After taking charge of the said ganja,PW 7 separated 100 gms quantity of the ganja for C.A. sample. Two samples each of 100 gms. were prepared, packed and sealed under the signatures of Panchas and PW 7. The remaining quantity of ganja was packed and sealed. PW7 prepared the seizure panchnama (Exh.88).
7. PW7 stated that as per the information of accused no.1, the raiding party along with panchas and accused no.1 proceeded to village Chohota. They took the police vehicle in front of one house. They halted the said vehicle at that place. PW7 then found a house having a structure of straw in front of house of one Bhande. Three persons were present in the house of straw. Accused no.1 identified two out of those three persons as his vendors. Those three persons were weighing the green colour leaves. According to PW 7-Chavan, the accused nos.2 and 3 were the vendors and accused no.4 had purchased those green leaves from accused nos.2 and 3. PW7 weighed the said ganja, it was 13 kg. PW7- Chavan seized the said ganja, took out two samples of 100 gms. Each, ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 9 for analysis. Thus, the samples were packed, sealed and signed by PW7- Chavan, accused and the panchas. PW7 then sent those two packets to CA office for analysis and according to PW7 the other two samples packets were lying at the Police station. PW7 then prepared the seizure panchnama (Exh.89). During the personal search of accused no.1, he found Rs.1850 with him. The said amount was taken charge by PW7.
8. According to PW7 he had drawn only one recovery panchnama (Exh.87). PW7 then sent a letter to SDPO Akot and Executive Magistrate, Akot about the raid and recovery (Exh108). PW7 then lodged the FIR (Exh.110). He took entry in the station diary (Exh.
109) and registered the crime. PW7 sent report to SDPO, Akot in respect of the offence(Exh.111). PW7 then arrested the accused. He sought the inventory Panchnama by moving an application before the learned JMFC Akot(Exh.105). According to PW7,Chavan he produced the entire quantity of ganja before the learned JMFC, Akot and the inventory panchnama was prepared before the learned Magistrate, Akot. Two samples were taken from the quantity of ganja, by the learned Magistrate, Akot. The learned JMFC directed him to send those samples to office of the Chemical Analyser, for analysis. PW7 stated that all the four sample packets were sent by him to the CA office and rest of the quantity of ganja was deposited in the Malkhana. PW 7-Chavan filled up ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 10 the CA form and seal of the court was taken on the CA form. Those samples were sent to CA office. The remaining quantity of ganja was deposited in the Malkhana of Police Station Dahihanda.
9. PW2-Pramod Rothe, who is the panch witness on the point of seizure of ganja from accused no.1 as well as accused nos.2,3 and 4, deposed that on 16.3.2005 Police Officer D.J.Chavan (PW7) called him at Police Station, Dahihanda. The said Police officer was proceeding towards village Rohankhed by a jeep. PW2 was called from his house and accordingly he joined the police party and proceeded along with them. When they reached at village Kutasa, at the bus stop, they met a person by name Sanjay Gavande, who too joined them as panch witness. They reached to the house of one Kadirsha (accused no.1.). PW2 stated that he saw one plastic bag lying in front of the house of accused no.1 and on noticing the same, the jeep was halted by the police officer. When the said plastic bag was opened it was found that there were green colour leaves in the said bag and on smelling it all three were of the opinion that it was ganja. Weighing machine was fetched and said ganja was weighed which was 12 kg and 500 gms. Two samples each of 100 gms. quantity was taken from the said ganja for chemical analysis. Those samples were packed and sealed so also the plastic bag containing ganja was also packed and sealed. The panchas, accused no.1 and the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 11 Police Officer put their signatures on the slips which were pasted. Thereafter the police party along with accused no.1 and the panchas proceeded towards Chohota. The police vehicle halted near one Durgah. They went to the house of one Ankurkar (accused no.4) which was shown by accused no.1. Ankurkar was called out. The search of his house was taken by police. However nothing incriminating was found in the said search. Thereafter they all proceeded near the house of one Bhande. It had a fencing of straws. Inside the compound of straws they found two persons from Andhra Pradesh, namely Sk.Ibrahim (accused no.2) and Sk.Aziz (accused no.3). They were possessing a plastic bag which was filled with ganja. The police took charge of the said ganja and weighed it. It was 13 kgs. The police officer took two samples each of 100 gm. out of the said ganja and seizure panchnama was prepared. The samples were duly sealed so also the remaining quantity of 12 kg. and 800 gms which was in the plastic bag, was sealed. Thereafter, PW 2-Rothe, the other panch, police officer and the accused signed on the slips used for sealing. According to PW2-Pramod Rothe, an amount of Rs.1850/- was seized, which was recovered from accused no.1 and the panchnama (Exh.87) was prepared. PW2 identified his signatures on panchnama Exh.88 as well as Panchnama Exh.89.
10. Significantly, during the cross-examination PW2 deposed ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 12 that he had acted as a panch in many police cases during last 25 years. It appears that PW2 was a habitual panch used by the police machinery and this was the reason in his examination-in-chief he stated that the police vehicle was stopped in front of his house, PW7 called him at Police Station Dahihanda, from his house. During the cross-examination PW2 specifically denied that he saw one person running with a luggage on his head and they chased that person in the police vehicle and then halted the said vehicle in front of his house. PW2 denied that the said person who was running, entered inside the house and then they gave a call to the inmates of the house. He further denied that the bag was found inside the house at Kutasa.
11. It is noticed that testimony of PW2-Pramod Rothe does not corroborate with the testimony of PW7-Chavan on material aspects. According to PW2 when the vehicle of the raiding party was passing from Kutasa it reached in front of the house of accused no.1 and one plastic bag lying in front of the house of accused no.1 and on opening it ganja was found therein. PW2 has not explained as to why the jeep was taken in front of the house of accused no.1. As per the testimony of PW7, they had started from Dahihanda and they wanted to proceed to Punda for a prohibition raid. The village Kutasa came on the way to Punda. According to PW2 the raiding party decided to go to village Rohankhed ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 13 and village Kutasa was on the way. PW 2 did not state that on reaching Kutasa, PW7 or any other police said to halt the jeep at the house of accused no.1. No information was received by any police officer that accused no.1 was in possession of any narcotic drug and for that purpose the vehicle was taken to his house. Thus, there is discrepancy in the testimony of PW2 and PW7 on the point of directly taking the vehicle to the house of accused no.1, the discrepancy was pointed out in the testimony of PW2 that PW2 stated that the plastic bag filled with ganja was found lying in front of the house of accused no.1. The police went on to search the person to whom it belongs and then they brought accused no.1 to that place. As it is the case of the prosecution and as stated above, when the jeep was at Kutana one person started running away when he saw the policemen in the jeep and he was having one bag on his shoulder and the said person entered in one house, therefore, the police took the jeep in front of that house and halted it. The accused No.1 came out of the house and brought the bag and the said bag was taken charge wherein ganja was found. PW 2 did not state about the finding of the ganja from the bag which accused no.1 was carrying with him. Thus, there is glaring discrepancy on the point of possession of ganja with accused no.1 which goes to the root of the prosecution case. It is significant to note that the prosecution has not declared PW2 ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 14 as a hostile witness. However the learned Judge came to the conclusion that PW2 was won over by the defence.
12. It is noticed that PW7-Chavan kept the seizure panchnama (Exh.87) incomplete and did not conclude it at Kutasa from where ganja was allegedly taken charge from accused no.1 and the said panchnama continued at the place i.e. Chohota from where ganja was allegedly taken charge from accused nos.2 to 4. It is not clear as to how PW7 was confident that he would find ganja with accused nos.2,3 and 4, at Chohota. It is noted that the same set of panchas were used in regard to recovery of ganja from accused nos. 2,3 and 4 which creates a serious doubt about the investigation carried out by PW7.
13. As far as testimony of PW2-Pramod Rothe with regard to seizure from accused nos.2,3 and 4 are concerned, according to PW2, accused no.4 was not seen when accused nos.2 and 3 were apprehended with the quantity of ganja near the house of one Hande. Surprisingly the learned trial Judge observed that the testimony of PW2 is not binding on the prosecution. The learned trial Judge has observed in paragraph 21 of his judgment that, "taking notice of this fact, I am not prepared to accept that PW2 is not declared hostile and, therefore, his evidence is binding on the prosecution." It is noticed that there are glaring discrepancies in the testimony of PW2 and PW7. In view thereof the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 15 entire prosecution case is under the shadow of doubt, with regard to the seizure of ganja from accused nos.1 as well as accused nos.2,3 and 4.
14. It is worthy to note that the seizure panchnamas (Exh. 88 and 89) do not bear the specimen seal at the place indicated in the printed proforma, which indicates that PW7 was not possessing the seal with him at the time of conducting of the seizure panchnama.
15. As far as the testimony of PW6-Lahu Chavan, who was working as a Judicial Magistrate, First Class, Akot, is concerned, he deposed that on 16.3.2005 PI Chavan moved an application before him, requesting for inventory panchnama. The application was granted. PI Chavan, produced before him two plastic bags which were filled with ganja (hemp). One plastic bag was yellow in colour, green colour leaves of ganja were in the said bag. The weight of the said ganja was 12 kg and 350 gms. 50 gms. qauantity of ganja was taken for the purpose of CA analysis. After drawing the sample the weight of the bag was 12 kg and 300 gms. The sample packets of plastic bag containing ganja were sealed and seal of the court was affixed under the signature of PW6. Other plastic bag containing ganja leaves was white in colour which was weighed and it was 12 kg 800 gms and quantity of 50gms. ganja leaves was separated for the purpose of CA sample. The weight of the bag was taken and it was 12 kg.and 750 gms. The sample packets and the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 16 plastic bag both were packed and sealed under the seal of court and was signed by PW6. The inventory Panchnama was prepared (Exh.106). It is interesting to note, during the cross-examination PW 6 stated that on packet no.1, five lakh seals were noticed and at one place there is a mark of lakh seal on the packet, but the back is removed. PW 6 failed to state whether the lakh seals were of JMFC Court. He further failed to state whether the lakh seal were of Forensic Science Laboratory, Nagpur as the words on the lakh seal cannot be read. PW 6 further proceeded to state that the seal on the CA form though it is titled as a seal of the court, it is not the seal of the court which appears on the letter. He further stated on the said letter there is nowhere subsequent seal of the court affixed. The testimony of PW6 demolishes the case of the prosecution and creates a serious doubt on the investigation carried out by PW7. It is doubtful whether the samples which were taken by the learned JMFC were the same samples which were sent to C.A. and were detected as ganja samples. The learned trial Judge has not considered the testimony of PW6 in its letter and spirit and has erroneously relied upon the testimony of PW6 and came to the conclusion that his testimony supports the prosecution case and the samples which were taken charge from the learned JMFC Court were the samples of ganja.
16. It is interesting to note that the prosecution witnesses PW 7 ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 17 and PW 2 categorically stated that ganja leaves were taken charge from accused no.1 as well as accused nos.2,3 and 4. There was no mention of any flowering of seeds or tops seized from the accused persons. However the C.A. report mentions that the sample of ganja sent to the CA office contains flowering tops, seeds and stocks, besides the leaves. The said C.A. report cannot be relied upon as it is not at all the case of the prosecution that the flowering tops, seeds and stocks were taken charge from the accused. It is significant to note that the leaves of the plant are termed as bhang whereas the flowering tops of the cannabis plant are termed as ganja which is narcotic drugs specified under NDPS Act.
17. Thus, the entire case of the prosecution is under the shadow of doubt. The judgment and order passed by the learned trial Judge is found to be illegal and perverse for the reasons discussed herein-above. In view thereof, the Appeals deserve to be allowed. Hence the following order :
ORDER
i) Criminal Appeals Nos. 442/2007; 449/2007 and 451/2007 are allowed.
ii) The judgment and order dated 5th September, 2007 in Special Case No.6/2005 delivered by the learned Ad-hoc Additional Sessions Judge, ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 ::: CRI.APPEAL.442.07+ 18 Akot, is set aside.
iii) The appellants are acquitted of the offence punishable u/s.20(b)
(ii) (b) of the Narcotics Drugs & Psychotropic Substances Act.
iv) Bail bonds of the appellants shall stand cancelled.
vi) The learned counsel for the appellants (appointed) has argued the case at his level best. His professional fees are quantified at rupees five thousand.
JUDGE sahare ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:55 :::