Bombay High Court
Balu S/O Babulal Ajit vs State Of Mah on 26 July, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
1 apeal81.174.07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.81/2007
Balu s/o Babulal Ajit,
aged about 24 years, Occ. Student,
r/o Kabir Nagar, Plot No. 204,
Jaripatka, Nagpur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station Officer, P.S. Jaripatka,
Nagpur. ...RESPONDENT
AND
CRIMINAL APPEAL NO.174/2007
Suraj s/o Prabhakar Jambhulkar,
aged about 31 years, Occ. Business,
r/o Viktubaba Jagrut Nagar,
Plot No. 49, Jaripatka, Nagpur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station Officer, P.S. Jaripatka,
Nagpur. ...RESPONDENT
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Mr. R. M. Daga, Advocate for appellant.
Mr. S. S. Doifode, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 26.07.2019
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ORAL JUDGMENT
1. These two appeals are heard simultaneously and they are decided by this common judgment since they arise out of the judgment and order of conviction dated 23.01.2007 passed by the learned Special Judge under the Narcotics Drugs and Psychotropic Substances Act, (NDPS Act), Nagpur in Special Criminal Case No.27/1997.
Criminal Appeal No.81/2007 is filed by Babu s/o Babulal Ajit whereas Criminal Appeal No. 174/2007 is filed by Suraj s/o Prabhakar Jambhulkar.
2. By the judgment and order of conviction, the Court below convicted both the appellants for the offence punishable under Section 20 (b) (ii) (c) read with Section 29 of the NDPS Act and each of them was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine amount of Rs.1,00,000/- and in default of payment of fine, they were directed to suffer further rigorous imprisonment for one year.
3. After the appeals were admitted in the year 2007, both the appellants were released on bail. However, appellant-Balu did ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 3 apeal81.174.07.odt not deposit the fine amount. He filed an application for waiving payment of fine and the said was rejected. Consequently, he was not released on bail. The record shows that when he was undergoing imprisonment, he was released on parole. However, he jumped the parole. Therefore, on 07.06.2018, non bailable warrant was issued and in execution of the non bailable warrant, he was arrested and presently he is in Central Prison, Nagpur.
4. Mr. Daga is counsel in Criminal Appeal No.174/2007 and Mr. Bhure is the counsel in Criminal Appeal No.81/2007. The respondent-State is represented in these two appeals by Mr.Doifode, learned A.P.P.
5. Assistant Sub Inspector Ramhit Rampal Payasi (PW5), on 18.07.1997 was attached to Police Station, Jaripatka, Nagpur. On 14.04 hrs, he received inforamtion that Ganja is stocked in the house of accused no.1-Suraj. He accordingly, transmitted the said information by communication (Exh.-61). The Police Inspector ordered him to call panchas and conduct a raid. Accordingly, he called two panchas. He took entry in Station Diary. Thereafter, he, PI Moon, staff and panchas went to the spot. They went to the ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 4 apeal81.174.07.odt house of accused no.1-Suraj and gave a call to him. One person came, who identified himself as Suraj Jambhulkar. The purpose to visit to his house was explained. By executing intimation letter (Exh.-47), Suraj's house was searched. Accused no.1-Suraj and accused no.2-Babu brought two gunny bags containing Ganja. On weighing, it was found to be 23.800 Kg. ASI Payasi (PW5) took two samples of Ganja of 10 gms. each from that quantity. He seized Ganja and sealed it on the spot itself. He prepared seizure panchanama (Exh.-48). He, thereafter, lodged report (Exh.-63), on the basis of which, Crime No. 87/1997 for an offence under Sections 20 and 29 of the NDPS Act was registered. He deposited the seized properties in the property room. Further investigation was carried by PSI Anil Kuralkar (PW7).
6. After entrustment of the investigation, PSI Kuralkar (PW7) sent the properties to Chemical Analyser (CA) by letter (Exh.-50). He received CA report (Exh.-78) from the CA and in the said CA report, it was reported that Bhang is detected in the sample and not Ganja. Since, there was a doubt, according to PSI Kuralkar, about genuineness of the CA report because at the relevant time, uncle of accused no.1 was working as Deputy ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 5 apeal81.174.07.odt Director in the office of CA, Nagpur, he brought this fact to the notice of the Deputy Commissioner of Police (Crimes) and, therefore DCP (Crimes) Nagpur directed that another sample in this crime be sent to CA, Mumbai. Accordingly, DCP (Crimes) also issued letter to Forensic Laboratory, Mumbai. Thereafter, he collected another sample, which was deposited in the Muddemal Room and personally went to Mumbai along with letter (Exh.-82) and deposited the property in the office of CA. On 16.07.1997, he sent Police Constable Ambikaprasad and demanded CA report by giving letter (Exh.-83). PC Ambikaprasad brought the CA report from Mumbai. In the said CA report, it was reported that the sample contains Ganja, therefore, charge-sheet was filed.
7. Charge was framed against both the appellants. They denied their charge and claimed for their trial. The prosecution relied upon seven witnesses. After a full dress trial, the Court below found that they have committed an offence, for which they were charged and accordingly, they were sentenced.
8. Heard Mr. Daga, learned counsel for the appellant- Suraj, in extenso. Mr. Bhure, learned counsel for appellant-Balu ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 6 apeal81.174.07.odt adopted the submissions of Mr. Daga. Submissions of the learned counsel for the appellants can be categorized as under.
(i) Seized Ganja which was recovered from the possession of the accused was not produced during the course of trial and marked as material object. There is no explanation for this failure to produce the same. According to the learned counsel, the appeal is required to be allowed in view of the law laid down by the Hon'ble Apex Court in Jitendra .Vs. State of M.P.; reported in (2004) 10 SCC 562, and Gorakh Nath Prasad .Vs. State of Bihar; reported in (2018) 2 SCC 305. He also relied upon reported cases of this Court in Hanamantu s/o Gangaram Badawat .Vs. State of Maharashtra; reported in 2007 ALL MR (Cri) 3359, and Laxmi Nagappa Koli .Vs. Narcotic Control Bureau and another; reported in (2015) 13 SCC 598.
(ii) It is also the submission of learned counsel for the appellants that it was impermissible for the prosecution to send the sample for in retesting. For that, he relied on judgment in the case of Thana Singh .Vs. Central Bureau of Narcotics; reported in (2013) 2 SCC 590.
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7 apeal81.174.07.odt Per contra, Mr. Doifode, learned A.P.P. relied supported the impugned judgment.
9. In this case, the prosecution has examined seven witnesses. Udaykant Mandal (PW1) is pancha, who according to the prosecution, was witness for the house search of appellant- Suraj. He turned hostile and has not supported prosecution at all.
Kishor Dhonge (PW2) is a police constable. His evidence would show that on 19.05.1997, PSI Kuralkar (PW7), gave him a duty certificate, directing him to deposit one sealed parcel along with CA form to the CA office at Nagpur. The Duty pass is at Exh.-50. Along with duty certificate, this prosecution witness went to Malkhana Morarir, shown certificate, who, in turn, gave him one sealed parcel and CA form in duplicate. Kishor took entry in the station diary regarding his departure and deposited the sample.
Shyamsundar Pathak (PW3), a pancha has turned hostile.
ASI Jagdish Dubey (PW4), in 1997 he was working as Muddemal Moharir at Police Station, Jaripatka. His evidence ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 8 apeal81.174.07.odt would show that on 18.05.1995, PSI Taksande brought one sealed gunny bag and two sealed pudis, two currency notes of Rs.50/- each to him. He took entries of the same in Muddemal register (Exh.-59). His evidence would show that he also gave one copy to Police Constable Kishor to take the same to the CA. His evidence would show that on 09.07.1997, PSI Kuralkar took another sample from him for sending the same to Mumbai. On 05.08.1997, he deposited the property in the Court.
Ramhit Payasi (PW5) has registered an offence and conducted the raid. Sharad Pole (PW6) is the CA. He proved CA report. PSI Kuralkar (PW7) is the investigating officer.
10. Firstly, I would like to take second submission first for consideration. According to the learned counsel for the appellants, retesting is impermissible.
11. In the present prosecution case, two CA reports are available on record. CA report (Exh.-78) is dated 26.05.1997. It is signed by N. K. Rathod, Assistant Chemical Analyser to the Government, Regional Forensic Sciences Lab, State of Maharashtra. Perusal of this CA report would show that sample in ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 9 apeal81.174.07.odt Crime No.87/1997 was received in CA office in a sealed condition. This report does not show that it was containing Ganja. However, the report shows that Bhang is detected in the sample.
Another CA report (Exh.-67) is available on record. It is dated 17.07.1997 and it is signed by J. A. Shah, Assistant Chemical Analyser to Government, Bombay. It shows that sample in Crime No.87/1998 marked as duplicate sample, was received on 08.07.1997 and in the sample, Ganja, which falls under Section 2 (iii) (b) of the NDPS Act, 1985, was found.
12. Evidence of PSI Kuralkar (PW7) would show that after he sent the property to the CA, as per letter (Exh.-50), he received CA report (Exh.-78) and it was stated in the CA report that Bhang was detected.
13. From the cross-examination of this witness, it is clear that initially report (Exh.-78) which was favouring the accused persons was not filed along with charge-sheet. However, record shows that on 12.12.2006, investigating officer PSI Kuralkar (PW7) vide application (Exh.-77), which is available at file "D", record page no. 49, sought production of the CA report and the ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 10 apeal81.174.07.odt said production was allowed and accordingly, CA report (Exh.-78), came in the light.
14. As per evidence of PSI Kuralkar (PW7), he was having doubt about genuineness of CA report (Exh.-78), since according to him, maternal uncle of accused Suraj was working as Deputy Director in the office of CA, Nagpur. In his cross-examination, he admitted that he did not communicate his doubt to DCP in writing, but orally. From it, it appears that there is evidence available in the case diary about relationship of accused no.1-Suraj that his maternal uncle is serving in the office of CA, Nagpur. However, that evidence is not produced on record, during trial.
15. Be that as it may, he communicated his doubt orally to DCP (Crimes), Nagpur who asked him to send another sample to Mumbai and accordingly, he took another sample from Muddemal Room and handed over to CA, Mumbai. This exercise, according to the learned counsel for the appellant, is "retesting" or "resampling", which is impermissible in view of the law laid down by the Hon'ble Apex Court in Thana Singh, supra. ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 :::
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16. In my opinion, sending another sample to another CA is "not retesting". Had the sample which was sent to CA, Nagpur was again sent to CA, Mumbai, it would have been "retesting". However, at the time of seizure of Ganja, admittedly two samples were drawn, of which one sample was sent to CA, Nagpur and according to the CA, Nagpur it was Bhang. Whereas, another sample drawn, which was sent to CA, Mumbai was found to be containing, Ganja. In that view of the matter, I am not ready to accept contention of learned counsel for appellant that sampling done by CA, Mumbai was retesting and it was impermissible.
17. According to learned counsel for the appellants the appeals are required to be allowed in view of non production of muddemal property before the Court at the time of trial is concerned. Section 52-A of the NDPS Act is relevant provision for disposal of the contraband. Today, Mr. Doifode, learned A.P.P. informed this Court that muddemal in Crime No.87/1997 was destroyed by the competent authority on 01.07.2017.
18. Right from the beginning, it was the case of appellant that Ganja, was seized from the house, which is not produced ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 12 apeal81.174.07.odt before the Court is fatal to the prosecution.
19. Description of the property seized (Exh.-52) was available before the Court at the time of trial. Description of the properties deposited in the Court is as under:
Sr.No Description of property
1. One duly sealed gunny bag of jute. It contains intoxicant substance.
2. One day sealed, khaki brown coloured packet bearing words, "x Illegible x 46/97, CR 87/97". It is said that it is received from the office of C.A. Mumbai
3. One duly sealed khaki packet. It is said that it is received from the office of C.A. Nagpur
4. Cash amount of Rs.100/- only containing two currency notes of the denomination of Rs.50/- each.
However, the acknowledgment appending below the list (Exh.-52) shows as under:
"Received property as per list at Sr.No.2 and 3 only"
Thus, only two pockets of samples drawn were deposited in the Court and was received in the Court and those were marked as Articles "A" and "B". All the prosecution witnesses identified these samples as Articles "A" and "B". Consequently, it is clear that seized muddemal was not produced before the Court at the time of trial.
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19. Law on this aspect is very clear. In Jitendra's case (supra), in paragraph (5) and (6) of the judgment, the Hon'ble Apex Court has ruled as under:
"5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW7), Angad Singh (PW8) and Sub-Inspector D.J. Rai (PW6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the forensic science laboratory. There is no material produced in the trial court, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the forensic science laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 14 apeal81.174.07.odt proved that the samples were sent to the chemical examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, 'non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced'. The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.
6. In our view, the view taken by the High Court is unsustainable. In the trial court it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchanama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 ::: 15 apeal81.174.07.odt landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched".
20. Time and again, the said view is reiterated by the subsequent authoritative pronouncements of the Hon'ble Apex Court in the cases of Gorakh Nath Prasad's case supra and Ashok alias Dangra Jaiswal .Vs. State of Madhya Pradesh; reported in (2011) 5 SCC 123. Even this Court in Hanamantu s/o Gangaram Badawat supra, found that Section 52-A of the NDPS Act, mandates preparation of inventory and certification thereof by the Magistrate. In the said case also, only samples were produced before the Court and not the bags which were seized. This Court has ruled that production of property before the Court can be dispensed with, had inventory been drawn and copy thereof had been produced.
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21. In the present case, admittedly, no such inventory was drawn and no certification was there by the Magistrate about the seized Ganja. Therefore, non production of sealed gunny bag before the Court is a serious lapse and in view of Jitendra's case, a point has to be drawn in favour of the appellants.
22. From the evidence of the prosecution witness, it is clear that at the time of drawing of sample, 10 gms. of sample was drawn and two samples of the same were sent. However, CA reports (Exhs.-67 and 78) show that the quantity that was received in the office of CA at Mumbai was 6.800 gms. No explanation is offered about remaining portion from the sample.
23. Further, learned counsel for the appellants invited my attention to the evidence of ASI Dubey (PW4), Muddemal Moharir who states in his evidence that on 09.07.1997, PSI Kuralkar took out another sample for him, which was sent to Mumbai. In that context, he invited my attention to Malkhana register (Exh.-59), at page no.48 of the paper book, wherein it is mentioned as under: ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 :::
17 apeal81.174.07.odt Submitted (3) One square Vide outward On 13.6.97, to Kuralkar packet of white no. 1787 dated packet saheb paper on which lac 21.7.07, Police containing seal of P.S.I. is Constable (ganja) i.e. the affixed words, Vinod, B.No. duplicate "police station 936, brought sample in the Jaripatka, Crime back and said offence, no.87/97 under submitted to has been given sections, 20, 29 of Malkhana, the to P.S.I. N.D.P.S. Act. Date seized sample Kuralkar saheb and hour of after its for further incident - 18.5.97 examination at investigation.
at 15.15 hours. the office of
Spot of occurrence- Chemical Sd/ x illegible x
residential house of Analyser dt. 13.6.97.
accused no.1, Viktu
Baba Jagrut Nagar, Lokhande P.S.I. Kuralkar
Nagpur P.C. B.No.936 instantly
brought and
submitted the
above
muddemal
sample
Sd/ x illegible x
P.S.I.
dt. 13.6.97.
From the above documentary evidence, PSI Kuralkar obtained sample on 13.06.1997. However, as per evidence of ASI Dubey (PW4), Muddemal Moharir, PSI took sample on 09.07.1997 for sending it to Mumbai. In view of said, there is a serious doubt as to when actually second sample was taken from Malkhana.::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 :::
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24. In the light of the authoritative pronouncements of the Hon'ble Apex Court in Jitendra's case followed by the Hon'ble Apex Court consistently, this Court is left with no other option but allow these appeals because of non production of the seized contraband before the Court during the trial. Hence, I pass the following order.
ORDER
Criminal Appeal No.81/2007
(i) The appeal is allowed.
(ii) Impugned judgment and order dated
23.01.2007, passed by Special Judge, N.D.P.S. Court, Nagpur in Special Criminal Case No.27/1997, is quashed and set aside.
(iii) Appellant-Balu s/o Babulal Ajit, who is in jail, shall be released forthwith, if not required in any other crime.
Criminal Appeal No.174/2007
(i) The appeal is allowed.
(ii) Impugned judgment and order dated
23.01.2007, passed by Special Judge, N.D.P.S. Court, Nagpur in Special Criminal Case No.27/1997 is quashed and set aside.
(iii) Appellant-Suraj s/o Prabhakar Jambhulkar, who is on bail, his bail bonds shall stand cancelled.
JUDGE kahale ::: Uploaded on - 29/07/2019 ::: Downloaded on - 15/04/2020 13:43:10 :::