Bombay High Court
Narayan S/O Tulshiram Jadhav vs The State Of Maharashtra on 9 January, 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 708 OF 2016
Narayan Tulshiram Jadhav ..APPELLANT
(Accused no.1)
VERSUS
State of Maharashtra ..RESPONDENT
WITH
CRIMINAL APPEAL NO. 653 OF 2016
Shekhar Ramdas Sharma ..APPELLANT
(Accused no.2)
VERSUS
State of Maharashtra ..RESPONDENT
WITH
CRIMINAL APPEAL NO. 678 OF 2016
Datta Vachista Bajgude ..APPELLANT
(Accused no.3)
VERSUS
State of Maharashtra ..RESPONDENT
WITH
CRIMINAL APPEAL NO. 648 OF 2016
Laxman Ashruba Narwade ..APPELLANT
(Accused no.4)
VERSUS
State of Maharashtra ..RESPONDENT
----
Mr. G.D. Kale, Advocate for appellant in APEAL/708/16.
Mr. Joydeep Chatterji, Advocate for appellant in
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APEAL/648/16.
Mr. Joydeep Chatterji, Advocate h/f Ms. Monica
Purnapatre, Advocate for appellant in APEAL/653/16.
Mr. R.G. Hange, Advocate for appellant in
APEAL/678/16.
Mr. A.A. Jagatkar, A.P.P. for respondent - State.
----
CORAM : SANGITRAO S. PATIL, J.
DATE : JANUARY 09, 2018
COMMON JUDGMENT :-
The above numbered appeals have arisen out
of the same judgment dated 15th October, 2016
delivered by the learned Special Judge, Aurangabad in
Special Case No. 10 of 2012 thereby convicting the
appellants of the offences under Sections 3 and 4
read with Section 25 of the Arms Act, 1959 and also
under Section 22 of the Narcotic Drugs and
Psycotropic Substances Act, 1985 (for short "NDPS
Act"). Hence they are being decided by this common
judgment.
2. Each of the appellants has been sentenced
with rigorous imprisonment for three years and fine
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of Rs.10,000/- with default clause in respect of the
offences under Sections 3 and 4 read with Section 25
of the Arms Act and rigorous imprisonment for ten
years and fine of Rs.l,00,000/- with default clause
in respect of the offence punishable under Section 22
of the NDPS Act. The substantive sentences of
imprisonment have been ordered to run concurrently.
3. The learned Special Judge acquitted the
appellants of the offence punishable under Section
399 of the Indian Penal Code. The State/ prosecution
has not challenged acquittal of the appellants in
respect of the said offence. As such, that part of
the judgment has attained finality.
4. The appellants are hereinafter referred to
by their respective first names, whenever necessary.
5. It is the case of the prosecution that on
24th September, 2012, when P.S.I. Gavali (L.C.B.)
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Aurangabad was in his office, P.I. Nandedkar received
an information that a Tavera car bearing registration
no. MH-23-Y-2404 was carrying dacoits towards Pachod
along Beed - Aurangabad road. Therefore, as per the
directions of P.I. Nandedkar, P.S.I. Gavali (P.W.2)
immediately left for Pachod in a private vehicle
alogwith his staff members. He called two panchas at
Pachod and arranged for a trap. He instructed Police
Naik Deshmukh (P.W.3) to stay near Haryana Rajasthan
Dhaba which was at some distance from Pachod and
directed to inform on mobile phone immediately after
seeing the above numbered car proceeding towards
Pachod. P.S.I. Gavali (P.W.2) and other staff
members and panchas stayed near Hotel Ekant Dhaba,
which was at the distance about 1 k.m. from Pachod.
They had placed barricades on the road for stopping
the vehicles for checking. P.S.I. Gavali (P.W.2)
received a phone call from Police Naik Deshmukh
(P.W.3) after he noticed that the above numbered car
proceeded towards Pachod. P.S.I. Gavali (P.W.2)
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stopped that car near Hotel Ekant Dhaba at about
11.15 p.m. Driver of that car took the car to the
extreme left side of the road, switched off the
engine and fled away. The appellants were found
sitting in that car. A pistol with three live
cartridges were found with the appellant - Narayan, a
pistol and three live cartridges were found in
possession of the appellant Shekhar, a dagger having
length of eleven inches was found attached to the
waist of the appellant - Datta and a dagger having
length of ten inches was found attached to the waist
of the appellant - Laxman. The car also was
searched, wherein two sticks, a packet of chilly
powder and a cotton rope having length of sixteen
feet were found. A plastic jar containing a black
coloured substance was found under the rear seat of
the said car. On being asked, Narayan informed that
it was opium and was being carried for being sold
near Baba Petrol Pump at Aurangabad. He further
informed that the said opium was weighing 2kg. and
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500gms. P.S.I. Gavali (P.W.2) informed that fact on
mobile phone to the Superintendent and P.I. of the
Local Crime Branch. He asked Narayan as to whether
he wanted to seize the said contraband in the
presence of a gazetted officer. Narayan answered in
the negative. P.S.I. Gawali (P.W.2) then got called
through Police Naik Ghuge the seal of the police
station, photographer and a Tan-Kata (i.e. hanging
weighing scale). He seized the jar containing opium.
After weighing it in the presence of the panchas and
confirming that it was 2 kg. and 500 gms., he took
three samples weighing 50 gms. each out of the seized
opium and then sealed them with lac. He seized the
said jar and above mentioned articles found in
possession of the accused as well as in the car under
a panchanama in the presence of the panchas. He then
went to Police Station, Pachod alongwith the
appellants and lodged F.I.R. against them. On the
basis of the F.I.R. lodged by P.S.I. Gavali (P.W.2),
Crime No. I-137 of 2012 came to be registered against
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the appellants for the above mentioned offences. The
seized articles were produced by P.S.I. Gavali in the
police station. The investigation followed.
Statements of witnesses were recorded. The seized
revolvers, cartridges, one of the samples of opium
was sent to Chemical Analyser for analysis and
report. After completion of the investigation, the
appellants came to be charge-sheeted.
6. The learned trial Judge framed charges
against the appellants for the above mentioned
offences vide Exh. 45 and explained the contents
thereof to them in vernacular. They pleaded not
guilty and claimed to be tried. Their defence is
that of total denial and false implication.
7. The prosecution examined eight witnesses to
establish guilt of the appellants for the above
mentioned offences. After evaluating the evidence on
record, the learned trial Judge did not find
sufficient evidence to hold the appellants guilty for
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the offence under Section 399 of the I.P.C. He,
therefore, acquitted them of the said offence.
However, he found the appellants guilty of the
offences under Sections 3 and 4 read with Section 25
of the Arms Act and under Section 22 of the NDPS Act.
He, therefore, convicted and sentenced the appellants
as stated above.
8. Mr. Kale, the learned Counsel representing
Narayan argued as a lead counsel. His arguments are
adopted by the learned Counsel for the remaining
three appellants with certain additions. It is
contended by the learned Counsel for the appellants
that P.S.I. Gavali (P.W.2) was not an officer
empowered to search and seize any contraband. His
evidence is not supported by independent witnesses in
respect of seizure of contraband. They, further
contend that conscious and exclusive possession of
opium qua the appellants has not been established by
the prosecution. Therefore, they cannot be connected
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with the opium allegedly seized by P.S.I. Gavali
(P.W.2).
9. They further submit that there is no
consistent evidence in respect of the actual number
of samples taken by P.S.I. Gavali (P.W.2), since
P.S.I. Gavali (P.W.2) states that three samples were
taken, while Police Naik Ghuge states that only two
samples were taken. Therefore, it creates doubt as
to which sample was sent for chemical analysis.
10. They further contend that the report of
chemical analysis is vague and general. It does not
contain the details about the manner in which the
analysis was done. It is simply mentioned that there
were traces of morphine in the sample that was
analysed. However, no percentage of morphine has
been given. Therefore, this report would not be
helpful for the prosecution to establish that opium
as defined in Section 2(xv) of the NDPS Act was
actually seized.
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11. The learned Counsel further contend that the
provisions of NDPS Act are very harsh and stringent,
inviting heavy punishment. Therefore, it was
necessary for the prosecution to establish strict
compliance of the provisions of Sections 42, 50, 55
and 57 of the NDPS Act. However, the prosecution has
failed to establish compliance of the provisions of
these Sections.
12. The learned Counsel for the appellants
submit that there was no sanction under Section 39 of
the Arms Act for prosecution of the appellants for
the offence under Section 3 of the said Act.
Therefore, no cognizence could have been taken
against them for the said offence. The conviction of
the appellant for the said offence is liable to be
set aside for want of sanction under Section 39 of
the Arms Act. They further contend that there was no
notification issued under Section 4 of the Arms Act.
Consequently, no cognisance could have been taken
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against the appellants for the offence under Section
4 of the said Act. They could not have been convicted
for the offence under Section 4 of the said Act.
13. The learned Counsel for the appellants
further contend that the driver of the car fled away
after stopping the car. According to them, this
conduct of the driver itself indicates that he was
guilty conscious and was aware about the presence of
the opium allegedly found in the rear seat of the
car. The appellants being not aware of presence of
the opium, they did not feel guilty for any misdeeds,
and therefore, they did not move from the car. The
prosecution has not arrested the driver of the car
for being prosecuted. Therefore, the appellants
cannot be connected with the opium allegedly seized
from the car. The learned Counsel relied on certain
judgments in support of their contentions which would
be considered in the later part of the judgment.
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14. On the other hand, the learned A.P.P.
submits that since there was no prior information
received by P.S.I. Gavali (P.W.2) that opium was
being carried in the car, the provisions of Sections
42, 50, 55 and 57 of the NDPS Act would not be
applicable to the facts of the present case. He
submits that P.S.I. Gavali (P.W.2) followed the
provisions of the Code of Criminal Procedure while
searching the car and seizing the opium that was
found in the car. Only because the independent
witnesses turned hostile, the evidence of P.S.I.
Gavali (P.W.2) supported by the evidence of Police
Naik Deshmukh and Police Naik Ghuge, who were present
at the time of the search and seizure of opium cannot
be disbelieved. Relying on the judgment in the case
of Baldev Singh Vs. State of Haryana 2015 All M.R.
(CRI)4967(SC), he submits that the evidence of the
police officers cannot be discarded merely on the
ground that they belong to police force and
interested in investigation and in seeing success in
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the case. He submits that there is sufficient
evidence on record to show that opium was seized from
the car which was owned by the appellant - Datta.
Conscious possession of the appellants over the
seized opium has been proved by the prosecution,
therefore, the presumption under Section 54 of the
NDPS Act would be attracted and burden would shift on
the appellants to prove that they did not commit any
offence in relation to the opium that was found in
their possession. They have failed to rebut the said
presumption. The learned A.P.P. submits that the
trial Judge has rightly considered the evidence on
record and has rightly convicted the appellants for
the offence under Section 22 of the NDPS Act.
15. The learned A.P.P., however, fairly concedes
that for want of sanction for prosecution of the
appellants under Section 39 of the Arms Act, they
could not have been convicted of the offence under
Section 3 of the Arms Act. He, further, concedes
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that there was no notification issued under Section 4
of the Arms Act. Consequently, the appellants could
not have been convicted for the offence punishable
under Section 4 of the said Act as well.
16. Considering the above rival contentions, I
propose to scrutinise the evidence on record in
respect of the controversial points.
Seizure of opium from the conscious
possession of the appellants.
17. In order to establish the seizure of opium
from the conscious possession of the appellants, the
prosecution is mainly relying on the evidence of
P.S.I. Gavali (P.W.2) (Exh.76), Police Naik Deshmukh
(P.W.3) (Exh.82) and Police Naik Ghuge (P.W.7)
(Exh.110). Ram (P.W.1) (Exh.69) and Vasant (P.W.8)
(Exh.117) happened to be the punchas to the seizure
panchnama (Exh.77). However, they did not support the
prosecution. They were cross-examined by the learned
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A.P.P. However, nothing has been elicited therein to
indicate that opium was seized from the possession of
either of the appellants or from the seized car.
18. As seen from the evidence of P.S.I. Gavali
(P.W.2), on 24th September, 2012 at about 11.15 p.m.,
a Tavera car bearing registration no. MH-23-Y-2404
came near the spot where he had arranged Nakabandi.
He deposes that driver of the car stopped it and ran
away immediately. The appellants were found sitting
inside the car. Besides the weapons/arms allegedly
seized from the possession of the appellants, he
found two sticks, chilly powder and cotton rope
inside the car. He, further states that he searched
the car and found a jar containing opium in the rear
side of the car. Police Naik Deshmukh (P.W.3) and
Police Naik Ghuge (P.W.7) support the version of
P.S.I. Gavali (P.W.2) in respect of finding of the
jar containing opium in the rear portion of the car.
From the evidence of these witnesses, it is clear
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that opium was not seized from the exclusive
possession of any of the four appellants.
19. P.S.I. Gavali (P.W.2) admits that opium was
not seized from the possession of the appellant -
Narayan. He states that during the enquiry, the
appellant - Narayan informed that he was carrying
opium to Baba Petrol Pump at Aurangabad. However, he
has not recorded the statement of the appellant -
Narayan. Police Naik Deshmukh (P.W.3) and Police
Naik Ghuge (P.W.7), who allegedly were present with
P.S.I. Gavali (P.W.2), do not state that the
appellant - Narayan had informed that he was carrying
opium to Baba Petrol Pump at Aurangabad. Thus, the
version of P.S.I. Gavali (P.W.2) in this regard has
not been corroborated even by the above named police
witnesses. In the circumstances, the bare statement
of Gavali (P.W.2) that the appellant - Narayan
informed him that he was carrying opium to Baba
Petrol Pump at Aurangabad, cannot be believed.
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20. It is not the case of the prosecution that
anybody out of the remaining appellants gave any
statement admitting possession of the opium that was
seized from the car. In this background, the conduct
of the driver of the car would become significant.
As stated by P.S.I. Gavali (P.W.2), after stopping
the car, the driver thereof immediately fled away.
However, the appellants remained inside the car
itself. This fact indicates guilty consciousness on
the part of the driver of the car. Had the
appellants been carrying the seized opium, they also
would have tried to flee away from the spot where the
car was stopped. Presence of the appellants inside
the car without being disturbed after seeing the
Policemen indicates that they were not aware about
the opium jar that was in the rear portion of the
car. No efforts seem to have been made to arrest the
driver of the car and to prosecute him. There is no
evidence on record to show that either of the
appellants received opium from any particular place
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and as such was carrying the same in the car. The
jar of opium, thus, cannot be said to be in exclusive
and conscious possession of the appellants.
21. The learned Counsel for the appellants cited
the judgment in the case of Santosh Bhagwan Waghmare
and Another Vs. State of Maharashtra 2017 (5) Mh.L.J.
429, wherein a huge quantity of ganja was seized from
under the seats which were occupied by the accused
persons. There was no evidence to show that the said
accused persons boarded train carrying with them bags
of ganja and kept those bags under their seats.
Consequently, mere detection of bags of ganja under
their seats was not held to be sufficient to conclude
that they were found in conscious possession of the
contraband. In the present case also, the appellants
were not found in exclusive and conscious possession
of the jar of opium which was in rear portion of the
car. Though the appellant - Datta was the owner of
the car, he cannot be said to be in exclusive and
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conscious possession of the jar of opium in the
absence of any specific evidence to establish that he
collected that jar from any person or place and kept
it in the car for being carried somewhere. As stated
above, P.S.I. Gavali (P.W.2) himself states that the
appellant - Narayan had informed that he was carrying
that opium to Aurangabad. Though the said evidence
also is not believable as against the appellant -
Narayan, for want of corroboration, it rules out the
possibility of seizure of opium from the exclusive or
conscious possession of the appellant - Datta. The
prosecution, thus, failed to prove conscious
possession of the appellants over the seized opium
Compliance of Section 42 of the NDPS Act.
22. P.S.I. Gavali (P.W.2) deposes that on 24 th
September, 2012 in the afternoon, P.I. Nandedkar
received a secret information about travelling of the
dacoits from Beed in the above numbered car and
directed him to arrange Naka-bandi on Beed to
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Aurangabad road. Accordingly, he went near Hotel
Ekant and arranged Naka-bandi. After the above
numbered car came there, he seared it and found a jar
of opium in the rear portion thereof. From this
evidence it is clear that the contraband was seized
by P.S.I. Gavali (P.W.2) without prior information.
Therefore, the provisions of sub-section (1) of
Section 42 of the NDPS Act would not be applicable to
the facts of the present case.
23. The learned Counsel for the appellants cited
the judgment in the case of State of Punjab Vs.
Balbir Singh AIR 1994 SC 1872, wherein it is held in
sub-para (1) of para 26 of the judgment as under :-
"(1) If a police officer without any prior
information as contemplated under the
Provisions of the NDPS Act makes a search or
arrests a person in the normal course of
investigation into an offence or suspected
offence as provided under the provisions of
Cr.P.C. And when such search is completed at
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that stage Section 50 of the NDPS Act would
not be attracted and the question of
complying with the requirements thereunder
would not arise. If during such search or
arrest there is a chance recovery of any
narcotic drug or psycotrophic substance then
the police officer, who is not empowered,
should inform the empowered officer who
should thereafter proceed in accordance with
the provisions of the NDPS Act. If he
happens to be an empowered officer also,
then from that stage onwards, he should
carry out the investigation in accordance
with the other provisions of the NDPS Act."
24. The learned Counsel for the appellants
contend that P.S.I. Gavali (P.W.2) was not an officer
empowered to seize and search any contraband. There
is nothing on record to show that P.S.I. Gavali
(P.W.2) was authorised to search and seize contraband
under NDPS Act. Therefore, it was necessary for him
to inform the authorised officer, who should have
thereafter proceeded in accordance with the
provisions of the NDPS Act. Even if it is accepted
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that he was empowered to do so, in view of the
observations made in the above referred paragraph,
after seizure of opium from the car, it was necessary
for him to carry out further investigation in
accordance with the other provisions of NDPS Act.
Since opium was found in the car i.e. conveyance,
provisions of sub-section (1) of Section 42 would
have been made applicable had P.S.I. Gavali (P.W.2)
received prior information. Therefore, after seizure
of opium, it was necessary for P.S.I. Gavali (P.W.2)
to comply with the provisions of sub-section (2) of
Section 42 of the NDPS Act. It was necessary for him
to inform his immediate officer superior about the
seizure of opium. However he failed to comply with
this mandatory provision which is certainly fatal to
the prosecution.
Compliance of Section 50 of the NDPS Act.
25. From the evidence of P.S.I. Gavali (P.W.2),
it is clear that it was a chance recovery of opium
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from the car which was not preceded with any
information. Therefore, as held in the case of
Balbir Singh (supra) cited by the learned Counsel for
the appellants, the provisions of Section 50 of the
NDPS Act would not be applicable to such search.
Compliance of Sections 55 and 57 of the NDPS
Act.
26. As per Section 55 of the NDPS Act, besides
the seal of the officer producing samples of the
seized contraband articles, it is necessary for the
officer in-charge of the police station to put his
seal thereon. As per Section 57 of the said Act,
whenever an officer makes any arrest or seizure under
this Act, he shall, within 48 hours therefrom, make
full report of all particulars of such arrest or
seizure to his immediate officical superior.
Admittedly, A.P.I. Chikhalikar (P.W.6) (Exh.100), the
Investigating Officer and the officer in-charge of
the police station did not put his seal to the
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samples. As such, he did not comply with the
provisions of Section 55 of the NDPS Act. Likewise,
neither P.S.I. Gavali (P.W.2), nor A.P.I. Chikhalikar
(P.W.6) reported about the arrest of the appellants
and seizure of opium to their immediately official
superior. The provisions of Section 57 have been
held to be directory. However, as held in the case
of Vinayak Dnyanoba Gaikwad and Ors. Vs. State of
Maharashtra 2004 All M.R.(CRI) 1922, the compliance
of provisions of Section 55 of the NDPS Act is
mandatory. In paragraph no.16 of the judgment, it
has been observed that Section 55 clearly shows that
all samples taken from the seized material under this
Act shall have necessarily to be sealed with the seal
of an officer in-charge of a police station. This is
a mandate of law and the word used is "shall" leaving
no discretion in the hands of the concerned.
Considering the severe nature of punishment provided
by the Act, every provision of this Act has to be
strictly construed and any non-compliance will
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automatically render the prosecution a suspect. In
the present case, there is no compliance of the
provisions of Sections 55 and 57 of the NDPS Act
which creates a strong doubt about the case of the
prosecution.
Reliability of the report of Chemical
Analyser.
27. The learned Counsel for the appellants
submit that P.S.I. Gavali (P.W.2) states that he took
three samples of the seized opium, however Police
Naik Ghuge (P.W.7) states that only two samples were
taken. Therefore, a doubt is created as to which was
the third sample and which sample was actually sent
to the Chemical Analyser for analysis and report.
They submit that carrier of the sample has not been
examined by the prosecution. There is no evidence to
show that the sample was duly sealed and was sent to
the Chemical Anayser in the same condition in which
it was sealed.
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28. Indeed, there is material inconsistency in
the evidence of P.S.I. Gavali (P.W.2) and Police Naik
Ghuge (P.W.7) about the number of samples taken from
the seized opium. As stated above, there is no
compliance of Section 55 of the NDPS Act. Therefore,
a doubt is created as to whether the same sample
which was collected at the time of the trap was was
sent to Chemical Analyser for analysis and report.
This doubt is strengthened by non-examination of the
carrier of the sample.
29. The learned Counsel for the appellants
pointed out to the judgment of Raju Girdharilal
Shrivastav Vs. State of Maharashtra 2004 All M.R.
(CRI) 3053, wherein the sample of the seized Gard
(Diacetyl Morphine) was sent for analysis and report
to the Chemical Analyser. It was reported by the
Chemical Analyser that Heroin (Diacetyl Morphine) was
detected alongwith other opium alkaloide. After
considering various judgments on the point, this
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Court observed that such a report cannot be attached
with any value to hold the accused guilty. In the
absence of details of tests and the reasons on the
basis of which the Chemical Analyser formed his
opinion that the sample which was analysed was a
contraband article, the report cannot be attached
with any evidentiary value. In the present case also
the report (Exh.127) of Chemical Analyser is almost
identical to that of the above referred case. It
simply contains that there were traces of morphine.
Such a vague report would not be helpful for the
prosecution to establish that the sample was a
contraband article.
30. The learned Counsel for the appellants
referred to Section 2(xv) wherein opium has been
defined as under :-
2(xv) "opium" means -
(a) the coagulated juice of the opium
poppy; and
(b) any mixture, with or without any
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28 23-CRAPAL-708-16-1
neutral material, of the coagulated juice of
the opium poppy,
but does not include any preparation
containing not more than 0.2 per cent of
morphine;
31. From the above mentioned definition it is
clear that in order to establish that a particular
substance is opium, it should contain more than 0.2
per cent of morphine. It is, therefore, necessary
for the Chemical Analyser to mention in his report
specifically about the extent/quantity of morphine
found in the sample. In the case at hand, the report
(Exh.127) of Chemical Analyser simply states that
there were traces of morphine. Such finding would
not be helpful for the prosecution to establish that
the traces of morphine were more than 0.2 per cent
and as such, it was opium. In these circumstances,
the report (Exh.127) of Chemical Analyser would not
be helpful to the prosecution to establish that the
sample was opium, as defined under Section 2(xv) of
the NDPS Act.
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29 23-CRAPAL-708-16-1
Non-production of entire seized contraband
before the Court.
32. As seen from the evidence of the witnesses
only sample of the seized opium was produced before
the trial Court when the evidence was recorded.
Though, opium weighting 2 kg. and 500 gms. was
allegedly seized, the jar containing remaining opium
was not produced before the Court for being
identified by the witnesses as the same that was
seized at the time of trap. The learned Counsel for
the appellants cited the judgment in the case of
Shaikh Mehboob Sheikh Hussain Vs. State of
Maharashtra 2017 (6) Mh.L.J. (CRI) 26 wherein this
Court held that for establishing that the alleged
quantity of contraband was 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 as marked objects. Relying on the
judgment in the case of Jitendra and Another Vs.
State of M.P. 2004 SCC (CRI) 2028, this Court held
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30 23-CRAPAL-708-16-1
that non-production of contraband before the trial
Court was fatal to the prosecution.
33. As stated above, the prosecution has failed
to establish exclusive and conscious possession of
the appellants over the opium allegedly seized in the
car. Moreover, there are a number of deficiencies on
the part of P.S.I. Gavali (P.W.2) and A.P.I.
Chikhalikar (P.W.6) in complying with the above
mentioned mandatory provisions. The report (Exh.127)
of the Chemical Analyser falls short to establish
that the sample of the seized contraband was "opium"
as defined in Section 2(xv) of the NDPS Act. In the
circumstances, the prosecution cannot be said to have
established guilt of the appellants for the offence
under Section 22 of the NDPS Act. The learned trial
Judge did not at all consider these deficiencies and
wrongly convicted the appellants of the said offence.
The finding recorded by the learned trial Judge
holding the appellant guilty for the offence under
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31 23-CRAPAL-708-16-1
Section 22 of the NDPS Act is not at all sustainable.
The impugned judgment and order convicting the
appellants for the said offence is liable to be
quashed and set aside.
34. The appellants have been charged for the
offence punishable under Section 3 of the Arms Act.
As per Section 39 of the said Act, no prosecution
shall be instituted against any person in respect of
any offence under Section 3 of the said Act without
previous sanction of the District Magistrate.
Admittedly, no sanction has been accorded by the
District Magistrate for prosecution of the appellants
for the offence under Section 3 of the said Act.
Absence of previous sanction would render conviction
of the appellants for the said offence as illegal.
The learned trial Judge did not at all consider this
bar contained in Section 39 of the said Act against
the prosecution of the appellants for the offence
punishable under Section 3 of the said Act. The
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32 23-CRAPAL-708-16-1
conviction of the appellants for the said offence
being illegal, is not sustainable.
35. The appellants have been convicted and
sentenced for the offence under Section 4 read with
Section 25 of the Arms Act, as well. Section 4 reads
as under :-
"4. Licence for acquisition and possession
of arms of specified description in certain
cases.
If the Central Government is of opinion
that having regard to the circumstances
prevailing in any area it is necessary or
expedient in the public interest that the
acquisition, possession or carrying of arms
other than firearms should also be
regulated, it may, by notification in the
Official Gazette, direct that this section
shall acquire, have in his possession or
carry in that area arms of such class or
description as may be specified in that
notification unless he holds in this behalf
a licence issued in accordance with the
provisions of this Act and the rules made
thereunder."
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33 23-CRAPAL-708-16-1
36. In the present case, admittedly no
notification as contemplated under Section 4 of the
Arms Act has been issued. Consequently, the
provisions of Section 4 would not be attracted. The
appellants were not liable to be convicted for the
offence under Section 4 of the said Act. The offence
under Section 4 of the said Act cannot be said to
have been established against the appellants in the
absence of the notification. The conviction and
sentence passed against the appellants for the
offence under Section 4 of the said Act, thus, is
liable to be quashed and set aside.
37. As stated above, the appellant - Datta, who
is the owner of the above numbered car cannot be said
to be in conscious possession of the seized opium.
There is nothing on record to show that he was aware
that opium was being carried in his car. No offence
has been established against him. In the
circumstances, the order passed by the learned trial
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34 23-CRAPAL-708-16-1
Court confiscating the above numbered car cannot be
said to be sustainable. It will have to be set aside
and the said car will have to be allowed to be
retained by the appellant - Datta. The appeals are
liable to be allowed. In the result, I pass the
following order :-
ORDER
A) Appeals are allowed. B) The impugned judgment and order convicting
the appellants / accused nos. 1 to 4 are quashed and set aside.
C) The appellants are acquitted of the offences under Sections 3 and 4 read with section 25 of the Indian Arms Act and of the offence punishable under Section 22 of the Narcotic Drugs and Psycotropic Substances Act.
D) The appellant/accused nos. 1 and 2 be set at ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 00:47:36 ::: 35 23-CRAPAL-708-16-1 liberty forthwith, if not required in any other case.
E) Bail bonds of the appellants/accused nos. 3 and 4 are cancelled. They are set at liberty.
F) Fine amount deposited by the appellants/ accused nos. 3 and 4 be refunded to them. G) The order directing auction sale of the Tawera car bearing registration no. MH-23-Y- 2404 is set aside and the said car is allowed to be retained by the appellant/ accused no.3.
H) The orders for disposal of rest of the seized articles are maintained as they are. I) Appeals are disposed of accordingly.
[SANGITRAO S. PATIL] JUDGE SSD ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 00:47:36 :::