apeal319of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.319 OF 2002
Pyare Mohammad s/o. Mohammad Isaq,
aged about 45 yars, Occ. Nil,
R/o. Teka, Nai Basti, Police Station
Pachpaoli, Nagpur ......APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer
Police Station Pachpaoli, Nagpur ....RESPONDENT
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Shri A.K. Bhangde, Advocate for Appellant.
Smt. Mayuri Deshmukh, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 01.09.2017 DATE OF PRONOUNCING THE JUDGMENT : 19.12.2017 The appellant is aggrieved by the judgment and order dated 1.6.2002 delivered by the Special Judge (N.D.P.S. Court), Nagpur, in Special Criminal Case 63 of 1994, by and under which, the accused is convicted for offence punishable under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:16 ::: apeal319of02.odt 2 1985 and is sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs. 5,000/-.
2 Heard Shri. A.K. Bhangde, the learned counsel for the accused and Smt. Mayuri Deshmukh, the learned Additional Public Prosecutor for the respondent / State.
Shri. A.K. Bhangde, the learned counsel for the appellant assails the judgment and order impugned primarily on the ground that the prosecution has failed to prove the search, seizure and recovery of the narcotic substance (Ganja) from the accused. The submission is since both the independent witnesses panch PW 2 - Sham Joshi and panch PW 6 - Jagmohan Bhavar did not support the prosecution, the learned Special Judge committed a serious error in relying on the sole testimony, which according to the learned counsel Shri. Bhangde is uncorroborated, of the Police Officer Hemant Pali, who is examined as PW 1. The learned counsel would submit that the prosecution could have corroborated the testimony of PW 1 - Police Officer by examining any other member of the police squad which included Police Inspector - Mowade.
3 Per contra, Smt. Mayuri Deshmukh, the learned ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:16 ::: apeal319of02.odt 3 Additional Public Prosecutor would submit that there is neither a rule of evidence nor of prudence that conviction can not rest on the sole testimony of the Police Officer. The reasons recorded by the learned Special judge in believing the search, seizure and recovery of Ganja from the accused are sound, contends the learned Additional Public Prosecutor.
4 Having given due consideration to the evidence on record, the submissions advanced and the reasons recorded by the learned Special Judge, I am inclined to agree with Shri. A.K. Bhangde, the learned counsel that the accused is entitled to the benefit of doubt.
5 It is trite law that the more stringent the law and harsher the punishment, the stricter must to the proof necessary to deprive the accused of personal liberty.
6 Concededly, both the panch witnesses to the search, seizure and recovery of the narcotic substance (Ganja) did not support the prosecution. Extensive cross-examination failed to extract any material to assist the prosecution. The prosecution could have examined the superior officer of PW 1 Police Head ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:16 ::: apeal319of02.odt 4 Constable Pali who arrived at the spot of the seizure and recovery from the accused. The prosecution could have examined any other member of the police squad. This has not been done. 7 It would be apposite to refer to the following observations of the Hon'ble Apex Court in Makhan Singh v. State of Haryana, 2015 CRI.L.J.3282.
"In the present case, since the vehicle was searched and the contraband was seized from the vehicle, compliance with Section 50 of the NDPS Act was not required. In the absence of independent evidence connecting the appellant with the fitter-rehra, mere compliance with Section 50 of the NDPS Act by itself would not be sufficient to establish the guilt of the appellant. It is a well settled principle of the criminal jurisprudence that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence. When the independent witnesses PW 1 and DW 2 have not supported the prosecution case and the recovery of the contraband has not been satisfactorily proved, the conviction of the appellant under section 15 of the NDPS Act cannot be sustained".
The learned Single Judge of this Court in Manish Kumar Tak Vs. State of Goa, 2002 ALL MR (Cri) 1049 was pleased to observe thus:
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"The next question that remains is whether the conviction of the appellant can be sustained on the uncorroborated testimony of P.W. 1 P.I. Mamledar. The prosecution had an opportunity of tendering corroborative evidence by examining Deputy Superintendent of Police A.K. Teli. A summons was issued to Deputy Superintendent of Police A.K. Teli at the behest of the prosecution but it appears that Deputy Superintendent of Police A.K. Teli never came to be examined. The evidence of P.W. 3 Gurunath Naik and P.W. 4 P.I. Mamledar in respect of apprising the appellant of his right under section 50 is discrepant. Apart from that, since there is no other corroborative evidence in respect of search of the appellant and the consequent seizure of the contraband, i consider it highly unsafe to rely on the solitary evidence of P.W. 4 P.I. Mamledar for sustaining the conviction".
8 On a holistic appreciation of the evidence on record, I consider it to be extremely unsafe and hazardous to allow the conviction to rest on the sole testimony of Police Head Constable - Pali - PW 1. The accused is entitled to be extended the benefit of the doubt, which I do.
9 The judgment and order impugned is set aside. 10 The accused is acquitted of offence punishable under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:16 ::: apeal319of02.odt 6 11 The bail bond of the accused shall stand discharged and the fine paid by the accused, if any, shall be refunded.
12 The appeal is allowed.
JUDGE
RS Belkhede, PA
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