apeal.143.03.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.143 OF 2003
Sheikh Salim Sheikh Chand,
Aged about 35 years, Occupation : Labourer,
R/o Ratanganj, Amraoti. .... Appellant
-- Versus -
State of Maharashtra,
through P.S.O. Nagpurigate,
Amraoti. .... Respondent
Shri A.K. Bhangde, Advocate for the Appellant.
Shri R.S. Nayak, A.P.P. for the Respondent .
CORAM : KUM. INDIRA JAIN, J.
DATE : NOVEMBER 6, 2017. ORAL JUDGMENT :-
This is an appeal by the accused, who was convicted by the learned Additional Sessions Judge, Amravati vide judgment and order dated 31/01/2003 of the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short) and sentenced to undergo rigorous imprisonment for three years with fine of Rs.10,000/-, in default to undergo rigorous imprisonment for six months.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 2 02] For the sake of convenience, appellant is referred in his original status as accused as he was referred before the trial Court.
03] The prosecution case, which can be disclosed from the charge-sheet and connecting papers thereto may be stated in brief as under :
i. On 05/07/1999, PSI Madhav Dhande attached to Police Station Nagpurigate was on patrolling duty along with the police staff. At around 03:30 to 05:30 a.m., when they were at Khurshidpura, they saw accused carrying a bundle in his hand and proceeding in a suspicious manner. On personal search, Ganja weighing 1 kg 750 gms. was found in possession of accused. The same was seized in accordance with the procedure prescribed under the NDPS Act and the Rules therein. Before seizure, sample was drawn. It was forwarded to Chemical Analyzer for analysis. The report was positive and revealed that Ganja was detected in the sample.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 3 ii. A report was lodged. After due investigation, charge-
sheet came to be filed before the Special Court. iii. Charge was framed against the accused vide Exh.12. He pleaded not guilty and claimed to be tried. iv. The prosecution examined five witnesses to substantiate the guilt of accused. Considering the evidence of the witnesses and C.A. Report, trial Court came to the conclusion that the offence alleged against the accused has been proved and accordingly convicted him as stated hereinabove in paragraph 1. Being aggrieved by the judgment and order of conviction and sentence, accused has preferred this appeal.
04] Heard Shri A.K. Bhangde, learned Counsel for appellant and Shri R.S. Nayak, learned Additional Public Prosecutor for the State. Perused record.
05] Learned Counsel for appellant contended that the property was never produced before the Court and there is total ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 4 non-compliance of Section 53-A of the NDPS Act. Learned Counsel submits that panch-witness was declared hostile and though he had not supported the prosecution, second panch was not examined. It is submitted that inventory of seized property was never prepared or produced before the Court. According to learned Counsel, conviction is based only on the testimony of official witness and the same is not permissible as independent witnesses have not supported the prosecution case and recovery of contraband article has not been satisfactorily proved. It is submitted that investigating agency has miserably failed to comply with the mandatory requirements under the NDPS Act and on this count alone, accused ought to have been acquitted. 06] Per contra, learned A.P.P. strongly supports the judgment impugned in the appeal. It is submitted that accused was found in possession of contraband article and on analysis, it was found as Ganja. Learned A.P.P. submits that considering the evidence of witnesses and C.A. Report, trial Court has rightly convicted the accused.
07] With the assistance of the learned Counsel for the parties, scrutinized the evidence of prosecution witnesses. It is a ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 5 matter of record that property in question was never produced before the Court. Learned Single Bench of this Court in Hanamantu s/o Gangaram Badawat vs. State of Maharashtra - [2007 ALL MR (Cri) 3359] observed in the similar set of facts that non-production of entire quantity of seized Ganja before the Court and non-preparation of inventory of seizure is fatal to the prosecution case.
08] Section 52-A of the NDPS Act mandates preparation of inventory and certification thereof by the Magistrate. Admittedly, in the case on hand, no inventory was prepared and if prepared, the same was not placed on record before the Court. It is also revealed from record that entire seized property was not produced in the Court. Obviously, therefore, property could not be identified being not produced.
09] Needless to state that penalty under the NDPS Act is very severe. Law is well established. Higher the penalty stricter the proof. The learned Additional Sessions Judge has not considered these important aspects and legal requirements in the judgment.
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 6 10] Another drawback in the case of prosecution is non- examination of second panch. The first panch examined was declared hostile. As panch-witness not supported the case of prosecution, it was incumbent on prosecution to examine the second panch. No reason has been assigned for keeping this important witness away from the witness box. 11] The third infirmity noticed in the prosecution case is regarding C.A. Report. In this connection learned Counsel for appellant submitted that in C.A. Report, tests applied by the analyzer have not been mentioned. There is no whisper in the report regarding mode and manner in which tests were applied to find out the nature of substance. Relying upon the judgment of learned Single Judge of this Court in Raju Girdharilal Shrivastav vs. State of Maharashtra - [2004 ALL MR (Cri) 3053], learned Counsel submits that no reliance on such a C.A. report can be placed. In this case, analyzer did not mention about the tests applied and the mode and manner in which tests were applied to find out the nature of substance. It was held that in the absence of essential material, mere opinion expressed by an expert cannot be relied upon. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 7 12] In the case on hand, C.A. Report [Exh.28] clearly indicates that analyzer has not stated about the tests applied and mode and manner of tests applied to find out the nature of substance. In the absence of these details, an opinion of an expert would not be enough to come to the conclusion that the substance recovered from possession of accused was Ganja, a contraband article prohibited under the NDPS Act. 13] In the light of the above and on careful scrutiny of evidence, it is apparent that prosecution has failed to prove conclusively that appellant was found in possession of contraband article under the NDPS Act. The trial Court has committed an error in holding the appellant guilty under the NDPS Act. The conviction and sentence awarded by the trial Court, therefore, would not sustain in law. Hence, the following order :
ORDER I. Criminal Appeal No.143/2003 is allowed. II. Impugned judgment and order dated 31/01/2003 passed by the Additional Sessions Judge, Amravati in ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:39:27 ::: apeal.143.03.jud 8 Special Case (NDPS) No.12/1999 convicting the appellant is quashed and set aside.
III. In consequence thereof, appellant - Sheikh Salim Sheikh Chand is released forthwith, if not required in any other case.
IV. Fine, if any paid by appellant, be refunded. V. The order of disposal of property passed by the trial Court is maintained.
*sdw (Kum. Indira Jain, J)
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