Bombay High Court
Aslam @ Aslam Kamina S/O Sallu Khan vs Union Of India (Uoi) And The State ... on 22 July, 2003
Author: J Chitre
Bench: J Chitre
JUDGMENT
J.G. Chitre, J.
1. Shri Satyanarayan, Advocate appointed for defending the appellant in this appeal, has been heard. So also Shri Thakur for respondent No. 1 and Shri Konde-Deshmukh, Additional Public Prosecutor for the State have been heard.
2. Shri Satyanarayanan submitted that the panch witness PW-2 stated while giving evidence before the Court that the sample packets which were shown to him were not the same which were shown to him when the said panchanama was drawn and the said sample packets were sealed. He said that the polythene packets which were seized under the panchanama were thinner. Shri Satyanarayan submitted that in view of the evidence of the panch witness the appellant could not have been convicted and as he has been convicted and sentenced, the learned trial Judge has committed the error that needs to be corrected by setting aside the order of conviction and sentence passed against him by allowing this appeal.
3. Mr. Thakur submitted that the evidence of PSI Sakharkar and Indalkar PWs 1 and 4 is sufficient to establish the guilt of the accused beyond reasonable doubt. He submitted that the panch witness has given the evidence after lapse of so many days and, therefore, he might have forgotten the things.
4. Mr. Konde-Deshmukh, Additional Public Prosecutor, appearing for the State, adopted the arguments advanced by Mr. Thakur on behalf of respondent No. 2 and prayed for dismissal of the appeal.
5. In view of the submissions which were advanced before me and the points which have been raised before me and in view of the evidence on record, this Court comes to the conclusion that the point which has been urged on behalf of the appellant is not sufficient to treat the order of conviction and sentence bad in law.
6. It is the prosecution case that on 31.12.1996 at about 11.00 a.m. or so, Senior P.I. Wahule got the information that the person having the height of 5'-4", thin built, medium weight, wheat complexion, wearing pant and shirt named as Aslam Kamina, Muslim, aged about 41 years old was likely to come to give "hashish" to the customers between 1.00 p.m. to 2.00 p.m. near Fly over bridge, Fishermen Colony, Sion-Dharavi Road, Mahim (West). Panchas were called and they were appraised of the information which PI Wahule had conveyed to his superiors. The raiding party went through the Gypsy case and raised the said person Search was taken after giving him an opportunity of being searched before a Gazetted Officer or a Magistrate. Some thin polythene bags were found in the big hand bag which he was holding. Those polythene bags were containing about 11 blackish rods. Fifty grams or 60 grams of substance seized was collected for samples for chemical analyzer. The said samples were sent to FSL Kalina through PW-3 Shashikant S. Dhane who dispatched it on 1.1.1997. The chemical analyzer reported that it was containing charas.
7. The investigation ended in trial which ended in the order of conviction and sentence which has been assailed by this appeal.
8. Shri Satyanarayanan has submitted that the evidence of panch witness shows that the polythene bags were different and, therefore, the appellant be acquitted. "Thinner" or "Thicker" or larger are relative terms. The panch witness was giving evidence after lapse of days. Therefore, he might have committed the error in judging the thickness of the bags which were shown to him. It was failure of memory or lapse in description. Slight error in description cannot demolish the credibility of evidence if it is sound on other ground. On that count alone the prosecution case cannot be thrown out of the Court.
9. No other point has been urged as challenge to the order of conviction and sentence in trial Court.
10. Even for giving leaning scale to the appellant, if it is assumed that the said panch witness was not able to identify the said sample packets, if his evidence is excluded, the evidence of PW-1 and PW-4 i.e. PSI Sakharkar and Indalkar establishes that what was seized from the possession of the appellant was identified by these two witnesses as the same articles which were seized under the panchanama.
11. The trial Judge has considered the same points which were urged before me and the trial court has with his reasoned judgment held that the appellant has been proved to be in possession of the hashish on 31.12.1996 between 1.00 p.m. and 2.00 p.m. near Fly Over Bridge, Fishermen Colony, Sion-Dharavi Road when he was caught by PWs 1 and 4 and the panch witness.
12. Thus, this Court finds no substance in this appeal. Therefore, this appeal stands dismissed and the order of conviction and sentence stands confirmed. The appellant to undergo it in appropriate jail in view of the order of the learned Judge.
