Hanmanlu S/O Vithal Yarkondawar vs The State Of Maharashtra
2006 Latest Caselaw 988 Bom

JUDGMENT

M.G. Gaikwad, J.

1. Heard learned Counsel, appearing for the respective parties.

2. This appeal is directed against the judgement dated 27-02-2006 delivered in Special Case (NDPS) No. 3/2005 whereby the learned Additional Sessions Judge, Biloli convicted the appellant alongwith two others for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and sentenced them to suffer rigorous imprisonment for four years and to pay fine of Rs. 10,000/- each, in default to suffer simple imprisonment for one year.

3. The facts giving rise to this appeal are as under.

The appellant (original accused No. 2 ) alongwith two others was tried before the Additional Sessions Judge, Biloli for the offence punishable under Section 20(b)(i) of the NDPS Act on the allegations that on 28-03-2005 at about 8.05 a.m. at new bus stand, Degloor, they were found carrying four bags containing contraband articles ganja. PW5 PSI Chandrakant Gungewad attached to Police Station, Degloor received information that three persons were having ganja in their possession at new S.T. stand, Degloor. That day, for the purpose of inspection, the Deputy Superintendent of Police (Dy.S.P.) and Police Inspector (PI) Sanap were present in the Police Station. PW5 PSI Gungewad gave intimation of this information to his superiors. Thereafter, he collected two panch witnesses PW1 Syed Mansoor and PW2 Madhav Marakwad, giving message through Constable Ingole. On their arrival alongwith panchas and other police staff members carrying material, required for the purpose of seizure and sealing, he had gone to new S.T. stand, Degloor. PI Sanap also accompanied them. This raiding party reached S.T. stand at 8.55 a.m. Three accused were found sitting at the eastern corner of S.T. stand. They were apprehended on the spot. They disclosed their names. At that time, they were possessing bags with them. This appellant was having two bags and other two accused were having one bag each. PSI Gungewad explained and informed them that he wanted to take search of the bags with them. They expressed their desire that the search should be taken in presence of Gazetted Officer. Requisition (Exh-17) was sent to the Taluka Executive Magistrate. PW6 Naib Tahsildar Mahesh Sudalkar on receiving that information, came to the spot. Thereafter, the search of the bags with this appellant and other two accused was taken. Each bag was found containing 13 kilograms ganja with wet, leaves, seeds and sticks. From each bag, three samples of 250 grams were collected. Thereafter, the sample ganja packets were sealed, affixing the labels signed by PSI Gungewad, panchas and the accused. Other bags were also sealed. A detailed panchanama (Exh-18) was recorded about this seizure. The accused/appellants alongwith the contraband articles seized from them were brought to the Police Station. PSI Gungewad lodged complaint (Exh-19). Thereafter, he sent special report to the superior. He himself has registered the crime and deposited the contraband articles as well as samples with the Property Clerk. Further investigation was entrusted to PW8 PSI Kamlakar Patil. In the investigation, packets of samples in sealed condition were sent to the Chemical Analyser with PW7 Police Head Constable Govind Kaletwad with covering letter (Exh-24). Chemical Analyser gave acknowledgement that he had received the packets of samples in sealed condition and the seals were intact. After analysis of the said samples, he issued a report (Exh-26) and gave opinion that all four sample packets were found containing greenish flowring tops, pieces of greenish leaves, seeds and stalks in polythene bags put in a cloth bag and ganja was detected in all four bags. Thereafter, completing other formalities, chargesheet came to be filed in the court of Judicial Magistrate, First Class, Degloor, who committed the case to the court of Additional Sessions Judge at Biloli.

4. Charge at Exhibit-6 came to be framed against all three accused including this appellant for the offence punishable under Section 20(b)(i) of the NDPS Act. All three accused pleaded not guilty and claimed to be tried. At the trial, they put forth a defence that on the alleged day, all of them were proceeding towards Nanded by bus. Police party was also proceeding to Nanded by the same bus for bandobast duty, but said police party forcibly dragged these three accused out of the bus and brought them to the Police Station. As such, their defence is that they have been falsely implicated in this case and contraband articles were not seized from their custody.

5. At the trial, as many as eight witnesses have been examined on behalf of the prosecution. Both panch witnesses in whose presence the alleged search was taken i.e. PW1 Syed Mansoor and PW2 Madhav Marakwad did not support the prosecution case. Both of them denied that in their presence, alleged search was conducted and contraband articles were seized from their custody. PW3 Police Constable Gangadhar Kadam, PW5 PSI Gungewad and PW6 Naib Tahsildar Sudalkar were examined to prove the fact of seizure of contrabands from the custody of these accused persons. PW7 Head Constable Kaletwad is the carrier who carried the bags of samples to the Chemical Analyser. PW8 PSI Kamlakar Patil proved the fact of handing over sealed sample packets with the carrier to the Chemical Analyser. At the trial, defence suggested on behalf of the accused was that the accused have been falsely implicated by forcibly taking away them from the S.T. bus which was to proceed to Nanded. Attempts were made to prove the non-compliance of the provisions of Sections 42 and 50 of the NDPS Act. After considering the evidence of these witnesses, the trial court concluded that the evidence of police officers proved the seizure of the bags from the accused. Alleged breach of mandatory provisions is held not proved and all three accused have been held guilty and convicted and sentenced for the offence punishable under Section 20(b)(i) of the NDPS Act.

6. Feeling aggrieved with the said order of conviction and sentence, this appeal is preferred by the appellant/original accused No. 2. His companions i.e. other two accused did not prefer any appeal.

7. The appeal came to be admitted by this Court by order dated 02-05-2006. The appellant being in jail and bail being refused, hearing of the appeal was expedited.

8. On behalf of the appellant, learned advocate Shri Bilolikar made first submission that the defence of the accused that the accused were forcibly taken out from Nanded bus is probabalized by the admission given by Traffic Controller PW4 Suresh Shinde who admitted that he had seen the police and these accused coming out of the bus which was proceeding to Nanded. His second submission is that all three accused were not knowing Marathi language as their mother tongue is Telagu. The officer who took the search claims to have explained the purpose of search in Hindi language, but all the documents are prepared in Marathi script. There is no evidence that the appellant was knowing Hindi and he was aware of the contents of the documents which have been prepared during this search. His third submission is that admittedly, after receipt of the information, PW5 PSI Gungewad did not reduce the same into writing, nor he submitted a report to his superior. Hence, there is non-compliance of Section 42 of the NDPS Act. Therefore, the trial is vitiated. His fourth submission is that the police officer who conducted search admitted that when they took search of the bags, no flowers were there to the tops; however, in the C.A. report (Exh-26), flowring tops were found. The property clerk is not examined to prove the safe custody of samples. PW5 PSI Gungewad also admitted that he had not affixed his seal on the bags. These circumstances create suspicion as to whether very samples seized were sent to the Chemical Analyser or whether there was tampering of samples. Hence, benefit goes to the accused and the accused is entitled for acquittal giving benefit of doubt.

On the other hand, learned APP Shri Dharashive, appearing for the respondent/State supported the order of conviction and sentence. According to him, the evidence of the witnesses examined at the trial establishes that the search in this case was taken in presence of Gazetted Officer. The search being a search of bags, the presence of the Magistrate is also not essential. The Inspector who took search explained the purpose of search to the accused in Hindi language and it was not even suggested at the trial that the accused were not knowing Hindi language. Solely on the ground that they were not knowing Marathi language, it cannot be said that the signatures of the accused were obtained on the documents prepared in Marathi language without knowing the contents thereof. As regards sealing of the samples and non-examination of Muddemal Clerk, he has made submission that the evidence of PW5 PSI Gungewad as well as carrier and the acknowledgement of the sealed samples by Chemical Analyser proves the fact that samples were sent in sealed condition. There is no material to infer tampering of sample packets. According to learned APP, it is not a case of breach of any mandatory provisions. The trial is therefore not vitiated and the order of conviction and sentence recorded by the learned Additional Sessions Judge does not suffer from any infirmity, but the appeal preferred by the appellant is without any merit. Hence, the same needs to be dismissed.

9. Learned advocate Shri Bilolikar, in support of his submission that the provisions of Section 42 are mandatory, placed reliance on the decision of Division Bench of this Court in the case of Lamin Bojang v. State of Maharashtra reported in 1997 CRI.L.J. 513. In the said case, contrabands were alleged to have been seized and after seizure, FIR was lodged, but the report was not sent to the superior. On account of this fact, this Court observed that in view of Section 42(2) of the NDPS Act, it was obligatory for the PSI to forward copy of the report to his immediate superior, but such report was not sent. PSI gave explanation that his superior PI Chaugule was with him for this raid and he claimed to have given information orally. This Court held that for non-compliance of mandatory provisions contained in Section 42(2) of the NDPS Act, the trial of the appellant is vitiated and on that count, the accused came to be acquitted. The search in that case was alleged to have been conducted in the year 1990. That time, as per provisions of Section 42(2) of the NDPS Act, it was mandatory to send the report of the search to the superior forthwith; however, in view of the amendment in the said Section of NDPS Act, the condition of sending the report forthwith is relaxed and now, as per amendment to Section 42 of the NDPS Act, it is obligatory to send the report of the search to the superior within seventy two hours.

The Apex Court in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat , considered the effect of non-compliance of provisions of Section 42 of the NDPS Act. The conviction against the accused in that case has been set aside. The accused in the said case was a driver carrying bags and he was apprehended and contrabands were found in the said bags. It was his defence that the contrabands being transported in a truck were loaded in his vehicle by two other accused and he was not knowing the contents and he was carrying the same to the destination. He, therefore, put forth a defence of unawareness of the contents of the bags. No evidence was led by the prosecution to show the existence of any criminal conspiracy between the driver and the main culprits and because of the said fact, benefit was given to the accused. Considering the provisions of Section 42, it is observed that it was imperative that the officer should note down the information in writing and he should forward it to his superior sending a copy thereof to his superior. In that case, information was not found recorded. Because of the said fact, Their Lordships of the Apex Court observed that on account of such unrecorded information, the action becomes suspicious though trial may not vitiate on that score alone. . The above observations of the Apex Court make it clear that sole circumstance of non-recording of information and forwarding the same to the superiors cannot be a circumstance for vitiating the trial though it may create suspicion about the action. With this background, the evidence of police officers who received the information and took search needs to be considered minutely to ascertain as to whether there is breach of the mandatory provisions contained in the NDPS Act.

10. PW5 PSI Gungewad is the officer who had received information. According to him, he got information that at new S.T. stand, Degloor, three persons were having ganja in their possession. He gave information of this fact to his superior Dy.S.P. and then, he collected other police officer and panchas and had gone for the search. In the cross-examination, he has specifically stated that he recorded this information in the Station Diary. In further cross-examination, it was asked to him as to whether in the Station Diary, he recorded the fact that orally, he gave information to his superiors and he has admitted that he has not recorded in the Station Diary that he gave oral information of this search to his superiors. But his testimony that he recorded this information in the Station Diary remained unchallenged. Hence, the fact of recording the information in the Station Diary complies the provisions of Section 42 of the NDPS Act as to reducing the information in writing. Another compliance required under Section 42 of the NDPS Act is to submit a report of the search to the superiors. PW5 PSI Gungewad has stated that after the search, he came to the Police Station and lodged FIR (Exh-90) and thereafter, sent special report to his superior. Office copy of the report sent to the superior is produced at Exh-20. In the cross-examination, certain questions were asked to him about this report as to whether from the spot of incident, he gave information to the superiors and he has admitted that from the spot, he did not give information of completion of search to his superiors. It is not mandatory to give information to his superior from the spot. The report, as per amended provisions of Section 42 needs to be made within seventy two hours after the search is taken. Learned advocate Shri Bilolikar, appearing on behalf of the appellant made submission that the report (Exh-20) does not bear the date, hence, it cannot be presumed that this report was sent to his superior within seventy two hours. Report (Exh-20) is a carbon copy of the report sent to S.D.P.O. as well as Superintendent of Police, Nanded. On this report, date of forwarding this report is not recorded, but int he margin of this letter, there is a signature which can be said to be a signature acknowledging the receipt of this report. This report mentions that after the search, crime was registered and further investigation was entrusted to PSI Kamlakar Patil (PW8). PW8 PSI Kamlakar Patil is not claiming that he forwarded the information to superior. According to PW8 Kamlakar Patil, he received the papers of investigation of crime No. 24/2005 on 28-03-2005 itself. It is thus clear that after handing over investigation to PSI Kamlakar Patil (PW8), PW5 PSI Gungewad sent this report to his superior by specifically mentioning that further investigation of the case was entrusted to PSI Kamlakar Patil (PW8). There was opportunity to the defence to cross-examine PSI Gungewad (PW5) on this point or to call for another record i.e. the original report from the office of Superintendent of Police, but no such attempt was made. It was not suggested to PW5 PSI Gungewad that he did not forward the report on the same day. Only suggestion given to him was that from the spot, he did not give information to the superior and practically, there is no cross-examination on this document (Exh-20). Under these circumstances, it cannot be said that this report was sent after seventy two hours of the alleged search. As such, the report being sent after registration of the crime, which was recorded on the same day, there is no breach of provisions of Section 42 of the NDPS Act. The evidence of PW5 PSI Gungewad is clear that he recorded the information in the Station Diary. His statement that he forwarded this report to the superior after registration of the crime proved the compliance of the provisions of Section 42(2) of the NDPS Act.

11. Another contention raised on behalf of the appellant is that the defence of the accused is probabalized by the admissions given by Traffic Controller PW4 Suresh Shinde. The accused put forth a defence that police party was proceeding to Nanded for bandobast. Accused were also travelling by the same bus and that police party forcibly dragged the appellant and his companions out of the bus and brought them to the Police Station and they have been falsely implicated in this case. PW4 Suresh Shinde is a S.T. bus driver. According to him, on the date of search i.e. on 28-03-2005, he was working as Controller at S.T. stand, Degloor. Further, he has stated that he had seen some persons stepping down with bags from a bus which had come from Andhra Pradesh and that time, they were intending to proceed to Nanded. He has further stated that three accused before the court are the same persons. In the examination-in-chief itself, he has stated that police were also boarded in Nanded bus as they were going for bandobast. In the cross-examination, he has stated that he identified the accused before the court because on the alleged day, five policemen stepped down alongwith these accused from the bus proceeding to Nanded. Because of this statement, submission is made that the accused were removed out of Nanded bus and it falsifies the story of the prosecution that these accused were found at S.T. stand as alleged by the Investigating Officer. This Controller PW4 Suresh Shinde has stated that these accused came to S.T. stand, Degloor by a bus which had come from Andhra Pradesh. He has specifically stated that they came out of that bus which had come from Andhra Pradesh. Thereafter, they were intending to go to Nanded. No doubt, in the cross-examination, he gave statement that he identified these accused because he had seen the police and the accused coming out of Nanded bus. He contends that police party was proceeding to Nanded for bandobast and these accused were intending to proceed to Nanded from Degloor stand. But his positive statement that these accused had come to Degloor from Andhra Pradesh remained unchallenged. Apart from this fact, much weightage cannot be given to the evidence of this witness. On the alleged day, he was working as Controller at S.T. stand, Degloor. In the cross-examination, he has admitted that as many as 100 buses come in S.T. stand, Degloor and about 10,000 passengers arrive at Degloor S.T. stand every day. Not only this, but he has also admitted that he could not identify those passengers or remember the identity of such passengers. His statement that he identified these persons as the passengers came from Andhra Pradesh or proceeding to Nanded, cannot be relied upon either to support the prosecution story or the defence. The Controller sitting in his cabin is not expected to see the passengers coming down from each and every bus,nor he is expected to see the passengers boarding in each bus. Hence, his statement that he identified these persons cannot be used for any purpose and no evidentiary value can be given to the evidence of such a witnes. . Whether the defence put forth by the accused is probable or not has to be seen on the basis of other evidence on record.

12. PW5 PSI Gungewad claims that after receiving the information, he collected other police officer and panchas and had gone to S.T. stand, Degloor. His companion PW3 Police Constable Gangadhar Kadam corroborates his version. According to him also, PSI Gungewad in the Police Station itself, had disclosed the information received by him and had asked him to accompany him and thereafter with other staff members, they had gone to S.T. stand, Degloor. PSI Gungewad (PW5) as well as Constable Gangadhar Kadam have stated that on arrival at S.T. stand, they have seen three persons at S.T. stand with four bags, out of which two bags were with the present appellant. Both of them have deposed that PSI Gungewad (PW5) disclosed his identity to the accused and informed his intention to take their search. Not only this, but they have stated that the appellant and his companions showed unwillingness of search by police and claimed that search should be taken in presence of Gazetted Officer. PW5 PSI Gungewad sent requisition (Exh-17) to the Tahsildar, Degloor and called him for the search. PW6 Naib Tahsildar Mahesh Sudalkar corroborated this version. According to him, the Tahsildar, Degloor received this letter (Exh-17) and directed him to accompany the police for search. Hence, he had gone to S.T. stand, Degloor. He has also confirmed that all three accused persons were there on the S.T. stand and present appellant was possessing two bags and thereafter, the search was taken and ganja was found in the bags possessed by the accused. In the cross-examination of Naib Tahsildar Sudalkar, certain questions were asked and he explained that he did not make inquiry about the mother-tongue of the accused, but he has specifically stated that the signatures of the accused were obtained on the panchanama and other documents and they put their signatures in Telagu script. About the status of this Naib Tahsildar PW6 Mahesh Sudalkar, certain questions were asked and he has stated that his selection is by the M.P.S.C. and his appointment is notified and he is a Gazetted Officer. PW5 PSI Gungewad has specifically stated in the cross-examination that he had a dialogue with the accused in Hindi language. He admits that they were not knowing Marathi language. He also admits that in his complaint, there is no reference that he made inquiry with the accused in Hindi. However, he has specifically stated that in the panchanama of the seizure of Ganja, there is specific reference that he explained the contents in Hindi script. So, it is a case that though the accused were not knowing Marathi language, the purpose of the raid as well as the inquiry was made with them in Hindi and the very fact is corroborated by the recitals in the panchanama (Exh-18). Admittedly, this is a search of bags and is not a personal search. Question of taking search in presence of Gazetted Officer, therefore, becomes irrelevant. As laid down by the Apex Court in the case of Abdul Rashid Ibrahim Mansuri (supra), the provisions of Section 50 of the NDPS Act i.e. search in presence of a Gazetted Officer are attracted in case of personal search only. The Apex Court in the said reported case, in paragraph 12 of the judgement, has specifically observed that for search of vehicles (not being a personal search, the provisions of Section 50 of the NDPS Act are not attracted. . Thus, the search in the present case cannot be treated to be a personal search and it was the search of bags, which were being carried by the accused. The provisions of Section 50 of the NDPS Act will not be attracted and it can not be said to be a search in breach of Section 50 of the NDPS Act. Apart from this fact, it is clear from the evidence of PW5 PSI Gungewad and PW6 Naib Tahsildar Sudalkar that as the accused expressed desire that their search should be taken in presence of a Gazetted Officer, PW6 Naib Tahsildar Sudalkar was called and the search was carried out in presence of Gazetted Officer. Thus, even otherwise also, there is compliance of the provisions of Section 50 of the NDPS Act.

13. The last contention raised on behalf of the appellant by learned advocate Shri Bilolikar is that there is material on record suggesting tampering of samples. He has pointed out that PW5 PSI Gungewad who took search admitted that he did not affix his personal seal on the samples. He claims that the samples were given in the custody of Property Clerk, and the Property Clerk is not examined. There is thus suspicion suggesting tampering of the samples. He has further submitted that police officers admitted that on opening of the bags with the accused, no flowers were found. However, the Chemical Analyser's report (Exh-26) shows that flowring tops were found in the samples. Therefore, this fact creates suspicion and suggests that samples were tampered. In view of this submission, the evidence led at the trial needs to be examined at this stage.

14. Before scrutiny of evidence, reference to the decisions relied upon by Shri Bilolikar, learned advocate is necessary. The first decision relied upon by the learned advocate is the decision of this Court in the case of Koyappakalathil Ahamed Koya v. A.S. Menon and Anr. reported in 2002 CRI.L.J. 4502. In that case, search was taken at Airport. Said search was as per prior information. It was found that for taking their search before the Magistrate, raiding party members claimed that one of them is a Gazetted Officer and the court observed that it is an allurement given to the accused prompting him for expressing his no objection for being searched in the presence of prosecution witness and not for asking to be searched before any other gazetted officer or Magistrate, and this act was held to be in breach of provisions of Section 50. Another doubt or suspicion found in that case was in relation to the sample packets. The evidence in the said case disclosed that the seal was given in the custody of a person who was having custody of sample packets and because of the said fact, it is observed that there was ample opportunity of tampering with the contents of those packets. On account of breach of mandatory provisions of Sections 42 and 50 of the NDPS Act and other suspicious circumstances, the accused came to be acquitted by setting aside the order of conviction.

15. Reliance has also been placed on the decision of this Court delivered in Criminal Appeal No. 6 of 2003. In the said case, the officer examined gave admission that he does not remember as to whether prescribed impression of seal was sent to the Chemical Analyser. This Court observed that the prosecution has failed to prove that PW1 handed over the seal back to the Police Station Officer for safe custody. In the absence of positive evidence, that seal has not been retained by PW1, the possibility of samples having been tampered cannot be ruled out, and on that count, benefit was given to the accused and appeal came to be allowed and the conviction was set aside.

Learned advocate for the appellant has also placed reliance on the decision of the Apex Court in the case of Bahadur Singh v. State of Madhya Pradesh . In that case, in the alleged search, serious discrepancies were found in the search as well as deposit of sealed drug and benefit was given to the accused. In paragraph No. 5 of the judgement, the said discrepancies have been noted by Their Lordships of the Apex Court. The entry of deposit of the property was found made on 11-10-1997, vide Entry No. 68 (A), but earlier entry as well as subsequent entry Nos. 68 and 69 were found dated 15-10-1997. Because of these facts, it has been held that this entry was interpoluted. There was other discrepancy in relation to deposit of cash as to whether it was deposited or not and because of this discrepancy and non-supporting the case by independent witnesses, the benefit was given to the accused and the accused came to be acquitted.

The ratio in the above cases makes it clear that if there are discrepancies in the evidence about the search or there is any suspicion about the deposit of the property and the tampering thereof, the benefit needs to be given to the accused.

16. It has to be seen as to whether the evidence led in this case about the search and sealing of the samples is reliable or not. The learned Additional Sessions Judge after scrutiny of the evidence held that search in this case is proved to be genuine and valid and the evidence in that respect is accepted. Admittedly, in the present case, both the independent witnesses PW1 Syed Mansoor and PW2 Madhav Marakwad did not support the prosecution story as they turned hostile. However, PW3 Gangadhar Kadam, PW5 PSI Gangewad and PW6 Naib Tahsildar Sudalkar gave evidence that after they had taken search of the bags possessed by the accused, in all twelve sample packets were collected, each packet containing 250 grams of sample of contrabands and thereafter, panchanama came to be recorded. PW5 PSI Gungewad has specifically stated that the contraband found in the bags was containing green leaves, seeds, sticks and after taking the samples thereof, panchanama (Exh-18) came to be recorded. He has also stated that samples were sealed for being forwarded to Chemical Analyser for examination. In the cross-examination of PW3 Police Constable Kadam, it has come on record that three samples were taken from each bag and all these sample bags were sealed. It has also been brought on record in the cross-examination that the seal of the Police Station was brought on the spot though he has not stated this fact in the chief. PW5 PSI Gungewad was cross-examined on this point and it has come on record that after collection of samples, each bag was weighed and after the raid, those bags and samples were given in the custody of Property Clerk. It was asked to him as to whether he was possessing a receipt of handing over the samples to the Property Clerk. He gave details about sealing the samples i.e. in what way samples were collected and sealed and according to him, ganja was collected in polythene bags and the said bags were kept in cloth bags. In the cross-examination, it was brought on record that two seals were affixed on each sample bag on the cloth bags. He admits that specimen seal of raiding party was not affixed, but at the same time, he has clarified that there is no separate specimen seal of each and every officer. These samples were sent to Chemical Analyser by PW8 PSI Kamlakar Patil, the Investigating Officer. He has stated that on 30-03-2005, he handed over sample bags with Head Constable PW7 Govind Kaletwad for being deposited with the Chemical Analyser, alongwith office copy (Exh-24). In the cross-examination, it was asked as to whether he had seen the muddemal (property) openly and he has stated that as the packets were in sealed condition, he did not open the same. This statement in the cross-examination makes it clear that when he handed over the sample packets to the carrier, those were in sealed condition. Further, he has stated that he has not prepared inventory. Separate receipt is not obtained from the Property Clerk as admitted by PW5 PSI Gungewad and this Investigating Officer. But in the cross-examination of this witness, he has specifically stated that there is separate muddemal yadi (property list) of the articles which is produced in the court. There is thus no breach of the provisions to take inventory. His evidence is clear that when he handed over the bags, same were in sealed condition and he had not opened the same. Letter (Exh-24) also makes it clear that impression of specimen seal was affixed on it. PW7 Head Constable Kaletwad also gave evidence that he (PSI Kamlakar Patil) handed over four sample bags of ganja to him and he deposited the same in the C.A. Laboratory at Aurangabad and obtained receipt on Exh-24. On Exhibit-24, there is signature from the office of Chemical Analyser in the nature of acknowledgement. The C.A. report (Exh-26) also makes reference that four sealed cloth parcels with intact seals as per letter (Exh-24), were examined. PW5 PSI Gungewad has specifically stated that no seals were affixed on polythene bags but those polythene bags were kept in cloth bags and those cloth bags were sealed and the said seals were found intact when Chemical Analyser received those packets. Panchanama (Exh-18) also makes reference of sealing of the samples i.e. collecting the ganja in plastic bags and keeping the same in the cloth bags, steeching the cloth bags and affixing seals of signatures as well as wax seal. Impression of seal is also appearing on this panchanama. This evidence thus rules out the possibility of tampering of the samples.

17. To show the tampering of the samples or suspicion in that respect, learned advocate Shri Bilolikar pointed out that when Chemical Analyser examined these samples, he noticed flowring tops, but the witnesses admitted that there were no flowring tops in the contraband seized from the accused, so the possibility of tampering is there. No doubt, while giving description of the samples, the Chemical Analyser has mentioned that those were found containing greenish flowring tops, pieces of greenish leaves, seeds and stalks in polythene bags put in a cloth bag and same were found to be of ganja. The officer who took search i.e. PW5 PSI Gungewad, in the cross-examination, has stated that there was no flowring on the tops of stalks, but he has not stated that there was no tops at all. His complaint as well as his evidence is specific that when the bags were opened, same were found containing green leaves, seeds and sticks. Unless there is flowring on the tops, there is no possibility of apearance of seeds. Hence, the description recorded in the complaint as well as evidence of police officer that the bags were containing greenish leaves, seeds and sticks, rules out the possibility of tampering of the samples as suggested. It is thus not a case of tampering of the samples.

18. The learned Additional Sessions Judge considered the evidence properly. The evidence about the search is found cogent and reliable. There are no discrepancies in the evidence of the witnesses examined at the trial. It is not a case of breach of any mandatory provision. The contraband articles seized were found to be of ganja as opined by the Chemical Analyser. As such, there are no infirmities in the judgement recorded by the trial court, but the appeal preferred by the accused/appellant is without any merit and same needs to be dismissed by confirming the judgement of conviction and sentence.

19. In the result, the appeal preferred by the appellant (original accused No. 2) is hereby dismissed, confirming the judgement of conviction and sentence of this appellant passed by Additional Sessions Judge, Biloli in Special Case (NDPS) No.