Sk Baba Sk Sandu vs State Of Maharashtra
2016 Latest Caselaw 1613 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD




                                                                         
                            APPELLATE SIDE JURISDICTION




                                                 
                         CRIMINAL APPEAL NO. 257 OF 2001




                                                
    Shaikh Baba s/o Shaikh Sandu,
    age 40 years, occ. Labourer,
    R/o Harsool, Aurangabad                      ...Appellant




                                      
                              VERSUS

    The State of Maharashtra
                              ig                 ...Respondent
                            
                                     ***
    Mr. U.P.Giri, advocate (appointed) for appellant
    Mrs. R.K.Ladda, APP for Respondent/State
                                     ***
      


                      CORAM : INDIRA K. JAIN, J.

DATE OF RESERVING THE JUDGMENT : 13.04.2016 DATE OF PRONOUNCEMENT : 18.04.2016

OF JUDGMENT

ORAL JUDGMENT :

This appeal takes an exception to the judgment and

order, dated 13.6.2001 passed by the learned Special Judge

(NDPS), Aurangabad in Special Case No. 309 of 1999. By the said

judgment and order, original accused no.1 is convicted of the offence

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punisahble under Section 20(b)(i) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 and sentenced to suffer rigorous

imprisonment for one year with fine of Rs.500/- and default clause.

2] For the sake of convenience, appellant is referred in his

original status as an accused as he was referred before the Special

Court.

3]

The gist of prosecution case, as would be necessary to

decide the present appeal, may be stated as under :-

(i) On 29.6.1999 work of construction was

undertaken by Public Works Department through

contractor in the premises of Central Jail, Aurangabad.

Some outside labourers were engaged by the

contractor to carry out the said work. Accused Shaikh

Baba was one of the labourers engaged by the

contractor for construction of work. Before the

labourers could enter the gate of the jail, their search

was taken by jail Hawaldars.

(ii) PW 3-Ramrao Uchegaonkar and PW 5-

Motiram Rathod, Hawaldars were on duty at the

southern gate of jail. They were taking search of the

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workers who were to enter the jail through southern

gate. Accused no.1 was to enter the jail through

southern gate. When his turn came, Hawaldar

Uchegaonkar suspected him. Accused was looking

frightened. On inquiry, it was found by Hawaldar

Uchegaonkar that accused was possessing ganja. He

reported the same to Senior Jailor PW 8-Dnyanoba

Gutte. Mr. Gutte personally interrogated the accused

and immediately sent report in writing to City Chowk

police station for necessary action.

(iii) PW 1-Murlidhar Bahule, Police Sub-Inspector

was attached to City Chowk police station at the

relevant time. On receipt of report from Mr. Gutte,

P.S.I. Bahule informed his superior officer Assistant

Commissioner of Police. He called Special Executive

Magistrate PW 4-Mr. Shashikant Bombale for

conducting raid.

(iv) Then P.S.I. Bahule along with PW 6-Syed

Salimoddin, Panch, another panch Adil Khan, Police

staff and Special Executive Magistrate visited Central

Jail, Aurangabad. Accused was caught hold by

Hawaldar Uchegaonkar. P.S.I. Bahule told the accused

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purpose of the raid. Special Executive Magistrate Mr.

Bombale offered search of the raiding party members

to the accused and then personal search of accused

was taken by the raiding party members. In search,

ten packets of ganja were found with the accused.

Measurement scale was brought from Jail canteen.

Those packets were weighed. The weight of ganja was

found 85 grams. A sample of 25 grams was taken.

The packets were seized and sealed in the presence of

panch witnesses on the spot. Thereafter along with

seized ganja, accused P.S.I. Bahule came to City

Chowk police station and lodged complaint on behalf of

the State.

(v) On the basis of complaint, crime was registered

against the accused. In the course of investigation, it

was revealed that a convict Ramesh Jatwe who was

undergoing life imprisonment in jail had given Rs.150/-

to accused Shaikh Baba for purchase of ganja and

Shaikh Baba purchased ganja from accused no.2

Habiba Begum. Accused no.2 was then arrested.

Statements of witnesses were recorded. On

completing investigation, charge sheet was submitted

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to the Special Court.

4] Charge of the alleged offence was explained to accused

vide Exh.13. They pleaded not guilty and claimed to be tried. Their

defence was of total denial and false implication.

5] Prosecution examined in all eight witnesses in support

of its case. On evaluation of evidence of prosecution witnesses, Trial

Court came to the conclusion that charge was established against

accused no.1 and convicted and sentenced the appellant as stated

herein before. Hence this appeal.

6] Heard Shri U.P.Giri, learned counsel for the appellant

and Smt. R.K.Ladda, learned Additional Public Prosecutor for the

respondent/State. After giving anxious consideration to the facts

and circumstances of the case, submissions made on behalf of the

learned counsel for parties, reasonings recorded by the Trial Court

and evidence on record, for the below mentioned reasons this Court

is of the opinion that prosecution could prove the guilt of accused

beyond reasonable doubt and no interference is warranted in the

present appeal.

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7] It is not in dispute that on 29.6.1999 work of construction

was going on in Harsool Central Jail and some outside workers were

engaged by the contractor to carry out the said work. Accused

Shaikh Baba does not dispute his presence at the relevant time and

the fact that he was one of the outside workers is also not seriously

challenged. In order to establish possession of contraband i.e. ganja

with the accused, prosecution placed reliance on the evidence of PW

3-Uchegaonkar, PW 5-Motiram Rathod, PW 8-Senior Jailor Gutte,

PW 1-Complainant Bahule, PW 4-Special Executive Magistrate Mr.

Bombale, PW 6-Syed Salimoddin and PW 7-Ramesh Jatwe.

8] It is categorically stated by Hawaldars Uchegaonkar and

Rathod that on 29.6.1999 at about 9.00 a.m. when they were on duty

at the southern gate of jail and taking search of workers who were to

enter jail through southern gate, they found behaviour of accused

Shaikh Baba suspicious and on inquiry ganja was found in his

possession. It is stated by Hawaldar Uchegaonkar that he informed

about the same to Senior Jailor PW 8-Mr. Gutte. It is stated by PW

8-Mr. Gutte that he personally verified the information and sent

report in writing to City Chowk police station. The said report is at

Exh. 38.

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9] On receiving report Exh. 38, P.S.I. Bahule intimated

Assistant Commisioner of Police. P.S.I. Bahule called Special

Executive Magistrate and panch witnesses. Along with them, he

came to the place of occurrence i.e. Central Jail. It appears from the

evidence of P.S.I. Bahule, Special Executive Magistrate and panch

witness Syed Salimoddin that search of the raiding party was offered

to accused and then personal search of accused was taken.

Evidence of Special Executive Magistrate Mr. Bombale makes it

crystal clear that there was compliance of the mandatory provisions

of search and seizure under Section 50 of the Narcotic Drugs and

Psychotropic Substances Act and no infirmity was left in the

procedure at the time of conducting raid. The evidence of

complainant PSI Bahule, Special Executive Magistrate Mr. Bombale

and panch Syed Salimoddin is consistent throughout and through

their evidence prosecution could establish that on 29.6.1999

accused Shaikh Baba was found in possession of 85 grams of ganja

without license or permit.

10] Commenting upon seizure panchanama (Exh. 28) and

the evidence of panch witness, Special Executive Magistrate and

complainant, learned counsel for appellant submitted that evidence

on search and seizure is deficient as it does not fulfill the mandatory

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requirements of Section 50 of the Narcotic Drugs and Psychotropic

Substances Act and further in the absence of corroboration from

independent witnesses reliance cannot be placed on the testimony

of the Government officers. In support, the learned counsel for

appellant placed reliance on the decision of this Court in Gangaram

Rama Gundkar and another vs State of Maharashtra [2002 CriLJ

2578]. Para 17 of this judgment reads as follows : -

"17. It was observed in Chand Mohd. v. State of Punjab

(1997 Cri LJ 810 at p. 812):

In the present case, there is no reliable and credible evidence on the record to show that ASI Banarsi Dass had

made any genuine effort to call for independent public witnesses to witness the search of the appellant or the bag which he was allegedly carrying, particularly when he had

ample time, means and opportunity to procure the presence

of independent public witnesses to witness the search. This serious omission on the part of the Investigating Officer, in itself, is enough to cast a grave suspicion as regards the

alleged recovery of the poppy husk from the possession of the appellant.

In the present case, the presence of independent witnesses was actually procured. Still they were not cited

as panchas on the panchanama and were not examined as prosecution witnesses.

In Jayakrushna Parida v. State of Orissa (1997 Cri LJ 2179) (Orissa) certain provisions of NDPS Act were not followed and the order of conviction and sentence was passed on the uncorroborated evidence of the Investigating Officer which was illegal on vital aspects. For this reason, it

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was held that the uncorroborated testimony of the Investigating Officer could not be accepted as it was in the

present case also, as discussed already, the mandatory provisions were not complied with. The corroboration to the

evidence of the Investigating Officer is sought to be made during the evidence of panch Bhaskar Pakhare who cannot be treated as a witness free from the influence of police.

There is no corroboration from independent witnesses as stated above. The testimony of the Investigating Officer i.e. P.S.I. Kharode is, therefore, liable to be rejected on this

count. "

11] This Court has gone through the authority referred by

the learned counsel for the appellant. In this case raid was effected

between sunset and sunrise. Contraband article ganja was not

submitted immediately by raiding officer to the in charge officer of

police station and it was retained by the raiding officer for few days.

So it was held that possibility of tampering with seized article was not

ruled out and in the absence of independent corroboration accused

could not have been convicted.

12] In the case on hand, raid was conducted at 9.00 a.m.

PW 6-Syed Salimoddin is an independent panch witness. He has no

reason to grind an axe against the accused. Incident occurred at the

entrance gate of Central Jail. The Jail officers, Special Executive

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Magistrate and police officers all had no reason to implicate the

accused. Their evidence is most natural, believable and consistent

throughout. No omission or contradiction could be elicited in their

cross-examination.

13] The only evidence which appears to be doubtful in the

present case is of PW 7-Ramesh Jatwe who was a convict and

undergoing life sentence in the same jail. He was examined to

show that he has given ig Rs.150/- to accused Shaikh Baba for

purchase of ganja and so accused brought ganja to give it to convict.

PW 7-Jatwe does not support the prosecution to the extent that he

has given Rs.150/- to the accused for purchase of ganja. However,

on raid he states that on the day of incident he was called by police

on the gate of jail and inquired from him whether he was acquainted

with accused no.1. The evidence of PW 7-Jatwe is not helpful to

prosecution to show that accused brought ganja to give it to PW 7-

Jatwe. Even if the evidence of PW 7-Jatwe is kept out of

consideration there is voluminous evidence on record on possession

of ganja and relying upon the evidence of PW 1-complainant Bahule,

PW 3-Uchegaonkar, PW 5-Motiram Rathod, PW 6-Syed Salimoddin

and PW 8-Mr. Gutte, Trial Court has rightly concluded that guilt of

the accused is proved beyond reasonable doubt.

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14] Prosecution has also examined PW 2-Mr.

Chandegaonkar, Assistant Chemical Analyser. The evidence of this

witness shows that on 7.7.1999 a sample of ganja was received by

him from City Chowk police station and after examining the said

sample it was found that ganja was detected in the sample.

Accordingly, Chemical Analyser's report (Exh.22) was issued. This

report indicates that weight of sample was 22 grams. Referring to

Chemical Analyer's report (Exh.22) learned counsel for appellant

submitted that as per the evidence of complainant and other

witnesses weight of sample was 25 grams which is negatived by

Chemical Analyser's report showing it as 22 grams and therefore,

evidence of prosecution witnesses on sample is doubtful. This

alleged deficiency of 3 grams has been explained by PW 2-Mr.

Chandegaonkar in his evidence. He stated that at the time of

seizure sample was wet and when it was sent to his office it was in

dry condition. He also stated that since sample dried minor

deficiency in the weight of sample is possible. The explanation given

by an expert witness is found satisfactory. It removes the anomaly of

3 grams between the weight mentioned in Chemical Analyser's

report and in panchanama. The evidence of PW 2-Chandegaonkar

and Chemical Analyser's report (Exh.22) duly proved by him

confirms that the packets which were seized from the accused were

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containing ganja, a contraband article under the Narcotic Drugs and

Psychotropic Substances Act.

15] Needless to state that once recovery of contraband is

proved, onus shifts on the accused to show that he had no

knowledge when he was carrying the contraband. No explanation is

offered by accused in the present case. His defence is of simple

denial which is not enough to rebut the presumption.

16] In the above circumstances, this Court finds that appeal

has no substance and merits. Hence the following order.

ORDER

(i) Criminal Appeal No. 257 of 2001 is dismissed.

(ii) Bail bonds of the appellant/accused stand

cancelled.

(iii) Appellant shall surrender to his bail forthwith to

serve out the remaining sentence.

[ INDIRA K. JAIN, J.]

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