Issak Nabab Shah & Anr vs The State Of Maharashtra
2016 Latest Caselaw 659 Bom

                                        [1]      CR. APPEAL 357/2015 - JUDGMENT




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD




                                                                               
                      CRIMINAL APPEAL NO. 357 OF 2015




                                                       
    1] Issak Nabab Shah,
       Age : 27 years, 
       R/o : Navnath Nagar,
       Rahata, Taluka : Rahata,




                                                      
       District : Ahmednagar

    2] Mohasin Shabbir Shaikh,
       Age : 27 years, Occu.: Fabrication Work,




                                             
       R/o : Ward No.2, Shrirampur,
       Taluka : Shrirampur, 
       District : Ahmednagar   
       [At present both the appellants
       are in Yeroda Central Prison,
                              
       Pune, Taluka and District : Pune      .. Appellants
                                             (Orig. Accused
                                              Nos. 1 and 2)
          VERSUS
      


    The State of Maharashtra,
    Through the Police Inspector,
   



    Rahata Police Station,
    Rahata, Taluka : Rahata,
    District : Ahmednagar                              .. Respondent
                                                    (Orig. Complainant)





                               ----
    Mr. Rajendra S. Deshmukh, Advocate for the appellants
    Mr. N.T. Bhagat, A.P.P. for the respondent/State
                               ----





                                           CORAM    : M.T. JOSHI, J.
                                           RESERVED ON   : 17/02/2016
                                           PRONOUNCED ON : 16/03/2016

    JUDGMENT :

Heard both sides.

[2] CR. APPEAL 357/2015 - JUDGMENT

2. The present appellants, who are convicted

by the learned Additional Sessions Judge cum Special

Judge, Kopargaon vide judgment and order dated

20/03/2015 passed in Sessions Case No. 66 of 2012

for the offences punishable under section 8(c) and

20(b) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short "N.D.P.S. Act") have

preferred the present appeal.

. They were sentenced to suffer rigorous

imprisonment for a period of 10 years each and to

pay a fine of Rs.1,00,000/- on both the counts

jointly.

3. The prosecution case is as under:-

. On 23/08/2012, PW7 - Police Inspector

Suresh Varhade of Rahata Police Station received a

secret information at 6:20 pm that a car of Honda

City make bearing no. MH-03-J-949 would be

proceeding from Nagar to Manmad road with ganja

therein being carried by two persons for the

purposes of sale. The secret informant also told

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about the clothes worn by those persons.

Accordingly, the Investigating Officer prepared the

FIR and forwarded the same to the Sub Divisional

Police Officer of Shrirampur.

. On the oral order of the Sub Divisional

Police Officer, preparation for conducting the raid

by calling two panch witnesses was made.

Thereafter, the police party and the panch witnesses

proceeded to the place and more particularly at

Geet-Ganga hotel on the said road. At about 7:10

pm, they found that the said car was proceeding by

the road. Accordingly, the police officials stopped

the said vehicle by giving signal. The present

appellants were seen in the car. The Investigating

Officer disclosed his identity and the identity of

the members of the raiding party and expressed his

desire to search the car. Upon enquiry, the

appellants told their names and addresses. The

Investigating Officer told both the appellants that

if the appellants may require, the search can be

carried in presence of a Gazetted Officer and if

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asked for, the said arrangement can be made.

. Accordingly, a notice in this regard in

duplicate was prepared. Both the appellants

expressed that there would be no need of search in

presence of any Gazetted Officer and the

Investigating Officer himself may carry the

activity. They accordingly passed the endorsement

on the notice and, thereafter, the search was

carried.

. Appellant no.1 - Issak stated that the

ganja was kept under the seat in a polythene bag.

Accordingly, the ganja was recovered from that

place. It was weighed and found to be 6 kg and 300

gm. The ganja was seized in the light of electric

bulbs. Separate sample packets of 50 gm each were

made. Those were sealed with the signatures of the

panch witnesses according to the rules.

. The appellants came to be arrested and the

samples were sent for chemical analysis, which

proved to be ganja and the chargesheet came to be

[5] CR. APPEAL 357/2015 - JUDGMENT

filed.

4. Before the learned Special Judge, in all 7

witnesses were examined. PW1 - Police Head

Constable - Laxman Bhosale, PW5 - Police Head

Constable - Ashok Gaikwad are the members of the

raiding party. PW3 - Police Head Constable Rajendra

More had carried the written report sent by the

Investigating Officer to the Sub Divisional Police

Officer, Shrirampur, as detailed supra. PW4 - Ashok

Dhobal is the panch witness of seizure of the ganja.

PW6 - Sachin Malve is the eye witness to the

incident while PW7 - Suresh Varhade is the

Investigating Officer.

5. PW4 - Ashok Dhobal, the panch witness did

not support the prosecution case, however, relying

on the testimony of the other witnesses including

PW6 - Sachin Malve - the eye witness, the learned

Additional Sessions Judge cum Special Judge came to

the conclusion that the appellants were carrying the

contraband in their car and, therefore, the

conviction, as detailed supra came to be recorded.

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6. Mr. Rajendra Deshmukh, learned counsel for

the appellants took me through the record. He

submits that despite the independent panch witness

refusing to support the prosecution case, the

learned Special Judge wrongly relied on the

prosecution case. He further submits that there is

no compliance of the provisions of section 50 of the

N.D.P.S. Act and the trial is therefore vitiated.

. He also commented on the deposition of the

witnesses and more particularly eye witness PW6 -

Sachin Malve, who was claimed as the eye witness.

He submits that his evidence would show that he is

not a trustworthy witness and, therefore, he wanted

that the appeal be allowed.

7. On the other hand, learned A.P.P. submits

that there was compliance of the provisions of

section 50 of the N.D.P.S. Act. Merely because the

panch witness has turned hostile, finding other

reliable evidence, the learned Special Judge has

rightly came to the conclusion that the prosecution

[7] CR. APPEAL 357/2015 - JUDGMENT

has proved its case beyond reasonable doubt.

8. On the basis of this material, following

point arises for my determination:-

I) Whether the trial is vitiated ?

II) Whether the prosecution has proved that on 23/08/2012 at Rahata, the

present appellants were found illegally carrying 6 kg and 300 gm of ganja from

the car ?

My finding to the point no.I is in the negative, to

point no.II is in the affirmative. The appeal is

therefore dismissed for the reasons to follow.

R E A S O N S

9. It is the prosecution case that immediately

after stopping of the car, the Investigating Officer

orally as well as in writing communicated to the

appellants that if they wished, their search would

be carried in presence of a Gazetted Officer and the

[8] CR. APPEAL 357/2015 - JUDGMENT

necessary arrangement in this regard would be made.

Both the appellants however communicated in writing

that the presence of the Gazetted Officer is not

required and the Investigating Officer himself may

carry the search.

10. As regards the compliance of the provisions

of section 50 of the N.D.P.S. Act, Mr. Deshmukh,

learned counsel for the appellants relies on the

ratio of "Narayan S/o Vikram Pawale Vs. State of

Maharashtra" 2015 ALL MR (Cri.) 1895.

11. In that case, there was no record to show

that offer as required under section 50 of the

N.D.P.S. Act was given to the accused. There was

also no independent evidence to corroborate the

case.

12. In the present case, what we find is that

there was no personal search of any of the appellant

but there was search of the car. Therefore, the

learned A.P.P. has rightly relied on the ratio of

the judgment delivered by this Court on 10/07/2015

[9] CR. APPEAL 357/2015 - JUDGMENT

in Criminal Appeal No. 182 of 2015 (Kashinath

Raghunath Murambe Vs. The State of Maharashtra).

. In that case taking survey of all the

authorities on the issue, it was held that when no

personal search of the accused is carried, and only

the vehicle was searched, mandatory provisions of

section 50 of the N.D.P.S. Act would not be

applicable.

13. In that view of the matter, there is no

force in the submission that the trial is vitiated

due to the non-compliance of section 50 of the

N.D.P.S. Act.

14. As regards the factual matrix, it is true

that the panch witness has turned hostile and the

second panch is not examined by the prosecution.

However, besides the members of the raiding party,

we have the statement of PW6 - Sachin Bhausaheb

Malve, the eye witness to the incident.

. According to this witness, he was

conducting hotel Shivsai at Pimpale shivar on the

[10] CR. APPEAL 357/2015 - JUDGMENT

Nagar - Manmad road i.e. the place of the searching

of the car. In the evening of the incident, he saw

that the police had detained one white colour

vehicle of Honda make. He arrived at the spot and

found that two persons were apprehended. The police

had taken search of the car in his presence. During

the search, one polythene bag containing green

coloured leaves was found. The said bag was seized.

He identified both the appellants in the Court as

the inmates of the said car.

. During cross-examination, he admitted that

during the relevant period his hotel Shivsai was

closed for 15 days due to agricultural works. It

can however be gathered from the cross-examination

that his field is adjacent to the said hotel and at

that time of detention of the car, he was working in

his field with 2-3 persons. He was watering his

chilli crop at that time. Therefore, merely because

his hotel was closed during the relevant period, it

would not mean that his presence at the spot was

un-natural.

[11] CR. APPEAL 357/2015 - JUDGMENT

. During cross-examination, he candidly

admitted that as he was running his hotel, he had

contacts with police. This would not take us to

dis-believe his entire version. There are certain

inconsistencies between the statement of other

prosecution witnesses. PW5-PHC-Ashok Gaikwad has

deposed that balance was not available in the police

station. Prosecution case however is that the scale

was arranged. He has also deposed that there was a

crowd of customers in the hotel Shivsai and there

was dark when the party reached there.

. It can however be gathered that there are

Shivsai as well as Geet-Ganga hotels in the vicinity

and this would not take us to disbelieve the

prosecution case in entirety though both these

hotels are not visible from one point.

15. It was further argued by Mr. Deshmukh,

learned counsel for the appellants that the muddemal

clerk was not examined, ownership of the car is not

investigated and the fact that the appellants did

[12] CR. APPEAL 357/2015 - JUDGMENT

not rush away from the spot would show that they

were not aware that ganja was kept in the car.

16. It is to be noted that each and every

witness is not required to be examined. The

prosecution has fully proved that the present

appellants were the occupants of the car and had

conscious possession of the contraband as detailed

supra.

17. Mr. Deshmukh, learned counsel for the

appellants relied on the ratio of "K. Mohanan Vs.

State of Kerala 2000 (10) SCC 222.

18.

In that case, there was no cogent evidence

to show that the accused was having knowledge about

the contents of the packet, which was transported by

him. In that case, inter-alia, the panch witness

was proved to be the professional panch witness and

there was no independent witness to the incident.

Further, the Crime branch on its own carried the

investigation without any intimation to the regular

police station. The accused was not the owner of

[13] CR. APPEAL 357/2015 - JUDGMENT

the vehicle. The evidence on record would show that

the driver was not questioned about the ownership of

the vehicle. It was not enquired as to whether he

was working for the transport agency and no enquiry

was further made to find out as to whether somebody

have hired his services.

. Taking into consideration all these facts,

it was observed that in absence of any evidence to

show that the accused was having knowledge of the

contents of the packet, he was acquitted.

19. In the present case, it is found that the

Investigating Officer has made enquiry with the

appellants and the appellant no.1, on his own gave

the location of the bag and told about the contents

of the same. Ratio of "K. Mohanan Vs. State of

Kerala" (cited supra) therefore would not be

applicable in the present case.

20. Similar is the ratio in the case of

"Mir Muradali Khurshid Ali Vs. The State of

Maharashtra" 2014 ALL MR (Cri.) 1558, relied on by

[14] CR. APPEAL 357/2015 - JUDGMENT

Mr. Deshmukh, learned counsel for the appellants.

21. In that view of the matter, the following

order:-

22. Criminal Appeal is hereby dismissed.

23. The appellants being in jail, to serve the

remainder of the sentences.

[M.T. JOSHI]

JUDGE arp/