Bombay High Court
State Of Mah. Thr. P.S.O., P.S. ... vs Ganpat S/O Mahadeo Karne And 2 Oths on 12 April, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.292 OF 2010
State of Maharashtra,
Through Police Station Officer,
Police Station, Lakadganj, Nagpur .... Appellant
-- Versus --
01] Ganpat s/o Mahadeo Karne,
Aged about 59 years, Occ. Charas Seller,
R/o Mahal, Lakdipul, In front of
Gajanan Maharaj Temple,
Police Station Lakadganj, Nagpur.
02] Nilesh s/o Ramdeshrao Aasare,
Aged 32 years, Occ. Charas Seller,
R/o Mhalgi Nagar, Indra Nagar, Plot No.9,
Police Station Sakkardara, Nagpur.
03] Sau. Kamal w/o Ganpat Karne,
Aged about 50 years, Occ. Charas Seller,
R/o Mahal, Lakdipul, In front of
Gajanan Maharaj Temple,
Police Station Lakadganj, Nagpur. .... Respondents
-------------------------------
Shri I.J. Damle, Additional Public Prosecutor for the Appellant/State.
None for the Respondents.
-------------------------------
CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 12, 2017.
ORAL JUDGMENT :-
Being aggrieved by the judgment and order dated
28/12/2009 passed by the Special Judge (N.D.P.S.) and Ad hoc
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Additional Sessions Judge-3, Nagpur in Special Case No.240/2007
acquitting the accused-respondents of the offence punishable
under Sections 20(b)(ii), 29, 25 and 8-(A)(C) of the Narcotic
Drugs and Psychotropic Substances Act (hereinafter referred to
as 'the N.D.P.S. Act' for short), State of Maharashtra has
preferred this appeal.
02] The facts, which are necessary to decide the appeal,
may be stated, in brief, as under :
i. On 26/05/2007, a secrete information was received
that accused nos.1 and 2 stored Charas in huge
quantity in the house of accused no.1 situated near
Gajanan Mandir within the jurisdiction of Lakadganj
Police Station and they were selling the same. On
receiving information, police party along with panch-
witnesses proceeded to take search of the house of
accused.
ii. After they reached the house of accused, members of
raiding party disclosed their identity and the purpose
of search. They entered the house and found a
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suitcase kept on a table. On inquiry, accused
admitted that suitcase was containing bags of Charas.
6 polythene bundles of Charas were found in the
suitcase. Samples were taken for analysis. Charas
bags were seized. In further search, cash of
Rs.13,000/- towards sale proceeds was found and
seized. Weighing scale used by accused for weighing
Charas was also seized. On personal search of
accused no.1, a cell phone and cash of Rs.2,000/- and
on personal search of accused no.2, a cell phone and
cash of Rs.1,500/- were found. It was revealed during
inquiry that the house belonged to accused no.3.
iii. After raid, offence was registered. Investigation was
conducted and on completing investigation, charge-
sheet was filed before the Court.
03] Charge came to be framed against the accused at
Exh.26. Accused pleaded not guilty and claimed to be tried.
Their defence was of total denial and false implication.
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04] Prosecution examined in all seven witnesses in
support of its case. Considering the evidence of prosecution and
submissions made on behalf of the parties, Trial Court came to
the conclusion that various mandatory provisions under the
N.D.P.S. Act were not complied with and even on merits,
evidence was short to prove the guilt and in consequence
thereof acquitted the accused for which they were charged with.
05] Heard Mr. I.J. Damle, learned Additional Public
Prosecutor for the appellant. With the assistance of the learned
A.P.P., this Court has gone through the evidence of prosecution
witnesses and the material placed on record. Before adverting
to the merits of the case, it would be essential to see whether
mandatory provisions of Sections 50-A and 57 of the N.D.P.S. Act
have been complied with. If these provisions are not complied, it
may not be even necessary to advert to the merits of the case.
06] PW-2 P.I. Sevakram Raghoji Kore is the head of raiding
party. He stated that on 26/05/2007, an information was
received and the said information was transmitted to Assistant
Commissioner of Police, Nagpur vide Exh.40. In the information
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received and transmitted, name of accused no.3 does not
appear. He stated that along with the staff and panch-witnesses,
he went to the house of accused no.1-Ganpat Mahadeo Karne.
Accused no.1 opened the door and PW-2 disclosed his identity
and identity of panch-witnesses to accused no.1. He also told
him the purpose of visit. He told accused no.1 that he wants to
take his personal search as well as house search and offered his
own personal search and personal search of the panch-
witnesses. That time, accused no.2 was sitting in one of the
rooms of the house. It can be seen from copy of the letter
placed on record [Exh.36] that the same was issued after
entering the house and after inspecting the suitcase containing
Charas. No where presence of accused no.3 is either stated by
PW-2 or reflected in the report transmitted to the Assistant
Commissioner of Police. The entire procedure followed for
conducting the raid was thus in violation of the mandatory
provisions of Section 50 of the N.D.P.S. Act.
07] Though suitcase was containing 6 bags of Charas and
the property was seized by the raiding party, seized muddemal
was not produced before the Court. This clearly indicates the
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non-compliance of the mandatory provisions under Section 52-A
of the N.D.P.S. Act.
08] Section 57 of the N.D.P.S. Act requires that on arrest
of any person and seizure, a report of all particulars of such
arrest and seizure has to be made within 48 hours to the
immediate superior officer. Such report was not forwarded
within the time limit to the immediate superior officer. Thus,
there was violation of the compliance of Section 57 of the
N.D.P.S. Act too.
09] On merits, several material admissions have been
elicited in the cross-examination of the star witnesses. The
evidence of PW-2, head of raiding party and panch-witnesses is
not consistent. Material omissions and contradictions have been
brought on record in their testimonies. Those material omissions
and contradictions have been discussed by the Trial Court at
length in its judgment.
10] In the above premise and particularly for non-
compliance of the important mandatory provisions of the N.D.P.S.
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Act, this Court finds that the view taken by the Trial Court is a
reasonable and possible view. No perversity is noticed in the
reasonings. This Court, therefore, has no reason to take a view
other than taken by the Trial Court and appeal deserves to be
dismissed. Hence, the following order :
ORDER
i. Criminal Appeal No.292/2010 stands dismissed.
ii. No order as to costs.
(Kum. Indira Jain, J.)
*sdw
