Sheikh Mahbub Sheikh Husain vs State Of Mah.Thr.P.S.O.P.S.Ngp
2017 Latest Caselaw 6385 Bom

                                                                                             CRI.APPEAL.340.03
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                             CRIMINAL APPEAL NO. 340/2003

          Sheikh Mehboob Sheikh Hussain
          Aged 38 years, occu: Skilled job 
          Near S.T. Stand, Hanuman Ward
          Chandrapur.                                                                ..         APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through  P.S.O, P. S.Ajni 
          Nagpur (Crime Branch)                                                   ..           RESPONDENT

...........................................................................................................................
           Mr. A.K.Bhangde, Advocate for appellant
           Mr. S.B.Bissa, Additional  Public Prosecutor for  respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     21st August, 2017

ORAL  JUDGMENT: 


1.                   By this Appeal, the                     appellant/accused has challenged the

judgment and order dated 7.5.2003 passed by the learned Special Judge

(NDPS Court), Nagpur, in Special Criminal Case No.47/2001 whereby the

learned Judge convicted the appellant/accused under Section 20(b) (i) of

Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred

to as 'NDPS Act', in short) and sentenced him to suffer rigorous

imprisonment for three years and to pay a fine of Rs.10,000/-, in default, to

suffer further R.I. for three months.

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2. I have heard Shri A.K.Bhangde, learned counsel for the

appellant as well as Shri S.B.Bissa, learned Additional Public Prosecutor for

the respondent-State. I have carefully gone through the record and

proceedings of the case.

3. The prosecution case as unfolded during the trial, is as follows:

On 6.8.2001, Head Constable-Deorao Thorat (PW 6) who was

attached to Narcotic Cell of Crime Branch at Nagpur, was on patrolling

duty along with PSI Deokar and other police staff. When PW 6-Deorao along

with the staff reached to Manewada Chowk, he received a secret information

at about 8.30 a.m. that a person by name, Sheikh Mehboob, aged about 30-35

years, having beard and wearing brownish colour full-pant and round skull

cap, would be proceeding with a bag containing 'ganja' at about 9.30 a.m.

near Ring Road Square. PW 6-Deorao reduced the said information into

writing (Ex. 37). PW 6-Deorao then prepared a report under section 42 (1)

and (2) of the NDPS Act addressed to P.I. of Crime Branch, Nagpur (Exh.38).

PW6-Deorao sent the said report to P.I. Jadhav of Crime Branch. PW 6 then

called for two panchas and laid a trap near Manewada Ring Road Bridge. PW

6-Deorao noticed a person as per the description received and he was

apprehended. The raiding party introduced themselves to the said person

and he was also apprised about the information and the proposed raid. The

person told his name as Sheikh Mehboob Sheikh Hussain. The appellant/

accused was apprised of his right to be searched in the presence of Gazetted

CRI.APPEAL.340.03

Officer or a Magistrate under section 50(1) of NDPS Act orally as well in

writing (Exh.34). The appellant was holding a bag which was searched and

it was found that the said bag was containing about 7 kg. of ganja. The

contraband was taken charge by PW 6-Deorao. 24 grams was separated as

a sample and the remaining ganja was duly packed and sealed with the

seal of PW 6-Deorao. The sample was marked as 'S1' and remaining ganja

as 'P1'. The appellant was arrested and informed about the grounds of

arrest. The Panchnma (Exh.25) was drawn by PW 6. The appellant along with

the seized articles was taken to Ajni Police Station, Nagpur. The complaint

was lodged by PW 6 (Exh.30). On the basis of said complaint, offence was

registered by the Day Officer, P.S.I. Nandanwar (PW 4). The seized articles

were sealed with the seal of Head Constable, Pathan, and kept in the safe

custody at Malkhana. The sample was sent to the C.A. office for its analysis

(report-Exh.22). The sample tested positive for containing ganja. The charge-

sheet was filed against the appellant. After completion of investigation, PW

6-Deorao sent a compliance report (Exh.39) to P.I. Jadhav.

4. The learned Special Judge framed the charge against the

appellant and conducted the trial. After recording the evidence and hearing

both the sides at length, the learned Special Judge convicted the appellant, as

aforesaid.

5. Shri A.K.Bhangde, the learned counsel for the appellant

vociferously argued that the prosecution has not followed the mandatory

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provisions under section 52A(1) & (2) of the NDPS Act, by not preparing the

inventory of the articles. Per contra, Shri S.B.Bissa, the learned APP

contended that the prosecution has followed all the mandatory provisions

contemplated under NDPS Act and, therefore, the learned Special Judge has

rightly convicted the appellant.

6. In order to bring home the guilt of the appellant, the

prosecution examined as many as six witnesses, viz.,PW1-Bhaiyalal Banshilal,

was the Assistant Chemical Analyser, PW2 Head Constable-Vinod

Namdeorao, was the Malkhana incharge; PW3-Shyam Madhukarrao

Shudhalwar, is the police Constable who carried the sample to the CA office;

PW 4-PSI Sunil Pundlikrao Nandanwar, registered the offence and carried

out the investigation; PW 5-Pir Mohammed Ansari is the Panch witness

who turned hostile and PW 6- Head Constable-Deorao Thorat, the

Investigating officer.

7. As far as the testimony of PW 6-Deorao Thorat is concerned,

it is nothing but reproduction of the prosecution case. On careful scrutiny of

testimony of PW 6, it is noticed that PW6 has followed all the mandatory

provisions contemplated under the provisions of the NDPS Act, as deposed

by PW 6. PW 6 has followed the provisions under section 42 (1) and (2) about

his preparation of report (Exh.38). Similarly PW 6 has followed the provisions

of Section 50 of the NDPS Act, enquiring with the appellant whether he

wants to give his personal search before the Gazetted Officer or a Magistrate.

CRI.APPEAL.340.03

Similarly, an intimation (Exh.32) to that effect was also served upon the

appellant. Furthermore, compliance of the provision contemplated u/s 55 of

the NDPS Act is also established by the prosecution as the raiding Officer

who effects the search and seizure has to hand over the possession of the

contraband to the officer in-charge of the Police station in whose jurisdiction

the search and seizure is conducted. Admittedly, the appellant along with

seized articles was taken to Police Station, Ajni where the offence was

registered by the Day Officer PSI Nandanwar (PW 4) as per the printed FIR

(Exh.31), which was drawn on the basis of complaint (Exh.30). Similarly,

seized articles were handed over to PSI Nandanwar along with report (Exh.

32) and they were resealed under the signature of Raiding Officer Deorao

Thorat (PW 6) and PSI Nandanwar (PW 4) and they were sealed with the

seal of Head Constable Pathan. Thus, the provisions of section 55 of the

NDPS Act were complied with. So far as the compliance in regard to Sec.57

is concerned, as per the said provision the officers effecting the search and

seizure and making arrest, is supposed to send the full report of all the

particulars about the arrest and seizure to his superior official within 48

hours immediately after such arrest or seizure, the same was complied with.

On the basis of the evidence of the raiding officer, the learned Special Judge

has come to the conclusion that the compliance u/s 57 is made by PW 6-

Deoro.

8. At this stage, it would be appropriate to state that the learned

CRI.APPEAL.340.03

counsel for the appellant fairly admitted that the compliance under sections

42(1) & (2), 50, 55 and 57 of the NDPS Act was done by the Investigating

agency. He however vehemently argued that the prosecution has failed to

comply with the provisions contemplated under section 52A of the NDPS

Act. He submitted that as per the requirement of section 52A sub-clause (2)

of the NDPS Act, the investigating agency was supposed to prepare the

inventory of the articles, however it was not prepared by the Investigating

agency. He stated that Exh.18 which is the list of articles produced before

the Court simply indicates that 20 gms. of contraband kept in an envelope

and one more packet of 43 gms. of contraband, was produced before the

Court. However in the light of the fact that Investigating agency had allegedly

seized total 7 kg. of ganja from the appellant, then in that case, the question

arises as to why remaining huge quantity of ganja was not produced before

the Court. Mr. Bhangde, stated that the remaining contraband was not shown

to the witnesses and there is no identification of the seized contraband before

the Court.

9. In support of his contention, Shri Bhangde, placed reliance upon

the judgment of this Court in the case of Hanamantu Badawat vs.

State of Maharashtra reported in 2007 All MR (Cri) 3359 . The

learned counsel further placed reliance upon the judgment of the Hon'ble

Apex Court in the case of Jitendra and another vs. State of M.P .,

reported in 2004 SCC (Cri) 2028. Placing reliance upon these judgments,

CRI.APPEAL.340.03

the learned counsel for appellant submitted that since the Investigating

Officer has not produced the contraband articles before the Court, it cannot be

said the the prosecution has followed the provisions contemplated u/s 52A

sub-clause (2) of NDPS Act. The learned APP did not dispute the said

contention. He fairly admitted that there is no discussion of the remaining

contraband articles in the judgment of the trial Court. On going through the

impugned judgment, it is not clear whether the entire property was

produced before the Court and it was directed to be destroyed.

10. With the assistance of learned counsel for the respective parties,

I have gone through the record of this case. It is noticed that Exh.18 is the list

of articles which indicates the description of the property in vernacular, as

under :

",dk [kkdh fyQkQk ¼flycan½ R;koj NN 66/2001 yhghys vkgs- R;kr wt of sample returned 20 gm vk.kh wt of parcel Returned- 43 gm vls yhghysys vkgs-"

Exh.23 is the requisition to the Chemical Analyser dated

6.8.2001. The said document indicates that one parcel containing 24 gms of

ganja was sent to CA for examination and the Analyser was requested to

examine the said sample and submit his opinion about the type of

intoxicant substance which was containing and its percentage in it. The C.A.

Report (Exh.22) also corroborates with the said requisition letter dated

6.8.2001 and shows that 24 gms of contraband was received by the CA office

CRI.APPEAL.340.03

on 10.3.2003.

In any case, Exh.18 does not depict that the entire property of

7 kg. After deducting sample of 24 gms. was produced in the court. The

testimony of PW 6-Deorao in paragraph 3 indicates that the sample and the

remaining ganja were separately sealed under his signature, the signatures

of panchas and the accused. The sample was marked as S-1 and remaining

ganja was marked as P-1. In paragraph 5 of the testimony of PW6 it is stated

as under :-

"The sealed articles were separately resealed under my signature and the signature of PSI Nandanwar. As the seal of Nandanwar was not available they were sealed with the seal of H.C. Pathan".

"PSI Nandanwar deposited the seized articles in Malkhana".

Thus, it is crystal clear from the testimony of PW 6-Deorao

that the remaining property was deposited in Malkhana after deducting the

sample which was sent for CA. No doubt, the CA report (Exh.22) shows that

the contraband was detected in the sample. As such, although the testimony

of PW 6 indicates that the property was deposited in Malkhana, there is no

evidence on record to show that the remaining property after deducting the

sample was produced in the Court. Similarly, there is no inventory prepared

by the investigating agency as contemplated u/s 52 A of the NDPS Act.

CRI.APPEAL.340.03

It is well-settled law that uncorroborated testimony of witness

can be relied upon provided it inspires confidence. The contemporaneous

documents prepared by the officer during the course of investigation can

be used for corroboration as well as contradiction, to ascertain the veracity of

the evidence of the officer in raiding party. No doubt, PW 6-Deorao has in

terms deposed before the Court that a raid was conducted on 6.8.2001.

However his testimony does not inspire confidence.

Section 52A of the NDPS Act, is couched in the following

terms :-

       "       52A.       Disposal     of     seized     narcotic      drugs       and
       pychotropic          substances - (1) the Central Government may,

having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after the seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any (narcotic drugs, psychotropic substances, controlled substances or conveyances) has been seized and forwarded to the officer in-charge of the nearest police station or to

CRI.APPEAL.340.03

the officer empowered under section 52, the officer referred to in sub-section (1) shall prepare an inventory of such ( narcotic drugs, psychotropic substances, controlled substances or conveyances) containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the ( narcotic drugs, psychotropic substances, controlled substances or conveyances ) or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances) in any proceedings under this Act and make an application, to any Magistrate for the purpose of -

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act , 1872 (1 of 1872) or the Code of Criminal procedure, 1973 ( 2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances ) and any list of samples drawn under sub-section (2) and certified by the

CRI.APPEAL.340.03

Magistrate, as primary evidence in respect of such offence."

11. Thus, Section 52A mandates the preparation of inventory and

certification thereof by the Magistrate. As discussed above, in the instant

Appeal, there is no inventory prepared by the investigating agency and it is

not placed on record as such. The judgment of the learned trial Judge does

not indicate that the entire property was produced before the Court. Exh.18

indicates that only the samples were produced before the Court and not the

remaining contraband which was in huge quantity, as alleged by the

investigating agency. Moreover, there is no identification of the entire

property as such by the witnesses in the Court.

12. In the case of Hanamantu vs.State of Maharashtra

(supra), this Court placed reliance upon the judgment in the case of

Jitendara vs. State of MP (supra), wherein it is held by the Hon'ble Supreme

Court that in the trial under the NDPS Act, it is necessary for the prosecution

to establish by cogent evidence that the alleged quantities of the contraband

are seized from the possession of the accused and the best evidence would

have been the seized materials which ought to have been produced during

the trial as marked material objects. The Hon'ble Supreme Court found

unsustainable the finding of the High Court that the non-production of the

contrabands before the Court was not fatal to the prosecution.

13. In my considered view, the ratio laid down by the Hon'ble

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Apex Court in Jitendra vs. State of M.P. is squarely applicable to the present

Appeal also. Non-production of the contraband before the trial Court has

caused a serious prejudice to the appellant. No plausible explanation

comes forward from the prosecution for non-production of the contraband. It

is certainly fatal to the case of the prosecution. It is well settled law that

higher the penalty stricter is the requirement of proof.

14. In view of the fact that the mandatory provision sunder section

52A of NDPS Act has not been followed in its entirety by the prosecution

the appellant is entitled for acquittal. Hence the following order:

ORDER

i) Criminal Appeal No.340/2003 is allowed.

ii) The judgment and order dated 7.5.2003 passed by the learned Special

Judge (NDPS Court), Nagpur in Special Criminal Case No.47/2001 is set

aside.

iii) The appellant is acquitted of the offence punishable under section

20(b)(i) of the NDPS Act.

(iv) Bail bond of the appellant shall stand cancelled.

JUDGE

sahare