Bombay High Court
Pyare Mohammad S/O Mohammad Isaq vs State Of Maharashtra,Thr.Pso.Ps ... on 19 December, 2017
Bench: R. B. Deo
apeal319of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.319 OF 2002
Pyare Mohammad s/o. Mohammad Isaq,
aged about 45 yars, Occ. Nil,
R/o. Teka, Nai Basti, Police Station
Pachpaoli, Nagpur ......APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer
Police Station Pachpaoli, Nagpur ....RESPONDENT
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Shri A.K. Bhangde, Advocate for Appellant.
Smt. Mayuri Deshmukh, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 01.09.2017
DATE OF PRONOUNCING THE JUDGMENT : 19.12.2017
The appellant is aggrieved by the judgment and order
dated 1.6.2002 delivered by the Special Judge (N.D.P.S. Court),
Nagpur, in Special Criminal Case 63 of 1994, by and under which,
the accused is convicted for offence punishable under section
20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act,
1985 and is sentenced to suffer rigorous imprisonment for two
years and to payment of fine of Rs. 5,000/-.
2 Heard Shri. A.K. Bhangde, the learned counsel for the
accused and Smt. Mayuri Deshmukh, the learned Additional Public
Prosecutor for the respondent / State.
Shri. A.K. Bhangde, the learned counsel for the appellant
assails the judgment and order impugned primarily on the ground
that the prosecution has failed to prove the search, seizure and
recovery of the narcotic substance (Ganja) from the accused. The
submission is since both the independent witnesses panch PW 2 -
Sham Joshi and panch PW 6 - Jagmohan Bhavar did not support
the prosecution, the learned Special Judge committed a serious
error in relying on the sole testimony, which according to the
learned counsel Shri. Bhangde is uncorroborated, of the Police
Officer Hemant Pali, who is examined as PW 1. The learned
counsel would submit that the prosecution could have
corroborated the testimony of PW 1 - Police Officer by examining
any other member of the police squad which included Police
Inspector - Mowade.
3 Per contra, Smt. Mayuri Deshmukh, the learned
Additional Public Prosecutor would submit that there is neither a
rule of evidence nor of prudence that conviction can not rest on
the sole testimony of the Police Officer. The reasons recorded by
the learned Special judge in believing the search, seizure and
recovery of Ganja from the accused are sound, contends the
learned Additional Public Prosecutor.
4 Having given due consideration to the evidence on
record, the submissions advanced and the reasons recorded by the
learned Special Judge, I am inclined to agree with Shri. A.K.
Bhangde, the learned counsel that the accused is entitled to the
benefit of doubt.
5 It is trite law that the more stringent the law and
harsher the punishment, the stricter must to the proof necessary to
deprive the accused of personal liberty.
6 Concededly, both the panch witnesses to the search,
seizure and recovery of the narcotic substance (Ganja) did not
support the prosecution. Extensive cross-examination failed to
extract any material to assist the prosecution. The prosecution
could have examined the superior officer of PW 1 Police Head
Constable Pali who arrived at the spot of the seizure and recovery
from the accused. The prosecution could have examined any
other member of the police squad. This has not been done.
7 It would be apposite to refer to the following
observations of the Hon'ble Apex Court in Makhan Singh v. State
of Haryana, 2015 CRI.L.J.3282.
"In the present case, since the vehicle was searched and
the contraband was seized from the vehicle, compliance
with Section 50 of the NDPS Act was not required. In the
absence of independent evidence connecting the appellant
with the fitter-rehra, mere compliance with Section 50 of
the NDPS Act by itself would not be sufficient to establish
the guilt of the appellant. It is a well settled principle of
the criminal jurisprudence that more stringent the
punishment, the more heavy is the burden upon the
prosecution to prove the offence. When the independent
witnesses PW 1 and DW 2 have not supported the
prosecution case and the recovery of the contraband has
not been satisfactorily proved, the conviction of the
appellant under section 15 of the NDPS Act cannot be
sustained".
The learned Single Judge of this Court in Manish Kumar
Tak Vs. State of Goa, 2002 ALL MR (Cri) 1049 was pleased to
observe thus:
"The next question that remains is whether the conviction
of the appellant can be sustained on the uncorroborated
testimony of P.W. 1 P.I. Mamledar. The prosecution had
an opportunity of tendering corroborative evidence by
examining Deputy Superintendent of Police A.K. Teli. A
summons was issued to Deputy Superintendent of Police
A.K. Teli at the behest of the prosecution but it appears
that Deputy Superintendent of Police A.K. Teli never came
to be examined. The evidence of P.W. 3 Gurunath Naik
and P.W. 4 P.I. Mamledar in respect of apprising the
appellant of his right under section 50 is discrepant.
Apart from that, since there is no other corroborative
evidence in respect of search of the appellant and the
consequent seizure of the contraband, i consider it highly
unsafe to rely on the solitary evidence of P.W. 4 P.I.
Mamledar for sustaining the conviction".
8 On a holistic appreciation of the evidence on record, I
consider it to be extremely unsafe and hazardous to allow the
conviction to rest on the sole testimony of Police Head Constable -
Pali - PW 1. The accused is entitled to be extended the benefit of
the doubt, which I do.
9 The judgment and order impugned is set aside.
10 The accused is acquitted of offence punishable under section
20(b)(i) of the Narcotic Drugs and Psychotropic Substances
(NDPS) Act.
11 The bail bond of the accused shall stand discharged and the
fine paid by the accused, if any, shall be refunded.
12 The appeal is allowed.
JUDGE
RS Belkhede, PA
