Bombay High Court
Shabaz Mohd. Husain Shaikh vs The State Of Maharashtra on 22 June, 2017
Bench: A.M. Badar
(209)APEALNo.13652011(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1365 OF 2011
Shabaz Mohd. Husain Shaikh
R/a. Master Chawl, Room No.1,
Koliwada Road, Opposite Karva
Building, Kalyan (W), Dist.Thane
(At present serving Sentence) ... Appellant
V/s.
The State of Maharashtra ... Respondent
.....
Ms.Nasreen Ayubi, Appointed Advocate for the Appellant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 22nd June 2017.
ORAL JUDGMENT :
1 The appellant/accused, by this appeal is challenging
the Judgment and Order dated 29 th August 2011 passed by the
learned Special Judge for N.D.P.S.Act for Greater Mumbai in
NDPS Special Case No.157 of 2007 thereby convicting him of the
offence punishable under Section 8(c) read with Section 20(b)(ii)
(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(herein after referred as "the N.D.P.S.Act" for the sake of brevity)
and sentencing him to suffer rigorous imprisonment for a period of
three months and to pay fine of Rs.10000/- and in default to
undergo further simple imprisonment for one month.
Gaikwad RD 1/10
(209)APEALNo.13652011(J)
2 Facts leading to the prosecution of the
appellant/accused, as could be gathered from the police report,
are thus :
(a) P.W.No.6 Kedari Krishna Pawar Police Sub-Inspector, at the
relevant time, was attached to the Azad Maidan Unit of Anti
Narcotic Cell, Mumbai. At about 23.00 hours of 02/02/2007,
he received information that persons named as Karim
Karbhari @ Akbar Lala, Kadar and Sayyed are indulging in
business of sale of charas - a narcotic substance. Shabaz
Mohd. Husain Shaikh (appellant/accused) is there associate
and he is coming to Navghar MHADA Colony Road on Eastern
Express Highway, Navghar, Mulund (E) for selling charas.
Necessary entry of this information was taken in the Station
Diary and the information so received was communicated to
Arunkumar Aigal, Police Inspector of Azad Maidan Unit, so
also the Assistant Commissioner of Police and the Deputy
Commissioner of Police, Mumbai.
(b) P.W.No.7 Arunkumar Aigal, Police Inspector then called his
staff and P.W.No.2 Rajaram Kale, Head Constable was
deputed to call panch witnesses. Accordingly, panch
witnesses were brought. Necessary material for conducting
raid including the testing kit, brass seal was collected. Panch
witness took search of the members of the raiding team, so
Gaikwad RD 2/10
(209)APEALNo.13652011(J)
also of the vehicle which was to be used for the purpose of
conducting the raid. Necessary pre-raid panchanama was
came to be prepared.
(c) The Raiding Team inclusive of panch witnesses then went to
Navghar MHADA colony by jeep. Members of raiding team
were divided in two groups. At about 5.15 a.m. of
03/02/2017, appellant/accused came from the side of the
Mulund Railway Station. P.W.No.6 Kedari Krishna Pawar, PSI
verified description of the appellant/accused and gave signal.
Accordingly, the appellant/accused came to be apprehended.
(d) According to the prosecution case, P.W.No.7 Arunkumar
Aigal, Police Inspector introduced himself as well as members
of the raiding team to the appellant/accused. Similarly, he
has informed the appellant/accused about his right to get
himself searched in the presence of the Gazetted Officer or
the Magistrate. But, the appellant/accused declined.
(e) Personal search of the appellant/accused was conducted.
Polythene packet containing black coloured substance came
to be recovered from his pocket of the pant. Testing small
quantity thereof by the testing kit reveals that it is charas.
Then two samples each of 10 grams were drawn from the
bulk which was weighing 230 grams. Those samples were
Gaikwad RD 3/10
(209)APEALNo.13652011(J)
kept in two polythene packets, which, in turn, were kept in
different envelopes. Those envelopes were then sealed. Post-
raid panchanama was then prepared.
(f) On return to the Anti Narcotic Cell, P.W.No.2 Rajaram Kale
lodged FIR, which resulted in registration of Crime No.57 of
2007 for the offence punishable under Section 8(c) read with
Sections 20 and 29 of the N.D.P.S. Act. Then the routine
investigation was followed. The seized muddemal was
deposited in the godown. Sample thereof was sent for
chemical analysis and on completion of routine investigation,
the appellant/accused came to be charge-sheeted for the
offence punishable under Section 8(c) read with Section
20(b) and Section 8(c) read with Section 29 of the
N.D.P.S.Act.
3 In order to bring home the guilt to the
appellant/accused, the prosecution has examined in all seven
witnesses. P.W.No.1 Durga Gawai, Police Constable had carried
muddemal to the Forensic Laboratory. P.W.No.2 Rajaram Kale,
Head Constable had brought panch witnesses and was member of
the raiding team. He lodged FIR (Exh.12). P.W.No.3 Dr.Shivaji
Daund is Medical Officer of Nagpada Police Hospital and he had
medically examined the appellant/accused and had drawn his
urine sample. P.W.No.4 Vijay Nimbalkar, Assistant Sub-Inspector
Gaikwad RD 4/10
(209)APEALNo.13652011(J)
was the Godown Keeper at Anti Narcotic Cell. P.W.No.5 Balu
Daundkar is Assistant Chemical Analyzer and he had conducted
test of sample sent to the Forensic Laboratory. P.W.No.6 Kedari
Krishna Pawar was the Police Sub-Inspector with Anti Narcotic
Cell who had received information regarding the conspiracy to sell
charas as well as possession of the charas. He also participated in
the raid. P.W.No.7 Arunkumar Aigal headed the raiding team and
he, at the relevant time, was Police Inspector of Anti Narcotic Cell
and was attached to Azad Maidan Unit.
4 After hearing the parties, the learned Special Judge by
the impugned Judgment and Order came to the conclusion that
the prosecution has exclusively proved possession of charas by the
appellant/accused in small quantity thereby making him liable for
the offence under Section 8(c) of the N.D.P.S.Act punishable
under Section 20(b) thereof. However, the learned Special Judge
held that the prosecution has failed to prove that the
appellant/accused had entered into a criminal conspiracy along
with absconded accused for the purpose of selling and
transporting the charas in contravention of the provisions of
Section 8(c) read with Section 29 of the N.D.P.S.Act.
5 I heard Ms.Ayubi, the learned Advocate appearing for
the appellant/accused. She vehemently argued that in the case in
hand, the prosecution has not complied with the mandatory
Gaikwad RD 5/10
(209)APEALNo.13652011(J)
provisions of Act while conducting the raid and while allegedly
seizing the contraband. She argued that the information given by
P.W.No.6 Kedari Krishna Pawar, Police Sub-Inspector was not
bearing his signature and as such, the same does not constitute
compliance of provisions of Section 42 of the N.D.P.S. Act. She
further argued that there is no compliance of Section 50 of the
N.D.P.S.Act by the raiding team and as such, the learned trial
Court erred in convicting the appellant/accused for the offence of
possession of narcotic substance.
6 The learned Additional Public Prosecutor supported
the impugned Judgment and Order of conviction.
7 I have carefully considered the rival submissions and
also perused the Record and Proceedings including depositions of
witnesses as well as documentary evidence.
8 The proceedings of laying down the trap and
conducting raid which allegedly resulted in recovery of 230 grams
of charas from possession of the appellant/accused were initiated
at the instance of P.W.No.6 Kedari Krishna Pawar, PSI attached to
the Anti Narcotic Cell.
9 As such, at the outset, let us examine his evidence. His
evidence shows that he receives secret information regarding the
Gaikwad RD 6/10
(209)APEALNo.13652011(J)
contraband at about 23.00 hours of 02/02/2007 and, therefore, he
passed on that information to P.W.No.7 Arunkumar Aigal after
reducing it in writing in the Station Diary. As per version of
P.W.No.6 Pawar, PSI he had also informed about the information
regarding transportation and possession of the narcotic substance
to the Assistant Commissioner of Police as well as the Deputy
Commissioner of Police telephonically and he received telephonic
order from the Deputy Commissioner of Police to conduct the raid.
Evidence of this witness in respect of forwarding the information
received to his immediate official superiors is gaining
corroboration from the contemporaneous record. The extract of
Station Diary at Exh.39 shows that the information about the
contraband, received by P.W.No.6 was recorded by him in the
Station Diary. The extract of Station Diary at Exh.39 further
shows that through the Police Head Constable B.No.12830, copies
of those Station Diary entries were forwarded to the superior
officer. The timing of this compliance reflected from the Station
Diary is 23.30 hours of 02/02/2007. The extract of Station Diary
entry at Exh.40 shows that the information so received and
recorded by P.W.No.6 Kedari Krishna Pawar, PSI is acknowledged
by the Senior Police Inspector, the Assistant Commissioner of
Police and the Deputy Commissioner of Police. This shows
compliance of Section 42 of the N.D.P.S.Act.
10 Congruous evidence of P.W.No.7 Arunkumar Aigal,
P.W.No.6 Kedari Krishna Pawar and P.W.No.2 Rajaram Kale, Head
Gaikwad RD 7/10
(209)APEALNo.13652011(J)
Constable shows that thereafter, P.W.No.2 Rajaram Kale, Head
Constable brought two panch witnesses and the panchas were
made aware about the purpose for which they were called. All
these three witnesses have categorically stated that panch
witnesses had taken search of the members of the raiding team as
well as the vehicle which was to be used, but nothing
objectionable was found. On this aspect, there is no material on
record elicited in the cross-examination to this very version of this
witnesses.
11 Now, let us examine what is the evidence regarding
apprehension of the appellant/accused at Navghar area of Mulund
in Mumbai. P.W.No.2 Rajaram Kale, Head Constable, P.W.No.6
Kedari Krishna Pawar, PSI and P.W.No.7 Arunkumar Aigal, PI
have stated in their evidence that they accompanied by other
police staff and panch witnesses and went to Navghar area of
Mulund by jeep and then police party formed two groups and kept
watch for the appellant/accused. These witnesses have further
stated that at about 5.15 a.m. of 03/02/2007, the appellant/
accused came from Mulund Railway Station and after his
verification by P.W.No.6 Kedari Krishna Pawar, PSI, he was
apprehended. Witnesses are consistent in saying that P.W.No.7
Arunkumar Aigal has cogently disclosed his right under Section 50
of the N.D.P.S.Act to the appellant/accused by stating him that his
personal search can be conducted by calling the Gazetted Officer
Gaikwad RD 8/10
(209)APEALNo.13652011(J)
or the Magistrate. However, the appellant/accused has declined
to exercise his right. Cross-examination of these witnesses does
not create any doubt on this version. Hence, it cannot be said that
the prosecution has contravened the provisions of Section 50 of
the N.D.P.S.Act in the case in hand.
12 Members of raiding team namely P.W.No.2 Rajaram
Kale, Head Constable, P.W.No.6 Kedari Pawar, Police Sub-
Inspector and P.W.No.7 Arunkumar Aigal have deposed that
during personal search of the appellant/accused, a polythene
packet containing 230 grams of blackish substance came to be
recovered and upon testing the same, it was found to be a charas -
a narcotic substance. As seen from evidence of these witnesses,
two samples, each weighing 10 grams, were separated and kept in
sealed envelopes.
13 Evidence of P.W.No.4 Vijay Nimbalkar, ASI, who was
working as Godown Keeper with the Anti Narcotic Cell, shows that
muddemal in this Crime No.57 of 2007 was deposited with him in
sealed condition and subsequently, he handed over a packet
containing the sample to P.W.No.1 Durga Gawai. Just only
because police statement of this witness is not recorded by the
Investigator, his otherwise fully trustworthy testimony cannot be
dislodged on this count alone.
Gaikwad RD 9/10
(209)APEALNo.13652011(J)
14 P.W.No.1 Durga Gawai, Police Constable carried the
sealed sample to the Forensic Laboratory at Kalina on 03/02/2007
and P.W.No.5 Balu Daundkar, Assistant Chemical Analyzer
received the same in sealed condition, as seen from his evidence.
Evidence of P.W.No.5 Balu Daundkar shows that he conducted test
and found the sample to be that of 'a charas'. Exhibit 31 is the
report of the Chemical Analysis of the sample by P.W.No.5 Balu
Daundkar, Assistant Chemical Analyzer.
15 With this evidence, one has to conclude that the
appellant/accused was found in possession of 230 grams charas at
about 5.30 a.m. of 03/02/2007 in contravention of provisions of
the N.D.P.S.Act and, therefore, he came to be convicted for the
offence punishable under Section 8(c) read with Section 20(b)(ii)
(A) of the N.D.P.S.Act. No infirmity can be found in the impugned
Judgment and Order of conviction as well as sentence of the
appellant/accused. In the result, the appeal fails and, therefore,
the order :
(i) The Appeal is dismissed.
(A.M.BADAR J.)
Gaikwad RD 10/10
