Bombay High Court
Santosh Bhagwan Waghmare And ... vs The State Of Maharashtra on 4 May, 2017
Bench: V.L. Achliya
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.265 OF 2014.
WITH
CRIMINAL APPEAL NO.105 OF 2016.
1) Santosh s/o Bhagwan Waghmare,
age 28 years, Occu. Labour,
r/o Mahatma Gandhi Kushtadham Colony,
Latur.
2) Madhav @ Sadhu s/o Rama Ambade,
age 21 years, Occu. Labour,
r/o Mahatma Gandhi Kushtadham
Colony, Latur. ... APPELLANTS.
( Ori. Accused Nos.1 & 4)
Versus
The State of Maharashtra. ... RESPONDENT.
...
Advocate for appellants : Mr.Zia Ul Mustafa & Smt.Preeti
R. Wankhede (appointed).
APP for State : Mr.A.A. Jagatkar.
...
WITH
CRIMINAL APPEAL NO. 105 OF 2016
1) Kacharu s/o Shesherao Jogeshwari,
age major, occu. Nil,
Orig. r/o Mahatma Gandhi Kusthdham,
Colony, Latgur, Dist. Latur,
presently at Central Prison,
Aurangabad. ... APPELLANT.
( Ori. Accused No.2)
Versus
The State of Maharashtra. ... RESPONDENT.
::: Uploaded on - 09/05/2017 ::: Downloaded on - 10/05/2017 00:04:29 :::
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2
...
Advocate for Appellant : Mr.R.D. Sanap (appointed).
APP for State : Mr.A.A. Jagatkar.
...
CORAM : V.L. ACHLIYA, J.
Reserved on: 21.02.2017.
Pronounced on: 04.05.2017.
JUDGMENT:
These appeals are directed against the judgment
and order dated 25.03.2014 passed by the Additional
Sessions Judge-2, Ambejogai in Special Case
No.01/2007. By the impugned judgment and order, the
appellants are held guilty of the offence punishable
under Section 20(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred
to as "N.D.P.S. Act") and sentenced to suffer R.I. for ten
years and to pay fine of Rs.1,00,000/- each, in default of
payment of fine, to suffer S.I. for two years and six
months.
2. Briefly stated, the case of the prosecution is that on
10.9.2007 Moinkhan Sattarkhan Pathan (P.W.1) Police
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Head Constable attached to Railway Police Station, Parali
was assigned patrolling duty. Police Constable Tapade
B.No.458 and Police Constable Siddiqui B.No.312 were
also assigned patrolling duty. At about 21.15 Hrs. all of
them boarded the train going towards Hyderabad. They
alighted at Udgir station. At about 4 a.m. in the
midnight, they boarded Hyderabad - Aurangabad
passenger train and started checking the bogie at each
railway station. At about 4.45 a.m., while they were
checking the bogie No.87401. They found accused
persons sitting at Seat Nos.12, 13, 14 and 15. On
suspicion, they made enquiry with the accused persons.
They gave evasive reply and found to be frightened.
Therefore, they made enquiry with the accused about the
goods lying below their seats. When they took out those
two bags for checking, they found the bags to be
containing contraband article "Ganja". On making
enquiry, the accused disclosed that they had purchased
the said contraband article from Bidar and they are
going to sell the same at Latur. All the four accused
persons were brought to Parali Railway Police Station
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and produced before P.S.I. Shaikh Aslam Abdul Rahim
Bamusa Chause (P.W.5) then called the Naib Tahsildar,
Panchas and the official from Weights and Measures
department for taking search and weighing the
contraband article. Ganpat Sirsat (P.W.4) as well as
Dadarao Munde (P.W.2) Panch witnesses, Somnath
Rajaram Mahajan, Inspector of legal metrology (P.W.3)
measured Ganja found in the bags in possession of
accused persons. Samples were drawn for the purpose
of sending the same to Chemical Analyzer. Panchanama
was drawn. P.S.I. Chause (P.W.5) informed his superior
officer about the persons found with huge quantity of
contraband article. The accused were found to be
possessing about 30 Kgs. of contraband article. P.S.I.
Chause (P.W.5) lodged complaint in respect of incident.
On the basis of complaint lodged, offence under Section
20(b) of the N.D.P.S Act came to be registered against
accused vide CR No.6001/2007. Muddemaal property
seized was deposited in Maalkhana. Later on, the
samples drawn were referred to Chemical Analyzer. On
completion of investigation, charge-sheet was prepared
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and filed in the Court of Additional Sessions Judge,
Ambejogai, District Beed. The accused were charged
under Section 20(b) of the N.D.P.S Act with allegation
that they were found in possession of 30 Kgs. and 900
gms of Ganja. All the accused pleaded not guilty and
claimed to be tried.
3. In order to prove its case, the prosecution has
examined five witnesses. The accused have not entered
into defence. On the basis of the evidence of the
prosecution witnesses and the statements of the accused
recorded under Section 313 of Cr.P.C., defence of the
accused appears to be of total denial and false
implication. In nutshell, the accused have taken defence
that they were caught while travelling without ticket.
Later on, they were falsely implicated in the case of
possessing contraband article. On conclusion of trial,
the appellants i.e. accused Nos.1, 2 and 4 are held guilty
of offence punishable under Section 20(b) of the N.D.P.S
Act and sentenced to suffer R.I. for ten years and to pay
fine of Rs.1,00,000/- each, in default of payment of fine,
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to suffer S.I. for two years and six months. Accused No.3
Suresh s/o Nivrutti Shinde was held guilty of offence
punishable under Section 20(b) of the N.D.P.S. Act and
sentenced to suffer R.I. for fifteen years and to pay fine
of Rs.1,50,000/- each, in default of payment of fine, to
suffer S.I. for three years. Being aggrieved, accused No.3
has not preferred appeal. However, appellants i.e.
accused Nos.1, 2 and 4 preferred the present appeals.
4. I have heard submissions advanced by learned
Counsel for appellants and APP for the State at length
and carefully considered the record & proceedings.
5. In order to prove its case, prosecution has
examined five witnesses. The conviction of the appellant
is mainly based upon the testimony of Moinkhan Pathan
(P.W.1) who is alleged to have found the accused in
possession of contraband article i.e. Ganja in a train
proceeding from Hyderabad towards Aurangabad. He is
testified before the Court as per (Exh.38). He deposed
that on 10.9.2007, he was assigned patrolling duty along
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with Police Constables Tapade and Siddiqui. In
discharge of their duty, they were checking the passenger
train. In the midnight i.e. on 11.9.2007 at about 4 a.m.,
he boarded in train No.359 proceeding from Hyderabad
towards Aurangabad. At 4.45 a.m., while the train was
proceeding from Chakur to Latur and he was checking
passengers in bogie No.87401, he found accused Nos.1
to 4 travelling in that bogie and sitting on seat Nos.12,
13, 14 and 15. The conduct of the accused persons was
found to be suspicious. When he made enquiry with
accused, they gave evasive answers and also found to be
frightened. He, therefore, along with two constables
accompanying him, made enquiry with the accused
about the goods lying below their seats, the accused told
them that the bags belong to them. On checking the
bags, those bags were found to be containing Ganja. He,
therefore, brought those persons to Police Station Parli
(Railway) with the help of other two constables
accompanying him. On making enquiry with the
accused persons, they disclosed their names and further
revealed that they had purchased the contraband article
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Ganja from Bidar and they were proceeding to Latur to
sell the same. He further deposed that after reaching
police station Parali, he gave report to P.S.I. Chause
(P.W.5) vide Exh.39 and produced the accused with the
bags which they were found in possession. In the cross-
examination, the witness has admitted that except two
bogies, all other bogies attached to the said train were
general bogies. He admitted that the bogies in which the
accused were travelling, each and every seat was
occupied by the passengers. He has admitted that he
had not checked tickets of accused persons. He had
also admitted that he has not taken any personal search
of the accused. He deposed that he and his colleagues
took out bags lying below the seats of the accused
persons and also admitted that those bags were in their
custody till they reached Parli Vaijnath railway station.
In further cross-examination, the witness admitted that
he had given report at Parli Vaijnath Police station at
7.30 a.m. He had admitted that in the report made by
him, he has not given description of bags.
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6. In order to corroborate the testimony of the
Moinkhan Pathan (P.W.1), prosecution has not examined
any independent witness. So also, constables who
accompanied Moinkhan Pathan (P.W.1) were also not
examined by the prosecution.
7. Prosecution has examined Dadarao Munde (P.W.2)
panch witness. His testimony is at Exh.46. He deposed
that on 11.9.2007 at about 1.15 p.m. he was called at
police station Parli by PSI Chause (P.W.5). When he
came to police station, the another panch Syed was
accompanying him. PSI Chause (P.W.5), Naib Tahsildar
and Inspector, Weights and Measures and Railway
Superintendent were present in the police station. So
also, accused were present at the police station. He
deposed that PSI Chause (P.W.5) told him that he is
about to take personal search of four accused persons
and asked him to help him in taking search. He deposed
that accused were asked to open the bags. The bags
were found to be containing Ganja. Inspector Mahajan
then measured the quantity of Ganja in each bags and
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sample containing 100 gms of Ganja was separately
drawn from each of the bags and then sealed and labeled
the same. The seizure panchanama is at Exh.47.
8. Prosecution has further examined Somnath
Mahajan (P.W.3) Inspector of Legal Metrology
Department, who measured the quantity of Ganja. He
deposed that on 11.9.2007 at about 9.50 a.m. while he
was present in his office, police Naik attached to police
station Parli came with a letter addressed to him from
PSI, Railway Police Station, Parli. By the said letter, PSI
has informed that four persons were illegally found in
possession of Ganja in Hyderabad - Aurangabad
passenger train and asked him to attend the police
station with weights and measure. Accordingly, he
visited police station at 1 p.m. He further deposed in
detail about the quantity of Ganja found in each of the
bags. He categorically deposed that from each bag,
sample of 100 gms was drawn. The sample of 100 gms
drawn from each bag was then divided into four parts
weighing 25 gms each and put in separate envelope and
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those envelopes were sealed, labeled with signatures of
panch witnesses.
9. Prosecution has examined the Naib Tahsildar
Ganpat Sirsat (P.W.4) vide Exh.60. He deposed that on
11.9.2007 he received letter from Officer of Railway
Police Station, Parli. By the said letter, the Officer had
requested him to attend police station for panchanama in
respect of narcotic substance. He attended the police
station at 1 p.m. In his presence, the Inspector of
Weights and Measures Department and in presence of
two witnesses, the bags were opened and in those bags,
Ganja was found; the same was measured. After
separately measuring the quantity of Ganja from each of
the bags, sample admeasuring 100 gms was drawn and
same was sealed and labeled. He deposed that accused
were present at the police station and the bags were lying
in front of the accused persons.
10. Prosecution has lastly examined PSI Chause
(P.W.5) - the Investigating Officer. He deposed as per
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case of the prosecution. He deposed that on 11.9.2007
he received information on his mobile phone from police
constable Moinkhan Pathan (P.W.1) that while he was on
patrolling duty with other two constables, they found
four suspected persons in bogie No.87401 and on
checking their baggage, they were found to be containing
Ganja. They informed him that they are at police station
with those four suspects. After receiving information on
mobile phone, he informed the fact to his superior and
then sent letter to Tahsildar to attend his office and also
instructed to bring two respectable panchas. He further
deposed that he also gave letter to the Inspector, Weights
and Measures to attend the police station with weights
and measure. He deposed that in presence of panch
witnesses, Naib Tahsildar the bags found in possession
of the accused were opened and the quantity of Ganja
found in the bags was separately measured and then,
panchanama was prepared. He further deposed that
muddemal property seized, was deposited in the safe
custody and later on, samples were sent to the Chemical
Analyzer.
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11. On due consideration of the submissions advanced
by the learned Counsel for the appellants and APP
appearing for the State in the light of oral and
documentary evidence on record, I am of the view that
the prosecution has failed to prove its case beyond
reasonable doubt. As discussed, the case of the
prosecution is mainly based upon the testimony of Police
Head Constable Moinkhan Pathan (P.W.1). Prosecution
has neither cited nor examined any independent witness.
It is strenuously contended by the learned Counsel for
the appellants that there is no cogent, convincing and
reliable evidence to sustain conviction. It is pointed out
that except the testimony of Moinkhan Pathan (P.W.1),
there is no other corroborative evidence to show that the
appellants - accused were travelling in the Hyderabad -
Aurangabad passenger train and they were in conscious
possession of the contraband article i.e. Ganja. By
referring the testimony of Moinkhan Pathan (P.W.1), it is
pointed out that all the seats in the railway bogie were
occupied by passengers. Not a single passenger has
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been cited as a witness for prosecution. Except the
testimony of Police Head Constable Moinkhan Pathan
(P.W.1), there is no evidence to show that the accused
were travelling by the said train on seat Nos.12, 13, 14
and 15. So also there is no credible evidence that the
bags in question were lying below the seats where the
accused were sitting. So also, there is no evidence to
show that the accused were in conscious possession of
alleged contraband article. Moinkhan Pathan (P.W.1)
has deposed that the personal search of accused was not
taken. He had not checked as to whether accused were
carrying railway tickets. Nothing was found in the
alleged bags to connect the appellants with the bags in
which alleged contraband article was detected.
12. On the other hand, learned APP appearing for the
State submitted that only for the reason that no
independent witnesses have been examined, the case of
the prosecution cannot be rejected. In support of the
submission, learned APP has referred and relied upon
the decision of the Apex Court in the case of Kul Winder
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Singh and another vs. State of Punjab1.
13. On the other hand, learned Counsel representing
appellants submits that no reliance can be placed upon
the sole testimony of Moinkhan Pathan (P.W.1), Police
Head Constable as he is an interested witness. It is
further submitted that the testimony of Moinkhan
Pathan (P.W.1) is shrouded with suspicion. It is pointed
out that as per the testimony of Moinkhan Pathan
(P.W.1), the alleged checking was made at around 4.45
a.m. Moinkhan Pathan (P.W.1) has deposed that he
reached Parli Police Station at around 7 to 7.30 a.m. The
alleged panchanama is shown to have been made in
between 1 to 1.45 p.m. Offence was registered at about
5 p.m. No explanation has been put forth as to the delay
in carrying out panchanama as well as lodging F.I.R. It
is further pointed out that P.S.I. Chause (P.W.5) who
lodged the complaint, he himself conducted the
investigation. It is further submitted that in order to
establish the guilt under Section 20(b) of the N.D.P.S.
1 2016(2) Mh.L.J.(Cri.)(S.C.)7;
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Act, it is not sufficient for the prosecution to show that
accused was found in possession of contraband article;
but, it is incumbent upon the prosecution to prove that
the accused were found in conscious possession of the
contraband article.
14. In the case of Girija Prasad (Dead) through L.Rs.
vs. State of M.P.2, the Apex Court has observed that the
credibility of witness has to be tested on the touchstone
of truthfulness and trustworthiness. It is further
observed that it is quite possible that in a given case, a
Court of Law may not base conviction solely on the
evidence of Complainant or a Police Official but it is not
the law that police witnesses should not be relied upon
and their evidence cannot be accepted unless it is
corroborated in material particulars by other
independent evidence. It is further observed that there is
no rule of law which lays down that no conviction can be
recorded on the testimony of Police Officials even if such
evidence is otherwise reliable and trustworthy. What is
2 (2007)7 SCC 265;
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required is the rule of prudence to be more careful while
scrutiny of evidence of such witness. Once the Court is
convinced that what was stated by a witness has a ring
of truth, conviction can be based on such evidence.
Thus, the legal position is quite settled as to acceptance
of testimony of police official. In this view, the testimony
of Moinkhan Pathan (P.W.1) cannot be rejected or
discarded for the reason that the prosecution has not
examined any independent witness. However, the rule of
prudence requires that before acting upon the testimony
of such witness, testimony of such witness needs to be
scrutinized very carefully and to guarantee truthfulness
of fact deposed of such witness, insist for corroboration.
On careful and close scrutiny of testimony of Moinkhan
Pathan (P.W.1), I am of the view that his testimony is not
of such a nature on which court can place implicit
reliance without corroboration. In order to prove guilt for
the offence punishable under Section 20(b) of N.D.P.S.
Act, it is incumbent upon the prosecution to prove that
the accused was found in conscious possession of the
contraband article. It has come on record that all the
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seats in the railway bogie in which accused are alleged to
have been travelling, were occupied. The accused were
found travelling in general bogie. There is no iota of
evidence to show that the accused were travelling in the
said bogie. No railway tickets or any evidence gathered
to establish that they were travelling in the said bogie
and the alleged bags were kept by them below the seats
where they were found to be sitting. There is no other
evidence to show that the accused were found boarding
the train with those bags. So also, there is no evidence
to show that the accused had kept the bags below the
seats where they were sitting. If we consider the
testimony of Moinkhan Pathan (P.W.1), then according to
him, the accused were sitting on seat nos.12,13,14 and
15. On suspicion, enquiry was made and they found to
be frightened. On checking the bags lying below their
seats, the alleged contraband article was found in the
bags. Thus, the testimony of Moinkhan Pathan (P.W.1)
no way establishes the link that the accused boarded
the train with the alleged bags and they kept the bags
below their respective seats. Only for the reason that the
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bags were lying below the seats where they were found to
be sitting in itself is not sufficient to establish that the
accused were found in conscious possession of the
alleged contraband article. In this context, learned
Counsel appearing for the appellants has placed reliance
on the decision of this Court in the case of Pralhad s/o
Lalna Koylawar vs. The State of Maharashtra 3,
wherein, in a case similar to the facts of the prosecution
case, the conviction was set aside and accused were
acquitted. In para 8, the Court has observed, as under:
"8. The version of PW Devidas reveals that the
bag was found lying unattended on the rack. He
suspected that the appellants were the owners of
the bag. No witness was examined to show that
either of the appellants was found entering the
bogie No.4 alongwith the said bag. The solitary
version of PW Devidas falls too short to establish
into "conscious possession" of the said bag with the
appellants. The offence is of serious nature.
Obviously, the prosecution is required to prove the
offence beyond reasonable realm of doubt. The
presence of the cloth bag on a berth / rack of the
Railway compartment coupled with the presence of
the appellants in the same compartment by itself is
insufficient to positively infer their complicity."
3 [2008(2) B Cr.C 39];
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15. The learned Counsel for the appellants further
placed reliance on the decision in case of Mahant Bal
Giri and Anr vs. State of H.P.4 wherein, it has been held
that unless the possession is coupled with the requisite
mental element i.e. conscious possession, Section 20 of
the N.D.P.S.Act is not at all attracted.
16. On the other hand, learned APP strenuously
contended that once the possession is proved, the
accused is presumed to be in conscious posession. In
support of the submission, learned APP has referred and
relied upon the decision of the Apex Court in case of Kul
Winder Singh and another (supra). He has further
submitted that once physical possession of contraband
article by accused is proved by prosecution, presumption
as to the culpable mental state that accused were in
conscious possession of contraband article raises in
favour of prosecution and burden shifts on accused to
prove that he was not in conscious possession of
contraband article. In support of this submission,
4 2008 CRI.L.J. 2648 (HP);
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learned APP placed reliance upon the decision of Apex
Court in case of Baldev Singh vs. State of Haryana5.
17. On due consideration of the submissions advanced,
the question which poses for my consideration is whether
the prosecution has proved that accused were found in
possession of contraband article. As discussed above,
except the testimony of Moinkhan Pathan (P.W.1), there
is no other evidence to show that the accused were found
in possession of alleged contraband article. The
testimony of Moinkhan Pathan (P.W.1) is not such to
place implicit reliance on it. Although, independent
witnesses were available, the prosecution has not
recorded the statement of the witnesses who were
travelling in the same bogie and particularly, the
compartment in which the accused were alleged to be
travelling with the alleged contraband article. As per the
testimony of Moinkhan Pathan (P.W.1), the fact regarding
finding of the accused in possession of contraband
article, revolves around 4.45 a.m. in the midnight on
5 2015 ALL MR (Cri) 4967(S.C.);
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11.9.2007. There was no information passed on by
Moinkhan Pathan (P.W.1) to his superior officer
immediately after the contraband article found in
possession of the accused. It has come on record that
the train was stopped at each and every stoppage. There
is no station entry to show that immediately the
information was passed on to concerned police station.
Moinkhan Pathan (P.W.1) has deposed that the bogie was
heavily crowded by passengers travelling to Shirdi. He
deposed that he reached police station (Railway), Parli
Vaijnath at 7.30 a.m. He nowhere deposed that he
contacted the superior officer i.e. Officer-in-Charge of the
police station and informed him about the accused being
caught with huge quantity of Ganja.
18. If we consider the testimony of Investigating Officer,
P.S.I. Chause (P.W.5), then he deposed that on
11.9.2007, he received information on mobile phone from
Police Head Constable Moinkhan Pathan (P.W.1) that
four suspected persons were found in the bogie No.8740
with bags containing Ganja lying below their seats and
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they were at Parli Police Station (Railway). However,
Moinkhan Pathan (P.W.1) did not depose that he made
phone call to PSI Chause (P.W.5). Though Moinkhan
Pathan (P.W.1) reached the police station with the
accused and alleged bags at 7.30 a.m., no panchanama
was carried out immediately thereafter.
19. Dadarao (P.W.2) panch witness examined by
prosecution has deposed that at about 1 p.m., he was
called at the police station Parli for the purpose of
panchanama. Somnath Mahajan (P.W.3) has deposed
that he received letter from officer of police station, Parli
at about 9.50 a.m. to attend police station with weighing
machine and weight measures for weighing Ganja found
in illegal possession of four persons travelling in
Hyderabad - Aurangabad passenger train. He deposed
that he went to police station at 1 p.m.
20. Ganpat Sirsat (P.W.4) has deposed that one letter
came to the Tahsildar from Railway Police Station
requesting the Tahsildar to attend for panchanama of
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narcotic substance. On the direction of Tahsildar, he
attended the police station and in his presence,
contraband articles found in the bags were measured.
Seizure panchanama at Exh. 47 reflects that the
panchanama of all four bags was made at same time i.e.
in between 1 to 1.45 p.m. No explanation has been
offered as to the delay in carrying out the panchanamas.
So also the F.I.R. was registered at around 3.30 p.m.
Therefore, the delay in carrying out the panchanama and
registration of FIR raises suspicion as to the truthfulness
of the overall case of the prosecution and the testimony
of Moinkhan Pathan (P.W.1) and PSI Chause (P.W.5).
The evidence of Moinkhan Pathan (P.W.1) is not as such
which can be relied in absence of corroboration that too
in an offence relating to N.D.P.S. Act. I am, therefore, of
the view that in absence of independent witness, it is
highly unsafe to base the conviction on the sole
testimony of Moinkhan Pathan (P.W.1).
21. As discussed, there is no cogent and convincing
evidence to sustain the conviction. The prosecution has
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not proved that the bags found lying below the seats
were belonging to the accused, as no witness has been
examined to tell that he had seen the accused carrying
those bags and keeping the same below their seats after
boarding the train. The train was full of passengers. The
bogie was general compartment. In the facts and
circumstances of the case, the possibility cannot be ruled
out that some one else may have kept those bags below
the seats where the accused found to be sitting. In
absence of evidence to establish the nexus between the
accused and the bags lying below their seats, it is highly
unsafe to base the conviction on the sole testimony of
Moinkhan Pathan (P.W.1). Failure to establish the
possession, there is no question of any presumption
being drawn that the accused were found in conscious
possession of the contraband article and to lead evidence
in rebuttal on the part of the accused to dispel the
presumption.
22. If, we consider the overall testimony of the
prosecution witnesses, then there is no cogent and
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convincing evidence to establish that the accused were
found in possession of contraband article. The
testimonies of witnesses examined by the prosecution are
inconsistent and contradict each other. If we consider
the testimony of Moinkhan Pathan (P.W.1) then he has
not specifically stated as to how many bags were lying
below the seats where the accused were found sitting.
Moinkhan Pathan (P.W.1) has deposed that two bags and
two Pishvis were found below the seats and in those bags
and Pishvis, contraband article Ganja was found.
Moinkhan Pathan (P.W.1) has filed report vide Exh.39
with P.S.I. Chause (P.W.5) after reaching to Police
Station. In the report filed, no description of the bags
has been given. He has also not mentioned as to how
many bags were found below the seats. He has admitted
that in report Exh.39, he has not given description of the
bags. He admitted that it is not mentioned in the report
Exh.39 that there were two airbags and two bags found
below the seats. Moinkhan Pathan (P.W.1) has not
deposed as to the quantity of Ganja in each bag.
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23. If we consider the testimony of Dadarao (P.W.2)
then according to him, Inspector Mr. Mahajan from
Weights and Measurement Department has measured
quantity of Ganja from each bag separately. He has
deposed that from each of the bags after weighing Ganja,
100 gms of Ganja was taken out as sample and same
was put in a packet and sealed and labeled with their
signatures. Thus, if we consider the testimony of panch
witness Dadarao (P.W.2), then according to him from
each bag sample of 100 gms was drawn and they were
separately put in packet, sealed and labeled as a sample
to be sent to Chemical Analyzer. If we consider the
seizure panchanama (Exh.47), then it is recorded that
from each bag sample of 100 gms of contraband article
was taken out, put in packet and sealed with labels
containing signatures of panch witnesses. Whereas,
Somnath Mahajan (P.W.3), Inspector of Legal Metrology
Department, who was summoned for measuring the
contraband article has given altogether different version
and deposed that from each of the bags, initially 100 gms
of contraband article was taken out. He had handed
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over that quantity of Ganja to PSI Chause (P.W.5). PSI
Chause (P.W.5) then divided each sample of 100 gms in
four part with each packet of 25 gms and then each of
those 25 gms packets was separately sealed and labeled
with the signatures of panch witnesses. Thus, according
to Somnath Mahajan (P.W.3), from each bag sample of
100 gms was taken out. The Investigating Officer, then
divided that 100 gms into four parts of 25 gms each and
put in separate packet and sealed and labeled each
packet of 25 gms each. Thus, there is no consistency
amongst the testimonies of Dadarao (P.W.2) and
Somnnath Mahajan (P.W.3) about drawing of samples of
the contraband article for the purpose of sending to
Chemical Analyzer. Thus, it raises serious doubt as to
overall seizure made as well as sample drawn for the
purpose of Chemical Analyzer. In the requisition letter
dated 17.9.2007 sent to the Chemical Analyzer, there is a
reference of forwarding of only four packets of sample
containing 100 gms of Ganja. If we consider the
testimony of Somnath Mahajan (P.W.3), then no such
sealing of four packets containing 100 gms of Ganja was
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made at the time of effecting panchanama for sending
the samples to the Chemical Analyzer.
24. Prosecution has not examined the carrier who
collected the sample and deposited with the Chemical
Analyzer. There is no evidence adduced by the
prosecution to show at what time and with whom the
Muddemaal property was deposited by the concerned
official. There is no evidence to show as to when the
Muddemaal property was taken out for sending to
Chemical Analyzer. In this view, there is no cogent and
convincing evidence to establish and prove that the
samples, which were drawn vide panchanama (Exh.47),
were sent in same condition to the Chemical Analyzer. If
we believe the testimony of Somnath Mahajan (P.W.3),
then no such packets containing 100 gms of contraband
articles were prepared, sealed and affixed with label
containing signatures of panch witnesses. As per the
fact deposed by Ganpat Sirsat (P.W.4), though 100 gms
sample was drawn from each of the bags, the
Investigating Officer divided the same into four parts of
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25 gms each and those packets were separately sealed
and labeled. Whereas, as per requisition letter Exh.79
four packets containing 100 gms of Ganja were sent to
Chemical Analyzer for analysis. Thus, there is no
satisfactory evidence that samples sent to Chemical
Analyzer were sent in same condition as they were
sealed. P.S.I. Chause (P.W.5) has not deposed anything
about the same.
25. If we consider the overall evidence, then there is no
cogent, convincing and reliable evidence to conclusively
establish that accused were found in possession of
contraband article. As discussed, the fact regarding the
alleged possession of contraband article and commission
of offence was disclosed at 4.45 a.m. on 11.9.2007. The
offence was registered on the basis of complaint lodged
by PSI Chause (P.W.5) vide Exh.69 at about 15.30 Hrs.
on 11.9.2007. No explanation has been put forth as to
why offence was not registered when the accused
produced in the police station with contraband article at
7.30 a.m. and Moinkhan Pathan (P.W.1) submitted
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report vide Exh.39. In absence of explanation as to delay
in lodging report as well as panchanama and overall
facts of the case and evidence discussed as above, the
possibility cannot be ruled out that the complaint was
lodged after due discussion and deliberation. The delay
in panchanama and registration of offence itself raise
serious doubt as to truthfulness of overall case of
prosecution.
26. In my view, the judgment and order passed by the
trial Court is perverse and based upon improper
appreciation of evidence on record. There is no cogent,
convincing and reliable evidence to sustain the
conviction. The conviction is based upon sole testimony
of Police Head Constable Moinkhan Pathan (P.W.1).
There is no independent corroboration to the testimony
of the said witness. Although, number of passengers
were travelling in the bogie, none of them was cited and
examined as a witness to corroborate the testimony of
Moinkhan Pathan (P.W.1). No one has seen the accused
carrying the bags and putting them below the seats
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where they were sitting. There was delay in conducting
panchanamas as well as lodging report. No explanation
has been put forth as to the delay made in that regard.
There is no consistency in the testimonies of the
prosecution witnesses as to drawing and sealing of the
sample. The charge framed against the accused is also
found to be defective. There are no cogent and
convincing reasons recorded by the learned Judge in
support of conclusion of guilt of the accused under
Section 20(b) of the N.D.P.S. Act. On the contrary, the
reasons recorded by the learned Judge appears to be
very cryptic. No evidence as such has been discussed in
the judgment to support the conclusions.
27. If we consider the judgment, then it is nothing but
narration of the testimonies of the witnesses and
arguments advanced by the learned APP and the
Advocate defending the accused. It is rather surprising
to take note that the learned Judge himself observed that
prosecution has proved its case more than 50% and
therefore, accused are not entitled for benefit of doubt
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and required to be held guilty of offence punishable
under Section 20(b) of the N.D.P.S. Act. The
observations made in para 32 of the judgment reads, as
under:
"32. The prosecution has proved their case from
probability to possibility and more than 50%
certainty. In that event accused Nos.1 to 4 are not
entitled for benefit of doubt. Hence, I answer point
No.1 and 2 in affirmative holding that accused
Nos.1 to 4 are guilty of offence under Section 20(b)
of the N.D.P.S. Act."
28. What has been observed itself reflects that the
learned Judge of the trial Court has convicted the
accused though found prosecution has failed to prove the
guilt beyond reasonable doubt. In this context, the
learned Counsel for appellants have placed reliance on
decision of apex Court in the case of Sohan and
another vs State of Haryana and another6 wherein, in
para 21 the Court has observed, as under:-
"21. An accused is presumed to be innocent until he is
found guilty. The burden of proof, that he is guilty, is on
the prosecution and that the prosecution has to
establish its case beyond all reasonable doubts. In other
words, the innocence of an accused can be dispelled by
6 (2001) 3 SCC 620;
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the prosecution only on establishing his guilt beyond all
reasonable doubts on the basis of evidence. In this case,
if only the Sessions Judge had reminded himself of the
above-mentioned basic or fundamental principles of
criminal jurisprudence, direction of his approach and
course of his appreciation of evidence would have been
different and thereby perversity in appreciation of
evidence could have been avoided."
29. In this view, the judgment and order passed by the
trial Court is perverse and liable to be set aside. In the
facts and circumstances of the case and evidence as
discussed above, the conviction is not sustainable. The
accused deserves to be given benefit of doubt. I am,
therefore, inclined to allow the appeals and set aside the
impugned judgment and order passed by the trial Court
and acquit the appellants by giving them benefit of
doubt. Hence, the following order:
: ORDER :
i) Criminal Appeal No.265/2014 and
Criminal Appeal No.105/2016 are allowed;
ii) The judgment and order dated
25.03.2014 passed by the Additional Sessions
Judge-2, Ambejogai in Special Case
No.01/2007 is set aside to the extent of
appellants;
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iii) Appellants in Criminal Appeal
No.265/2014 i.e. Santosh s/o Bhagwan
Waghmare (Ori. accused No.1) and Madhav @
Sadhu s/o Rama Ambade (Ori. Accused No.4)
and appellant in Criminal Appeal
No.105/2016 i.e. Kacharu s/o Shesherao
Jogeshwari (Ori. Accused No.2) are hereby
acquitted of the offence punishable under
Section 20(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. They be
set at liberty forthwith, if not required in any
other case. Fine amount, if any, deposited by
them, be refunded;
iv) Fees of Mr.R.D. Sanap, Advocate
(appointed) for the appellant in Criminal
Appeal No.105/2016 and Smt. P.R.
Wankhede, Advocate (appointed) for
appellants in Criminal Appeal No.265/2014 is
quantified at Rs.3000/- (Rupees Three
thousand) to be payable to each of them. The
High Court Legal Services Sub Committee,
Aurangabad to pay the same.
[ V.L. ACHLIYA, J ]
Kadam.
