Bombay High Court
Sheikh Salim Sheikh Chand vs State Of Maharashtra on 6 November, 2017
Bench: I.K. Jain
apeal.143.03.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.143 OF 2003
Sheikh Salim Sheikh Chand,
Aged about 35 years, Occupation : Labourer,
R/o Ratanganj, Amraoti. .... Appellant
-- Versus -
State of Maharashtra,
through P.S.O. Nagpurigate,
Amraoti. .... Respondent
Shri A.K. Bhangde, Advocate for the Appellant.
Shri R.S. Nayak, A.P.P. for the Respondent .
CORAM : KUM. INDIRA JAIN, J.
DATE : NOVEMBER 6, 2017.
ORAL JUDGMENT :-
This is an appeal by the accused, who was convicted
by the learned Additional Sessions Judge, Amravati vide
judgment and order dated 31/01/2003 of the offence punishable
under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for
short) and sentenced to undergo rigorous imprisonment for three
years with fine of Rs.10,000/-, in default to undergo rigorous
imprisonment for six months.
02] For the sake of convenience, appellant is referred in
his original status as accused as he was referred before the trial
Court.
03] The prosecution case, which can be disclosed from
the charge-sheet and connecting papers thereto may be stated
in brief as under :
i. On 05/07/1999, PSI Madhav Dhande attached to
Police Station Nagpurigate was on patrolling duty
along with the police staff. At around 03:30 to 05:30
a.m., when they were at Khurshidpura, they saw
accused carrying a bundle in his hand and proceeding
in a suspicious manner. On personal search, Ganja
weighing 1 kg 750 gms. was found in possession of
accused. The same was seized in accordance with
the procedure prescribed under the NDPS Act and the
Rules therein. Before seizure, sample was drawn. It
was forwarded to Chemical Analyzer for analysis. The
report was positive and revealed that Ganja was
detected in the sample.
ii. A report was lodged. After due investigation, charge-
sheet came to be filed before the Special Court.
iii. Charge was framed against the accused vide Exh.12.
He pleaded not guilty and claimed to be tried.
iv. The prosecution examined five witnesses to
substantiate the guilt of accused. Considering the
evidence of the witnesses and C.A. Report, trial Court
came to the conclusion that the offence alleged
against the accused has been proved and accordingly
convicted him as stated hereinabove in paragraph 1.
Being aggrieved by the judgment and order of
conviction and sentence, accused has preferred this
appeal.
04] Heard Shri A.K. Bhangde, learned Counsel for
appellant and Shri R.S. Nayak, learned Additional Public
Prosecutor for the State. Perused record.
05] Learned Counsel for appellant contended that the
property was never produced before the Court and there is total
non-compliance of Section 53-A of the NDPS Act. Learned
Counsel submits that panch-witness was declared hostile and
though he had not supported the prosecution, second panch was
not examined. It is submitted that inventory of seized property
was never prepared or produced before the Court. According to
learned Counsel, conviction is based only on the testimony of
official witness and the same is not permissible as independent
witnesses have not supported the prosecution case and recovery
of contraband article has not been satisfactorily proved. It is
submitted that investigating agency has miserably failed to
comply with the mandatory requirements under the NDPS Act
and on this count alone, accused ought to have been acquitted.
06] Per contra, learned A.P.P. strongly supports the
judgment impugned in the appeal. It is submitted that accused
was found in possession of contraband article and on analysis, it
was found as Ganja. Learned A.P.P. submits that considering the
evidence of witnesses and C.A. Report, trial Court has rightly
convicted the accused.
07] With the assistance of the learned Counsel for the
parties, scrutinized the evidence of prosecution witnesses. It is a
matter of record that property in question was never produced
before the Court. Learned Single Bench of this Court in
Hanamantu s/o Gangaram Badawat vs. State of
Maharashtra - [2007 ALL MR (Cri) 3359] observed in the
similar set of facts that non-production of entire quantity of
seized Ganja before the Court and non-preparation of inventory
of seizure is fatal to the prosecution case.
08] Section 52-A of the NDPS Act mandates preparation of
inventory and certification thereof by the Magistrate.
Admittedly, in the case on hand, no inventory was prepared and
if prepared, the same was not placed on record before the Court.
It is also revealed from record that entire seized property was
not produced in the Court. Obviously, therefore, property could
not be identified being not produced.
09] Needless to state that penalty under the NDPS Act is
very severe. Law is well established. Higher the penalty stricter
the proof. The learned Additional Sessions Judge has not
considered these important aspects and legal requirements in
the judgment.
10] Another drawback in the case of prosecution is non-
examination of second panch. The first panch examined was
declared hostile. As panch-witness not supported the case of
prosecution, it was incumbent on prosecution to examine the
second panch. No reason has been assigned for keeping this
important witness away from the witness box.
11] The third infirmity noticed in the prosecution case is
regarding C.A. Report. In this connection learned Counsel for
appellant submitted that in C.A. Report, tests applied by the
analyzer have not been mentioned. There is no whisper in the
report regarding mode and manner in which tests were applied
to find out the nature of substance. Relying upon the judgment
of learned Single Judge of this Court in Raju Girdharilal
Shrivastav vs. State of Maharashtra - [2004 ALL MR (Cri)
3053], learned Counsel submits that no reliance on such a C.A.
report can be placed. In this case, analyzer did not mention
about the tests applied and the mode and manner in which tests
were applied to find out the nature of substance. It was held
that in the absence of essential material, mere opinion
expressed by an expert cannot be relied upon.
12] In the case on hand, C.A. Report [Exh.28] clearly
indicates that analyzer has not stated about the tests applied
and mode and manner of tests applied to find out the nature of
substance. In the absence of these details, an opinion of an
expert would not be enough to come to the conclusion that the
substance recovered from possession of accused was Ganja, a
contraband article prohibited under the NDPS Act.
13] In the light of the above and on careful scrutiny of
evidence, it is apparent that prosecution has failed to prove
conclusively that appellant was found in possession of
contraband article under the NDPS Act. The trial Court has
committed an error in holding the appellant guilty under the
NDPS Act. The conviction and sentence awarded by the trial
Court, therefore, would not sustain in law. Hence, the following
order :
ORDER
I. Criminal Appeal No.143/2003 is allowed.
II. Impugned judgment and order dated 31/01/2003
passed by the Additional Sessions Judge, Amravati in
Special Case (NDPS) No.12/1999 convicting the
appellant is quashed and set aside.
III. In consequence thereof, appellant - Sheikh Salim
Sheikh Chand is released forthwith, if not required in
any other case.
IV. Fine, if any paid by appellant, be refunded.
V. The order of disposal of property passed by the trial
Court is maintained.
*sdw (Kum. Indira Jain, J)
