Abdul Kadir Abdul Hanif Deshmukh vs State Of Mah. Thr. Pso Akola
2017 Latest Caselaw 7036 Bom

                                                                     CRI.APPEAL.442.07+
                                         1


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

                       CRIMINAL APPEAL NO. 442/2007
                                   with
                       CRIMINAL APPEAL NO. 449/2007
                                   with
                       CRIMINAL APPEAL NO. 451/2007

CRIMINAL APPEAL NO. 442/2007

        Abdul Kadir Abdul Hanif Deshmukh 
        Aged about 31 years, occu:Field worker
        R/o Kutasa, Tq.Akot, Dist. Akola.                     ..        APPELLANT 

                v e r s u s

        State of Maharashtra 
        Through  P.S.O. Dahihanda 
        Dist. Akola.                                              ..  RESPONDENT

CRIMINAL APPEAL NO. 449/2007

        Babarao  s/o Harichandra Ankurkar 
        Aged about 38 years, occu: Labourer
        R/o  Chhota Bazar
        Tq. & Dist. Akaola.                                   ..        APPELLANT 

                v e r s u s

        State of Maharashtra 
        Through  Police Sub Inspector 
        Police Station Dahihanda 
        Tq. Akot, Dist.Akola.                               ..         RESPONDENT



CRIMINAL APPEAL NO. 451/2007

1)      Sk.Ibrahim @ Sk. Shadulla Sk.Maulana 
        Aged 56 years, occu: Labour 




     ::: Uploaded on - 18/09/2017                          ::: Downloaded on - 21/09/2017 00:38:54 :::
                                                                                             CRI.APPEAL.442.07+
                                                             2


          R/o  Birkur, Tq.  Banswada 
          Dist. Nizamabad (A.P.P)

2)        Amjadkhan Nashirkhan 
          Aged 35 years, occu:Labour 
          R/o Balkonda, Tq. Armor 
          Dist. Nizamabad  (A.P.)                                                    ..         APPELLANTS

                     v e r s u s

          State of Maharashtra 
          Through  Police Sub-Inspector 
          Police Station Dahihanda 
          Dist.Akola.                                                                 ..       RESPONDENT


...........................................................................................................................
           Mr. D.V. Chavan, Advocate (appointed) for appellants
           Mr. S.B. Bissa,  Additional  Public Prosecutor for  respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

DATED: 12th September, 2017 ORAL JUDGMENT:

1. The above-referred three Appeals are directed against the

judgment and order dated 5th September, 2007 in Special Case No.

6/2005 delivered by the learned Ad-hoc Additional Sessions Judge, Akot

thereby convicting all the four appellants (hereinafter referred to

accused nos.1 to 4) under section 20(b)(ii)(b) of the Narcotics Drugs &

Psychotropic Substances Act ('NDPS Act' in short) and sentencing them

to suffer rigorous imprisonment for five years each and to pay a fine of

CRI.APPEAL.442.07+

Rs.10,000/- each, in default, to suffer R.I. for one year.

2. The prosecution case, in brief, can be stated thus :

On 16.3.2005, PSI, Digambar Chavan (PW7), who was then

attached to Dahihanda Police Station, was proceeding to conduct a

prohibition raid at village Punda. Therefore he along with Police staff

proceeded to village, Punda. They started from Dahihanda at about 7.30

am. From Dahihanda Bus Stop they took one Panch witness by name

Pramod Rohte, with them. At Kutasa Bus Stop, they took another

Panch witness by name, Sanjay Gavande, and then the police vehicle

proceeded towards village Punda. While the vehicle was passing through

village Kutasa, the raiding party saw accused no.1 Abdul Kadir Abdul

Hanif who was having a loaded plastic bag on his shoulder, running

away seeing the police party due to which a suspicion crept up and the

police party started chasing the accused who reached to one house and

entered inside it. PW7-Chavan along with police staff got down from

the jeep. The accused no.1 was called out and he produced the loaded

plastic bag before PW7-Chavan which was opened. It was noticed that

the bag was filled with hemp (ganja). The said ganja was weighed and

it was found to be 12.550 kg. PW7-Chavan, then, drew two samples for

chemical analysis, each of the quantity of 100 gms. The sample packets

were packed and sealed. The remaining quantity of ganja in the plastic

CRI.APPEAL.442.07+

bag was also seized and sealed. Thereafter the raiding party proceeded

to village Chhobota. It is the case of the prosecution that the accused no.

1 had purchased the said ganja from accused nos.2 and 3 who had

reportedly gone to village Chohota. The raiding party then took accused

no.1 with them and they proceeded to Chohota. The police vehicle

halted in front of the house of accused no.4. Then the Raiding party

along with Panch witnesses and accused no.1 went in front of the house

of one Bhande. There was a house having structure of straws in front

of house of Bhande. It is the case of the prosecution that accused nos.2

to 4 were found sitting inside the compound of that house and they

were weighing ganja leaves by means of balance. PW7-Chavan then

took charge of the said ganja which was with accused nos. 2 to 4 at

Chohota. The weight of the said ganja was of 13 kg. PW 7-Chavan drew

two samples each of the of the quantity of 100 gms for the purpose of

sending it to the Office of Chemical Analyser. The sample packets were

duly packed, signed and sealed by PW7. Similarly, the remaining

quantity of ganja was also seized and sealed. It is the case of the

prosecution that accused nos.2 and 3 are from Andhra Pradesh and they

sold ganja to accused no.1 which was found with them at village Kutasa

and accused nos.2 and 3 also sold ganja to accused no.4 who resides

at village Chohota during the personal search of accused no.2. An

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amount of Rs. 1850/- was found with him. As per the prosecution, it

was the amount of the sale proceeds. PW7-Chavan, then, recorded the

seizure panchnama (Exh.88). The accused nos.1 to 4 were arrested by

PW 7. PW7-Chavan lodged the FIR Exh.110. He then produced the

entire quantity of sealed ganja before the Court of learned Judicial

Magistrate, First Class, Akot. The inventory panchnama was drawn

before PW 6-Lahu Chavan, JMFC Akot. At that time two representative

sample packets were drawn as per the direction of PW6. Those samples

were sent to Regional Forensic Science Laboratory, Nagpur, along with

one sample drawn at Kutasa and one drawn at Chohota, by PW7. On

17th March 2005 in all four samples packets were sent to C.A. Office.

The Chemical Analyser found that the ganja i.e.cannabis was detected

in those articles. After completion of investigation, charge-sheet was filed

in the Court of learned JMFC, Akot.The case was committed to the Court

of sessions. The charge was framed by the learned Ad-hoc Additional

Sessions Judge. The defence of the accused was of total denial and that

they have been falsely implicated in the matter. After analysis of the

evidence and after hearing both the sides, the learned trial Judge

convicted the accused as aforesaid. Hence this appeal.

3. I have heard Mr. D.V.Chavan, the learned counsel for the

appellants/accused (appointed) and Mr.S.B.Bissa, the learned Additional

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Public Prosecutor for the respondent-State. I have meticulously gone

through the record of the case.

4. Mr.D.V.Chavan, the learned counsel for the accused

vehemently argued that the learned trial Judge has failed to notice the

lacunae in the prosecution case inasmuch as he himself tried to fill up

those lacunae which is not permissible under law. He further contended

that the learned trial Judge has unnecessarily noted that PW2-Pramod

Rothe, a panch witness, was won over by the accused. According to him,

for the reasons best known to the learned Judge, PW2 has not been

declared as hostile and unnecessary comments are made against the

witnesses in the said judgment. The learned counsel pointed out the

glaring discrepancies in the testimony of PW7-Chavan and PW2 -Pramod

and contended that the learned trial Judge has overlooked those

contradictions and relied upon the testimony of those witnesses and

erroneously convicted the accused. Mr. S.B.Bissa, the learned A.P.P.

contended that the learned trial Judge has rightly come to the conclusion

and convicted the accused.

5. After considering the rival contentions of the both sides, it is

noticed that the learned trial Judge has heavily relied upon the

testimony of PW7-Chavan, PSI, the Investigating officer, PW2-Pramod

Rothe, the panch witness and of PW6-Lahu Chavan, JMFC.

CRI.APPEAL.442.07+

6. PW 7-Digambar Chavan deposed that that on 16.3.2005

he was attached to Police Station, Dahihanda as P.S.O. At about 7.30

am, he along with the police staff started from Dahihanda by a police

vehicle for conducting a prohibition raid at village Punda. Accordingly,

the vehicle proceeded towards Punda. On the way, from Dahihanda Bus

Stop they took one panch by name, Pramod Rothe (PW2) and at

Kutasa Bus stop they took another panch by name-Sanjay Gawande.

When they were in Kutasa, they noticed one person running away, seeing

policemen in the jeep; he was having one bag on his shoulder. The said

person entered in one house. PW 7-Chavan took the vehicle before the

said house and halted it. They started giving call to that person. On this

the person came out of the house and on interrogation he informed his

name as Abdul Kadir s/o Abdul Hanif, R/o Kutasa (accused No.1).

The accused no.1 brought the bag which was packed at its top and

yellow in colour. On being asked, the accused no.1 opened the same. PW

7 found green colour leaves inside the bag and those were ganja leaves.

PW 7-Chavan then informed the accused that he intends to take search

of his house and asked him whether he desires that the said search

should be taken in the presence of Gazetted Officer, to which the accused

no.1 declined. Thereafter, PW 7-Chavan, the panchas and the raiding

party offered their search to the accused. However, he refused to take

CRI.APPEAL.442.07+

their personal search. Thereafter PW7 entered in the said house.

However nothing incriminating material was found in the search of the

house. According to PW7 he took charge of the said ganja which was

in the bag of accused no.1. It was weighing about 12 kgs and 550 gms.

After taking charge of the said ganja,PW 7 separated 100 gms quantity

of the ganja for C.A. sample. Two samples each of 100 gms. were

prepared, packed and sealed under the signatures of Panchas and PW 7.

The remaining quantity of ganja was packed and sealed. PW7 prepared

the seizure panchnama (Exh.88).

7. PW7 stated that as per the information of accused no.1, the

raiding party along with panchas and accused no.1 proceeded to village

Chohota. They took the police vehicle in front of one house. They halted

the said vehicle at that place. PW7 then found a house having a structure

of straw in front of house of one Bhande. Three persons were present in

the house of straw. Accused no.1 identified two out of those three

persons as his vendors. Those three persons were weighing the green

colour leaves. According to PW 7-Chavan, the accused nos.2 and 3 were

the vendors and accused no.4 had purchased those green leaves from

accused nos.2 and 3. PW7 weighed the said ganja, it was 13 kg. PW7-

Chavan seized the said ganja, took out two samples of 100 gms. Each,

CRI.APPEAL.442.07+

for analysis. Thus, the samples were packed, sealed and signed by PW7-

Chavan, accused and the panchas. PW7 then sent those two packets to

CA office for analysis and according to PW7 the other two samples

packets were lying at the Police station. PW7 then prepared the seizure

panchnama (Exh.89). During the personal search of accused no.1, he

found Rs.1850 with him. The said amount was taken charge by PW7.

8. According to PW7 he had drawn only one recovery

panchnama (Exh.87). PW7 then sent a letter to SDPO Akot and

Executive Magistrate, Akot about the raid and recovery (Exh108). PW7

then lodged the FIR (Exh.110). He took entry in the station diary (Exh.

109) and registered the crime. PW7 sent report to SDPO, Akot in respect

of the offence(Exh.111). PW7 then arrested the accused. He sought the

inventory Panchnama by moving an application before the learned JMFC

Akot(Exh.105). According to PW7,Chavan he produced the entire

quantity of ganja before the learned JMFC, Akot and the inventory

panchnama was prepared before the learned Magistrate, Akot. Two

samples were taken from the quantity of ganja, by the learned

Magistrate, Akot. The learned JMFC directed him to send those samples

to office of the Chemical Analyser, for analysis. PW7 stated that all the

four sample packets were sent by him to the CA office and rest of the

quantity of ganja was deposited in the Malkhana. PW 7-Chavan filled up

CRI.APPEAL.442.07+

the CA form and seal of the court was taken on the CA form. Those

samples were sent to CA office. The remaining quantity of ganja was

deposited in the Malkhana of Police Station Dahihanda.

9. PW2-Pramod Rothe, who is the panch witness on the point

of seizure of ganja from accused no.1 as well as accused nos.2,3 and 4,

deposed that on 16.3.2005 Police Officer D.J.Chavan (PW7) called him

at Police Station, Dahihanda. The said Police officer was proceeding

towards village Rohankhed by a jeep. PW2 was called from his house

and accordingly he joined the police party and proceeded along with

them. When they reached at village Kutasa, at the bus stop, they met a

person by name Sanjay Gavande, who too joined them as panch witness.

They reached to the house of one Kadirsha (accused no.1.). PW2 stated

that he saw one plastic bag lying in front of the house of accused no.1

and on noticing the same, the jeep was halted by the police officer.

When the said plastic bag was opened it was found that there were

green colour leaves in the said bag and on smelling it all three were of

the opinion that it was ganja. Weighing machine was fetched and said

ganja was weighed which was 12 kg and 500 gms. Two samples each of

100 gms. quantity was taken from the said ganja for chemical analysis.

Those samples were packed and sealed so also the plastic bag containing

ganja was also packed and sealed. The panchas, accused no.1 and the

CRI.APPEAL.442.07+

Police Officer put their signatures on the slips which were pasted.

Thereafter the police party along with accused no.1 and the panchas

proceeded towards Chohota. The police vehicle halted near one Durgah.

They went to the house of one Ankurkar (accused no.4) which was

shown by accused no.1. Ankurkar was called out. The search of his

house was taken by police. However nothing incriminating was found in

the said search. Thereafter they all proceeded near the house of one

Bhande. It had a fencing of straws. Inside the compound of straws they

found two persons from Andhra Pradesh, namely Sk.Ibrahim (accused

no.2) and Sk.Aziz (accused no.3). They were possessing a plastic bag

which was filled with ganja. The police took charge of the said ganja

and weighed it. It was 13 kgs. The police officer took two samples each

of 100 gm. out of the said ganja and seizure panchnama was prepared.

The samples were duly sealed so also the remaining quantity of 12 kg.

and 800 gms which was in the plastic bag, was sealed. Thereafter, PW

2-Rothe, the other panch, police officer and the accused signed on the

slips used for sealing. According to PW2-Pramod Rothe, an amount of

Rs.1850/- was seized, which was recovered from accused no.1 and the

panchnama (Exh.87) was prepared. PW2 identified his signatures on

panchnama Exh.88 as well as Panchnama Exh.89.

10. Significantly, during the cross-examination PW2 deposed

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that he had acted as a panch in many police cases during last 25 years.

It appears that PW2 was a habitual panch used by the police machinery

and this was the reason in his examination-in-chief he stated that the

police vehicle was stopped in front of his house, PW7 called him at

Police Station Dahihanda, from his house. During the cross-examination

PW2 specifically denied that he saw one person running with a luggage

on his head and they chased that person in the police vehicle and then

halted the said vehicle in front of his house. PW2 denied that the said

person who was running, entered inside the house and then they gave

a call to the inmates of the house. He further denied that the bag was

found inside the house at Kutasa.

11. It is noticed that testimony of PW2-Pramod Rothe does not

corroborate with the testimony of PW7-Chavan on material aspects.

According to PW2 when the vehicle of the raiding party was passing

from Kutasa it reached in front of the house of accused no.1 and one

plastic bag lying in front of the house of accused no.1 and on opening it

ganja was found therein. PW2 has not explained as to why the jeep was

taken in front of the house of accused no.1. As per the testimony of PW7,

they had started from Dahihanda and they wanted to proceed to Punda

for a prohibition raid. The village Kutasa came on the way to Punda.

According to PW2 the raiding party decided to go to village Rohankhed

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and village Kutasa was on the way. PW 2 did not state that on reaching

Kutasa, PW7 or any other police said to halt the jeep at the house of

accused no.1. No information was received by any police officer that

accused no.1 was in possession of any narcotic drug and for that

purpose the vehicle was taken to his house. Thus, there is discrepancy in

the testimony of PW2 and PW7 on the point of directly taking the vehicle

to the house of accused no.1, the discrepancy was pointed out in the

testimony of PW2 that PW2 stated that the plastic bag filled with ganja

was found lying in front of the house of accused no.1. The police went

on to search the person to whom it belongs and then they brought

accused no.1 to that place. As it is the case of the prosecution and as

stated above, when the jeep was at Kutana one person started running

away when he saw the policemen in the jeep and he was having one bag

on his shoulder and the said person entered in one house, therefore, the

police took the jeep in front of that house and halted it. The accused

No.1 came out of the house and brought the bag and the said bag was

taken charge wherein ganja was found. PW 2 did not state about the

finding of the ganja from the bag which accused no.1 was carrying

with him. Thus, there is glaring discrepancy on the point of possession

of ganja with accused no.1 which goes to the root of the prosecution

case. It is significant to note that the prosecution has not declared PW2

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as a hostile witness. However the learned Judge came to the conclusion

that PW2 was won over by the defence.

12. It is noticed that PW7-Chavan kept the seizure panchnama

(Exh.87) incomplete and did not conclude it at Kutasa from where

ganja was allegedly taken charge from accused no.1 and the said

panchnama continued at the place i.e. Chohota from where ganja was

allegedly taken charge from accused nos.2 to 4. It is not clear as to how

PW7 was confident that he would find ganja with accused nos.2,3 and

4, at Chohota. It is noted that the same set of panchas were used in

regard to recovery of ganja from accused nos. 2,3 and 4 which creates

a serious doubt about the investigation carried out by PW7.

13. As far as testimony of PW2-Pramod Rothe with regard to

seizure from accused nos.2,3 and 4 are concerned, according to PW2,

accused no.4 was not seen when accused nos.2 and 3 were apprehended

with the quantity of ganja near the house of one Hande. Surprisingly the

learned trial Judge observed that the testimony of PW2 is not binding

on the prosecution. The learned trial Judge has observed in paragraph

21 of his judgment that, "taking notice of this fact, I am not prepared to

accept that PW2 is not declared hostile and, therefore, his evidence is

binding on the prosecution." It is noticed that there are glaring

discrepancies in the testimony of PW2 and PW7. In view thereof the

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entire prosecution case is under the shadow of doubt, with regard to the

seizure of ganja from accused nos.1 as well as accused nos.2,3 and 4.

14. It is worthy to note that the seizure panchnamas (Exh. 88

and 89) do not bear the specimen seal at the place indicated in the

printed proforma, which indicates that PW7 was not possessing the seal

with him at the time of conducting of the seizure panchnama.

15. As far as the testimony of PW6-Lahu Chavan, who was

working as a Judicial Magistrate, First Class, Akot, is concerned, he

deposed that on 16.3.2005 PI Chavan moved an application before him,

requesting for inventory panchnama. The application was granted. PI

Chavan, produced before him two plastic bags which were filled with

ganja (hemp). One plastic bag was yellow in colour, green colour leaves

of ganja were in the said bag. The weight of the said ganja was 12 kg

and 350 gms. 50 gms. qauantity of ganja was taken for the purpose of

CA analysis. After drawing the sample the weight of the bag was 12 kg

and 300 gms. The sample packets of plastic bag containing ganja were

sealed and seal of the court was affixed under the signature of PW6.

Other plastic bag containing ganja leaves was white in colour which was

weighed and it was 12 kg 800 gms and quantity of 50gms. ganja leaves

was separated for the purpose of CA sample. The weight of the bag was

taken and it was 12 kg.and 750 gms. The sample packets and the

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plastic bag both were packed and sealed under the seal of court and

was signed by PW6. The inventory Panchnama was prepared (Exh.106).

It is interesting to note, during the cross-examination PW 6 stated that

on packet no.1, five lakh seals were noticed and at one place there is a

mark of lakh seal on the packet, but the back is removed. PW 6 failed to

state whether the lakh seals were of JMFC Court. He further failed to

state whether the lakh seal were of Forensic Science Laboratory, Nagpur

as the words on the lakh seal cannot be read. PW 6 further proceeded

to state that the seal on the CA form though it is titled as a seal of the

court, it is not the seal of the court which appears on the letter. He

further stated on the said letter there is nowhere subsequent seal of the

court affixed. The testimony of PW6 demolishes the case of the

prosecution and creates a serious doubt on the investigation carried out

by PW7. It is doubtful whether the samples which were taken by the

learned JMFC were the same samples which were sent to C.A. and were

detected as ganja samples. The learned trial Judge has not considered

the testimony of PW6 in its letter and spirit and has erroneously relied

upon the testimony of PW6 and came to the conclusion that his

testimony supports the prosecution case and the samples which were

taken charge from the learned JMFC Court were the samples of ganja.

16. It is interesting to note that the prosecution witnesses PW 7

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and PW 2 categorically stated that ganja leaves were taken charge

from accused no.1 as well as accused nos.2,3 and 4. There was no

mention of any flowering of seeds or tops seized from the accused

persons. However the C.A. report mentions that the sample of ganja sent

to the CA office contains flowering tops, seeds and stocks, besides the

leaves. The said C.A. report cannot be relied upon as it is not at all the

case of the prosecution that the flowering tops, seeds and stocks were

taken charge from the accused. It is significant to note that the leaves of

the plant are termed as bhang whereas the flowering tops of the

cannabis plant are termed as ganja which is narcotic drugs specified

under NDPS Act.

17. Thus, the entire case of the prosecution is under the shadow

of doubt. The judgment and order passed by the learned trial Judge is

found to be illegal and perverse for the reasons discussed herein-above.

In view thereof, the Appeals deserve to be allowed. Hence the following

order :

ORDER

i) Criminal Appeals Nos. 442/2007; 449/2007 and 451/2007 are

allowed.

ii) The judgment and order dated 5th September, 2007 in Special Case

No.6/2005 delivered by the learned Ad-hoc Additional Sessions Judge,

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Akot, is set aside.

iii) The appellants are acquitted of the offence punishable u/s.20(b)

(ii) (b) of the Narcotics Drugs & Psychotropic Substances Act.

iv) Bail bonds of the appellants shall stand cancelled.

vi) The learned counsel for the appellants (appointed) has argued the case

at his level best. His professional fees are quantified at rupees five thousand.

JUDGE

sahare