Pushpa Vasantrao Samarth vs State Of ...
2017 Latest Caselaw 7487 Bom

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

                                                 Criminal Appeal No.767 of 2003

                Pushpa w/o Vasantrao Samarth
                aged about 34 years, Occ.-Household
                R/o. Bhande plot, Sakkardara
                Nagpur.                                                             ....  Appellant.

                         -Versus-

                State of Maharashtra,
                Through Police Station Officer
                Police Station, Sakkardara
                Nagpur.                                                           ....  Respondent.
                --------------------------------------------------------------------------------------------------
                Mr. Daga, Advocate for the appellant.
                Mr. Joshi, Additional Public Prosecutor for State.
                --------------------------------------------------------------------------------------------------
                                                       Coram : Mrs. Swapna Joshi, J.

th Dated : 25

September, 2017.

ORAL JUDGMENT

By this appeal, the appellant/accused has challenged the

judgment and order dated 19.12.2003 passed by the learned Special Judge

(NDPS Court), Nagpur in Special Criminal Case No. 12/1995 whereby the

learned Judge convicted the appellant/accused under Section 20(b)(i) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter

referred to as 'NDPS Act', in short) and sentenced her to suffer rigorous

imprisonment for six months and to pay fine of Rs.1,000/-, in default, to

suffer R.I. for one month.

2] The prosecution case, in nutshell, can be stated as under:-

Head Constable Uttam Kamble (PW-6) was attached to

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Narcotic Cell, Crime Branch, Nagpur. On 10.1.1995 at 14.50 hours, he

along with PSI Warade and other staff including WPC Kusum, WPC

Naseem proceeded on narcotic patrolling within the jurisdiction of Police

Station, Ganeshpeth and Sakkardara. Prior to leaving the police station, he

took an entry (Exh.37) in the station diary. When the raiding party reached

at Mirchi Bazar Chowk, a secret information was received by them that a

lady by name Pushpa Samarth (accused), aged about 33-34 years, a

resident of Bhande Plot, Dharpur Nagar, wearing a sky blue coloured

saree, was coming to her house along with ganja at about 4.30 to 5.00 p.m.

Accordingly, the raiding officer prepared a report (Exh.38) under section

42(1)(2) of the Act. The information was also communicated to PI Pande.

Two panchas were called by PW-6.

3] At the relevant time, PI Pande issued directions on the said

report to conduct the raid. It is the case of prosecution that the house of

accused was found and a trap was laid around her house. The accused

reached to that place at about 5.10 p.m. She was encircled by the raiding

party. It is the case of prosecution that on verifying that the accused was

the same lady and her name was Pushpa Samarth, she was apprised

about the information received and that her search is to be taken through

the WPC. The accused was also asked to take personal search of panchas

and other staff by any other person known to her, which she declined. The

accused was informed that as per Section 50(1) of the NDPS Act there is a

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provision for such search being conducted in the presence of an Executive

Magistrate or a Gazetted Officer or any other department and if she so

desires, they can be kept present. The accused informed that she does not

need the presence of any other officer and she informed that she can be

searched through the WPC. An intimation (Exh.33) to that effect was given

to the accused. The accused gave in writing on Exh.33 about her refusal to

have a presence of Gazetted Officer or Executive Magistrate. Thereafter,

WPC Kusum (PW-4) was asked to take a personal search of the accused

in a secluded place. The accused handed over the nylon bag to WPC

Kusum. The said bag was searched in the presence of two panchas and it

was found containing pink coloured polythene bag containing wettish ganja.

WPC Kusum also took personal search of accused in a secluded place.

The weight of ganja was 1 kg. The article of 10 grams of ganja was

separated from the said ganja and remaining ganja contained in the

polythene bag was again put in the nylon bag. PW-6 sealed the sample and

the remaining ganja separately sealed by putting label bearing signatures

of panchas, accused and the raiding officer.

4] PW-6 arrested the accused. She was informed about the

offence of possession of ganja under Section 20(1) of the NDPS Act.

Panchnama (Exh.26) was prepared at the place of incident. A copy of the

said panchnama was handed over to the accused. The accused was then

taken to police station, Sakkardara.

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                5]                   PW-6 lodged his complaint on the basis of which ASI Yadav

(PW-1) registered the offence. PW-6 gave separate report (Exh.23) and

handed over two sealed parcels along with C.A. Form (Exh.25) and seizure

panchnama (Exh.26) to ASI Uttam Yadav. ASI Yadav (PW-1) separately

re-sealed the sample and other sealed parcels with his signature and

signature of raiding officer. PW-6 gave the compliance report (Exh.39)

under Section 57 of the NDPS Act. The sample along with other sealed

articles and panchnama (Exh.26) along with CA form were kept in the

Malkhana. The CA form along with CA sample sent to CA Office. CA report

(Exh.40) was sealed. After investigation was over, the chargesheet was

filed. The charge was framed by the learned trial Judge. On appreciation of

the evidence and hearing of both sides, the learned Special Judge

convicted the accused as aforesaid.

6] I have heard Mr. Daga, learned Advocate for the appellant

and Mr. Joshi, Additional Public Prosecutor for the State.

7] Mr. Joshi, learned A.P.P. contended that learned trial Judge

has considered the entire evidence led by the prosecution in right

perspective and has rightly convicted the accused. He further submitted

that all the mandatory provisions contemplated under NDPS Act have been

followed by the investigating agency.

8] Mr. Daga, learned Advocate for the appellant has not

seriously disputed that the investigating agency has strictly followed the

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mandatory provisions contemplated under the NDPS Act, while conducting

the raid. Mr. Daga has, however, vehemently argued that the investigation

agency has not investigated the crime under Section 52-A of the NDPS

Act. He contended that as per the provisions contemplated under Section

52-A of the NDPS Act, the inventory of the articles was not prepared by the

investigating agency. He further submitted that the inventory was not

produced before the learned Magistrate and further before the trial Court.

He submitted that only the CA sample was produced before the trial Court.

Mr. Daga pointed out that as per the prosecution case, total 1 kg ganja was

seized from the accused. The sample of 10 grams was separated from it.

He then submitted that the C.A. form (Exh.25) which reveals that 10 gram

of ganja was sent to CA Office on 10.1.1995. The incident is of 10.1.1995,

whereas CA report (Exh.40) reveals that 14 grams of contraband was

received by the CA Office on 11.1.1995. Mr Daga submitted that in view of

discrepancy in the weight of ganja, it is doubtful whether the ganja was

taken charge from the accused and the same was sent to the CA Office for

its analysis. Mr. Daga contended that learned trial Judge has not

considered all these aspects while dealing with the matter.

Section 52A of the NDPS Act, is couched in the following terms :-

"52A. Disposal of seized narcotic drugs and pychotropic substances - (1) the Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other

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relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after the seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any (narcotic drugs, psychotropic substances, controlled substances or conveyances) has been seized and forwarded to the officer in-charge of the nearest police station or to the officer empowered under section 52, the officer referred to in sub-section (1) shall prepare an inventory of such (narcotic drugs, psychotropic substances, controlled substances or conveyances) containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the ( narcotic drugs, psychotropic substances, controlled substances or conveyances ) or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances) in any proceedings under this Act and make an application, to any Magistrate for the purpose of -

(a) certifying the correctness of the inventory so prepared;

                         or 





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                         (b)        taking, in the presence of such Magistrate, photographs of
                         such   drugs,   substances   or  conveyances     and   certifying     such
                         photographs   as true or
                         (c)        allowing   to draw  representative samples  of such drugs

or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act , 1872 (1 of 1872) or the Code of Criminal procedure, 1973 ( 2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances ) and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

9. Thus, Section 52A mandates the preparation of inventory

and certification thereof by the Magistrate. As discussed above, in the

instant Appeal, there is no inventory prepared by the investigating

agency and it is not placed on record as such. The judgment of the

learned trial Judge does not indicate that the entire property was

produced before the Court. Exh.19 indicates that only the samples were

produced before the Court and not the remaining contraband. Moreover,

there is no identification of the entire property as such by the witnesses

in the Court.

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                    10]                  In   support   of   his   contention,   Shri   Daga,   placed   reliance

upon the judgment of this Court in the case of Hanamantu Badawat

vs. State of Maharashtra reported in 2007 All MR (Cri) 3359.

The learned counsel further placed reliance upon the judgment of the

Hon'ble Apex Court in the case of Jitendra and another vs. State of

M.P., reported in 2004 SCC (Cri) 2028. Placing reliance upon these

judgments, the learned counsel for appellant submitted that since the

Investigating Officer has not produced the contraband articles before the

Court, it cannot be said the the prosecution has followed the provisions

contemplated u/s 52A sub-clause (2) of NDPS Act. The learned APP did

not dispute the said contention. He fairly admitted that there is no

discussion of the remaining contraband articles in the judgment of the

trial Court. On going through the impugned judgment, it is not clear

whether the entire property was produced before the Court and it was

directed to be destroyed.

11] In the case of Hanamantu vs. State of Maharashtra

(supra), this Court placed reliance upon the judgment in the case of

Jitendara vs. State of MP (supra), wherein it is held by the Hon'ble

Supreme Court that in the trial under the NDPS Act, it is necessary for

the prosecution to establish by cogent evidence that the alleged

quantities of the contraband are seized from the possession of the

accused and the best evidence would have been the seized materials

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which ought to have been produced during the trial as marked material

objects. The Hon'ble Supreme Court found unsustainable the finding of

the High Court that the non-production of the contrabands before the

Court was not fatal to the prosecution.

12] In my considered view, the ratio laid down by the Hon'ble

Apex Court in Jitendra vs. State of M.P. is squarely applicable to the

present Appeal also. Non-production of the contraband before the trial

Court has caused a serious prejudice to the appellant. No plausible

explanation comes forward from the prosecution for non-production of

the contraband. It is certainly fatal to the case of the prosecution. It is

well settled law that higher the penalty stricter is the requirement of

proof.

13] In view of the fact that the mandatory provision under

section 52A of NDPS Act has not been followed in its entirety by the

prosecution the appellant is entitled for acquittal. Hence the following

order:

Order i] Criminal Appeal No. 767/2003 is allowed.

ii] The judgment and order dated 19.12.2003 delivered by learned

the Special Judge (NDPS Court), Nagpur in Special Criminal

Case No. 12/1995 is set aside.

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                iii]      The   appellant   is   acquitted   of   the   ofence   publishable   under

                          Section 20(b)(i) of the NDPS Act.  

                iv]      Bail bond of the appellant shall stand cancelled.

The fine amount, if any, deposited by the appellant be refunded to

her, if not withdrawn.

v] Muddemal property be dealt with as directed by trial Court after the

appeal period is over.

JUDGE Ingole