State Of Maha vs Dyandev Yadav Nikalje & Anr
2018 Latest Caselaw 110 Bom

                                                                 cria419.03
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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.419 OF 2003

 The State of Maharashtra,
 Through Police Station Officer,
 Ardhapur Police Station,
 Tq-Ardhapur, Dist-Nanded.
                                 ...APPELLANT 
        VERSUS             

 1) Dyandev s/i Yadav Nikalje,
    Age-45 years, R/o-Budhnagar,
    Jintur, Dist-Parbhani,
 [Appeal abated as against
  Respondent No.1 as per Court
 Order dated 20th August, 2007]

 2) Ashok s/o Narsu Kakde,
    Age-35 years, Budhnagar,
    Jintur, Dist-Parbhani.   
                                 ...RESPONDENTS

                      ...
    Mr.P.G. Borade A.P.P. for Appellant-State.
    Appeal abated as against Respondent No.1 as 
    per Order dated 20th August, 2007.
    Mr.P.P. Mandlik Advocate for Respondent No.2. 
                      ...


               CORAM:   S.S. SHINDE AND
                        A.M. DHAVALE, JJ. 

DATE : 6TH JANUARY, 2018

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JUDGMENT [PER S.S. SHINDE, J.] :

1. This Appeal is filed by the State

challenging the Judgment and order dated 13th

February, 2003 passed by II Ad-hoc Additional

Sessions Judge, Nanded in Special N.D.P.S. Case

No.11 of 2002, thereby acquitting the

Respondents/original accused - for the offences

punishable under Sections 20(b)(ii) and 29 of the

Narcotic Drugs and Psychotropic Substances Act,

1985 (For short "N.D.P.S. Act").

2. Before the trial Court, there were in all

three accused and the trial Court has acquitted

all the three accused for the offences with which

they were charged. The State has filed Appeal

challenging the acquittal of original accused No.1

- Dyandev Yadav Nikalje and accused No.2 - Ashok

s/o Narsu Kakde. Due to demise of accused No.1/

Respondent No.1 - Dyandev Yadav Nikalje, Appeal

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against him stands abated as per Order dated 20th

August, 2007. Now the challenge in this Appeal is

restricted to the acquittal of accused

No.2/Respondent No.2 - Ashok Narsu Kakde.

3. The prosecution case, in nut-shell, is as

under :-

(A) It is the case of the prosecution that on

11th July, 2002 at about 14.00 hours the

complainant Ramrao Patolba Gadekar, A.P.I. Police

Station, Ardhapur, lodged a written report with

Ardhapur Police Station against the accused

alleging that on 11th July, 2002 he was present in

the Police Station. At about 10.35 hours he

received a message through a phone call that on

Ardhapur Bus Stand near Control Room two persons

wearing white shirt and yellowish trouser, aged 35

years, were sitting with suit-case and hand-bags.

They had Ganja with them. They were waiting for a

bus towards Wasmat. Having received the

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information, complainant Ramrao Gadekar made a

phone call to Deputy Superintendent of Police,

Nanded. He then took entry in the Station Diary

Register. He sent Police Constable Mundhe to call

Tahsildar Shri Jakkal to Tahsil Office, Ardhapur.

He sent police constable to bring weights and

balance. Police Constable Shakil was sent to bring

cloth bags and a photographer. He asked Head

Constable Lashkare to bring panch witnesses. The

complainant gave all the orders in writing. After

some time the orders issued by him were complied.

The complainant made a Station Diary entry No.25

in that respect.

(B) Then along with Tahsildar Shri Jakkal,

police staff, panch witnesses, photographer, the

complainant started at about 11.05 hours on foot

towards Ardhapur Bus Stand. The raid was conducted

at 11.10 hours. Two persons were found near S.T.

Control Room. They told their names as Dyandev

Yadav Nikalje and Ashok Narsu Kade, The

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complainant introduced himself and his staff to

those persons. They also offered their search. The

complainant informed that the search of the bags

was to be taken. The complainant asked them

whether they wanted their search in the presence

of the Gazetted Officer or a Magistrate. The

accused expressed their willingness to have their

search before the Gazetted Officer. Then the

complainant introduced the Gazetted Officer to

those persons.

(C) In the presence of Tahsildar - Taluka

Magistrate Shri K.B. Jakkal, the suit-case and the

bags were searched. In the possession of Dyandev,

one suit-case and one bag of rexine was noticed.

On search in the suit-case, 6 1/2 Kg. Ganja with

green leaves, seeds and sticks and in the rexine

bag 3 Kg. 100 Grams Ganja, green in colour, sticks

were found. In possession of Ashok Narsu in the

bag Ganja with green leaves, sticks weighing 5 Kg.

and 500 Grams was found. The samples of 100 Grams

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each were taken from the seized bags and the suit-

case. There were total 9 samples. A.P.I. seized

the Ganja under panchnama. On enquiry with them

the accused told that Ganja was purchased by them

fromn Mangulal @ manguram Pawar, R/o-Malkapur,

Dist-Nizamabad(A.P.) and one Harun Choudhari R/o-

Mantha had asked to bring it.

(D) On the basis of the above, an offence

vide Crime No.35 of 2002 was registered and

investigated. After completion of investigation,

police filed charge-sheet against the accused. The

charge was framed against the accused at Exhibit-

11. The accused pleaded not guilty to the said

charges.

4. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted all three accused from the offences with

which they were charged, as stated herein above in

Para-1 of the Judgment. Hence this Appeal is filed

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by the State challenging the acquittal of

Respondent Nos.1 and 2. As already observed,

Appeal against Respondent No.1 stands abated as

per order passed by this Court on 20th August,

2007. Thus, in this Appeal the challenge is

restricted to the acquittal of Respondent No.2 -

Ashok s/o Narsu Kakde.

5. Heard learned A.P.P. appearing for the

Appellant-State and learned counsel appearing for

Respondent No.2, at length. With their able

assistance, we have carefully perused the entire

original record including the notes of evidence,

so as to find out whether the findings recorded by

the trial Court are in consonance with the

evidence brought on record or otherwise.

6. We have carefully perused the evidence of

all the prosecution witnesses and in particular,

evidence of PW-5 Govind Vithal Shingare, a panch

witness and PW-6 Ramrao Patilba Gadekar, an

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Investigating Officer. PW-5 Govind admitted in

cross-examination that all the writing work was

completed by the police in the police station

itself. PW-5 Govind admits that seizure panchnama

was prepared in the police station itself. PW-5

Govind specifically admits that the sample was

taken in the police station itself, and not on the

spot of incident i.e. S.T. Bus Stand. Upon careful

perusal of entire evidence on record it appears

that even the spot panchnama was prepared in the

police station itself. The prosecution has not

brought on record any evidence showing that the

bags from which alleged Ganja was seized, were

really belonging to the accused persons. It is

pertinent to note that the Investigating Officer

PW-6 Ramrao Patilba Gadekar, specifically admitted

in his cross-examination that the suit-case and

the bags were kept on the ground in the premises

of S.T. Stand. Thus, it is clear that no attempt

was made by the Investigating Officer to find out

whether the said suit-case and bags were really

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belonged to the accused.

7. Upon careful perusal of the evidence of

Investigating Officer PW-6 Ramrao Patilba Gadekar,

in cross-examination he specifically admitted that

he formed his opinion that it was a credible

information. but he did not mention in the

contents of the Station Diary that he formed his

opinion about its credibility. He did not send any

written report regarding information received, to

his superior. PW-6 Ramrao Patilba Gadekar further

stated that Tahsildar was not a raiding party

member, but he further admits that Tahsildar had

accompanied the raiding party from the police

station itself. He further admits that he did not

affix another seal on the samples and seized Ganja

of police station officer. He admits that the

panch witnesses were present with him after

preparing the seizure panchnama till the preparing

of panchnama of spot. He further admits that the

sample packets were reached to Chemical Analyzer's

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office on 16th July, 2002.

8. Thus, from the perusal of the evidence of

PW-6 Ramrao Patilba Gadekar, it is clear that

secret information received by him was not

communicated to the superior officers. Though

Tahsildar was not a member of raiding party, he

accompanied with the raiding party from the police

station itself. Though the articles were seized on

11th July, 2002, the same were reached in the

office of the Chemical Analyzer on 16th July,

2002. The prosecution has not brought on record

any evidence showing that from the date of seizure

till the articles were reached in the office of

the Chemical Analyzer, those were kept in properly

sealed condition. The prosecution has not brought

on record whether Investigation Officer was

authorized officer under the provisions of

Section 42 of the N.D.P.S. Act to seize the said

articles, register the offence and take further

procedural steps. Any such Notification in that

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respect is not brought on record by the

prosecution.

9. The trial Court has properly considered

all the evidence brought on record by the

prosecution and observed that the place of

preparing panchnama of the alleged seizure was not

proved by the prosecution. It is further observed

by the trial Court that the panch witness in his

cross-examination stated that Ganja was seized in

the police station, which is contrary to the case

of the prosecution, as the police officer stated

in his evidence that Ganja was seized near S.T.

Control Room. The trial Court has further observed

that the version of the police officers in that

respect cannot be believed in view of the contrary

circumstances. The trial Court has rightly

observed that no independent witness like another

panch and photographer were examined by the

prosecution and non-examination of such important

witnesses on the part of prosecution certainly

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raises a doubt as regards the genuineness of the

prosecution case. Considering all the evidence on

record, the trial Court has acquitted all the

accused persons from the charges with which they

were charged.

10. In the light of discussion herein above,

on independent and in-depth scrutiny of entire

evidence, we are of the opinion that the trial

Court has considered all the evidence brought on

record in its proper perspective and recorded the

findings which are in consonance with the evidence

on record. The conclusions reached by the trial

Court are in consonance with the evidence brought

on record by the prosecution. There is no

perversity as such. The view taken by the trial

Court is a plausible view.

11. In the light of discussion in the

foregoing paragraphs, we are not inclined to cause

and interference in the impugned Judgment and

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order of the acquittal. Hence the Appeal stands

dismissed.

[A.M. DHAVALE, J.] [S.S. SHINDE, J.] asb/JAN18