Narayan S/O Tulshiram Jadhav vs The State Of Maharashtra
2018 Latest Caselaw 177 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

            CRIMINAL APPEAL NO. 708 OF 2016
                            
Narayan Tulshiram Jadhav            ..APPELLANT
                                     (Accused no.1)
     VERSUS

State of Maharashtra                       ..RESPONDENT

                                  WITH
                    CRIMINAL APPEAL NO. 653 OF 2016

Shekhar Ramdas Sharma                      ..APPELLANT
                                            (Accused no.2)
     VERSUS

State of Maharashtra                       ..RESPONDENT

                                  WITH
                    CRIMINAL APPEAL NO. 678 OF 2016

Datta Vachista Bajgude                     ..APPELLANT
                                            (Accused no.3)
     VERSUS

State of Maharashtra                       ..RESPONDENT

                                  WITH
                    CRIMINAL APPEAL NO. 648 OF 2016

Laxman Ashruba Narwade                     ..APPELLANT
                                            (Accused no.4) 
     VERSUS

State of Maharashtra                       ..RESPONDENT

                            ----
Mr. G.D. Kale, Advocate for appellant in APEAL/708/16.
Mr.   Joydeep   Chatterji,   Advocate   for   appellant   in 




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APEAL/648/16.
Mr.   Joydeep   Chatterji,   Advocate   h/f   Ms.   Monica 
Purnapatre, Advocate for appellant in APEAL/653/16.
Mr.   R.G.   Hange,   Advocate   for   appellant   in 
APEAL/678/16.
Mr. A.A. Jagatkar, A.P.P. for respondent - State.
                          ----

                                 CORAM : SANGITRAO S. PATIL, J.

DATE : JANUARY 09, 2018

COMMON JUDGMENT :-

The above numbered appeals have arisen out

of the same judgment dated 15th October, 2016

delivered by the learned Special Judge, Aurangabad in

Special Case No. 10 of 2012 thereby convicting the

appellants of the offences under Sections 3 and 4

read with Section 25 of the Arms Act, 1959 and also

under Section 22 of the Narcotic Drugs and

Psycotropic Substances Act, 1985 (for short "NDPS

Act"). Hence they are being decided by this common

judgment.

2. Each of the appellants has been sentenced

with rigorous imprisonment for three years and fine

3 23-CRAPAL-708-16-1

of Rs.10,000/- with default clause in respect of the

offences under Sections 3 and 4 read with Section 25

of the Arms Act and rigorous imprisonment for ten

years and fine of Rs.l,00,000/- with default clause

in respect of the offence punishable under Section 22

of the NDPS Act. The substantive sentences of

imprisonment have been ordered to run concurrently.

3. The learned Special Judge acquitted the

appellants of the offence punishable under Section

399 of the Indian Penal Code. The State/ prosecution

has not challenged acquittal of the appellants in

respect of the said offence. As such, that part of

the judgment has attained finality.

4. The appellants are hereinafter referred to

by their respective first names, whenever necessary.

5. It is the case of the prosecution that on

24th September, 2012, when P.S.I. Gavali (L.C.B.)

4 23-CRAPAL-708-16-1

Aurangabad was in his office, P.I. Nandedkar received

an information that a Tavera car bearing registration

no. MH-23-Y-2404 was carrying dacoits towards Pachod

along Beed - Aurangabad road. Therefore, as per the

directions of P.I. Nandedkar, P.S.I. Gavali (P.W.2)

immediately left for Pachod in a private vehicle

alogwith his staff members. He called two panchas at

Pachod and arranged for a trap. He instructed Police

Naik Deshmukh (P.W.3) to stay near Haryana Rajasthan

Dhaba which was at some distance from Pachod and

directed to inform on mobile phone immediately after

seeing the above numbered car proceeding towards

Pachod. P.S.I. Gavali (P.W.2) and other staff

members and panchas stayed near Hotel Ekant Dhaba,

which was at the distance about 1 k.m. from Pachod.

They had placed barricades on the road for stopping

the vehicles for checking. P.S.I. Gavali (P.W.2)

received a phone call from Police Naik Deshmukh

(P.W.3) after he noticed that the above numbered car

proceeded towards Pachod. P.S.I. Gavali (P.W.2)

5 23-CRAPAL-708-16-1

stopped that car near Hotel Ekant Dhaba at about

11.15 p.m. Driver of that car took the car to the

extreme left side of the road, switched off the

engine and fled away. The appellants were found

sitting in that car. A pistol with three live

cartridges were found with the appellant - Narayan, a

pistol and three live cartridges were found in

possession of the appellant Shekhar, a dagger having

length of eleven inches was found attached to the

waist of the appellant - Datta and a dagger having

length of ten inches was found attached to the waist

of the appellant - Laxman. The car also was

searched, wherein two sticks, a packet of chilly

powder and a cotton rope having length of sixteen

feet were found. A plastic jar containing a black

coloured substance was found under the rear seat of

the said car. On being asked, Narayan informed that

it was opium and was being carried for being sold

near Baba Petrol Pump at Aurangabad. He further

informed that the said opium was weighing 2kg. and

6 23-CRAPAL-708-16-1

500gms. P.S.I. Gavali (P.W.2) informed that fact on

mobile phone to the Superintendent and P.I. of the

Local Crime Branch. He asked Narayan as to whether

he wanted to seize the said contraband in the

presence of a gazetted officer. Narayan answered in

the negative. P.S.I. Gawali (P.W.2) then got called

through Police Naik Ghuge the seal of the police

station, photographer and a Tan-Kata (i.e. hanging

weighing scale). He seized the jar containing opium.

After weighing it in the presence of the panchas and

confirming that it was 2 kg. and 500 gms., he took

three samples weighing 50 gms. each out of the seized

opium and then sealed them with lac. He seized the

said jar and above mentioned articles found in

possession of the accused as well as in the car under

a panchanama in the presence of the panchas. He then

went to Police Station, Pachod alongwith the

appellants and lodged F.I.R. against them. On the

basis of the F.I.R. lodged by P.S.I. Gavali (P.W.2),

Crime No. I-137 of 2012 came to be registered against

7 23-CRAPAL-708-16-1

the appellants for the above mentioned offences. The

seized articles were produced by P.S.I. Gavali in the

police station. The investigation followed.

Statements of witnesses were recorded. The seized

revolvers, cartridges, one of the samples of opium

was sent to Chemical Analyser for analysis and

report. After completion of the investigation, the

appellants came to be charge-sheeted.

6. The learned trial Judge framed charges

against the appellants for the above mentioned

offences vide Exh. 45 and explained the contents

thereof to them in vernacular. They pleaded not

guilty and claimed to be tried. Their defence is

that of total denial and false implication.

7. The prosecution examined eight witnesses to

establish guilt of the appellants for the above

mentioned offences. After evaluating the evidence on

record, the learned trial Judge did not find

sufficient evidence to hold the appellants guilty for

8 23-CRAPAL-708-16-1

the offence under Section 399 of the I.P.C. He,

therefore, acquitted them of the said offence.

However, he found the appellants guilty of the

offences under Sections 3 and 4 read with Section 25

of the Arms Act and under Section 22 of the NDPS Act.

He, therefore, convicted and sentenced the appellants

as stated above.

8. Mr. Kale, the learned Counsel representing

Narayan argued as a lead counsel. His arguments are

adopted by the learned Counsel for the remaining

three appellants with certain additions. It is

contended by the learned Counsel for the appellants

that P.S.I. Gavali (P.W.2) was not an officer

empowered to search and seize any contraband. His

evidence is not supported by independent witnesses in

respect of seizure of contraband. They, further

contend that conscious and exclusive possession of

opium qua the appellants has not been established by

the prosecution. Therefore, they cannot be connected

9 23-CRAPAL-708-16-1

with the opium allegedly seized by P.S.I. Gavali

(P.W.2).

9. They further submit that there is no

consistent evidence in respect of the actual number

of samples taken by P.S.I. Gavali (P.W.2), since

P.S.I. Gavali (P.W.2) states that three samples were

taken, while Police Naik Ghuge states that only two

samples were taken. Therefore, it creates doubt as

to which sample was sent for chemical analysis.

10. They further contend that the report of

chemical analysis is vague and general. It does not

contain the details about the manner in which the

analysis was done. It is simply mentioned that there

were traces of morphine in the sample that was

analysed. However, no percentage of morphine has

been given. Therefore, this report would not be

helpful for the prosecution to establish that opium

as defined in Section 2(xv) of the NDPS Act was

actually seized.

10 23-CRAPAL-708-16-1

11. The learned Counsel further contend that the

provisions of NDPS Act are very harsh and stringent,

inviting heavy punishment. Therefore, it was

necessary for the prosecution to establish strict

compliance of the provisions of Sections 42, 50, 55

and 57 of the NDPS Act. However, the prosecution has

failed to establish compliance of the provisions of

these Sections.

12. The learned Counsel for the appellants

submit that there was no sanction under Section 39 of

the Arms Act for prosecution of the appellants for

the offence under Section 3 of the said Act.

Therefore, no cognizence could have been taken

against them for the said offence. The conviction of

the appellant for the said offence is liable to be

set aside for want of sanction under Section 39 of

the Arms Act. They further contend that there was no

notification issued under Section 4 of the Arms Act.

Consequently, no cognisance could have been taken

11 23-CRAPAL-708-16-1

against the appellants for the offence under Section

4 of the said Act. They could not have been convicted

for the offence under Section 4 of the said Act.

13. The learned Counsel for the appellants

further contend that the driver of the car fled away

after stopping the car. According to them, this

conduct of the driver itself indicates that he was

guilty conscious and was aware about the presence of

the opium allegedly found in the rear seat of the

car. The appellants being not aware of presence of

the opium, they did not feel guilty for any misdeeds,

and therefore, they did not move from the car. The

prosecution has not arrested the driver of the car

for being prosecuted. Therefore, the appellants

cannot be connected with the opium allegedly seized

from the car. The learned Counsel relied on certain

judgments in support of their contentions which would

be considered in the later part of the judgment.

12 23-CRAPAL-708-16-1

14. On the other hand, the learned A.P.P.

submits that since there was no prior information

received by P.S.I. Gavali (P.W.2) that opium was

being carried in the car, the provisions of Sections

42, 50, 55 and 57 of the NDPS Act would not be

applicable to the facts of the present case. He

submits that P.S.I. Gavali (P.W.2) followed the

provisions of the Code of Criminal Procedure while

searching the car and seizing the opium that was

found in the car. Only because the independent

witnesses turned hostile, the evidence of P.S.I.

Gavali (P.W.2) supported by the evidence of Police

Naik Deshmukh and Police Naik Ghuge, who were present

at the time of the search and seizure of opium cannot

be disbelieved. Relying on the judgment in the case

of Baldev Singh Vs. State of Haryana 2015 All M.R.

(CRI)4967(SC), he submits that the evidence of the

police officers cannot be discarded merely on the

ground that they belong to police force and

interested in investigation and in seeing success in

13 23-CRAPAL-708-16-1

the case. He submits that there is sufficient

evidence on record to show that opium was seized from

the car which was owned by the appellant - Datta.

Conscious possession of the appellants over the

seized opium has been proved by the prosecution,

therefore, the presumption under Section 54 of the

NDPS Act would be attracted and burden would shift on

the appellants to prove that they did not commit any

offence in relation to the opium that was found in

their possession. They have failed to rebut the said

presumption. The learned A.P.P. submits that the

trial Judge has rightly considered the evidence on

record and has rightly convicted the appellants for

the offence under Section 22 of the NDPS Act.

15. The learned A.P.P., however, fairly concedes

that for want of sanction for prosecution of the

appellants under Section 39 of the Arms Act, they

could not have been convicted of the offence under

Section 3 of the Arms Act. He, further, concedes

14 23-CRAPAL-708-16-1

that there was no notification issued under Section 4

of the Arms Act. Consequently, the appellants could

not have been convicted for the offence punishable

under Section 4 of the said Act as well.

16. Considering the above rival contentions, I

propose to scrutinise the evidence on record in

respect of the controversial points.

Seizure of opium from the conscious possession of the appellants.

17. In order to establish the seizure of opium

from the conscious possession of the appellants, the

prosecution is mainly relying on the evidence of

P.S.I. Gavali (P.W.2) (Exh.76), Police Naik Deshmukh

(P.W.3) (Exh.82) and Police Naik Ghuge (P.W.7)

(Exh.110). Ram (P.W.1) (Exh.69) and Vasant (P.W.8)

(Exh.117) happened to be the punchas to the seizure

panchnama (Exh.77). However, they did not support the

prosecution. They were cross-examined by the learned

15 23-CRAPAL-708-16-1

A.P.P. However, nothing has been elicited therein to

indicate that opium was seized from the possession of

either of the appellants or from the seized car.

18. As seen from the evidence of P.S.I. Gavali

(P.W.2), on 24th September, 2012 at about 11.15 p.m.,

a Tavera car bearing registration no. MH-23-Y-2404

came near the spot where he had arranged Nakabandi.

He deposes that driver of the car stopped it and ran

away immediately. The appellants were found sitting

inside the car. Besides the weapons/arms allegedly

seized from the possession of the appellants, he

found two sticks, chilly powder and cotton rope

inside the car. He, further states that he searched

the car and found a jar containing opium in the rear

side of the car. Police Naik Deshmukh (P.W.3) and

Police Naik Ghuge (P.W.7) support the version of

P.S.I. Gavali (P.W.2) in respect of finding of the

jar containing opium in the rear portion of the car.

From the evidence of these witnesses, it is clear

16 23-CRAPAL-708-16-1

that opium was not seized from the exclusive

possession of any of the four appellants.

19. P.S.I. Gavali (P.W.2) admits that opium was

not seized from the possession of the appellant -

Narayan. He states that during the enquiry, the

appellant - Narayan informed that he was carrying

opium to Baba Petrol Pump at Aurangabad. However, he

has not recorded the statement of the appellant -

Narayan. Police Naik Deshmukh (P.W.3) and Police

Naik Ghuge (P.W.7), who allegedly were present with

P.S.I. Gavali (P.W.2), do not state that the

appellant - Narayan had informed that he was carrying

opium to Baba Petrol Pump at Aurangabad. Thus, the

version of P.S.I. Gavali (P.W.2) in this regard has

not been corroborated even by the above named police

witnesses. In the circumstances, the bare statement

of Gavali (P.W.2) that the appellant - Narayan

informed him that he was carrying opium to Baba

Petrol Pump at Aurangabad, cannot be believed.

17 23-CRAPAL-708-16-1

20. It is not the case of the prosecution that

anybody out of the remaining appellants gave any

statement admitting possession of the opium that was

seized from the car. In this background, the conduct

of the driver of the car would become significant.

As stated by P.S.I. Gavali (P.W.2), after stopping

the car, the driver thereof immediately fled away.

However, the appellants remained inside the car

itself. This fact indicates guilty consciousness on

the part of the driver of the car. Had the

appellants been carrying the seized opium, they also

would have tried to flee away from the spot where the

car was stopped. Presence of the appellants inside

the car without being disturbed after seeing the

Policemen indicates that they were not aware about

the opium jar that was in the rear portion of the

car. No efforts seem to have been made to arrest the

driver of the car and to prosecute him. There is no

evidence on record to show that either of the

appellants received opium from any particular place

18 23-CRAPAL-708-16-1

and as such was carrying the same in the car. The

jar of opium, thus, cannot be said to be in exclusive

and conscious possession of the appellants.

21. The learned Counsel for the appellants cited

the judgment in the case of Santosh Bhagwan Waghmare

and Another Vs. State of Maharashtra 2017 (5) Mh.L.J.

429, wherein a huge quantity of ganja was seized from

under the seats which were occupied by the accused

persons. There was no evidence to show that the said

accused persons boarded train carrying with them bags

of ganja and kept those bags under their seats.

Consequently, mere detection of bags of ganja under

their seats was not held to be sufficient to conclude

that they were found in conscious possession of the

contraband. In the present case also, the appellants

were not found in exclusive and conscious possession

of the jar of opium which was in rear portion of the

car. Though the appellant - Datta was the owner of

the car, he cannot be said to be in exclusive and

19 23-CRAPAL-708-16-1

conscious possession of the jar of opium in the

absence of any specific evidence to establish that he

collected that jar from any person or place and kept

it in the car for being carried somewhere. As stated

above, P.S.I. Gavali (P.W.2) himself states that the

appellant - Narayan had informed that he was carrying

that opium to Aurangabad. Though the said evidence

also is not believable as against the appellant -

Narayan, for want of corroboration, it rules out the

possibility of seizure of opium from the exclusive or

conscious possession of the appellant - Datta. The

prosecution, thus, failed to prove conscious

possession of the appellants over the seized opium

Compliance of Section 42 of the NDPS Act.

22. P.S.I. Gavali (P.W.2) deposes that on 24 th

September, 2012 in the afternoon, P.I. Nandedkar

received a secret information about travelling of the

dacoits from Beed in the above numbered car and

directed him to arrange Naka-bandi on Beed to

20 23-CRAPAL-708-16-1

Aurangabad road. Accordingly, he went near Hotel

Ekant and arranged Naka-bandi. After the above

numbered car came there, he seared it and found a jar

of opium in the rear portion thereof. From this

evidence it is clear that the contraband was seized

by P.S.I. Gavali (P.W.2) without prior information.

Therefore, the provisions of sub-section (1) of

Section 42 of the NDPS Act would not be applicable to

the facts of the present case.

23. The learned Counsel for the appellants cited

the judgment in the case of State of Punjab Vs.

Balbir Singh AIR 1994 SC 1872, wherein it is held in

sub-para (1) of para 26 of the judgment as under :-

"(1) If a police officer without any prior information as contemplated under the Provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. And when such search is completed at

21 23-CRAPAL-708-16-1

that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psycotrophic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act."

24. The learned Counsel for the appellants

contend that P.S.I. Gavali (P.W.2) was not an officer

empowered to seize and search any contraband. There

is nothing on record to show that P.S.I. Gavali

(P.W.2) was authorised to search and seize contraband

under NDPS Act. Therefore, it was necessary for him

to inform the authorised officer, who should have

thereafter proceeded in accordance with the

provisions of the NDPS Act. Even if it is accepted

22 23-CRAPAL-708-16-1

that he was empowered to do so, in view of the

observations made in the above referred paragraph,

after seizure of opium from the car, it was necessary

for him to carry out further investigation in

accordance with the other provisions of NDPS Act.

Since opium was found in the car i.e. conveyance,

provisions of sub-section (1) of Section 42 would

have been made applicable had P.S.I. Gavali (P.W.2)

received prior information. Therefore, after seizure

of opium, it was necessary for P.S.I. Gavali (P.W.2)

to comply with the provisions of sub-section (2) of

Section 42 of the NDPS Act. It was necessary for him

to inform his immediate officer superior about the

seizure of opium. However he failed to comply with

this mandatory provision which is certainly fatal to

the prosecution.

Compliance of Section 50 of the NDPS Act.

25. From the evidence of P.S.I. Gavali (P.W.2),

it is clear that it was a chance recovery of opium

23 23-CRAPAL-708-16-1

from the car which was not preceded with any

information. Therefore, as held in the case of

Balbir Singh (supra) cited by the learned Counsel for

the appellants, the provisions of Section 50 of the

NDPS Act would not be applicable to such search.

Compliance of Sections 55 and 57 of the NDPS Act.

26. As per Section 55 of the NDPS Act, besides

the seal of the officer producing samples of the

seized contraband articles, it is necessary for the

officer in-charge of the police station to put his

seal thereon. As per Section 57 of the said Act,

whenever an officer makes any arrest or seizure under

this Act, he shall, within 48 hours therefrom, make

full report of all particulars of such arrest or

seizure to his immediate officical superior.

Admittedly, A.P.I. Chikhalikar (P.W.6) (Exh.100), the

Investigating Officer and the officer in-charge of

the police station did not put his seal to the

24 23-CRAPAL-708-16-1

samples. As such, he did not comply with the

provisions of Section 55 of the NDPS Act. Likewise,

neither P.S.I. Gavali (P.W.2), nor A.P.I. Chikhalikar

(P.W.6) reported about the arrest of the appellants

and seizure of opium to their immediately official

superior. The provisions of Section 57 have been

held to be directory. However, as held in the case

of Vinayak Dnyanoba Gaikwad and Ors. Vs. State of

Maharashtra 2004 All M.R.(CRI) 1922, the compliance

of provisions of Section 55 of the NDPS Act is

mandatory. In paragraph no.16 of the judgment, it

has been observed that Section 55 clearly shows that

all samples taken from the seized material under this

Act shall have necessarily to be sealed with the seal

of an officer in-charge of a police station. This is

a mandate of law and the word used is "shall" leaving

no discretion in the hands of the concerned.

Considering the severe nature of punishment provided

by the Act, every provision of this Act has to be

strictly construed and any non-compliance will

25 23-CRAPAL-708-16-1

automatically render the prosecution a suspect. In

the present case, there is no compliance of the

provisions of Sections 55 and 57 of the NDPS Act

which creates a strong doubt about the case of the

prosecution.

Reliability of the report of Chemical Analyser.

27. The learned Counsel for the appellants

submit that P.S.I. Gavali (P.W.2) states that he took

three samples of the seized opium, however Police

Naik Ghuge (P.W.7) states that only two samples were

taken. Therefore, a doubt is created as to which was

the third sample and which sample was actually sent

to the Chemical Analyser for analysis and report.

They submit that carrier of the sample has not been

examined by the prosecution. There is no evidence to

show that the sample was duly sealed and was sent to

the Chemical Anayser in the same condition in which

it was sealed.

26 23-CRAPAL-708-16-1

28. Indeed, there is material inconsistency in

the evidence of P.S.I. Gavali (P.W.2) and Police Naik

Ghuge (P.W.7) about the number of samples taken from

the seized opium. As stated above, there is no

compliance of Section 55 of the NDPS Act. Therefore,

a doubt is created as to whether the same sample

which was collected at the time of the trap was was

sent to Chemical Analyser for analysis and report.

This doubt is strengthened by non-examination of the

carrier of the sample.

29. The learned Counsel for the appellants

pointed out to the judgment of Raju Girdharilal

Shrivastav Vs. State of Maharashtra 2004 All M.R.

(CRI) 3053, wherein the sample of the seized Gard

(Diacetyl Morphine) was sent for analysis and report

to the Chemical Analyser. It was reported by the

Chemical Analyser that Heroin (Diacetyl Morphine) was

detected alongwith other opium alkaloide. After

considering various judgments on the point, this

27 23-CRAPAL-708-16-1

Court observed that such a report cannot be attached

with any value to hold the accused guilty. In the

absence of details of tests and the reasons on the

basis of which the Chemical Analyser formed his

opinion that the sample which was analysed was a

contraband article, the report cannot be attached

with any evidentiary value. In the present case also

the report (Exh.127) of Chemical Analyser is almost

identical to that of the above referred case. It

simply contains that there were traces of morphine.

Such a vague report would not be helpful for the

prosecution to establish that the sample was a

contraband article.

30. The learned Counsel for the appellants

referred to Section 2(xv) wherein opium has been

defined as under :-

               2(xv)             "opium" means -

               (a)               the   coagulated   juice   of   the   opium 
               poppy; and
               (b)               any   mixture,   with   or   without   any 





                                      28                       23-CRAPAL-708-16-1

neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine;

31. From the above mentioned definition it is

clear that in order to establish that a particular

substance is opium, it should contain more than 0.2

per cent of morphine. It is, therefore, necessary

for the Chemical Analyser to mention in his report

specifically about the extent/quantity of morphine

found in the sample. In the case at hand, the report

(Exh.127) of Chemical Analyser simply states that

there were traces of morphine. Such finding would

not be helpful for the prosecution to establish that

the traces of morphine were more than 0.2 per cent

and as such, it was opium. In these circumstances,

the report (Exh.127) of Chemical Analyser would not

be helpful to the prosecution to establish that the

sample was opium, as defined under Section 2(xv) of

the NDPS Act.

29 23-CRAPAL-708-16-1

Non-production of entire seized contraband before the Court.

32. As seen from the evidence of the witnesses

only sample of the seized opium was produced before

the trial Court when the evidence was recorded.

Though, opium weighting 2 kg. and 500 gms. was

allegedly seized, the jar containing remaining opium

was not produced before the Court for being

identified by the witnesses as the same that was

seized at the time of trap. The learned Counsel for

the appellants cited the judgment in the case of

Shaikh Mehboob Sheikh Hussain Vs. State of

Maharashtra 2017 (6) Mh.L.J. (CRI) 26 wherein this

Court held that for establishing that the alleged

quantity of contraband was seized from the possession

of the accused, the best evidence would have been the

seized materials which ought to have been produced

during the trial as marked objects. Relying on the

judgment in the case of Jitendra and Another Vs.

State of M.P. 2004 SCC (CRI) 2028, this Court held

30 23-CRAPAL-708-16-1

that non-production of contraband before the trial

Court was fatal to the prosecution.

33. As stated above, the prosecution has failed

to establish exclusive and conscious possession of

the appellants over the opium allegedly seized in the

car. Moreover, there are a number of deficiencies on

the part of P.S.I. Gavali (P.W.2) and A.P.I.

Chikhalikar (P.W.6) in complying with the above

mentioned mandatory provisions. The report (Exh.127)

of the Chemical Analyser falls short to establish

that the sample of the seized contraband was "opium"

as defined in Section 2(xv) of the NDPS Act. In the

circumstances, the prosecution cannot be said to have

established guilt of the appellants for the offence

under Section 22 of the NDPS Act. The learned trial

Judge did not at all consider these deficiencies and

wrongly convicted the appellants of the said offence.

The finding recorded by the learned trial Judge

holding the appellant guilty for the offence under

31 23-CRAPAL-708-16-1

Section 22 of the NDPS Act is not at all sustainable.

The impugned judgment and order convicting the

appellants for the said offence is liable to be

quashed and set aside.

34. The appellants have been charged for the

offence punishable under Section 3 of the Arms Act.

As per Section 39 of the said Act, no prosecution

shall be instituted against any person in respect of

any offence under Section 3 of the said Act without

previous sanction of the District Magistrate.

Admittedly, no sanction has been accorded by the

District Magistrate for prosecution of the appellants

for the offence under Section 3 of the said Act.

Absence of previous sanction would render conviction

of the appellants for the said offence as illegal.

The learned trial Judge did not at all consider this

bar contained in Section 39 of the said Act against

the prosecution of the appellants for the offence

punishable under Section 3 of the said Act. The

32 23-CRAPAL-708-16-1

conviction of the appellants for the said offence

being illegal, is not sustainable.

35. The appellants have been convicted and

sentenced for the offence under Section 4 read with

Section 25 of the Arms Act, as well. Section 4 reads

as under :-

"4. Licence for acquisition and possession of arms of specified description in certain cases.

If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder."

33 23-CRAPAL-708-16-1

36. In the present case, admittedly no

notification as contemplated under Section 4 of the

Arms Act has been issued. Consequently, the

provisions of Section 4 would not be attracted. The

appellants were not liable to be convicted for the

offence under Section 4 of the said Act. The offence

under Section 4 of the said Act cannot be said to

have been established against the appellants in the

absence of the notification. The conviction and

sentence passed against the appellants for the

offence under Section 4 of the said Act, thus, is

liable to be quashed and set aside.

37. As stated above, the appellant - Datta, who

is the owner of the above numbered car cannot be said

to be in conscious possession of the seized opium.

There is nothing on record to show that he was aware

that opium was being carried in his car. No offence

has been established against him. In the

circumstances, the order passed by the learned trial

34 23-CRAPAL-708-16-1

Court confiscating the above numbered car cannot be

said to be sustainable. It will have to be set aside

and the said car will have to be allowed to be

retained by the appellant - Datta. The appeals are

liable to be allowed. In the result, I pass the

following order :-

ORDER

A) Appeals are allowed.

B) The impugned judgment and order convicting

the appellants / accused nos. 1 to 4 are

quashed and set aside.

C) The appellants are acquitted of the offences

under Sections 3 and 4 read with section

25 of the Indian Arms Act and of the

offence punishable under Section 22 of the

Narcotic Drugs and Psycotropic Substances

Act.

D)             The appellant/accused nos. 1 and 2 be set at 





                                     35                       23-CRAPAL-708-16-1

liberty forthwith, if not required in any

other case.

E)             Bail bonds of the appellants/accused nos. 3 

               and   4   are   cancelled.     They   are   set   at 

               liberty.


F)             Fine   amount   deposited   by   the   appellants/ 

accused nos. 3 and 4 be refunded to them.

G) The order directing auction sale of the

Tawera car bearing registration no. MH-23-Y-

2404 is set aside and the said car is

allowed to be retained by the appellant/

accused no.3.

H) The orders for disposal of rest of the

seized articles are maintained as they are.

I) Appeals are disposed of accordingly.

[SANGITRAO S. PATIL] JUDGE SSD