Bombay High Court
Shaikh Salman Shaikh Khalil vs The State Of Maharashtra on 3 August, 2021
Bench: Bharati Dangre
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THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.182 OF 2018
ALONG WITH
BAIL APPLICATION NO.1883 OF 2018
Shaikh Salman Shaikh Khalil ]
Residing at Village Satona, Taluka Patur, ]
District Jalna. ]
[At present undergoing sentence at ]
Kolhapur Central Prison, Kolhapur.] ] ... Appellant
Versus
The State of Maharashtra ]
(Anti Narcotic Cell vide C.R. No.201 of ]
2015 dated 21/05/2015) ] ... Respondent
...
Mr. Dilip Mishra i/b Mr. Ayaz Khan for the Appellant.
Mr. Veera Shinde, A.P.P. for the Respondent.
...
CORAM : MRS. BHARATI DANGRE, J.
RESERVED ON : 05TH APRIL, 2021.
PRONOUNCED ON : 03RD AUGUST, 2021.
JUDGMENT:-
1. By the present Appeal, the Appellant assails his
conviction under Section 8(c) of the NDPS Act, punishable
under Section 20(b)(ii)(c) thereof, by the judgment delivered
in NDPS Special Case No.214 of 2015 dated 22/12/2017. On
being convicted, the Appellant has been sentenced to suffer RI
for 10 years and to pay fne of Rs.1,50,000/-, in default of
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payment of fne, to undergo RI for one year and six months.
Set off is given for the period he was in judicial custody in
terms of Section 428 of the Cr.P.C.
It is this judgment delivered by the NDPS Special Judge,
Greater Mumbai, which is the subject matter of the appeal.
2. The prosecution case can be summarized as under:
(a) PW-5 API Katwani, while posted at ANC Ghatkopar
Unit, received information at about 0830 hours on
21/05/2015 that a person by name Salman Shaikh
("the Appellant"), who is in the business of drugs and
selling ganja is likely to arrive in relation to his
business between 1300 and 1400 hours at Vikhroli
Gaon BEST bus stop, Vikhroli, Mumbai in a red
coloured Tata Indica car bearing No.MH-21-V-2824.
(b) The information was reduced in writing in the
Information Register and the Station Diary by PW-5
API Katwani and was conveyed orally to PW-4 PI
Belge, who, in turn, conveyed the said information
orally to the in-charge ACP and Sr. P.I. of Anti Narcotic
Cell, Cuffe Parade, PW-6 one Jadhav. PW-5 API
Katwani took out the copies of the Information
Register and Station Diary and supplied one copy to
PW-4 PI Belge and the other copy was forwarded to
PW-6, the superior offcer of the Cuffe Parade through
Police Constable Sarkale at 0945 hours.
(c) PN Avhad called the panchas and PW-5 API Katwani
obtained the raiding material including the brass seal.
The pre-trap panchanama was drawn by PSI Sanap at
1000 hours, which was completed at 1145 hours. PW-
5 API Katwani made an entry in the Station Diary for
conducting the raid. The raid was organized under
the supervision of PW-4 PI Belge.
(d) The raiding team proceeded to the Eastern Express
Highway and on crossing the road through the
overhead bridge, came to Vikhroli Gaon bus stop on
southern direction of Eastern Express Highway.
M.M.Salgaonkar
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(e) Around 1320 hours, the raiding team noticed one red
coloured Tata Indica car coming from the direction of
Thane to Mumbai and it stopped at the Service Road
behind the Vikhroli Goan BEST bus stop, route
Nos.353, 354 and 509, Vikhroli (E).
(f) One person alighted from a car, opened its boot and
pulled out one brown coloured gunny bag, which he
clinged on his left shoulder and stood there. On the
identity of the person was found to be matching with
the information received, he came to be apprehended
at 1330 hours.
(g) On enquiry, it was confrmed that he was the same
person, who was being informed to be carrying the
contraband. PW-4 Belge apprised him of the
provisions of Section 50 of the NDPS Act and issued a
letter in that regard.
(h) The search was carried out after pulling the gunny
bag from the shoulder of the person apprehended, to
be revealed that it contained greenish leaves, fowers,
stalk and seeds. Prima facie, it is indicative of ganja
and on weighing scale, it measured 25 kgs.
(i) Two sample packets of 25 gms. came to be drawn and
kept in two separate plastics pouches, which were
stapled and inserted in two brown coloured envelopes
and they were affxed with identifcation marks 'A-1'
and 'A-2'. The remaining contraband was put in the
original gunny bag and a label was affxed on the
same, which was signed by PW-5 API Katwani, two
panchas and it was sealed and came to be marked 'A'.
(j) On further search of the Indica car by PW-5, one
gunny bag tied with the help of string was recovered
from the rear seat of the car. It also contained ganja
and on weighing the same, it was found to be 35 kgs.
Identical procedure, which was carried out qua the
frst gunny bag was followed and the samples
collected, came to be marked as 'B-1' and 'B-2' and the
remaining bulk in the gunny bag, after affxing the
necessary signature, came to be marked as 'B'.
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(k) On personal search of the apprehended person, one
mobile phone, Indian currency of Rs.500/- and the
key of car came to be seized. There were no
documents found in the car establishing the
ownership.
(l) Panchanama was drawn by PSI Sanap on the
direction of PSI Katwani, which was concluded at
1630 hours. The accused was thereafter taken to the
Cuffe Parade offce by the raiding party along with the
seized articles. The property came to be produced
before PW-6 PI Jadhav (in-charge ACP), who affxed
label bearing his signature on the same. Property
came to be deposited in the godown with PI Gokhale at
2045 hours in Azad Maidan. FIR vide C.R. No.201 of
2015 was registered by PN Vangnekar on 21/05/2015
itself.
(m) On the next day, the search and seizure report was
forwarded vide Ex-30 by PW-5 to PW-6 at Cuffe
Parade. Samples collected during the raid were
forwarded to Forensic Science Laboratory ("FSL")
Kalina through PW-7 PC Sonawane and the report of
the same was obtained, which confrms the seized
contraband to be 'ganja'.
(n) On completion of investigation, prosecution fled the
charge-sheet and the case was numbered as NDPS
Case No.214 of 2015.
3. The Appellant was charged by NDPS Special Judge on
06/06/2016 to the following effect:
"That, on 21/05/2015 in between 13.30 to 16.30
hours at Vikroli Gaon Best Bus Stop, Best route
no.353, 354, 509, Vikroli (E), Mumbai 79 you were
found in possession of 60 Kilogram of 'Ganja', narcotic
substance not intended to be used for medical or a
scientifc purpose in contravention of the provisions
of the Narcotic Drugs & Psychotropic Substances Act,
1985 and thereby committed an offence u/sec. 8(c)
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punishable u/sec. 20(b)(ii)© of the Narcotic Drugs &
Psychotropic Substances Act, 1985 and within my
cognizance."
4. The accused pleaded not guilty and claimed to be tried.
The prosecution produced the articles in the court, which
included the contraband and the samples of contraband, which
were seized during the raid and also the red coloured Tata
Indica car. The prosecution relied upon the examination
report of the contraband seized from the Directorate of
Forensic Science Laboratory, State of Maharashtra, at Kalina,
on 06/08/2015, which analyzed the samples and opined that
the exhibits, which were forwarded to it are 'Ganja' and fall
within purview of Section 2(iii)(b) of the NDPS Act, 1985. The
data sheet issued by the FSL exhibiting its chemical quality
was also laid before the Special Court.
5. The prosecution laid its case through seven witnesses,
who are enlisted as under:
Sr. Name of Witness Type of Evidence
No.
1. P.N. Prakash Wangnekar Complainant
2. Rehan Shaikh Panch
3. HC Shashikant Kadam Godown Keeper
4. PI Vijay Belge In-charge of the
raid
5. API Rahul Katwani IO
6. PI Bharat Jadhav PI from Cuffe
Parade
7. PC Bhausaheb Sonawane Carrier
M.M.Salgaonkar
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The prosecution exhibited various documents through
the aforesaid witnesses, which included the FIR (Ex-14), Pre-
trap Panchanama (Ex-22), Post-trap Panchnama (Ex-24), the
letter forwarded to the superior authority accompanied by
copy of Information Book and Station Diary of ANC Unit (Ex-
29), attested copy of Information Book (Ex-27), typed copy of
Station Diary (Ex-28), letter issued to the Appellant apprising
him of the right available under Section 50 of the NDPS Act
(Ex-23), letter by which the seized muddemals were deposited
with ANC store room (Ex-16), attested copy of Muddemal
Register (Ex-17), samples forwarded to chemical analysis (Ex-
18), Special Report (Ex-30), copies of station diary of ANC
Unit, Ghatkopar (Ex-36 and Ex-37), copy of station diary of
ANC store room (Ex-40), attested copies of Station Diary of
Cuff Parade (Ex-43 and Ex-44).
With these material and through the aforesaid witnesses,
the prosecution succeeded before the NDPS Special Judge, who
recorded a fnding of guilt and, considering the serious nature
of the crime being in possession of 60 kgs. of ganja, a beftting
punishment came to be imposed, sentencing the Appellant to
suffer RI for 10 years and a fne of Rs.1,50,000/-.
6. In support of the Appellant, assailing his conviction and
sentence, I have heard learned counsel Mr. Dilip Mishra. His
submission can be compartmentalized broadly into fve parts.
The frst ground of challenge is the absence of written
authorization as envisaged under Section 41(2) of the NDPS
Act. By relying upon the testimonies of PW-1, PW-4, PW-5 and
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PW-6 and by making reference to the documents (Ex-27, Ex-28
and Ex-29), learned counsel would urge that there is no
authorization issued by PW-6 PI Bharat Jadhav authorizing
PW-4 Belge to conduct the raid. The submission is that PW-6
deposes that he had not given written direction to PI Belge
and, there is no endorsement in writing to that effect on the
aforesaid exhibits.
The second limb of his argument is alleged violation of
Section 42 of the NDPS Act and the submission is to
demonstrate compliance of Section 42(1) of the NDPS Act,
what has been produced is the true copy of the Information
Register (Ex-27) and true copy of Station Diary (Ex-37). An
elaborate submission is made by learned counsel on the alleged
violation. By referring to the testimony of the key witnesses
PW-1, PW-4 and PW-5, and inviting my attention to the
discrepancies in the evidence of the said witnesses, Mr. Mishra
would submit that PW-1 does not identify any document
regarding compliance of Section 42. PW-5 has deposed that he
received information through his informant and he recorded
the information in the Information Book and produced the
same before Unit PI (PW-4), PW-4 read the information and
directed him to reduce the same in Station Diary. He has
deposed that prior to recording the information in the
Information Book, PW-4 PI Balge communicated the
information to ACP on phone. PW-4, however, remained silent
about production of Information Register before him regarding
the said information. The inconsistency in the version of PW-4
and PW-5 is also highlighted to point out the trustworthiness
of the case of the prosecution coupled with the deposition of
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PW-6, who has deposed that he received a call from PI Belge
between 8.30 to 8.45 a.m. and apprised him of the information.
In the deposition, PW-6 has referred to PI Belge from ANC
Bandra Unit. Pointing out the contradiction, it is urged that
the case was from Ghatkopar Unit. Ex-28 is subjected to
criticism by learned counsel as the learned Special Judge has
committed grave error in directing the prosecution to record
the statement of PW-6 under Section 161 of the Cr.P.C. during
the trial, despite the fact that PW-6 was not initially cited as a
witness. This is the precise submission on non-compliance of
the mandate under Section 42 of the NDPS Act.
7. Another submission of Mr. Mishra is to the effect that
there is no document found in the vehicle or in possession of
the Appellant establishing his nexus with the car, like the
driving licence or insurance policy. Similarly, no toll receipt is
produced by the prosecution refecting that the vehicle has
crossed toll plaza before entering Mumbai. In absence of the
connection of the Appellant to the car in question, the
submission is that the case of the prosecution is doubtful.
Argument is also advanced upon the further movement of the
car as to how the car was brought to the Cuffe Parade and
deposited in Azad Maidan. The testimony of PW-5 is
emphasised upon, where he has deposed that he does not
remember the date on which the seized car was taken from
Azad Maidan Store room to ANC Unit, Ghatkopar and no
information in respect of shifting of seized car from store room
to ANC Unit was given to the court or to the Appellant.
Further, it is also the submission that PW-2, the godown keeper
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was not shown the car and the key nor does he throw any light
about the movement of the car out of the godown.
8. The fourth limb of the argument of Mr. Mishra revolves
around the case of the prosecution being not proved beyond
reasonable doubt as his submission is PSI Sanap and driver
Natuskar are not the members of the raiding team. By inviting
my attention to Ex-14, the FIR, Ex-22, the pre-trap
panchanama and Ex-24, the post-trap panchnama as well as
Ex-37, the Station Diary, which record that police driver
Natuskar and PSI Sanap have proceeded for trap and it is PSI
Sanap, who prepared the post trap panchanama and typed the
FIR, is the prosecution case. Mr. Mishra would submit that
PW-4 and PW-5, in their examination in chief, are consistent
about the presence of PSI Sanap and Natuskar during the raid
and, thereafter, they returning to the Cuffe Parade and further
to Ghatkopar Unit after raid. However, when PW-4 is
confronted with Ex-37, it reveals that the entries in Ex-37
demonstrates that PSI Sanap and Natuskar were present there
for some other work and were not party to the raid. An entry
further refects that Natuskar had gone for enquiry of accused
in C.R. No.197 of 2015 to Azad Maidan lock up and that PSI
Sanap was in Ghatkopar Unit prior to 7.20 p.m., interrogating
one accused viz. Moin Sayyed on 21/05/2015 at 2130 hours,
when he was in lock up of Azad Maidan Unit. The entries
create dent in the case of the prosecution and the prosecution,
to cover up the same, has spoken through PW-6, who offered
an explanation about the entries in Ex-37. He has produced
documents at Ex-67 and Ex-68, which are afterthought and
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manipulated ones. Non-examination of PSI Sanap and
Natuskar is also subject to heavy criticism by Mr. Mishra.
9. In the last limb of his arguments, Mr. Mishra has
embarked upon the manner of sealing of samples and packing
of bulk. He submits that PW-5 has deposed that the seal was in
custody of PW-4, prior to preparation of pre-trap panchanama.
However, there is some inconsistency in the recitals in Ex-13
and Ex-22. PW-4 did not depose anything about return of seal
and he has admitted that no document is prepared about
custody of seal. Sealing and labelling are also found to be
conspicuous as PW-5 states that labels must have prepared in
his handwriting or in the handwriting of PW-4 PI Belge. In
cross-examination, he has admitted that the writing on Article
2 is not in his handwriting and he is unable to state that
whether it is the handwriting of PW-4 or not. About packing of
the bulk, the case of the prosecution is that the bulk quantity
of ganja, after picking up of the samples were kept in original
gunny bag with seal affxed and marked as Ex-A and Ex-B.
There is, however, grave inconsistency in the deposition of
witnesses, PW-1, PW-3 and PW-5 on the said point. PW-1 was
re-examined by the prosecution, however, no explanation was
sought on the packing and sealing of bulk quantity. PW-3, the
pancha, on the other hand, states that the remaining bulk was
kept in the sack, which was stitched. In the testimony of PW-5,
he admits that the gunny bag containing ganja found with the
Appellant was not of black colour and that the seized ganja was
not kept in any sack but was kept in a `Goni'. But, he denied
that the gunny bag was wrapped by white coloured cloth and it
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was tied with jute string and thereafter it was sealed. The
submission is when the gunny bag was produced in court for
identifcation by PW-2, it was found to be in torn condition and,
there is no explanation afforded by the prosecution. This itself
creates a doubt in the case of the prosecution. The
identifcation of seized articles is also argued to have created a
lacuna in the case of the prosecution as PW-3 has deposed that
the substance found in the gunny bag contained leaves,
whereas the leaves of the plant are not covered by the
defnition of ganja, under the NDPS Act.
The topography, where the raid was conducted is also
questioned as there is inconsistency in the version of the
witnesses about the actual place, where the raid was
conducted. PW-5, who is not sure about which bus stop, the
Appellant was to come as there are two bus stops in Vikhroli;
one is situated on the left side and the other is situated on the
right side and the distance between the two may be between
140 to 180 feet.
10. Argument is also advanced about non-compliance of
Section 50 of the NDPS Act as the exact words uttered while
apprising the Appellant under Section 50 of the NDPS Act are
not brought on record except the version that PW-4, who
apprised the Appellant about the same. The admission of PW-5
that it has not specifcally mentioned in post-trap panchanama
that the Appellant understood his right under Section 50 of
the NDPS Act, is sought to be encashed. The witnesses, who
have deposed that the letter was given to the Appellant about
compliance of Section 50 of the NCPS Act is, in fact, not the
M.M.Salgaonkar
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compliance of the said mandatory provision in letter and
spirit, according to Mr. Mishra, particularly when the stand of
the prosecution that PI Belege explained the contents of the
letter is an omission, which is admitted by PW-5. At the end of
his submission Mr. Mishra would argue that the investigation
by PW-5 Katwani is an abuse of process of law and the entire
case of the prosecution becomes doubtful since it hings upon
the testimony of PW-3, the pancha, who has deposed that his
shop is at Ghatkopar (West) and it becomes operational at
11.00 a.m. and it is situated at a distance of 15 minutes from
ANC offce. There was no reason as to why he was available at
10.00 a.m. in Ghatkopar Unit is the question that has been
posed and the said witness, a pancha is, therefore, clamped to
be a doubtful one and the conviction of the Appellant with the
aid of the pancha witness is erroneous, according to Mr.
Mishra.
11. Per contra, Ms. Veera Shinde, learned A.P.P. for the State
has supported the case of the prosecution. She submits that
the prosecution witnesses have established its case against the
Appellant beyond reasonable doubt by producing on record the
relevant documents. Non-examination of Natuskar, according
to Ms. Shinde, does not affect the case of the prosecution.
Learned A.P.P. would submit that the topography is also not in
doubt and mere discrepancy when PW-1 referred to the spot as
Vasantrao Naik Eastern Express Highway, in fact, it is not
based on information. PW-4 has specifcally referred to the
spot and the panchanama also distinctly referred to the village
Vikhroli and the spot being near Vikhroli BEST bus stop. The
submission of Ms. Shinde is to the effect that every minor
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inconsistency would not be fatal to the case of the prosecution
and unless and until, it materially affects the case of the
prosecution. She asseverates that there is compliance of
Sections 42 and 50 of the NDPS Act in letter and spirit and no
prejudice has been alleged by the Appellant, in absence of
which, the case of the prosecution cannot be turned down.
Learned A.P.P. further submits that the impugned judgment
has exhaustively considered all the objections raised by Mr.
Mishra and have been turned down as not legally sustainable.
She would, therefore, pray that the impugned judgment be
upheld and the conviction and sentence imposed on the
Appellant be confrmed by dismissing the Appeal.
12. On consideration of the rival contentions in the backdrop
of the material contained in record and on appreciation of the
same, I proceed to deal with the points of submission.
I) No Written Authorisation under Section 41(2) of the
NDPS Act.
13. Section 41(1) of the NDPS Act enumerate the power of a
Magistrate to issue a warrant for the arrest of any person,
whom he has reason to believe that he has committed any
offence punishable under this Act, or for the search of any
building, conveyance or place in which he has reason to believe
that any narcotic drug or psychotropic substance or controlled
substance in respect of which an offence punishable under this
Act has been committed or any document or other article
which may furnish evidence of commission of such offence,
M.M.Salgaonkar
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which is liable for seizure or freezing or forfeiture under
Chapter V-A of this Act is kept or concealed.
Sub-section (2) of the said Section prescribe for exercise
of power that any such offcer of gazetted rank of the
departments enumerated therein, if he has reason to believe
from personal knowledge or information given by any person
and taken in writing that any person has committed an offence
punishable under this Act, he may authorise any offcial
subordinate to him, but superior in rank to a peon, sepoy or a
constable to arrest such a person or search a building,
conveyance or place whether by day or by night or himself
arrest such a person or search a building, conveyance or place.
Sub-section (3) of the said Section contemplates that the
offcer to whom a warrant under sub-section (1) is addressed
and the offcer, who authorised the arrest or search or the
offcer who is so authorised under sub-section (2) shall have all
the powers of an offcer acting under Section 42.
14. In the wake of the said statutory provision, the
submission that there was no written authorisation as
envisaged under Section 41(2) of the NDPS Act will have to be
examined.
API Katwani (PW 5) has deposed that on 21/05/20215,
he was on duty in ANC Unit, Ghatkopar, on the post of
Assistance Police Inspector. At about 8.30 a.m., his informer
provided him information about one person, whose description
was given, dealing in business of ganja by name Shaikh
Salman, coming for selling ganja to his customer in the red
colour Tata Indica Car at Vikhroli bus-stop, Vikhroli Mumbai.
M.M.Salgaonkar
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PW 5 recorded the information in the Information Book and
placed the said information in front of Unit In-charge PI Belge
(PW 4), upon which PW 5 was asked to record an entry in
Station Diary and after reading the said information, PW 4
conveyed the information by telephone to his superior in
rank, the Assistant Commissioner of Police (PW 6). PW 4
made an entry about the said communication in the
Information Book and also signed it. The copy of the
Information Book and the noting in the Station Diary came to
be forwarded to the Superior Offcer, ACP Bharat Jadhav in
Cuffe Parade alongwith forwarding letter, through Constable
Sarkale. The forwarding letter exhibited at Ex-29 record the
information received and also about the same being recorded
in the Station Diary of the ANC Unit, Ghatkopar. It also
mentions that in terms of Section 42(2) of the NDPS Act, the
ACP was intimated about the information on telephone,
pursuant to which, oral instructions were given to PI Belge
(PW 4) to carry out the proceedings and note to that effect is
also recorded in the Station Diary. Exhibit 29 then records
that the copy of the Station Diary making an entry of the
information receipt and copy of the extract of the information
received is also enclosed alongwith the said letter for perusal
and for offcial purpose. The two documents are appended as
enclosure to Ex-29.
15. PI Bharat Jadhav (PW 6) admit that on 21/05/2015, at
8.30 to 8.45 a.m., he received a phone call from PI Belge of
ANC Unit, whom he mentions as of Bandra Unit, who was
divulged the secret information received about a person
named Salman Shaikh, dealing in contraband, arriving at
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Vikhroli for selling ganja. PW 6 corroborate PI Belge on the
information being conveyed, pursuant to which, he ordered
further action to be carried out under his supervision. He also
admit that at about 11.00 a.m. on the same day, PI Sarkale of
ANC Unit came to him with copy of the forwarding letter, copy
of Station Diary and copy of Information Book. He was
confronted with the letter at Ex-29, which bear signature of
API Katwani (PW 5) and PI Belge (PW 4). He is also
confronted with the typed copy of the Station Diary (Ex-28),
which was accompanying the letter (Ex-29). The Station
Diary bear his signature in the capacity of Sr.PI and ACP.
From the documents, it is inferred that PW 6, the In-charge
ACP, authorised PI Vijay Belge (PW 4) to proceed with the raid
and it is under his supervision, the raid was conducted. ACP
Katwani acted as the Investigating Offcer under the
supervision of PI Belge. The ACP being a Gazetted Offcer,
authorised his subordinate PI Belge to take up the proceedings
and upon such authorisation, search, seizure and arrest came
to be effected.
16. PI Belge examined as PW 4, further lent corroboration to
the said authorisation, by PW 6. He depose that he was posted
as Unit Incharge at Ghatkopar ANC and joined the duty on
21/05/2015 at 8.15 a.m. At about 8.45 a.m., API Katwani
came in his chamber and revealed about the information
received by him, which was recorded by him in the
Information Book and Station Diary. Ex-27, copy of the
information, which was verifed by bringing the original
Register, came to be exhibited by the prosecution through this
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witness alongwith the Station Diary, which was compared with
the original, which was produced when the witness was in the
box. PW 4 has deposed that he called PSI Sanap, PN
Vanganekar (PW 1), Mr.Edke, Mr.Avhad and Mr.Atoskar in his
chamber. He communicated the information to Sr.PI, In-charge
ACP of Cuffe Parade. PW 4 categorically aver that Sr.PI Jadhav
directed to carry out raid under his supervision and this
authorisation transmitted to him, was communicated to the
staff present in his chamber, pursuant to which the raid was
carried out. PW 4 corroborate PW 5 on the aspect of the copy
of the Information Book and the Station Diary being forwarded
to the superior offcer in Cuffe Parade alongwith forwarding
letter, which was signed by him and also by API Katwani. The
said letter is at Ex-29. The aforesaid evidence brought on
record through the three witnesses proves the authorisation
granted by the superior offcer (PW 6), ACP to PI Belge (PW 4)
and from the aforesaid evidence brought on record, the
submission of the learned counsel that there is no
authorisation for conducting the raid in terms of sub-section
(2) of Section 41 cannot be accepted.
II) Violation of Section 42 of the NDPS Act.
17. Section 42 adumbrate the power of entry, search, seizure
and arrest without warrant or authorisation. The power can
be exercised by an offcer, if he has reason to believe from
personal knowledge or information given by any person and
taken down in writing that any prohibited substance in respect
of which an offence punishable under this Act has been
committed or any document or article which evidence
commission of such offence is kept or concealed in any
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building, conveyance or enclosed place, he may between
sunrise and sunset enter and search building and seize such
drug or substance and detain and search and if he thinks
proper, arrest any person whom he has reason to believe that
he has committed the offence. Sub-section (2) make it
imperative for an offcer taking down any information in
writing under sub-section (1) or recording grounds for his
belief under the proviso thereto to transmit the said
information within 72 hours to his immediate offcial superior.
Section 42 is invocable when the search is made by the
police offcer or the concerned authority, upon the prior
information. When such information or intimation or
knowledge comes to the notice of the Investigating Offcer or in
curse of the regular patrolling or an investigation of some
other offence and when it is not feasible to follow the
conditions incorporated under Section 42, subsequent
intimation or information after the process is completed, is
suffcient. Pertinent to note that provisions of sub-section 2 of
Section 42 are meant to cover cases falling within Section
42(1). The requirements of compliance of Section 42 are not
extended to a Gazetted Offcer. The offcer of Gazetted rank
while authorising his junior offcer under Section 41(2) knows
what he is requiring them to do and, therefore, there is no need
for reporting. The need for reporting under Section 42(2)
arises because the offcer proceeded without information in
form of Section 41(1) and 41(2).
18. In the present case, the search has taken place in a
public place being on the highway, near Vikhroli bus-stop in
Vikhroli and since one of the bags was found on the person of
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the Appellant as he was standing with the said bag on his
shoulder, the said search is effected in public place. The
seizure of the second bag is from the rear seat of the vehicle,
from which the Appellant has alighted and removed the frst
gunny bag (Art.A) from its boot. In such circumstances, the
submission of the learned counsel for the Appellant can be
accepted to the extent that though the search has taken place
in a public place, which would have attracted the provision of
Section 43, but since part of the recovery and seizure of
contraband is from the car, provision of Section 42 comes into
picture.
19. Section 42 comprises of two components, one relates to
the basis of information i.e. (i) from personal knowledge and
(ii) information given by any person and taken down in
writing. The information must relate to commission of offence
punishable under Chapter V-A and/or keeping or concealment
of document or article in any building, conveyance or enclosed
place, which may furnish evidence of commission of such
offence. Unless both the components exist, Section 42 has no
application. Sub-section (2) of Section 42 mandate that where
an offcer takes down any information in writing under sub-
section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof
to his immediate offcial superior. Compliance of sub-section
(2) ensure that the power which is exercised by the offcer is
subject to supervision. The said provision is in form of
additional check and balance and it applies to an offcer
contemplated by sub-section (1) of Section 42 but does not
apply to a Gazetted Offcer contemplated by sub-section (1)
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and when such an Gazetted Offcer himself makes an arrest
and take search and seizure. A Gazetted Offcer has been
differently dealt with and some trust is posed in him and,
therefore, if the search is to be carried out by the Gazetted
Offcer, sub-section (2) is not attracted. As far as the
compliance of sub-section (2) is concerned, the Constitution
Bench in case of Karnail Singh Vs. State of Haryana1, has
classifed the position of law and has held that effect of the
earlier two decision of this Court in case of Abdul Rashid
Ibrahim Mansuri Vs.State of Gujarat (2002) 2 SCC 513 and
Sajan Abraham Vs. State of Kerala (2001) 6 SCC 692 that the
requirement of Sections 41(1) and 42(2) is regard to the
writing down of the information received and sending copy
thereof to the superior offcer should clearly precede the entry
of search and seizure by the offcer. However, it is held that in
the circumstances involving emergent situation, recording in
writing and sending copy to the offcial superior may be
postponed for a reasonable period i.e. after the search, entry of
search and seizure. In paragraphs 34 and 35, the Apex Court
has held as under :-
"34. The advent of cellular phones and wireless services in
India has assured certain expectation regarding the quality,
reliability and usefulness of the instantaneous messages. This
technology has taken part in the system of police
administration and investigation while growing consensus
among the policy makers about it. Now for the last two
decades police investigation has gone through a sea- change.
Law enforcement offcials can easily access any information
anywhere even when they are on the move and not physically
present in the police station or their respective offces. For
this change of circumstances, it may not be possible all the
time to record the information which is collected through
1 (2009) 3 SCC (Cri) 887
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mobile phone communication in the Register/Records kept
for those purposes in the police station or the respective
offces of the authorized offcials in the Act if the emergency
of the situation so requires. As a result, if the statutory
provisions under Section 41(2) and 42(2) of the Act of
writing down the information is interpreted as a mandatory
provision, it will disable the haste of an emergency situation
and may turn out to be in vain with regard to the criminal
search and seizure. These provisions should not be misused
by the wrongdoers/offenders as a major ground for acquittal.
Consequently, these provisions should be taken as
discretionary measure which should check the misuse of the
Act rather than providing an escape to the hardened drug-
peddlers.
35. In conclusion, what is to be noticed is Abdul Rashid did
not require literal compliance with the requirements of
Sections 42(1) and 42(2) nor did Sajan Abraham hold that
the requirements of Section 42(1) and 42(2) need not be
fulflled at all. The effect of the two decisions was as follows :
(a) The offcer on receiving the information (of the nature
referred to in Sub-section (1) of section 42) from any
person had to record it in writing in the Register
concerned and forthwith send a copy to his immediate
offcial superior, before proceeding to take action in
terms of clauses (a) to (d) of section 42 (1).
(b) But if the information was received when the offcer was
not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
immediate action and any delay would have resulted in
the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in
writing the information given to him, in such a
situation, he could take action as per clauses (a) to (d)
of section 42(1) and thereafter, as soon as it is practical,
record the information in writing and forthwith inform
the same to the offcial superior .
(c) In other words, the compliance with the requirements of
Sections 42 (1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior offcer, should normally precede the entry,
search and seizure by the offcer. But in special
circumstances involving emergent situations, the
recording of the information in writing and sending a
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copy thereof to the offcial superior may get postponed
by a reasonable period, that is after the search, entry
and seizure. The question is one of urgency and
expediency.
(d) While total non-compliance with requirements of sub-
sections (1) and (2) of section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance with section 42.
To illustrate, if any delay may result in the accused
escaping or the goods or evidence being destroyed or
removed, not recording in writing the information
received, before initiating action, or non-sending a copy
of such information to the offcial superior forthwith,
may not be treated as violation of section 42. "
20. When the case of the prosecution is examined in light of
the said position of law, the trinity i.e. PW 4, PW 5 and PW 6
have laid the case of the prosecution before the Special Court.
PI Belge (PW 4) Unit In-charge of ANC Unit, in detail has
spoken about the information communicated to him by API
Katwani when Katwani came to his chamber and divulged the
information received by his informer. The said information
was then noted down by PW 4 in the Information Book and the
Station Diary. PW 4 has identifed the attested copies of the
Information Book and Station Diary Exs.27 and 28 and Ex-27
bears his signature and also signature of API Katwani. PW 4
has specifcally deposed that he forwarded the copy of the
Information Book and Station Diary to the superior offcer of
the Cuffe Parade with a forwarding letter signed by API
Katwani. PW 4 has identifed the forwarding letter (Ex-29)
and proved the fact that the letter bears endorsement at his
signature alongwith the signature of PW 5. PW 6 and PW 5 had
deposed in sync with the said statement. Another witness,
who corroborate the prosecution case is the complainant-
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Prakash Vangnekar (PW 1), who is also attached to ANC,
Ghatkopar Unit as Police Naik. He depose that he was called by
PI Belge (PW 4) in his cabin and at that time PN Bhoir, PN
Edke, PN Avhad, PN Mahale and API Katwani were present.
PW 4 apprised them about the information received by API
Katwani. PW 1 also state that API Katwani took entry in the
Information Register and the Station Diary. The original
Information Register was placed before this witness and he
identifed the signatures of PW 4 and PW 5. The cross-
examination of this witness does not diminish his version on
material particulars and he does not deter from his version in
the chief examination and minor discrepancies about PI Belge
(PW 4) not making any endorsement in his presence in the
Information Register, in no manner, discredit the testimony of
this witness. What is important is that the prosecution has
brought on record the attested copy of the Information Book,
Station Diary and the forwarding letter which was forwarded
to the superior, ACP (PW 6). Ex-27 is the recording of the
information by API Katwani (PW 5) in the Information Book.
Time of receipt of information is recorded as 8.30 a.m., name
of the offcer who received the information is API Katwani and
the information received by API Katwani is reproduced. Ex-27
bear the signature of API Katwani and an endorsement by PW
4 at the bottom of the Information Register recording that the
aforesaid information being communicated to PI Bharat
Jadhav (PW 6), who was holding the charge of Assistant
Commissioner of Police, ANC on telephone and he has given
directions to carry out the proceedings. Ex-28 is the entry
recorded in the Station Diary of ANC, Ghatkopar Unit, Crime
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Branch. The Station Diary record about the information
received by API Katwani from the informer by remaining
present in the offce while API Katwani was present in
Ghatkopar Unit at 8.30 a.m. The information is then
reproduced and bear the signature of API Katwani. Ex-29 is
the forwarding letter addressed to PW 6, which is enclosed
with the copy of the Information Register and the extract of
the Station Diary. Ex-28 i.e. the extract of the Station Diary
carry two endorsements, one of PW 4 Sr.PI, ANC and another
of the Assistant Commissioner of Police, ANF and also bear the
inward number. Ex-28 also endorse that the copy of the same
is marked to ACP, Sr.PI and In-charge PI. The compliance of
Section 42 is thus ensured and in fact the present case
unfolded before the Sessions Court through the prosecution
witnesses clearly reveal intimation of information received by
the superior offcer, initially on telephone and the
authorisation communication thereupon to conduct the raid
under the supervision of PW 4. PW 6 has specifcally deposed
to that effect.
On 22/05/2015 the special report of the proceedings
undertaken in terms of Section 57 also came to be forwarded
to the ACB. The Investigating Offcer is mentioned as API
Katwani and the Superior Offcer is Vijay Belge (PW 4). The
said information forwarded to the offce of the ACB is signed by
PW 4 and PW 5. The prosecution has thus ensured compliance
of the procedure contemplated under Chapter V-A of the NDPS
Act.
21. Pertinent to note that while PW 4 was in the witness box,
the Appellant had preferred an application to call Station
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Diary of Ghatkopar Unit. Considering that the production of
the said document is necessary, application was granted and
summons were issued to Sr.PI of ANC, Ghatkopar Unit for
producing the certifed copy of the Station Diary as well as the
original Register of Station Diary. The same was produced, as
directed and the witnesses were confronted with the same.
III) Compliance of the provisions of Section 50
22. So far as alleged non compliance of Section 50 is
concerned, the said provision reads as under :-
"50. Conditions under which search of persons shall be
conducted.-(1) When any offcer duly authorised under
section 42 is about to search any person under the provisions
of section 41, section 42 or section 43, he shall if such person
so requires, take such person without unnecessary delay to
the nearest Gazetted Offcer of any of the departments
mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the offcer may detain the
person until he can bring him before the Gazetted Offcer or
the Magistrate referred to in sub-section (1).
(3) The Gazetted Offcer or the Magistrate before whom any
such person is brought shall, if he sees no reasonable ground
for search, forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an offcer duly authorised under section 42 has
reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Offcer or Magistrate
without the possibility of the person to be searched parting
with possession of any narcotic drug or psychotropic
substance, or controlled substance or article or document, he
may, instead of taking such person to the nearest Gazetted
Offcer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure,
1973.
(6) After a search is conducted under sub-section (5), the
offcer shall record the reasons for such belief which
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26/36 APEAL-182-18.doc
necessitated such search and within a seventy-two hours send
a copy there of to his immediate offcial superior."
A bare reading of Section 50 would reveal that it only applies
in case of personal search of a person and it does not extend to
search of a vehicle or a container or a bag or premises. The
language of Section 50 is implicitly clear that the search has to
be in relation to a person as contrasted to search of premises,
vehicles or articles. This position is well settled by the
Constitution Bench in the judgment of State of Punjab Vs.
Baldev Singh2.
23. In order to appreciate the rival submissions, it would be
appropriate to refer to the observations made by the
Constitution Bench in case of Baldev Singh. Their Lordships
did not decide whether Section 50 was directory or mandatory
in an abstract manner. It was held that the provisions to the
Act implicitly make it imperative and obligatory and cast a
duty on the Investigating Offcer to ensure that search of the
person concerned is conducted in a manner prescribed by
Section 50 by intimating to the person concerned about the
existence of his right that if he so requires, he shall be
searched before a Gazetted Offcer or a Magistrate and in case
he so opts, failure to conduct his search before a Gazetted
Offcer or a Magistrate would cause prejudice to the accused
and render the recovery of the illicit articles suspect and
vitiate the conviction and sentence of the accused. Where the
conviction has been recorded only on the basis of the
possession of the illicit article, recovered during a search
conducted in utter violation of the provisions of Section 50 of
2 (1999) 6 SCC 172
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the Act, it is illegal. It was further held that the omission may
not vitiate the trial as such, but because of the inherent
prejudice which would be caused to an accused by the omission
to be informed of the existence of his right, it would render his
conviction and sentence unsustainable. In paragraph 57, the
following observations are made :-
"57.(1) That when an empowered offcer or a duly
authorized offcer acting on prior information is about to
search a person, it is imperative for him to inform the person
concerned of his right under sub-section (1) of Section 50 of
the Act of being taken to the nearest Gazetted Offcer or the
nearest Magistrate for making the search. However, such
information may not necessarily be in writing.
(2) That failure to inform the person concerned about the
existence of his right to be searched before a Gazetted Offcer
or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered offcer, on prior
information, without informing the person of his right that if
he so requires, he shall be taken before a Gazetted Offcer or
a Magistrate for search and in case he so opts, failure to
conduct his search before a Gazetted Offcer or a Magistrate,
may not vitiate the trial but would render the recovery of
the illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been
recorded only on the basis of the possession of the illicit
article, recovered from his person, during a search
conducted in violation of the provisions in Section 50 of the
Act
**** ** ****
(5) That whether or not the safeguards provided in Section
50 have been duly observed would have to be determined by
the court on the basis of the evidence led at the trial.
Finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal.
Without giving an opportunity to the prosecution to
establish, at the trial, that the provisions of Section 50 and,
particularly, the safeguards provided therein were duly
complied with, it would not be permissible to cut short a
criminal trial.
M.M.Salgaonkar
28/36 APEAL-182-18.doc
(6) That in the context in which the protection has been
incorporated in Section 50 for the beneft of the person
intended to be searched, we do not express any opinion
whether the provisions of Section 50 are mandatory or
directory, but hold that failure to inform the person
concerned of his right as emanating from sub-section (1) of
Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused bad
and unsustainable in law.
(7) That an illicit article seized from the person of an
accused during search conducted in violation of the
safeguards provided in Section 50 of the Act cannot be used
as evidence of proof of unlawful possession of the
contraband on the accused though any other material
recovered during that search may be relied upon by the
prosecution, in other proceedings, against an accused,
notwithstanding the recovery of that material during an
illegal search."
24. It is not in dispute that there is no specifc form is
prescribed for conveying the information required to be given
under Section 50. What is imperative is that the
accused/person/suspect should be made aware about
existence of his right and since no specifc mode or manner is
prescribed, the Court necessarily will have to look at the
substance and not the form of the intimation. Whether
requirements of Section 50 have been met or not is a question
to be decided on facts of each case and there cannot be any
sweeping generalisation or a straitjacket formula. Compliance
of Section 50 would ensure that the accused at a subsequent
stage, does not raise a plea that the articles were planted on
him or that they were not recovered from him. Fair play and
transparency in the process of search is given primacy, since
the NDPS Act prescribes stringent punishment and the
balance has to be struck between the enforcement of law on
M.M.Salgaonkar
29/36 APEAL-182-18.doc
one hand and protection of citizens from operation and
injustice on the other. The provisions contained in Chapter V
are intended for providing certain checks on exercise of the
powers of authority concerned and to avoid misuse and
arbitrary exercise of the power, in absence of its compliance.
The Act mandates that the prosecution must ensure
compliance of certain provisions, one of them being Section 50.
25. PW 5, the investigating offcer, has deposed in sync with
the First Information Report (FIR) and the panchanama. The
FIR and the panchanama record that PI Belge explained to the
Appellant the purpose of personal search and also apprised
him of his legal right available under Section50 of the NDPS
Act and also handed over to him, a letter signed by him, in
which it was written as under :-
^^ ,u- Mh- ih- ,l- dkuwu 1985 ds /kkjk 50 ds rgr vkidks viuh ry"kh
fdlh utfnd ds naMkf/kdkjh ;k jktif«kr vf/kdkjh ds lkeus nsus dk gd gSA
vxj vki ,Slh ekax djrs gks] rks ge oSlk bartke djsaxsA ^^
The FIR records that the Appellant expressed that he do not
desire so and signed on the said by scribing "tjksjr ugh" The
said two letters were signed by the panchas and API Katwani.
26. PW 5 has also categorically deposed about compliance of
Section 50 by narrating the procedure he had followed. The
said documents are exhibited through PW 4 and marked as Ex-
23. In any case, it is settled law that for appraisal of rights
under Section 50 of the NDPS Act, letter in written form is not
necessary and in Baldev singh (Supra), the Constitution Bench
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30/36 APEAL-182-18.doc
has clearly laid down that it is suffcient if information to be
supplied under Section 50 is communication to person
concerned orally and as far as possible in presence of some
independent and respectable person, witnessing arrest and
search. Thus, the objection about non-compliance of Section 50
by alleging that post-trap panchanama (Ex-24) and FIR (Ex-
14) do not reproduce exact words in which the Appellant is
apprised of his rights does not hold any water and is rejected.
24. On close scrutiny of the evidence on record would reveal
that the prosecution witnesses have narrated the case of the
prosecution in a consistent manner. PW 1, who is the
complainant, coupled with PW 4, In-charge of the raid, PW 5,
the Investigating Offcer, who was part of the raid, speak in
sync with one another coupled with panch, PW 2. PW 6 PI
Bharat Jadhav, the superior Gazetted Offcer also corroborate
PW 5, who has received the information and transmitted the
said information to his superior, who gave instructions to
carry the raid, which was accordingly carried out by PW 4.
The three major contentions raised by Mr.Mishra have been
exhaustively dealt with by me in the above paragraphs.
27. Coming to the submission of Mr.Mishra that there is no
document to connect the Appellant with the seized car, it
deserve to be rejected. The panchanama record that when the
Appellant was about the car, he categorically informed that
although he purchased the car, registration was not done in his
name and, therefore, he has no papers of the said car. In any
case, the cloud created on the ownership of the car has no
bearing in projecting guilt of the Appellant for the simple
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31/36 APEAL-182-18.doc
reason that the panchanama clearly record that the Appellant
was seen disembarking from the vehicle and as found in
possession of the contraband. His nexus with the car as a
owner is not of any signifcance. Since the Appellant alighted
from the car, which was driven by him and the goods were
recovered from him in the gunny bag, which he took out from
the car and was holding the same whereas another gunny bag
was found on the rear seat of the car, which was driven by him.
PW 1 and the Investigating Offcer have deposed to that effect.
28. The persons, who were called to act as panchas and who
expressed their readiness and willingness to act as such when
the trap has been laid, are not incompetent witnesses. The
pre-trap panchanama and the post-trap panchanama record in
detail the procedure, which was followed before conducting
raid and the procedure adopted for the raid. There is no
inconsistency in the version of the witnesses, who narrate the
procedure adopted while the raid was conducted by the raiding
party. Serious attempt was made to discredit the aforesaid
witnesses, but it proved to be a unsuccessful venture. PW 1
has clarifed in his cross-examination that after the raid, all
raiding party members, except panchas, proceeded to Cuffe
Parade offce and he denied the specifc suggestion that after
the raid, one or two members directly went to the Ghatkopar
Unit from the spot. The complaint of PW 1 was typed by PSI
Sanap and at about 5.30 to 5.45 p.m., they reached Cuffe
Parade offce. After recording FIR, raiding party members
departed from Cuffe Parade offce and at around 7.30 p.m.,
they were at Cuffe Parade offce. The learned Special Judge, in
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his detailed judgment, has analysed every aspect of the
examination-in-chief of the prosecution witnesses and has
minutely scrutinized the cross of the said witnesses and has
arrived at a conclusion that there is no material inconsistency
in their version. The minor inconsistency like whether the bag
was on the shoulder of the Appellant or whether it was in
hand, was found to be of no signifcance as panchanama
recorded every minute details about the Appellant being found
in possession of the contraband. Mr.Mishra has vehemently
argued about presence of Mr.Natuskar during the trap and on
this aspect, evidence reveal that PI Belge (PW 4), in-charge of
the raid, has categorically deposed that as per panchanama,
driver Natuskar has driven police vehicle and the Station
Diary (Ex-37) show that Natuskar was sent for another offcial
work hence Constable Mahale drove the vehicle. PW 4 further
clarifed that at the time of pre-trap panchanama, Natuskar
was a participant in the raid, but subsequently mistake
occurred in writing the name of driver in panchanama. PW 4
has admitted that it is not mentioned in the Station Diary that
Natuskar left while raiding party proceeded for raid and
offered explanation that he was the part of the raiding party
for a while, but t his fact is not mentioned in the panchanama.
Similar is the case in respect of PSI Sanap. PW 4 has deposed
that as per Entry No.18 from Ex-37, PSI Sanap was present in
ANC Unit Ghatkopar at about 7.20 p.m. He had typed First
Information Report in ANC Offce Cuffe Parade and with
permission of PW 4 went to ANC Unit Ghatkopar for inquiry of
accused from Crime No.197 of 2015. The In-Charge of the raid
has offered an explanation that as per Entry No.20 from Ex-
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37, PSI Sanap and Natuskar went from ANC Offce Cuffe Parade
to ANC Unit Ghatkopar. He clarifed that PSI Sanap and
Natuskar joined them at ANC storeroom Azad Maidan, but
there is no entry to that effect in the Station Diary. Ultimately,
how the subordinates, who assisted in the raid, are to be placed
is the decision of the In-charge of the raid and when this
witness has categorically deposed about a part of the raiding
team leaving mid way and subsequently joining the raid, it
cannot be disputed. Absence of entry in the Station Diary
recording their movement cannot be considered suffcient
enough to doubt the case of the prosecution, which is
otherwise clearly surfacing from the evidence of those, who
were part of the raiding team and also from the documents in
form of the pre-trap and post-trap panchanama.
On the issue of sealing and labeling also, learned counsel
Mr.Mishra, failed to create any dent in the case of the
prosecution. The prosecution has examined PW 7 Constable
Sonavane in respect of carrying samples A-1 and B-1 from ANC
storeroom to C.A. Laboratory. The C.A.Report (Ex-10) and
Data Sheet (Ex-11) are admitted by defence and the learned
Special Judge in para 169 has recorded as to why the entire
exercise was undertaken.
29. It is by now a settled principle that any irregularity or
even an illegality during investigation ought not to be treated
as a ground to reject the prosecution case (State of Rajasthan
Vs. Kishore)3. Further on re-appreciation of evidence, which
the Appellate Court is empowered to do, the minor
discrepancies in the account of few witnesses, unless it is so
3 AIR 1996 SC 3035
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vital, so as to make the prosecution case doubtful, cannot
affect the credibility of the witnesses and in turn the case of
the prosecution itself. There is always a possibility of trivial
discrepancies in the narration of different witnesses when
they speak of the same incident on account of the time lapse
and the witness's perception may differ and that is the reason
why corroboration of evidence with mathematical precision
cannot exist in criminal cases. Even a truthful witness may
differ in some details unrelated to the main incident because of
power of observation, retention and reproduction. Thus, a
hyper-technical approach to doubt the credibility of witnesses
has to be avoided. On exercising the required care, caution and
sifting the evidence to unearth the truth, the testimony of the
prosecution witness which, contain and establish ring of truth,
in my considered opinion, cannot be doubted. The faws
which are attempted to be pointed out in fact, do not exist and
in no way dispel the prosecution case.
30. The quantity of ganja seized is 60 Kg. and a commercial
quantity. The possession is established and it is not defence
that possession was not conscious one. Presumption under
Sections 35 and 54 of the NDPS Act in favour of prosecution is
not rebutted and runs through the whole trial. Once
possession is established, Court can presume that he had
culpable mental status at the time of commission of offence.
31. The Appellant was afforded opportunity and his
statement is recorded under Section 313 of the Cr.P.C. When
asked, why prosecution witnesses are deposing against him, he
responded by saying, he do not know. He chose not to examine
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himself or examine any witness in his favour. Barring a vague
statement that he is falsely implicated, the Appellant has failed
to rebut the presumption in favour of the prosecution. He
failed to even remotely suggest any reason for false
implication. On the contrary, PW 1, PW 3, PW 4 and PW 5 who,
constituted the raiding team, supported the prosecution case
by corroborating each other on all necessary and material
particulars. Their credibility is not shattered inspite of a
serious attempt by extensively cross examining them. The
vehicle was in possession of the Appellant on the date and time
of recovery. Recovery is proved effectively by PW 1, PW 3,
PW4 and PW 5 and the witnesses have identifed the Appellant
and also the case property in court. The exclusive possession
of the vehicle and the contraband in vehicle, being attributed
to the Appellant, fasten him with the liability under the Act.
The Appellant, who was found driving a vehicle with gunny
bags containing ganja, the possession stands established and
give rise to presumption, which is permitted to be rebutted by
the Appellant, which he miserably failed to do. The
prosecution has succeeded in establishing its case by cogent
and reliable evidence, which the defence has not been able to
refute and nullify.
32. The learned Special Judge has carefully scrutinized all
the relevant documents with testimony of PW 1, PW3, PW 4,
PW 5 and PW 6 and held that prosecution has established
compliance of Sections 41 and 42 of the NDPS Act and mere
contradictions in the evidence of PW 1 do not take case of the
Appellant any further. Provision of Section 50 of the NDPS Act
has also been adhered to is the fnding rendered by the Special
M.M.Salgaonkar
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Judge, based on the evidence on record. The argument as to
why the seized car, which was deposited in ANC storeroom was
carried to ANC Unit Ghatkopar is also specifcally dealt with.
Recording that huge quantity of ganja, being 60 Kg., was
found in possession of the Appellant and since the Appellant
was not in a position to rebut the case of the prosecution, a
fnding of guilt is recorded. Considering that drug abuse and
drug addiction are corroding the health fabric of the society, a
beftting penalty has been imposed on the Appellant by the
impugned judgment.
I fnd no legal faw in the impugned judgment, which has
appreciated the entire evidence brought on record by the
prosecution in light of the scheme contained in the NDPS Act,
which expect stringent compliance of the provisions contained
in the NDPS Act, when the offence involving drug pose serious
problem endangering the health and safety of the citizens and
seriously eroding the moral of the society. The impugned
judgment, therefore, deserve to be upheld and the present
Appeal deserve a dismissal and is accordingly dismissed.
33. In view of the disposal of the Appeal, the application for
bail does not survive and stands disposed of accordingly.
[SMT.BHARATI DANGRE, J.]
M.M.Salgaonkar
