Firozkhan @ Washimkhan S/O ... vs State Of Mah. Thru. Pso Imamwada
2021 Latest Caselaw 880 Bom

  214apeal 647.08.odt                             1



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

                      CRIMINAL APPEAL NO. 647 OF 2008

  1. Komalprasad s/o Shyamraoji Mundafale,
     aged about 25 years, R/o Bharatmata nagar,
     Plot No.25, P.S. Kuhi, District Nagpur.
     (Abated as per Court's order dated
     08/01/2020).

  2. Firozkhan @ Washimkhan s/o Iqbalkhan,
     aged about 20 years, R/o Motha Tajbag,
     Sindhiban, P.S. Sakkardara, Nagpur.
                                                            ...APPELLANTS

                    Versus

  State of Maharashtra,
  through P.S.O. Imamwada, Nagpur.
                                                          ...RESPONDENT

  Shri S.S. Das, Advocate (appointed) for the appellants.
  Shri H.D. Dubey, A.P.P. for the State.
                     .....

                               CORAM : PUSHPA V. GANEDIWALA, J.

DATED : JANUARY 14, 2021.

ORAL JUDGMENT :

Heard.

2. This appeal is directed against the judgment and

order dated 12/08/2008 passed by the District Judge - 6 &

Additional Sessions Judge, Nagpur in Spl. Case No. 12/2003,

whereby the appellants/accused are convicted for the offence

punishable under Section 20 read with Section 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short "NDPS Act"), and sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.2,000/-

(rupees two thousand) each, in default, to suffer simple

imprisonment for three months each.

3. The case of the prosecution, in nutshell, is as

under :

i. On 19/02/2003, the complainant Deorao Thorat,

Police Head Constable, Anti Narcotics Cell, Crime Branch,

Nagpur (PW3) received secret information that two persons

were coming towards Isolation Hospital, Nagpur by a scooter

bearing registration No.MVI-9260 and that they were carrying

Ganja. That, he took the said information in writing and

forwarded the same to the Assistant Commissioner of Police,

Nagpur through one Police Constable by name Sunil.

Thereafter, the complainant along with the police party

proceeded towards the spot, and as per the information, the

complainant noticed two persons coming on one scooter. The

complainant and the staff led a trap, and both the

appellants/accused were taken in custody. The police party

declared their intention to take search of the

appellants/accused. They conducted search in presence of two

panchas, and in search operation, the complainant found one

nylon bag in the dicky of the scooter containing 2 kg of Ganja.

That sample of 24 grams of Ganja was taken out from that bag

and was packed in a paper and was sealed.

Thereafter, personal search of appellant No.2 was

taken. He was found in possession of a Jute bag, containing 2

kg of Ganja. From that also, 24 grams of Ganja was taken as

sample, and the same was packed and sealed.

The remaining contraband of both the bags was

also packed and sealed and was taken to the Police Station,

Imamwada. Both the appellants/accused were also taken to the

said Police Station.

ii. On the basis of written complaint given by the

complainant, crime No.6045/2003 came to be registered

against the appellants/accused by Police Sub-Inspector

Khagendra (PW1). The aforesaid samples were sent for

Chemical Analysis, report of which is positive.

iii. After investigation, chargesheet came to be filed

against the appellants/accused before the Special Court. The

Special Court framed charge against the appellants/accused

and the same was read over and explained to them, to which

they pleaded not guilty and claimed to be tried.

iv. To prove the charge against the appellants/accused,

the prosecution examined in all three witnesses, one is police

sub-inspector, who registered crime, second one is carrier of

contraband to the Chemical Analyser and the third one is the

complainant who also carried out investigation. The

prosecution also brought on record necessary documents. The

statements of the appellants/accused were recorded, on the

incriminating material brought on record by the prosecution,

under Section 313 of the Code of Criminal Procedure, 1973.

The defence of the accused is of total denial.

v. The Special Court found the evidence of the

prosecution trustworthy, and held the appellants/accused guilty

of the charge framed against them and accordingly, passed the

judgment of conviction. This judgment is impugned in the

instant appeal.

4. During the pendency of appeal, appellant No.1

died, and hence, the appeal against him stood abated.

5. Shri Das, learned counsel for the appellant

No.2/accused, brought to the notice of this Court various

material irregularities during investigation, which caused

prejudice to the appellant. His main contention is with regard

to the right of NDPS accused for fair trial in view of reverse

burden of proof as is provided in the NDPS Act.

The learned counsel submitted that the prosecution

could not prove the compliance of mandatory provision of

Section 42(2) of the NDPS Act so the trial is vitiated against

the appellant/accused. He further submitted that the

prosecution also failed to prove the compliance of provisions of

Sections 52-A and 57 of the NDPS Act.

6. He placed reliance on the judgment of the Hon'ble

Supreme Court in the cases of The State of West Bengal & Ors.

Vs. Babu Chakraborty (Criminal Appeal No. 426/1998 decided

on 02/09/2004) and Mohan Lal Vs. The State of Punjab

(Criminal Appeal No. 1880/2011 decided on 16/08/2018). He

urged for acquittal of the appellant.

7. As against this, Shri Dubey, learned A.P.P., while

supporting the judgment of conviction, submitted that the

prosecution could prove the trap and that during search, the

procedure was followed as contemplated in the NDPS Act.

He further submitted that the CA report supports

the case of the prosecution. He further submitted that the

panchas could not be examined, as they were dead at the time

of examination. He lastly submitted that the testimony of the

complainant-cum-Investigating Officer is sufficient to inspire

confidence of this Court.

8. I have considered the submissions put forth on

behalf of both the sides, and perused the record and

proceedings with the assistance of learned both the counsel.

9. At the outset, firstly, it is necessary to examine the

compliance of mandatory provision of Section 42(2) of the

NDPS Act by the prosecution. Vide Section 42(2), the

empowered officer who takes down information in writing,

shall forthwith send a copy of the same to his immediate

official superior. The Hon'ble Supreme Court in the case of

Babu Chakraborty (supra), in para 23, has held as under :

"23. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that

would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused."

In the said judgment, the Hon'ble Supreme Court,

relying on the case of Abdul Rashid Ibrahim Mansuri Vs. State

of Gujarat, has held that the onus to prove compliance lies on

the prosecution and in the absence of any prosecution evidence

about the compliance with the mandatory procedure, the

presumption would be that the procedure was not complied

with.

10. In the instant case, the complainant Deorao (PW3)

deposed that after receipt of the secret information, he

recorded the same in writing, and forwarded a copy of the

same to the Assistant Commissioner of Police through the

Police Constable Sunil. However, as rightly pointed out by the

learned counsel for the appellant/accused that the Police

Constable Sunil as well as the Assistant Commissioner of Police

have not been examined, and therefore, there is no meaningful

compliance as contemplated under Section 42(2) of the NDPS

Act.

11. Apart from the above irregularity, which would go

to the root of the case, both the panchas, in whose presence the

entire trap proceedings were done, could not be examined on

account of they being expired. The sole testimony of the

complainant (PW3), who acted as an Investigating Officer,

would not be sufficient to fix the charge under the NDPS Act,

for which the minimum sentence prescribed is three years,

which may extend up to ten years with fine.

12. Furthermore, the learned counsel for the appellant/

accused also brought to the notice of this Court the nature of

seized contraband i.e. wet, which again creates doubt with

regard to quantity of the contraband, as it was not dried.

13. Apart from this, the learned counsel also brought

on record non-compliance of the provisions of Sections 52-A

and 57 of the NDPS Act. Though, they are not of mandatory

nature, however, the complainant (PW3), being a member of

the Narcotic Cell, Crime Branch, is expected to comply with the

provisions as per the NDPS Act. There are special reasons for

bringing all these compliances in the NDPS Act, considering the

fact that the seizure of contraband is always through police

party, which is a decisive factor in fixing the criminal liability.

14. Apart from above, the learned counsel also brought

to the notice of this Court the major discrepancies with regard

to timings as to when the police party received the information,

left the police station, preparation of panchnama etc.

15. The Hon'ble Supreme Court in the case of Mohan

Lal (supra), in para 5, has observed that in a criminal

prosecution, it will be in consonance with the principles of

justice, fair play and a fair investigation, if the informant and

the investigating officer were to be the same person. In such a

case, is it necessary for the accused to demonstrate prejudice,

especially under laws such as NDPS Act, carrying a reverse

burden of proof.

16. In the instant case, considering the aforesaid major

irregularities, the appellant/accused could demonstrate

prejudice caused to him, as the Investigating Officer and the

complainant were one and the same person.

17. Considering the truncated nature of material

brought on record by the prosecution, in the opinion of this

Court, the appellant/accused deserves benefit of doubt. Hence,

the following order :

ORDER.

  i.                The Criminal Appeal is allowed.

  ii.               The judgment and order dated 12/08/2008 passed

by the District Judge - 6 & Additional Sessions Judge, Nagpur

in Spl. Case No. 12/2003, is quashed and set aside. Appellant

No.2 is acquitted of the offence punishable under Section 20

read with Section 29 of the NDPS Act.

18. Fees of the Advocate (appointed) for the appellant/

accused is quantified at Rs.5,000/- (rupees five thousand).

JUDGE

******

Sumit