Bombay High Court
Shaikh Sajid Shaikh Nisar vs The State Of Maharashtra on 26 April, 2022
Bench: R. G. Avachat
Cri.Appeal No.745/2016 with
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.745 OF 2016
Shaikh Masood Shaikh Aziz,
Age 43 years, Occu. : Labour
R/o Bazargalli, Badnapur,
Tq. Badnapur, Dist. Jalna ... APPELLANT
VERSUS
The State of Maharashtra
(Copy served on the Public
Prosecutor, High Court,
Bench at Aurangabad) ... RESPONDENT
.......
Shri Joydeep Chatterji, Advocate for appellant
Mrs. G.L. Deshpande, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.69 OF 2017
Shaikh Sajid Shaikh Nisar,
Age 24 years, Occu. : Labour
R/o Galli No.2, Baijipura, Aurangabad
Tq. & Dist. Aurangabad ... APPELLANT
VERSUS
The State of Maharashtra
(Copy served on the Public
Prosecutor, High Court,
Bench at Aurangabad) ... RESPONDENT
.......
Shri Satej S. Jadhav, Advocate for appellant
Mrs. G.L. Deshpande, A.P.P. for respondent
.......
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Cri.Appeal No.745/2016 with
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WITH
CRIMINAL APPEAL NO.37 OF 2017
Shaikh Moinoddin Ameeroddin Siddiqui
Age 25 years, Occu. : Driver
R/o Jahangir Colony, Harsul,
Tq. & Dist. Aurangabad ... APPELLANT
VERSUS
State of Maharashtra
(Copy served on the Public
Prosecutor, High Court,
Bench at Aurangabad) ... RESPONDENT
.......
Shri Govind A. Kulkarni, Advocate for appellant
Mrs. G.L. Deshpande, A.P.P. for respondent
.......
CORAM : R. G. AVACHAT, J.
Date of reserving judgment : 8th FEBRUARY, 2022
Date of pronouncing judgment : 26th APRIL, 2022
JUDGMENT :
This group of three appeals is being decided by
this common judgment and order since common questions of
facts and law arise therein. Moreover, the challenge in all
these three appeals is to a judgment and order dated
25/11/2016, passed by Additional Sessions Judge, Vaijapur in
Special (NDPS) Case No.2/2014, whereby the appellants
herein have been convicted for offence punishable under
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Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act) and, therefore, sentenced to
suffer rigorous imprisonment for ten years and to pay fine of
Rs.1,00,000/- each. In default of payment of fine, they are
directed to undergo simple imprisonment for one year.
2. Facts giving rise to the present appeals are as
follows :-
Those were the days of Maharashtra State
Legislative Assembly elections. The Election Commission had,
therefore, constituted squad/s (team of officials) for checking
of vehicles with a view to avoid malpractice/s at election.
P.W.1 Anil Khoche was the head of the squad. He along with
the squad members was assigned duty to check vehicles
moving on Aurangabad-Nagar Road. It was on 2/10/2014 at
3.45 p.m. The informant noticed an autorickshaw (No. MH-
20/W-3537) approaching from Pune side towards
Aurangabad. The autorickshaw was, therefore, intercepted.
The appellants were travelling therein. Appellant Shaikh
Moinoddin (Criminal Appeal No.37/2017) was driving the
autorickshaw. On search of the autorickshaw, two yellow
colour polythene bags were found. The bags were opened to
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find therein 12 brown colour packets each containing 2 Kgs.
Ganja. The informant, therefore, telephonically approached
Gangapur Police Station and reported the matter. P.W.12
Vijaykumar Sonawane (Police Inspector) attached to
Gangapur Police Station along with some of his staff and two
other persons to act as panch witnesses came to the spot. 25
gms. Ganja from each of the brown packets was collected for
examination by Chemical Analyser. The seizure panchanama
in that regard was drawn vide Exh.66. The informant lodged
the F.I.R. (Exh.67). The seized samples were sent to CSFL.
The C.A. report (Exh.114 & 115) indicates the seized articles
(samples) were of Ganja. Investigation was made so as to
ascertain to whom the Ganja belonged and wherefrom it was
obtained. Involvement of two more persons in this crime was
found. Statements of the persons acquainted with the facts
and circumstances of the case were recorded. On completion
of the investigation, the appellants and two more persons
were proceeded against by filing the charge sheet.
3. The learned Judge of the Special Court framed the
charge (Exh.51). All of them pleaded not guilty. To bring
home the charge, prosecution examined 12 witnesses and
relied on number of documents. On appreciation of the
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evidence in the case, the learned Special Judge convicted the
appellants as stated hereinabove. The other two were
acquitted. The State has not preferred any appeal against
their acquittal.
4. Learned Advocates Mr. Chatterji and Mr. Jadhav
for appellants in Criminal Appeal No.745/2016 and Criminal
Appeal No.69/2017 respectively would submit that the C.A.
Reports (Exhs.114 & 115) indicate the sample contained
greenish, brownish, leaves, flowering tops, seeds and stalks
put in parcel. Relying on Apex Court judgment in case of E.
Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau
[ AIR 2008 SC 1720 ], it was submitted that, when any
narcotic drug or psychotropic substance is found mixed with
one or more neutral substance/s, for the purpose of
imposition of punishment it is the content of the narcotic drug
or psychotropic substance which shall be taken into
consideration. The learned Advocates meant to say that the
actual contents of Ganja was smaller in quantity and the
appellants were, therefore, liable for lesser punishment.
5. The learned A.P.P. relied on a three judge
judgment of the Hon'ble Apex Court in case of Hira Singh &
anr. Vs. Union of India & anr. Vs. Union of India & anr.
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(Criminal Appeal No.722/2017, decided on 22/4/2020) to
submit that the judgment relied on by the learned Advocates
for the appellants no longer holds the field. When the
judgment relied by the learned A.P.P. was brought to the
notice of the learned Advocates for the appellants, they came
with a stand of it being a case of unconscious possession.
According to them, it is for the prosecution to prove the
appellants to have been found in conscious possession of the
contraband. According to them, the polythene bags were
found in the back portion of the autorickshaw. The appellants
were not in the know of existence of the bags much less the
contents therein. In support of their claim, the learned
Advocates have relied on following three judgments :-
(1) State of Punjab Vs. Balkar Singh & anr.
[ Criminal Appeal No.1144/1997 ]
(2) Avtar Singh & ors. Vs. State of Punjab
Appeal (Crl.) No.2082/1996
(3) Tirupati s/o Rajmalu Walal Vs. The State of Maharashtra
[ Criminal Appeal No.494/2006 ]
6. The learned Advocate Mr. Kulkarni for the
appellant in Criminal Appeal No.37/2017 would submit that
the contraband articles were not produced before the Court.
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When the entire operation was subjected to video-shooting,
the Compact Disc (CD) thereof was not placed on record.
When 25 gms. Ganja from each of the packets was seized or
collected, it should have been more than 200 gms. The
seizure panchanama suggests only 200 gms. of Ganja was
taken as a sample. According to learned Advocate, this
appellant was driving the autorickshaw. He was, therefore,
not in the know of what was placed in the autorickshaw as
luggage.
The learned Advocates for the appellants,
therefore, urged for allowing the appeals.
7. The learned A.P.P. would, on the other hand,
submit that, the defence of conscious possession is an
afterthought. According to her, when the appellants were
found in possession of contraband articles, it was for them to
show to have not been in conscious possession thereof. The
learned A.P.P. reiterated the reasons given by the trial Court in
support of the impugned judgment and order. She ultimately
urged for dismissal of the appeals.
8. Considered the submissions advanced. Perused
the evidence and the citations relied on.
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9. It is not in dispute before this Court that the flying
squad headed by P.W.1 Anil Khoche had intercepted the
autorickshaw at Tong Vasti on Nagar Aurangabad Road. The
appellants were in the autorickshaw. On search of the
autorickshaw, two polythene bags containing 12 brown
packets were found. On further search, the packets found to
have contained Ganja like substance. P.W.1 Anil Khoche,
therefore, contacted Gangapur Police Station and reported the
matter. P.W.12 P.I. Vijaykumar Sonawane accompanied by his
staff and panch witnesses came to the spot. He too inspected
the autorickshaw. 25 gms. Ganja from each of brown packets
was separated as a sample for analysis. The same was seized
under the panchanama Exh.66. The total separated Ganja for
sampling purpose was stated to be 200 gms. The same
appears to be mistake in calculation. It is also true that the
CD containing video-shooting of the entire exercise was not
placed on record. The defence of the appellants before this
Court is only that the prosecution has failed to prove them to
be in conscious possession of the contraband - Ganja.
10. It is true that, it is in evidence of P.W.11
Dnyaneshwar and P.W.12 Vijaykumar that the polythene bags
were found in the back portion of the autorickshaw (behind
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the appellants in Criminal Appeal No.745/2016 and Criminal
Appeal No.69/2017). Before the trial Court, it was not the
case of any of the appellants to have been unaware of the
existence of the polythene bags in the autorickshaw much less
the contents thereof. In their examination under Section 313
of the Code of Criminal Procedure, none of them disowned the
polythene bags with contents therein. Their stand is of having
been falsely implicated. Even it was suggested to some of the
prosecution witnesses that abandoned polythene bags with
Ganja therein were foisted against them. It is reiterated that
there is voluminous evidence on record in the nature of
independent witnesses to prove the appellants were travelling
in the autorickshaw wherein the polythene bags were. It is
not a case of the prosecution that any fourth person was
there in the autorickshaw and after having intercepted the
same, he fled. It is to be presumed that, a luggage found
along with the passengers travelling in a transport vehicle like
autorickshaw, the luggage belongs to passenger concerned
unless contrary is shown.
11. Reliance on the judgment of the Apex Court in
Balkar Singh (supra) is quite distinguishable on facts. Firstly,
it was an appeal from acquittal. The recovery was effected
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from a field in village Lohgarh. The respondents belonged to
different villages. The respondent Balkar Singh is a resident
of village Bira Bedi in District Hisar while respondent Munish
Chand is a resident of Farukhabad. The police did not make
any investigation as to how these 100 bags of poppy husk
were transported to the place of incident. They also did not
adduce any evidence to show the ownership of the poppy
husk. The presence of respondents at the place from where
the bags of poppy husk was recovered itself was taken as
possession of these bags by the police. In the fairness, the
police should have conducted further investigation to prove
that these accused were really in possession of these articles.
12. While on facts in Avtar Singh's case (supra), the
appellants therein were held to have not been in conscious
possession of the contraband article. It has been observed :-
"The word 'possession' no doubt has different
shades of meaning and it is quite elastic in its
connotation. Possession and ownership need not
always go together but the minimum requisite
element which has to be satisfied is custody or
control over the goods. Can it be said, on the
basis of the evidence available on record, that the
three appellants one of whom was driving the
vehicle and other two sitting on the bags, were
having such custody or control? It is difficult to
reach such conclusion beyond reasonable doubt.
It transpires from evidence that the appellants
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were not the only occupants of the vehicle. One
of the persons who was sitting in the cabin and
another person sitting at the back of the truck
made themselves scarce after seeing the police
and the prosecution could not establish their
identity. It is quite probable that one of them
could be the custodian of goods whether or not
he was the proprietor. The persons who were
merely sitting on the bags, in the absence of
proof of anything more, cannot be presumed to
be in possession of the goods. For instance, if
they are labourers engaged merely for loading
and unloading purposes and there is nothing to
show that the goods were at least in their
temporary custody, conviction under Section 15
may not be warranted. At best, they may be
abettors, but, there is no such charge here. True,
their silence and failure to explain the
circumstances in which they were traveling in
the vehicle at the odd hours, is one strong
circumstance that can be put against them. A case
of drawing presumption under Section 114 of the
Evidence Act could perhaps be made out then to
prove the possession of the accused, but, the fact
remains that in the course of examination under
Section 313 Cr.P.C, not even a question was
asked that they were the persons in possession of
poppy husk placed in the vehicle."
13. While in the case of Tirupati Walal (supra), the
facts were that the appellants therein were travelling in an
Ambassador Car. Eight (8) cushion sheets were artificially
prepared by pressing the ganja with some mechanical devise.
. . . . Needless to say, the passengers of the car vehicle had
no reason to suspect that the seats were artificially crafted by
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using compressed sheets of ganja.
14. In the present case, it is reiterated that, no fourth
person was travelling in the autorickshaw. One of the
appellants Shaikh Moinoddin Siddiqui was driving the
autorickshaw in his capacity as a driver. There is nothing in
the evidence to indicate that all the appellants were in league
to transport the contraband - Ganja. The appellant Shaikh
Moinoddin Siddiqui, therefore, needs to be given benefit of
doubt on the ground to have not been shown to have
knowledge of the contents of the polythene bags. It is further
reiterated that, the defence of conscious possession has been
raised at the last minute of hearing of appeal, that too on
realising that the earlier defence of the contraband to have
been in smaller quantity not acceptable. For all these
reasons, no exception to the impugned judgment of conviction
and resultant order of substantive sentences can be taken
exception to so far as regards appellants Shaikh Masood
Shaikh Aziz and Shaikh Sajid Shaikh Nisar in Criminal Appeal
No.745/2016 and 69/2017 respectively. Their appeals,
therefore, fail.
15. It appears that, both the appellants Shaikh
Masood Shaikh Aziz and Shaikh Sajid Shaikh Nisar in Criminal
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Appeal No.745/2016 and 69/2017 respectively have been
behind the bars for little over 7 ½ years. The minimum
sentence prescribed for the offence proved is not less than ten
years. The amount of fine prescribed is also of Rs.1,00,000/-.
The fine has not been paid, might be due to financial
constraints. This Court is, however, inclined to reduce in-
default sentence from one year to one month. With this, the
appeals stand disposed of in terms of the following order :
ORDER
(i) Criminal Appeal No.37/2017 filed by Shaikh Moinoddin
Ameeroddin Siddiqui is allowed. The judgment and order of
conviction and sentence, dated 25/11/2016, passed by
learned Additional Sessions Judge, Vaijapur in (NDPS) Special
Case No.02/2014 is hereby quashed and set aside so far as
the appellant Shaikh Moinoddin Ameeroddin Siddiqui is
concerned. Conviction of the appellant Shaikh Moinoddin
Ameeroddin Siddiqui for the offence punishable under
Sections 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic
Substances Act is set aside. The appellant Shaikh Moinoddin
Ameeroddin Siddiqui be set at liberty forthwith, if not required
in any other case. Fine amount, if paid, be refunded to him.
The vehicle autorickshaw bearing No.MH-20/W-3537 and the
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Cellcon mobile phone belonging to the appellant Shaikh
Moinoddin Ameeroddin Siddiqui be returned to him.
(ii) Criminal Appeal No.745/2016 and 69/2017 filed by
Shaikh Masood Shaikh Aziz and Shaikh Sajid Shaikh Nisar
respectively are dismissed. Conviction and sentence recorded
by by learned Additional Sessions Judge, Vaijapur in (NDPS)
Special Case No.02/2014, by judgment and order dated
25/11/2016 is confirmed. However, in-default sentence of
simple imprisonment for one year is reduced to simple
imprisonment for one month each.
( R. G. AVACHAT )
JUDGE
fmp/-
