Mithun Pralhad Chavan And Another vs The State Of Mah. Thr. Pso Ps ...
2022 Latest Caselaw 11025 Bom

                       1                NDPS Appeal443.22+1 (J).odt


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


            CRIMINAL APPEAL NO. 443 OF 2022
                        WITH
            CRIMINAL APPEAL NO. 572 OF 2022
                       .............
            CRIMINAL APPEAL NO. 443 OF 2022
APPELLANT       : Akshay S/o Lalitrao Dhabale,
                  Aged about 22 years, Occu. Agriculturist,
                  R/o Lalkhed, Post Malkhed,
                  Tq. Chandur Rly., Dist. Amravati.

                           VERSUS

RESPONDENT      : State of Maharashtra,
                  Through Police Station Officer,
                  Police Station, Railway Nagpur, Dist. Nagpur.

                             WITH

            CRIMINAL APPEAL NO. 572 OF 2022
APPELLANTS      : 1] Mithun Pralhad Chavan,
                     Age 24 years, Occupation : Agriculturist,
                     R/o Lalkhed, Near Hanuman Mandir,
                     Tq. Chandur Rly., Dist. Amravati.

                  2] Shekhar Pratap Rathod,
                     Age 20 years, Occu. Agriculturist,
                     R/o Lalkhed, Post. Malkhed,
                     Tq. Chandur Rly, Dist. Amravati.

                           VERSUS

RESPONDENT      : State of Maharashtra,
                  Through Police Station Officer,
                  Police Station Railway Nagpur,
                  Tq & Dist. Nagpur.
                                      2                       NDPS Appeal443.22+1 (J).odt


----------------------------------------------------------------------------------------------------
        Mr. R. L. Khapre, Senior Advocate, assisted by Mr. Pushkar Deshpande,
        Advocate for the appellant in Appeal No. 443/22
        Mrs. Sapna S. Jadhav, Advocate for the appellants in Appeal No. 572/22
        Mr. M. J. Khan, A.P.P. for the Respondent/State in both the appeals.
 ---------------------------------------------------------------------------------------------------

                         CORAM : G. A. SANAP, J.
       Date of Reserving the Judgment    : 8th September, 2022.
       Date of Pronouncement of Judgment : 19th October, 2022


JUDGMENT

1. These appeals arise out of the judgment and order dated

29.06.2022 passed by the learned Special Judge (NDPS Act), Nagpur

in N.D.P.S. Special Case No. 31/2015 and therefore, they are disposed

of by this common judgment.

2. Criminal Appeal No. 443/2022 is filed by appellant -

Akshay Lalitrao Dhabale (original accused no.2) and Criminal Appeal

No. 572/2022 is filed by appellants Mithun Pralhad Chauhan (original

accused No.1) and Shekhar Pratap Rathod (original accused No.3).

The learned Special Judge, by the impugned judgment and order

convicted the appellants for the offences punishable under Sections 20

and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 3 NDPS Appeal443.22+1 (J).odt

(hereinafter referred to as "the NDPS Act" for short). The appellants

are sentenced to suffer rigorous imprisonment for three years and to

pay fine of 25,000/- each and in default of payment of fine to suffer

simple imprisonment for six months each, for the offence punishable

under Section 20 of the NDPS Act ; and rigorous imprisonment for

three years and to pay fine of 25,000/- each and in default of payment

of fine to suffer simple imprisonment for six months each for the

offence punishable under Section 29 of the NDPS Act.

3. The facts in brief are as follows :

On 30.03.2015, API N. S. Rajkumar (PW6), attached to

Local Crime Branch (Railway), Nagpur, received a secret information

from his informer that one person wearing dark blue T-shirt and other

two persons, were carrying and transporting 'ganja' at Nagpur railway

station platform no.2. He made an entry of the said information in the

Station Diary. PW6 immediately conveyed this information to his

superior officer and sought permission of the superior officer for

proceeding further. The superior officer i.e. Sub Divisional Police

Officer (SDPO), Lohmarg, granted him permission to workout the 4 NDPS Appeal443.22+1 (J).odt

information. Accordingly, he made necessary entry to that effect in the

Station Diary. API Rajkumar (PW6), with the help of PC Viraj Mate

secured presence of a Gazetted Officer by making written request.

PW6 deputed PC Naresh to secure presence of panch witnesses. PW6

deputed PC Santosh Chawre to procure weights and measures. On

arrival of the panchas, PW6 apprised them of the secret information.

4. API Rajkumar (PW6) by making entry in the Station

Diary, along with the Naib Tahsildar, panch witnesses, one Gendlal

Dwiwedi, who had brought the weights and measures, a photographer

and other police officers left the police station for the purpose of raid.

On reaching the spot i.e. railway platform no.2, as disclosed by the

informer, they found one person wearing blue colour T-shirt

accompanied with two more persons. They were carrying school bags.

PW6 accosted them. On enquiry they stated their names. PW6

introduced himself and the members of the raiding party to the

accused persons. He apprised them about the information received

by him. He told them that in order to workout the information, he

had to take their search. He apprised them of their right to be searched 5 NDPS Appeal443.22+1 (J).odt

before the Gazetted Officer or the Magistrate. He introduced Naib

Tahsildar (Gazetted Officer) to them and informed them that they can

give their search in presence of Naib Tahsildar (Gazetted Officer) or

they have a right to take their search before another Gazetted Officer.

The accused expressed their willingness to give their search before the

Naib Tahsildar (Gazetted Officer). PW6 in that connection gave

letters to them.

5. API Rajkumar (PW6) and his staff in presence of the

panchas and the Gazetted Officer conducted search of the bags carried

by the accused persons one by one. In the search of the bag carried by

appellant Mithun (accused No.1), they found ' ganja' weighing 6 Kg

200 Grams. Out of it, PW6 drew two samples of 50 grams each in

presence of the panchas. The samples were packed, sealed and labelled.

In the search of the bag carried by appellant Akshay (accused No.2),

'ganja' weighing 3 Kgs 600 Grams was found. Two samples of 50

gram each were drawn from it. In the search of the bag carried by

appellant Shekhar (accused No.3), 'ganja' weighing 8 Kgs 400 Grams

was found. Out of it, two samples of 50 gram each were drawn by 6 NDPS Appeal443.22+1 (J).odt

PW6. The remaining 'ganja' was kept in the same bags and the bags

were packed, sealed and labelled. In the personal search of the accused,

railway tickets to travel from Nagpur to Badnera were found. PW6

with the help of the photographer took photographs of the accused

with the bags carried by them. In presence of the panchas, PW6 drew

the panchnama. After coming back to the Railway Police Station, PW6

lodged written report. On the basis of the report, Crime No.

6006/2015 came to be registered against the accused persons.

6. The muddemal was deposited with the Muddemal

Moharir. In due course, the samples were sent to the Chemical

Analyser (CA), Nagpur for analysis. The CA, on analysis of the

samples, opined that the samples contained ' ganja'. PW6 made a

request to the learned Judicial Magistrate, First Class (Railway Court),

Nagpur to verify the seized substance and prepare the inventory. The

learned Magistrate accordingly verified the substance, took

photographs and prepared the inventory. On completion of the

investigation, PW6 filed charge-sheet in the Special Court, Nagpur.

7 NDPS Appeal443.22+1 (J).odt

7. The learned Special Judge, vide Exh.41 framed Charge

against the accused persons. Accused pleaded not guilty. Their

defence is of false implication. In order to bring home the guilt against

the accused, the prosecution examined nine witnesses. The

prosecution relied upon number of documents. The learned Special

Judge, on scrutiny, appreciation and consideration of the evidence,

convicted and sentenced the appellants as mentioned above. Being

aggrieved by the said judgment, the appellants are before this Court.

8. I have heard Mr. Pushkar Deshpande, learned advocate

for the appellant/accused no.2 in Cri. Appeal No. 443/2022 ; Mrs.

Sapna S. Jadhav, learned advocate for the appellants/accused nos.1 and

3 in Cri. Appeal No. 572/2022 ; and Mr. M. J. Khan, learned

Additional Public Prosecutor for the respondent/State in both the

appeals. With their assistance, I have gone through the entire record

and proceedings.

9. Mr. Deshpande, learned advocate appearing for appellant/

accused no.2 Akshay, submitted that in this case the prosecution has 8 NDPS Appeal443.22+1 (J).odt

failed to establish compliance of the mandatory provisions of Section

50 of the NDPS Act. Learned advocate submitted that the panch

witness, apart from being interested witness, is silent on all the material

aspects in his examination-in-chief. The learned advocate submitted

that the Naib Tahsildar (Gazetted Officer) was part of the raiding party

and therefore, his evidence cannot be taken into consideration against

the accused. The learned advocate, on the basis of the document in the

form of notice given under Section 50 of the NDPS Act, submitted

that the same creates doubt about the very exercise undertaken by the

Investigating Officer (PW6). The learned advocate submitted that the

prosecution has failed to describe the substance allegedly recovered

from possession of the accused so as to attract the definition of 'ganja'

as provided under Section 2(iii)(b) of the NDPS Act. The learned

advocate took me through the First Information Report, panchnama ,

requisition letter to the C.A. and the inventory prepared by the learned

Magistrate and submitted that in none of these documents, the

description of seized 'ganja' has been provided. Learned advocate

submitted that the substance described in all these documents is

'greenish leaves with stalks'. The learned advocate pointed out that in 9 NDPS Appeal443.22+1 (J).odt

none of these documents, there is mention that the substance with

flowering and fruiting tops accompanied by leaves, seeds and stalks was

recovered from the possession of the appellants/accused. The learned

advocate, therefore, submitted that the description of substance

recovered from the possession of the accused and the substance

analyzed by the C.A. is totally different. The learned advocate pointed

out that the seized 'ganja' and the representative samples were not

produced in the Court and therefore, the Court had no occasion to

make note of the description of the substance. The learned advocate

submitted that this is a serious flaw in the case of the prosecution and

therefore, the substance allegedly recovered from the accused and

mentioned in the investigation papers does not fall within the

definition of 'ganja', provided under Section 2(iii)(b) of the NDPS Act.

The learned advocate further submitted that the bags containing ' ganja'

were also not produced in the Court. The learned advocate submitted

that the colour of the bags has not been mentioned in the inventory.

The learned advocate submitted that in this case there was no

compliance of Section 57 of the NDPS Act. In the submission of the

learned advocate, failure on the part of the Investigating Officer to 10 NDPS Appeal443.22+1 (J).odt

place on record the reasons for non-compliance of the provisions of

Section 57 of the Act, would go against the case of the prosecution and

support the contention of the appellants with regard to their false

implication. The learned advocate submitted that the railway tickets

allegedly found in the possession of the accused were not produced

before the Court. The learned advocate submitted that on the basis of

the photographs, which are admitted by the learned advocate for the

accused persons, it is not possible to record a concrete finding that the

bags seen in the photographs contained ' ganja' with the description

understood by the definition of 'ganja', provided under Section 2(iii)

(b) of the NDPS Act.

10. Mrs. Sapna Jadhav, learned advocate appearing for

accused no.1 Mithun and accused no.3 Shekhar in Criminal Appeal

No. 572/2022 made the submissions similar to one made by learned

advocate Mr. Deshpande for accused no.2 Akshay in Criminal Appeal

No. 443/2022.

11. Mr. M. J. Khan, learned Additional Public Prosecutor for

the State submitted that in this case, by leading cogent and concrete 11 NDPS Appeal443.22+1 (J).odt

evidence, the prosecution has proved that before conducting raid, at

the time of conducting raid and while effecting the search and seizure,

the mandatory provisions of sub-section 2 of Section 42 and sub-

section 1 of Section 50 of the NDPS Act have been fully complied

with. Learned APP submitted that the provisions of Sections 52-A and

57 are directory and therefore, violation of these provisions, even if

accepted, would not ipso facto vitiate the trial or conviction. The

learned APP submitted that the prosecution has proved beyond

reasonable doubt that the samples drawn from the substance found in

possession of the accused persons were sent to the C.A. in sealed

condition. The learned APP submitted that the description of the

substance contained in each sample packet has been mentioned in the

C.A. report. In the submission of the learned APP, the description of

the substance from the sample packets as recorded in the C.A. report

clearly indicate that the substance contained flowering and fruiting

tops. The learned APP, therefore, submitted that the prosecution has

proved that the substance recovered from the person of the appellants/

accused was 'ganja', as understood by the definition of 'ganja' under

Section 2(iii)(b) of the NDPS Act. In the submission of the learned 12 NDPS Appeal443.22+1 (J).odt

APP, failure to describe substance in the investigation papers in view of

the C.A. report, would not stand in the way of the prosecution. The

learned APP submitted that the inventory prepared and certified by the

Magistrate as per the provisions of Section 52-A of the NDPS Act is a

primary evidence of the offence. In order to substantiate his

submission, the learned APP has placed reliance on the decision of the

Hon'ble Supreme Court in the case of State of Punjab .vs. Balbir Singh,

reported in (1994) 3 SCC 299. In this case, it is held that the right

under Section 50 of the NDPS Act is valuable right of the person to be

searched in the presence of a Gazetted Officer or Magistrate. If the

said person so requires, he is to be taken before the Gazetted Officer to

give authenticity and creditworthiness to the proceedings. Relying on

the decision of the Hon'ble Supreme Court in the case of Gurbax

Singh .vs. State of Haryana, reported in AIR 2001 SC 1002, it is

submitted that the provisions of Sections 52 and 57 of the NDPS Act

are directory and violation of the same ipso facto would not vitiate the

trial or conviction. Learned APP, in short, supported the impugned

judgment and order passed by the learned Special Judge.

13 NDPS Appeal443.22+1 (J).odt

12. At the outset, it would be necessary to see the compliance

of the mandatory provisions of Section 42 of the NDPS Act. The raid

in this case was conducted on the basis of the secret information

received by PW6 from his informer. He had reduced the said

information in writing. He has deposed before the Court about the

same. A document to that effect is at Exh.77. It was recorded at 14.20

hours on 30.03.2015. The document at Exh.78 is a copy of the

station diary entry where this information was noted down. PW6 has

deposed that in terms of the provisions of sub-section 2 of Section 42

of the NDPS Act, immediately upon receipt of the information he

forwarded a copy of the information recorded by him and a copy of the

station diary to his immediate superior officer. Exh.79 is the

document in that respect. It was addressed to the SDPO Lohmarg,

Nagpur. There is no dispute that the SDPO was the immediate

superior officer of PW6. The document bears endorsement of the

SDPO indicating that he had instructed PW6 to workout the

information as per the provisions of the Act. Exh.79A is a copy of the

station diary entry made to show compliance of sub-section 2 of

Section 42 of the NDPS Act. PW6 was cross-examined on this point, 14 NDPS Appeal443.22+1 (J).odt

however despite searching cross-examination, no material has been

brought on record to discard and disbelieve the oral evidence and the

contemporaneous documentary evidence prepared by PW6. In this

case, therefore, the prosecution has proved that the provisions of

Section 42 have been complied with in letter and spirit.

13. It would be necessary to consider the case of the accused

on the point of non-compliance of the provisions of sub-section 1 of

Section 50 of the NDPS Act. Mr. Deshpande, learned advocate for

appellant - Akshay relied on the decision of the Hon'ble Supreme

Court in the case of State of Rajasthan .vs. Parmanand and another ,

reported in (2014) 5 SCC 345 and submitted that since the Gazetted

Officer was a member of the raiding party, the search made in his

presence was vitiated. On the same point, reliance is placed on the

decision of the Division Bench of Calcutta High Court in the case of

Ali Hossain Sk. @ Ali Hussain Seikh .vs. Narcotics Control Bureau in

Criminal Revision Application No. 90 of 2020 . In the case of State of

Rajasthan .vs. Parmanand (supra), it is held that the idea behind taking

the accused to the nearest Magistrate or nearest Gazetted Officer, if he 15 NDPS Appeal443.22+1 (J).odt

so requires, is to give him an audience of being searched in the

presence of an independent officer. It is held that the search of the

accused person in the presence of Gazetted Officer, who is the part of

the raiding party, vitiates the search. In the case before the Division

Bench of the Calcutta High Court in Ali Hussain Sheikh's case (supra),

the same principle has been followed. It is to be noted that in both the

cases, Gazetted Officer was the police officer and the member of the

raiding party. Reliance is placed on the above decisions to substantiate

the submission that the search in this case has been vitiated inasmuch

as the Naib Tahsildar (Gazetted Officer) was called well in advance and

he accompanied the raiding party as it's member. In my view, simply

because of the fact that Naib Tahsildar (Gazetted Officer) was called on

receipt of the secret information and had accompanied the raiding

party, would not vitiate the search in this case. Gazetted Officer

(Executive Magistrate) was an independent person. Strictly speaking,

the Executive Magistrate in the fact situation could not be said to be an

integral part of the raiding party. He was called with a purpose. If sub-

Section 1 of Section 50 of the NDPS Act is perused, it would show

that if the accused on being given option of search before the Gazetted 16 NDPS Appeal443.22+1 (J).odt

Officer or Executive Magistrate, exercises the option of being searched

before a Gazetted Officer or a Magistrate, then the accused has to be

taken, without unnecessary delay, to the nearest Gazetted Officer or

the nearest Magistrate. In my view, the action of the Investigating

Officer (PW6) to secure presence of the Executive Magistrate well in

advance could not be said to be contrary to the spirit of Section 50 of

the Act. The important aspect to be looked into is whether the search

was carried out in presence of an independent Gazetted Officer or

Magistrate. In the fact situation, the action of the Investigating Officer

cannot be flawed. It was in compliance with sub-section 1 of Section

50 of the NDPS Act. It is to be noted that considering the place where

the accused were supposed to be present as per the information, the

Investigating Officer (PW6) might have thought it fit to avail the

services of the Executive Magistrate well in advance to avoid any delay.

In my view, the Executive Magistrate, in the fact situation, could not be

said to be the member of the raiding party. He simply accompanied

the raiding party. By accompanying the raiding party, he would not

loose his status as an independent person for the purpose for which he

was requested to accompany the raiding party. Therefore, in my view, 17 NDPS Appeal443.22+1 (J).odt

on this point, the submission has no force and as such cannot be

accepted. In the fact situation, the proposition of law would not

support the submissions advanced by the learned Advocates for the

appellants.

14. The next important part is the actual compliance of sub-

section 1 of Section 50 of the NDPS Act when the accused persons

were accosted by the Investigating Officer (PW6). PW3 Nandkishor

Gautam is the Naib Tahsildar. He has deposed that pursuant to Exh.

54, a request was made by the Investigating Officer to the Tahsildar to

make the services of Naib Tahsildar available. In his evidence, he has

stated that after accosting the accused persons, introduction between

the accused and raiding party took place. He has stated that PW6

apprised the accused persons about the information received by him

and purpose of their search. He has stated that the Investigating

Officer (PW6) gave written intimation separately to each accused and

appraised them that PW3 was the Naib Tahsildar and they can give

their search in his presence or they have an option to give their search

before any other Gazetted Officer or Magistrate. He has stated that the 18 NDPS Appeal443.22+1 (J).odt

accused, on being apprised, expressed their willingness to give their

search in presence of Naib Tahsildar (PW3) and refused the option of

giving search before the other Gazetted Officer or Executive

Magistrate. Independent letters were given to the accused persons.

The carbon copies of the letters are at Exhs.55, 56 and 57. Exh.55 is

the letter given to accused Mithun. Exh. 56 is the letter given to

accused Akshay and Exh.57 is the letter given to accused Shekhar. All

the three letters bear endorsement of the respective accused persons as

well as the signature of the Investigating Officer (PW6), Executive

Magistrate (PW3) and panch witnesses. PW3 in his evidence has

stated that in his presence search of the bags carried by the accused

persons was taken and the quantity of 'ganja' mentioned in the

panchanama was found in the respective bags carried by them. He was

cross-examined. Perusal of his cross-examination would show that

nothing has been brought in the cross-examination to disbelieve his

statement on the point of his presence on the spot and apprisal of the

right of the accused persons under Sub-section 1 of Section 50 of the

Act to them. I do not see any reason to discard and disbelieve the

evidence of this independent witness.

19 NDPS Appeal443.22+1 (J).odt

15. Evidence of the Investigating Officer (PW6) and panch

witness namely Nitin Shrivastav (PW4) is in sync with the evidence of

the Naib Tahsildar (PW3). Nitin (PW4) in his evidence has stated that

the letters at Exhs.55 to 57 bear his signature and signature of another

panch Mayur Sharma. He has categorically stated that before search,

written intimation was given to the accused persons. PW6 has

categorically deposed about this fact. On re-appreciation of their

evidence, I do not see any reason to take a view different than the one

taken by the learned Special Judge. On the basis of the evidence, the

prosecution has proved that the Investigating Officer (PW6) had

complied with the mandatory provisions of Section 42 of the NDPS

Act before proceeding to conduct the raid and provisions of Section

50(1) before conducting the actual search of the accused persons.

16. It would now be necessary to advert to the second part of

the prosecution case. The second part, in my view, would be more

important. The fate of the case of the prosecution by and large would

hinge upon the evidence of actual search, the nature of the substance 20 NDPS Appeal443.22+1 (J).odt

found in the bags, description of the substance, drawing of the samples,

drawing of inventory and the direct connection of the substance

actually recovered and the substance analyzed by the C.A. Before

proceeding to appreciate the evidence on record, the relevant facts

having bearing with this part of the case of the prosecution need to be

stated. 'Ganja' seized from the accused persons was not produced in

the Court. The reserved sample packets in the custody of the police

were not produced in the Court. Similarly, the remnant samples, which

ought to have been received from the C.A. after analysis, were not

produced in the Court. The description of the substance recovered

from the accused persons was mentioned in the requisition to C.A. at

Exh.96. The description is similar to the one mentioned in the

panchanama. The description of the substance recorded is greenish

leafy substance with moisture. The inventory prepared before the

Magistrate is at Exhs.140 and 141. Perusal of the Inventory Certificate

(Exh.140) would admittedly show that the Magistrate had taken

separate photographs of three bags, three separate photographs of the

substance found in each bag and mentioned the weight of the

substance with bag and without bag, recovered from the accused. The 21 NDPS Appeal443.22+1 (J).odt

main thing which is missing from the inventory is the description of

the substance. It is an admitted fact that the photographs taken in

presence of the Magistrate were not produced before the trial Court.

17. In the backdrop of the above stated admitted facts, it

would be necessary to consider the settled legal position on the point

and consequences of the failure to produce muddemal in the Court in

NDPS cases. In the case of Gorakh Nath Prasad .vs. State of Bihar ,

reported in (2018) 2 SCC 305, it is held that the NDPS Act provides

for a reverse burden of proof upon accused, contrary to normal rule of

criminal jurisprudence for presumption of innocence unless proved

guilty. This however does not dispense with the requirement of the

prosecution to first establish a prima facie case, only whereafter, burden

will shift to the accused. Mere registration of a case under NDPS Act

will not ipso facto shift burden on to the accused from the very

inception. Compliance with statutory requirements and procedures

shall have to be strict and must be put to stringent scrutiny. It is held

that if there is any iota of doubt, benefit shall have to be given to the

accused. In the case of Jitendra and another .vs. State of M. P., reported 22 NDPS Appeal443.22+1 (J).odt

in (2004) 10 SCC 562, the material seized from the possession of the

accused was not produced in the Court. It is held that the best

evidence in such a case would be the seized material. The seized

material has to be produced during the trial and marked material

objects. In the absence of proper explanation for such a failure to

produce the muddemal before the Court, the benefit obviously goes to

the accused. It is held that in the absence of production of the material

or drug, in the teeth of doubtful evidence, benefit has to be given to

the accused. This decision in the case of Jitendra and another (supra)

has been followed in the case of Ashok alias Dangra Jaiswal .vs. State of

Madhya Pradesh, reported in (2011) 5 SCC 123, wherein the same

legal principle has been reiterated.

18. In these appeals, it is the contention of the prosecution

that inventory of the seized narcotic drug was prepared strictly in terms

of Section 52-A of the NDPS Act and therefore, non-production of the

muddemal seized in this case would not be fatal to the case of the

prosecution. It is pointed out that the C.A. report proves beyond

doubt that the substance seized from the possession of the appellants 23 NDPS Appeal443.22+1 (J).odt

was 'ganja'. On minute perusal of the evidence and the material placed

on record, I am of the view that in this case, in the teeth of oral

evidence adduced by the prosecution, failure to produce the

muddemal, reserved sample packets and remnant samples received

from the C.A., is fatal to the case of the prosecution. The description

of the substance recovered from the possession of the appellants, as per

the case of the prosecution, was greenish leafy substance with stem.

Nowhere it is stated that the substance recovered contained flowering

and fruiting tops accompanied with seeds and leaves. At this stage, it

would be profitable to reproduce the definition of ' ganja', provided

under Section 2(iii)(b) of the NDPS Act, which reads thus -

"2. Definitions :-

(i), (ii) ......

(iii) "cannabis (hemp)" means -

(a) ........

(b) ganja, that is, the flowering and fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated ; and

(c) .....

19. It is seen that only the flowering and fruiting tops of the

cannabis plant, excluding seeds and leaves when not accompanied by 24 NDPS Appeal443.22+1 (J).odt

tops, fall within the definition of 'ganja'. If the whole plant is seized,

then it would only be the cannabis plant and not ' ganja'. It was,

therefore, necessary on the part of the prosecution to prove that the

actual substance seized was flowering and fruiting part of the cannabis

plant. Minute perusal of the oral evidence of all the witnesses

examined by the prosecution and particularly, the panch witness

(PW4) and the Investigating Officer (PW6), would show that their

evidence is conspicuously silent about the description of the seized

substance. Perusal of the evidence of panch witness (PW4) in entirety

would show that he is an interested witness. The raid was conducted at

platform No.2 of Nagpur Railway Station. He has admitted that he

has been selling peanuts since 12 years prior to the incident at platform

no.2 of the railway station. He has admitted that selling peanuts and

other eatables is not permissible. He has stated that police arrest such

unauthorized vendors 2 - 3 times in a month and after paying penalty,

they are released and again they start their business on the platform. He

has stated that due to this, he is well acquainted with the Railway

Police. He has categorically stated that he is always subject to the

command of the Railway Police. In his cross-examination, he has given 25 NDPS Appeal443.22+1 (J).odt

very important admission. He has stated that he is not aware as to the

contents of the seizure panchanama (Exh.58) and the written

intimations given to the accused at Exhs.55 to 57. Perusal of his cross-

examination would show that he is under the thumb of Railway Police.

Police took the risk of summoning him as a panch in such an important

case. Another panch was Mayur Sharma. PW4 has stated before the

Court that Mayur is also selling miscellaneous articles at platform no.2.

His examination-in-chief on all the relevant aspects is as vague as the

vagueness could be. He has not stated where he was called for the first

time. Perusal of his examination-in-chief would give an impression

that he was summoned on the spot and not in the police station, as has

been the case of the prosecution. His examination-in-chief is silent

about the procedure followed by PW6 at the time of raid. As per the

case of the prosecution, bags carried by the appellants were inspected

one by one. This witness has not stated anything about it in his

evidence and the quantity of the substance found in each bag. In his

evidence, he has stated that 'ganja' was found from the accused persons

in three bags. He has stated that the samples were drawn out of it. He

has not stated the quantity of the samples and the number of sample 26 NDPS Appeal443.22+1 (J).odt

packets. His evidence is silent about the procedure followed for

packing, labelling and sealing of the samples. Most important fact,

which is missing from his evidence is about the description of the

substance found in the bags carried by the appellants. His evidence,

therefore, is not in sync with the contents of the panchanama. In my

view, his evidence cannot be made the basis of conviction of the

appellants. The evidence of this independent panch witness (PW4) is

vague. On the basis of his evidence, it is not possible to reach to a

concrete conclusion that he was indeed present at the time of search

and seizure of the substance.

20. PW6 is the Investigating Officer. On the basis of his

evidence, at the most, one can accept the case of the prosecution with

regard to compliance of Sections 42 and 50 of the NDPS Act. In his

evidence before the Court, he has not at all described the substance

recovered from three bags found with the appellants. The panchanama

and the first information report at least contain some description of the

substance, however it may not be sufficient to hold that the substance

was 'ganja', as understood by the NDPS Act. In his evidence, PW6 has 27 NDPS Appeal443.22+1 (J).odt

deposed about the procedure followed at the time of search, seizure

and sealing. He has nowhere stated that labels with signatures of the

panch witnesses and his signature were affixed to the sample packets

and the bags containing the substance. The panch witness is also

silent on the aspect of preparation of the sample packets, packing of the

sample packets and pasting of the labels with their signatures on the

sample packets. In my view, this is a very vital and important aspect in

this case. In his cross-examination, the Investigating Officer (PW6)

has categorically admitted that the panch witnesses in this case were

working at railway platform. In the teeth of this evidence, it is not

possible to conclude that the substance, as understood by definition of

'ganja', was proved to have been recovered from the possession of the

appellants. It is apparent on the face of record that the muddemal with

the bags, the reserved sample packets and the remnant sample packets

received from the office of C.A. were not produced before the Court.

If the muddemal and samples had been produced before the Court,

then the Court would have recorded the description of the same in the

evidence. The Court in the teeth of such a shaky evidence could have

seen the substance before delivering the judgment. No reason has 28 NDPS Appeal443.22+1 (J).odt

been placed on record for non-production of the muddemal before the

Court.

21. The prosecution is mainly relying on the photographs at

Exhs.105 and 106 to substantiate its case that at the time of the raid,

these photographs were taken and the accused are seen with their

respective bags in the photographs. In my view, the photographs show

that three persons are carrying the bags. Other persons are also seen in

the photographs. There is no whisper in the evidence of the

Investigating Officer (PW6) as to who those persons are. It is

unfortunate for the appellants that their Advocate, unmindful of

serious consequences, admitted those photographs. The photographs

do not depict the description of the substance. On the basis of oral and

documentary evidence the description of the substance found from the

bags has not been proved. The substance cannot be seen from the

photographs. There is one more reason for not attaching much

weightage to these photographs. Admittedly, at the request of the

Investigating Officer, the inventory was prepared by the Railway

Magistrate. At the time of the inventory in respect of each bag, three

photographs were taken. First photograph was taken before opening 29 NDPS Appeal443.22+1 (J).odt

the bags. Second photograph was of the substance 'ganja' at the time

of weight. Third photograph was of the repacking and resealing of the

bags. The description of the substance has not been mentioned in the

inventory. It is mentioned in the inventory that the bags contained

plastic packets of Cannabis (ganja). These photographs were not

produced on record before the trial Court. It has come on record that

these photographs were certified by the Magistrate in presence of two

independent panch witnesses. Perusal of the inventory would show

that the photographs of the substance from the three bags were taken.

If these three photographs had been produced, the same would have

extended great help to the case of the prosecution. The Court could

have seen the description of the substance from the photographs.

22. At this stage, in this context, it would be necessary to see

the provisions of Section 52-A of the NDPS Act. This provision has

been made with an object and intent to preserve the evidence when the

circumstances set out in sub-section 1 necessitate destruction of the

narcotic drugs and psychotropic substances. Sub-section 2 of Section

52-A of the Act provides that the inventory shall contain such details 30 NDPS Appeal443.22+1 (J).odt

relating to the description, quality, quantity, mode of packing, marks,

numbers or such other identifying particulars of the narcotic drugs and

psychotropic substances. The Magistrate has to certify the correctness

of the inventory. The photographs of the drugs or substances are

required to be taken in presence of the Magistrate and required to be

certified as a true photograph by the Magistrate. It also provides that

the Magistrate can allow the Investigating Officer to draw the

representative samples of the drugs or substances in his presence. Sub-

section 3 of Section 52-A provides that where an application is made

for certifying the inventory, the Magistrate shall allow the said

application. Sub-Section 4 of Section 52-A provides that if the

procedure provided under sub-sections 2 and 3 of Section 52-A is

followed, then the inventory, photographs of the narcotic drugs and

psychotropic substances and the list of samples, if any, drawn and

certified by the Magistrate, shall be the primary evidence in respect of

the offence. The prosecution has neither produced the photographs

taken in presence of the Magistrate and under the order of the

Magistrate, nor placed on record plausible explanation in that regard.

In my view, those photographs would have been the best evidence to 31 NDPS Appeal443.22+1 (J).odt

take the case of the prosecution, to some extent, forward. In the

backdrop of the above factual position, the photographs even if

accepted as admitted, cannot be made basis of the conviction.

23. I have stated the purpose of preparation of inventory as

spelt out from plain language of Section 52-A of the Act. It is not the

case of the prosecution that the substance with bags was destroyed after

preparation of the inventory. Mukund Jichkar (PW5) is the

Muddemal Clerk, attached to Railway Police Station, Nagpur. In his

evidence he has deposed about deposit of the muddemal and sample

packets with him. He has also deposed about forwarding of three

samples to the C.A. Nagpur for analysis. He has produced on record

the extract of muddemal register at Exh.74. Exh.74 indicates that the

substance with the three bags was deposited with him. Similarly, the

sample packets were deposited with him. It also indicates that three

sample packets were handed over to one Constable, who was deputed

to carry it to C.A., Nagpur. The last entry from this extract dated

27.04.2015 is with regard to the withdrawal of three bags containing

'ganja' for the purpose of inventory pachanama. This entry does not 32 NDPS Appeal443.22+1 (J).odt

show that the sample packets were withdrawn for the purpose of

inventory. The next entry is of the even date in respect of deposit of

three bags with 'ganja' after completion of the work of inventory.

There is no entry after this with regard to the disposal or otherwise of

the substance from three bags and the samples. Similarly, there is no

entry of receipt of the remnant sample packets from C.A. with the seal

of C.A., Nagpur. It is common knowledge that after analysis of the

samples, the remnant sample packets are separately sealed by the C.A.

and sent back to the concerned police station. This evidence clearly

indicates that the substance from the three bags was not destroyed till

the date of recording of the evidence. Therefore, in order to dispel

doubt from the mind of the Court as to the actual description of the

substance, the muddemal ought to have been produced before the

Court. In my view, this is a serious lacuna in the case of the

prosecution. The decisions relied upon by the learned advocate for the

appellants in the cases of Jitendra and another .vs. State of M. P. (supra)

and Gorakh Nath Prasad .vs. State of Bihar (supra) would squarely

apply to this case. On the basis of the proposition of law, I conclude

that failure on the part of the prosecution to produce the muddemal 33 NDPS Appeal443.22+1 (J).odt

and the sample packets before the Court, is fatal to the case of the

prosecution. It creates doubt about the case of the prosecution.

24. The case of the prosecution, as can be seen from the

record, solely rests on C.A. report. The C.A. report is at Exh.67.

Relying upon the C.A. report, it is submitted that the description of the

substance found in the sample packets has been recorded in the C.A.

report and the same squarely falls within the definition of ' ganja'.

Perusal of the C.A. report would show that the C.A. found greenish

brownish coloured leaves, flowering tops, seeds and stalks in separate

three sample packets. The C.A. has not been examined in this case. It

is not clear from the C.A. report (Exh.67) whether the greenish

brownish coloured leaves, flowering tops, seeds and stalks were part of

a stem or separate. Weight of the flowering tops has not been

mentioned anywhere. If the C.A. had been examined, then he would

have placed on record detailed description of the substance. In my

view, this is one reason to discard this report. The second important

reason for discarding the C.A. report is that there is discrepancy in what

was seized and what was analyzed by the C.A. As per the case of the 34 NDPS Appeal443.22+1 (J).odt

prosecution, greenish leafy substance was seized. The documentary

evidence as well as oral evidence is silent about the seizure of flowering

and fruiting tops accompanied by leaves, seeds and stalks. It is to be

noted that the greenish leafy substance does not fall within the

definition of 'ganja' as provided under the Act.

25. There is one more reason for not making C.A. report

(Exh.67) the basis of conviction. It is seen from the statement of the

appellants recorded by the learned Special Judge under Section 313 of

the Code of Criminal Procedure that the incriminating material from

the C.A. report with regard to the description of the substance found

contained in the parcel, mentioned in the C.A. report, was not

specifically put to the accused. Perusal of the statements under Sec.

313 of the Cr.P.C. of the appellants would show that it was not put to

them that the substance with flowering and fruiting tops was either

recovered from them or in the sample packets analyzed by the C.A., he

found the greenish brownish coloured leaves, flowering tops, seeds and

stalks. It is seen that without granting opportunity to the appellants to

explain this vital evidence and circumstance, the C.A. report has been 35 NDPS Appeal443.22+1 (J).odt

made the basis of conviction of the appellants. In the absence of

appropriate description of the substance coming forth in the oral and

documentary evidence, the C.A. report (Exh.67) in the above fact

situation, cannot form the sole basis of conviction. In the facts and

circumstances, I am of the view that the evidence on record is not

sufficient to prove that the substance recovered from the possession of

the appellants was in fact 'ganja' as defined under Section 2(iii)(b) of

the NDPS Act. In my view, this being the crux of the case of the

prosecution, the failure to prove the same cannot cast reverse burden

on the shoulder of the appellants, as provided under Sections 54 and

35 of the NDPS Act. The above stated facts have not at all been taken

into consideration by the trial Court. The evidence on record creates a

doubt about the case of the prosecution.

26. In this case, the Investigating Officer (PW6) has not

stated a word about compliance of the provisions of Section 57 of the

NDPS Act. As per Section 57 of the Act, in case of any arrest or

seizure under this Act, a full report of all particulars has to be made by

the Investigating Officer within next 48 hours after such arrest or 36 NDPS Appeal443.22+1 (J).odt

seizure, to his immediate official superior. In this case, such report was

not made. No explanation has been placed on record to that effect.

There is no iota of evidence to indicate that even a part compliance of

Section 57 of the NDPS Act was made by the IO. In order to come

out of this situation, reliance has been placed by the learned APP for

the State on Gurbax Sing .vs. State of Haryana (supra), wherein it is

held that the provisions of Section 57 are directory and violation of

these provisions would not ipso facto vitiate the trial or conviction. In

this case, it is also held that the Investigating Officer cannot totally

ignore this provision and such a failure will have a bearing on

appreciation of evidence regarding arrest of the accused or seizure of

the articles. In this case, in my view, the evidence is shaky. The seized

substance has not been properly described, either in the documentary

evidence or in oral evidence. In my view, therefore, failure to comply

the provisions of Section 57 of the NDPS Act will have a bearing on

appreciation of the evidence with regard to seizure of the articles. In

my view, this is one more flaw in the case of the prosecution and this

would go against the case of the prosecution. This ground is also

sufficient to vitiate the trial or conviction.

37 NDPS Appeal443.22+1 (J).odt

27. It is necessary to state here and it must be remembered

that the NDPS Act is a special enactment, which is a self-contained

constituent, mainly relating to investigation, preservation of

contraband, its certification, sampling and its production before the

Court. The provisions are mandatory in nature and therefore, non-

compliance of the mandatory provisions renders the conviction

unsustainable. The NDPS Act has been enacted with an intention and

object of controlling the menace of drug trafficking. Stringent

punishment has been provided for commission of offence under the

NDPS Act. In order to protect innocent persons from being

maliciously prosecuted, the Legislature in its wisdom provided the

appropriate measures in the form of mandatory provisions. At this

stage it needs to be stated that when stringent is the provision, more

stricter must be the compliance. Such approach can only avoid misuse

of stringent provisions. To avoid the misuse of the stringent provisions,

it can be said that when the punishment provided is stringent under

the special enactment, more stricter must be the compliance of the

mandatory provisions. In this view of the matter, on the basis of shaky

evidence, the conviction and sentence is not sustainable. The 38 NDPS Appeal443.22+1 (J).odt

appellants are, therefore, entitled for benefit of doubt.

28. Accordingly, Criminal Appeal No.443/2022 and

Criminal Appeal No. 572/2022 are allowed.

i] The judgment and order of conviction and sentence,

passed by the learned Special Judge (NDPS Court), Nagpur, in NDPS

Special Case No. 31/2015, dated 29.06.2022, is set aside.

ii] Appellant - Akshay Lalitrao Dhabale in Cri. Appeal No.

443/2022 ; appellant no.1 - Mithun Pralhad Chavhan and appellant

no.2 - Shekhar Pratap Rathod in Criminal Appeal No.572/2022, are

acquitted of the offences punishable under Sections 20 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985.

iii] They be set at liberty forthwith, if not required in any other crime/case.

iv] The muddemal property be disposed of as ordered by the trial Court.

                               v]    The appeals stand disposed of in above terms.



                                                                ( G. A. SANAP, J. )
                      Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:19.10.2022
18:45