Bombay High Court

Mahesh Ravindra Vhatkar vs State Of Maharashtra on 21 August, 2023

Bench: P. K. Chavan

2023:BHC-AS:23737                                                    1060-2023-IA-reserved.doc

                    Uday S. Jagtap


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                                     INTERIM APPLICATION NO. 1060 OF 2023
                                                      IN
                                       CRIMINAL APPEAL NO. 501 OF 2022

                    Santaji Malhari Kharat
                    Aged : 38 years, Occ. Agriculture
                    R/o. Kurul, Tal. Mohol, Dist. Solapur
                    (At present undergoing sentence at
                    Yerwada Central Prison)                         .. Applicant

                              Vs.

                    The State of Maharashtra,
                    (Panvel Taluka Police Station)
                    C.R. No.53/18 dated 21/03/2018)                 .. Respondent

                                                    WITH
                                     INTERIM APPLICATION NO. 1061 OF 2023
                                                      IN
                                       CRIMINAL APPEAL NO. 500 OF 2022

                    Mahesh Ravindra Vhatkar
                    Aged : 38 years, Occ. Grocery Shop,
                    R/o. Ghodeshwar, Tal. Mohol,
                    Dist. Solapur (At present undergoing
                    sentence at Yerwada Central Prison)             .. Applicant

                              Vs.

                    The State of Maharashtra
                    (Panvel Taluka Police Station)
                    C.R. No.53/18 dated 21/03/2018)              .. Respondent
                                                   .....
                    Mr. Ayaz Khan a/w Mr. Rajendra Bidkar for the applicant in both
                    the applications
                    Mr. A.R. Kapadnis, APP for the respondent - State
                                                   .....



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                               CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON : 9th AUGUST, 2023 PRONOUNCED ON : 21st AUGUST, 2023

ORDER :-

1. The applicants have been convicted by the NDPS Special

Judge at Panvel in NDPS Special Case No. 297 of 2019 of the

offences punishable under Section 20(b)(ii)(C), 29 r/w Section 8(c)

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short "NDPS Act"). Both applicants have been sentenced to

undergo rigorous imprisonment for 13 years with fine of

Rs.1,50,000/- each. In default of payment of fine to undergo

rigorous imprisonment for 2 years.

2. Facts in brief are as below.

3. An information was received by PW-1 Head Constable -

Mohammed Iqbal Shaikh, attached with Anti Narcotic Cell, Unit of

Crime Branch, Navi Mumbai on 20.03.2018 that two persons

would be coming in a vehicle Eicher tempo bearing Registration

No. MH-09-BC-3789 and a white coloured car bearing Registration

No. MH-13-BN-9535 along with Ganja weighing about 400 to 500

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kgs. for selling the same in Raigad District. They would pass

through Nisarg Nursery on Panvel - Alibaug road. The informant

had also given minute details of the accused persons, including

colour of clothes, colour of the shoes and having some skin disease

on lips, fingers of both hand and legs etc. The information was

passed by PW-1 Head Constable, Mohd. Iqbal Shaikh to PW-3 Smt.

Rani Kale, Women Police Sub-Inspector (WPSI) and PW-5 Bajare -

Senior PI. The information was reduced into writing by PW-3 Smt.

Rani Kale.

4. The said information was conveyed to ACP and DCP by PW-5

Bajare. A direction was issued by ACP to conduct a raid under the

supervision of PW-5 Bajare. PW-1 Mohd. Iqbal Shaikh took out the

copies of the information book and station diary. PW-3 Smt. Rani

Kale had prepared a report for sending the copies to the superior

and produced before PW-5 Bajare. PW-5 Bajare, forwarded the

copy of the information to DCP through Head Constable - Thakur.

5. Panchas were summoned. They were appraised of the raid to

be conducted. Necessary material for conducting raid was taken. A

pre-trap panchanama was prepared in the office vide Exh.68. The

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Officers of the raiding party and panchas started for conducting

raid at 22:30 hours. They reached the spot at about 23:40 hours in

the police vehicle as well as in two private vehicles.

6. On 21.03.2018 around 1:30 hours, the raiding team noticed

the vehicles about which information was received, which were

intercepted. Two persons were found in the vehicle. Upon inquiry,

they disclosed their identity as applicant no.1 - Mahesh Vhatkar and

applicant no.2 - Santaji Kharat.

7. PW-5 Bajare appraised the applicants regarding the

information and their rights under Section 50 of the NDPS Act in

Marathi language. Two separate letters were also issued to the

applicants vide Exh.103 and Exh.104.

8. During search of the vehicles, the Officer recovered 15 gunny

bags having Ganja weighing about 377 kgs. Out of 15 gunny bags,

14 gunny bags were of 25 kgs. each and weight of 15 th bag was

27 kgs. On instructions of PW-5 Bajare, test of the alleged Ganja

was done on the field with the help of testing kit by PW-3 Smt. Rani

Kale. It gave positive result for Ganja as it's colour changed to

brownish.

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9. Upon inquiry with the applicants, it was learnt that white

coloured Maruti Ciaz bearing Registration No. MH-13-BN-9535

was driven by accused no.1 Mahesh Vhatkar. The truck in which

Ganja was recovered was brought by the accused no.2 - Santaji

Kharat from Telangana and after reaching Kalamboli circle, the

accused no.2 also occupied the said truck. During search, mobile

phones, some currency notes and Aadhar Cards of the applicants

were seized along with the vehicles.

10. One sample of 50 grams each was drawn from each bag and

the same were kept in plastic pouches and ultimately wrapped in a

brown coloured envelope. The labels were affixed bearing

signatures of PW-3 Smt. Rani Kale and panch witnesses. The

samples were sealed with official brass seal of the crime branch.

The remaining bulk in 15 gunny bags were separately packed,

sealed and marked as A to S. The Eicher tempo and Ciaz car also

came to be seized under panchanama. The panchanama (Exh.69)

was completed on 21.03.2018 at 7:30 a.m.

11. The Officer along with the contraband came to Panvel Taluka

Police Station. PW-1 Mohd. Iqbal Shaikh of Anti Narcotic Cell,

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Crime Branch, Navi Mumbai, registered an FIR against the

applicants as above. The muddemal property was deposited in the

godown by PW-3 Smt. Rani Kale with Panvel Taluka Police Station

(Exh.70). The Search and Seizure Report dated 22.03.2018 was

forwarded to the superior officer at Crime Branch, Navi Mumbai

(Exh.71).

12. On 22.03.2018 itself, samples were forwarded to the Office

of the Forensic Science Laboratories, Kalina, Mumbai through PW-

4 Head Constable, Utgikar (Exh.72). The CA report was received.

13. On 10.04.2018 proceeding under Section 52A of the NDPS

Act was completed before the JMFC, Panvel. After investigation, a

charge-sheet was filed against the applicants.

14. After framing charge, the applicants pleaded not guilty and

claimed a trial. Prosecution examined five witnesses. The learned

trial Court after hearing the prosecution and defence, convicted and

sentenced the applicants as above.

15. Heard Mr. Khan, learned Counsel for the applicants at length.

He mainly emphasized on non-compliance of several mandatory

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provisions under the NDPS Act. He would argue that the samples

were not drawn before the Magistrate but on the spot itself, which

is in total violation of the judgment of the Supreme Court in case of

Union of India Vs. Mohanlal & Anr. as well as in the case of

Simarnjit Singh Vs. State of Punjab. He would argue that the

articles were not produced before the trial Court nor they have

been marked as articles. The prosecution has not examined the

carrier of the samples. According to the learned Counsel, non-

compliance of these mandatory provisions would itself vitiate the

entire prosecution.

16. Per contra, learned APP would argue that the evidence of the

prosecution witnesses is quite trustworthy and clinching. Looking

to the gravity of the offence, it would not be proper to suspend the

execution of the sentence, pending the appeal.

17. From the perusal of the testimonies of PW-1 Mohd. Iqbal

Shaikh, PW-3 Smt. Rani Kale and PW-5 Bajare, prima facie it

appears that there is non-compliance of Section 42(1) and 42(2) of

the NDPS Act. Section 42(1) contemplates that an Officer who

receives the information has to submit the same in writing and

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thereafter, the same is required to be sent to the immediate superior

official for compliance of Section 42(2) of the NDPS Act. Section

42(2) contemplates that the information which is taken down in

writing by an Officer under Sub-Section (1) or records grounds for

his belief under the proviso, the same shall be immediately sent to

the superior official within 72 hours. From the evidence of PW-1

Mohd. Shaikh, it is not clear whether there was a compliance of

Section 42(2) of the NDPS Act. PW-1 Mohd. Shaikh had simply

identified the copy of the information register (Exh.53). It was PW-

5 Bajare who appears to have made the so called compliance of

Section 42(2) of the NDPS Act, who had not received the

information.

18. PW-3 Smt. Rani Kale in her evidence states that she had

prepared a letter for permission to conduct a raid and the same was

forwarded to PW-5 Bajare. There is no document on record to

show that PW-3 Smt. Rani Kale had prepared the report, which was

signed by PW-5 Bajare. Interestingly, it reflects from the evidence

of PW-3 Smt. Rani Kalke and PW-5 Bajare that the copy of the

information was sent to the superior Officer through Head

Constable - Thakur. However, Head Constable - Thakur had

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neither examined by the prosecution nor his statement was

recorded. Exh.99 is the covering letter while Exh.100 is the

computer extract of the station diary, over which there is neither

any inward number of the office of ACP nor signature of the ACP.

The original register has not been filed during the trial. Copy of the

information book is tendered, which is at Exh.53. Exh.53 is just a

torn page of the register as per the evidence of PW-1 Mohd. Shaikh.

19. Importantly, the property was not marked as articles during

trial. The prosecution has not brought to the notice of the seized

muddemal during the evidence of PW-4 Head Constable - Utgikar,

PW-2 Yogesh Patil - panch witness and PW-5 Bajare. Even the

sample packets were not marked as articles during the course of

trial.

20. There is also a serious doubt as regards compliance of Section

52A of the NDPS Act. PW-2 Yogesh Patil is the panch witness, who

turned hostile. He admits that he had acted as a panch witness in

other similar cases. He admits that he had acted as panch witness

in 8 to 10 cases. He further admits that on many occasions his

signatures were obtained by the Police without calling him at the

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scene of occurrence. Interestingly, he had signed the panchanama.

21. The prosecution had not examined Chemical Analyser from

FSL, Kalina. The report of the FSL was exhibited on the basis of

evidence of PW-3 Smt. Rani Kale.

22. FIR (Exh.54) was registered at Panvel Taluka Police Station by

the concerned Officer of that police station. The Officer who

registered an FIR has not been examined by the prosecution.

23. PW-1 Mohd. Iqbal Shaikh gave vital admissions in cross that

Exh.53 is a torn page from the information book. He further

admits that after receipt of information about the alleged offence, at

the first instance, he did not pass it on to PW-5 Bajare. He had

information as to the alleged contraband and the vehicle in which it

was carried. There was no information as to who were travelling

and by which vehicles. He had not produced the copy of the

report prepared by him and forwarded to the Office of ACP and

DCP. He also admits that there appears an overwriting in the

'month' mentioned in the date at Exh.53. The samples of the

contraband which were produced in the Courts in an envelop, did

not bear the signatures of the applicants over the paper seal pasted

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upon it.

24. PW-3 Smt. Rani Kale admits that she did not see the secrete

information noted down by PW-1 Mohd. Iqbal Shaikh personally.

She also admits that PW-1 Mohd. Iqbal Shaikh did not reduced the

information in the information book in her presence. She also

admits that there was no information as regards the travelling route

of the suspects or about the vehicles. These are all vital admissions

given by the prosecution witnesses apart from non-compliance of

Section 42(1) and 42(2) of the NDPS Act, which would prima facie

speaks volumes.

25. PW-3 Smt. Rani Kale had also given some vital admissions

which prima facie indicates the manner in which the prosecution

against the applicants had been launched. The admissions in para

37 and 38 of her cross-examination speaks for itself, which read

thus:-

"37. It is correct that as per the standing orders reference No.1/88, two samples from the bulk quantity are required to be extracted. It is correct that in this matter we extracted only one sample from each gunny bag. It is correct that from the quantity of ganja in each gunny bag it was possible for us to extract two samples each from the said gunny bag. I cannot assign any reason such type of task was not performed

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by us. It is not true that the sample packets were prepared in the office. It is not true that sample packets were not from bulk quantity.

38. I have gone through C.A. report on its receipt. It is correct that after depositing the muddemal to the malkhana it is marked as MR number and same is referred later on for further investigation. It is correct that there is no reference of MR number on any sample packet. I did not record the statement of malkhana karkoon of Panvel Taluka police station. It is not true that I did not deposit any sample packets with malkhana of Panvel Taluka police station."

26. PW-3 Smt. Rani Kale admits that in the copy of FIR which

was forwarded to the Court, the name of one Rupali Chaudhari is

shown as an Investigating Officer.

27. The learned Counsel for the applicants has placed reliance on

a judgment of the Supreme Court in the case of Union of India Vs.

Mohanlal & Anr. on the point of Section 52A of the NDPS Act,

which deals with the disposal of the seized drugs and psychotropic

substances. In case of Mohanlal (supra), the Supreme Court in para

20 had summed up and issued directions, which are reproduced

hereinbelow.

"20. To sum up we direct as under :-

(1) No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the Officer in-charge

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of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading 'seizure and sampling'. The sampling shall be done under the supervision of the Magistrate as discussed in paras 13 and 14 of this order.

(2) The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and double locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No.1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.

(3) The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts. (4) Disposal of the seized drugs currently lying in the police maalkhans and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading 'disposal of drugs'."

28. It is submitted that there was no compliance of Section 52A of

the NDPS Act as the seized muddemal had not been brought before

the concerned Magistrate. The Supreme Court in the case of

Simarnjit Singh Vs. State of Punjab has followed the view taken by

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it in case of Mohanlal (supra). The prosecution has been quashed

by setting aside the conviction and sentence of the appellant on the

ground of non-compliance of mandate of Section 52A of the NDPS

Act.

29. In the aforesaid facts and circumstances of the case, without

expressing any opinion on merits / demerits of the case, the