Bombay High Court

Rajendra Jagannath Rathod vs State Of Maha on 20 September, 2024

2024:BHC-AUG:21976


                                                                     CriAppeal-519-2004
                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO. 519 OF 2004

                 Rajendra s/o Jagannath Rathod,
                 Age : 30 years, Occ : Labour,
                 R/o Village Khanapur Tanda,
                 Tal : Ausa, Dist: Latur.                         ... Appellant

                       Versus

                 The State of Maharashtra,
                 Through Police Station, Udgir.                   ... Respondent

                                                  .....
                         Mr. Shashikiran N. Patil, Advocate for the Appellant.
                         Mr. S. M. Ganachari, APP for the Respondent-State.
                                                  .....


                                         CORAM :        ABHAY S. WAGHWASE, J.
                                         Reserved on        : 13.09.2024
                                         Pronounced on      : 20.09.2024

                 JUDGMENT :

1. Instant appeal arises out of judgment and order of conviction

dated 09.08.2004 rendered by Special Judge, Latur in Special Case

No. 14 of 2003, by which guilt of the appellant for contravention of

Section 8(c) r/w Section 20(1)(b) of Narcotic Drugs and Psychotropic

Substances Act, 1985, (hereinafter referred to as, "NDPS Act") has

been recorded.

CriAppeal-519-2004

PROSECUTION CASE

2. Case of prosecution before trial court in nutshell is that, PW6

PSI Sharma, while on duty, received secret information that a person

in possession of ganja would be arriving on ST Stand. He

immediately, after conveying received information to superiors,

summoned constable Birajdar and directed him to arrange panchas,

whereas, another constable Kendre was directed to arrange trader

possessing weighing scale. Naib Tahsildar was contacted, as Tahsildar

was not available. On arrival of all above at police station, they were

appraised and briefed about the secret information and raid was

planned and accordingly they all proceeded to the vicinity of ST

Stand. On platform no.2, they noticed person whose description

matched with the secret information. He was approached and his

name was asked, which he gave as Rajendra Jagannath Rathod. A

black bag was hanging on his shoulder and he was questioned about

its contents, but he started evading answers. He was offered option as

to whether search being conducted in presence of PI Shinde or any

other Gazetted officer, and accused consented for search in presence

of officers present there.

3. In presence of Naib Tahsildar PW3, search of his person and

thereafter of the bag in his possession was carried out, which was CriAppeal-519-2004

found to be containing 4 kg and 600 grams ganja. Out of it, 100

grams by way of sample was withdrawn by Naib Tahsildar. Bag was

sealed, samples were sealed. Detailed panchanama to that extent was

drawn at that spot itself. Raiding party carried accused and the

seizure to the police station. On reaching there, PW6 lodged report

Exhibit 38 on the strength of which, crime was registered. Necessary

entry was taken in the station diary. Receipt of seizure was drawn

(Exhibit 39). Previous to that, Exhibit 41 permission to raid was

already received.

4. On completion of investigation, accused was chargesheeted and

made to face trial before learned Special Judge, Latur, who examined

in all 6 witnesses on behalf of prosecution. Accused denied to lead

any evidence. On appreciating oral and documentary evidence, by

judgment dated 09.08.2004, learned Special Judge held appellant

guilty for contravention of Section 8(c) punishable under Section

20(1)(b) of the NDPS Act and sentenced him to suffer R.I. for four

years and to pay fine of Rs.10,000/-.

Above judgment is now taken exception to, by filing instant

appeal on various grounds mentioned in appeal memo.

CriAppeal-519-2004

SUBMISSIONS

On behalf of the appellant :

5. Heard learned counsel for the appellant at length. The main

plank of argument of learned counsel for appellant is that, mandatory

procedure as laid down under NDPS Act has not been scrupulously

and strictly adhered to, i.e. more particularly Sections 50, 52-A(2),

54, 55 of NDPS Act. Secondly, there are several lapses and infirmities

in the investigation like, not providing copy of panchanama to the

accused forthwith even when it was mandated by the statute. Thirdly,

there is deviation at the time of drawing sample as said procedure is

not carried out in presence of Magistrate. Fourthly, alleged seizure is

not brought before the court to demonstrate that sample drawn was

from contraband allegedly possessed by appellant. For above reasons,

prosecution version comes under shadow of doubt. He pointed out

that very seizure panchanama of contraband is without signature of

very Investigating Officer. Lastly, prosecution did not demonstrate

disposal of alleged contraband. In spite of above serious infirmities,

learned counsel submitted that, learned trial court has accepted the

prosecution version and hence he seeks intervention and indulgence

at the hands of this Court by setting aside the impugned judgment

and to allow the appeal.

CriAppeal-519-2004

In support of his contentions, learned counsel placed reliance

on the following rulings:

1. Simarnjit Singh v. State of Punjab 2023 (3) CriCC 160.

2. Yousuf @ Asif v. State AIR 2023 SC 5041.

3. Hasan Imam Inamdar v. State of Maharashtra 2003 ALL M.R. (Cri) 1889.

4. State of Maharashtra v. Karunakar Kumarswami Ijjigiri [Application for Leave to Appeal by State No.140/2020 decided by the Division Bench of this Court on 19.10.2023]

On behalf of the respondent-State :

6. Countering the above submissions and supporting the judgment

of learned trial Judge, learned APP submitted that on receipt of secret

information, raid was planned and executed. Appellant was found to

be possessed with contraband ganja. After following due procedure

and offering opportunity to appellant to search the person of each of

the raiding party and after appraising him about the raid, he was

questioned. He carried bag containing ganja. The same was weighed

at the spot and quantity revealed was 4 kg 600 grams. Learned APP

pointed out that this entire procedure was done in presence of Naib CriAppeal-519-2004

Tahsildar who is Taluka Execute Magistrate. Therefore, procedure is

being done in presence gazetted officer and as such, there is no

deviation. That, after drawing sample, contraband was sealed. Seizure

was sent for analysis. Its analysis yielded positive results. Therefore,

according to learned APP, there was no deviation and infirmity as is

tried to be posed, and consequently, canvassing in favour of the trial

court judgment, he prays to dismiss the appeal for want of merits.

EVIDENCE BEFORE THE TRIAL COURT

7. The prosecution has examined following six witnesses in

support of its case. Their role and status and the sum and substance

of their evidence can be summarized as under :

PW1 Bhimraj, who acted as pancha, narrated that on 08.08.2003 around 11.45 a.m., he was called to police station along with another person namely Venkat Sabne. Secret information was shared with them by officer Birajdar. Person having scale was also present. They agreed to act as pancha and they all proceeded to S.T. Stand Udgir. On platform no.2, person matching with description received was spotted. On initial questioning, he refused to disclose contents of the bag in his possession. After informing him about search, his bag was opened by police officer, which contained another yellow gunny bag and after opening it, green colour leaves with seeds were CriAppeal-519-2004

found, same were weighed, which turned out to be 4 kg 600 grams. 100 grams were drawn by way of sample and seized ganja was sealed. Panchanama was drawn, over which he and other pancha Venkat caused signature. He identified panchanama Exhibit 28.

In his extensive cross, he answered that second pancha Venkat is his old acquaintance. He also admitted his shop to be 100 meters away from police station. He is unable to give registration number of the vehicle in which they travelled up to S.T. Stand. He answered that they reached S.T. Stand vicinity at 12.15 p.m. Person arrested was already standing on platform no.2. The entire procedure continued up to 2.00 p.m. In his presence papers were not handed over to accused. He answered that in all he caused three signatures. He answered that panchanama was drawn by Birajdar. He denied previous acquaintance with Investigating Officer. Rest is all denial.

PW2 Police Constable Gharole stated that on 10.08.2003, sealed envelop containing ganja was handed over to him along with letter, which he carried to CA office and handed it over on 11.08.2003 and sought acknowledgment on the letter which he identified to be at Exhibit 30.

While under cross, he answered that there were holidays on 09.08.2003 and 10.08.2003. He answered that he received sample on 10.08.2003 at 8.00 p.m., whereas letter with endorsement to police station is of 11.08.2003. He answered that sample was received from PSI Sharma and at that time ASI CriAppeal-519-2004

Gunale was in-charge of muddemal. That, the letter which was handed over to him, carried date as 08.08.2003.

PW3 Vitthal Khandapure, who is examined at Exhibit 32, stated that on 08.08.2003, he was acting as Naib Tahsildar and was a Class-II Gazetted officer. On receiving information from police, he went to police station and from there, along with police officers, panchas and a trader, they all proceeded to S.T. Stand and took positions at different locations. From platform no.2, person was accosted by PI Shinde and said person was in possession of rexine bag of black colour. On inquiry, said person avoided to answer and he was informed about search of his bag. Thereafter his bag was searched, which contained gunny bag and the same contained green leaves. Police informed him that it was ganja. Leaves weighed 4 kg 600 grams. 100 grams were drawn by way of sample and remaining was seized by drawing panchanama. He too signed the panchanama. In examination- in-chief itself, he answered that he does not recollect as to whether the accused sitting in the dock is the same person.

His relevant cross is as under :

The police came to him at 12.00 noontime. Around 12.10 p.m. they left for police station which is 5 to 10 minutes walking distance from Tahsil office. In all 10 persons left for raid. Accused was found standing on the southern side of the platform. Platform no.2 was in use for parking of buses proceeding towards Nilanga. Accused was questioned around 1.00 p.m. Ganja with gunny bag was weighed on the platform CriAppeal-519-2004

itself. He answered that there were no talks between him, panchas and accused at the bus stand. He answered that his statement was not recorded.

PW4 Pathan Asif Khan, the trader, allegedly summoned with weighing scale, has not supported prosecution, as he denied being called at police station. However, he identified signature, but again answered that he does not know the contents of the panchanama. Finding him not supporting, he was cross- examined by learned APP, but he denied all suggestions.

While under cross at the hands of defence counsel, he answered that he has appeared in one more NDPS case.

PW5 API Murkute, Investigating Officer (IO) stated that investigation of crime no. 3080/2003 was handed over to him. Complaint, seizure panchanama, office copy of permission from SP office and copy of letter to CA was handed over to him. He recorded statements. CA report received was made part of the investigation papers.

PW6 PSI Sharma narrated about secret information received on 08.08.2003, summoning panchas, trader with weighing scale and Naib Tahsildar through constables and they being appraised about the secret information and on their agreement to participate, they all proceeded to S.T. Stand. A person as per description was spotted standing on platform no.2. He was questioned, who gave his name as Rajendra Jagannath Rathod. On his right shoulder, there was a bag. He avoided to disclose CriAppeal-519-2004

its contests. He was asked whether he was willing for search to be conducted in presence of any other gazetted officer. Said person consented for search in presence of officer present there. During search, ganja in the bag was weighed. It weighed 4 kg 600 grams. Detail panchanama was drawn. They all came back to police station and he lodged report Exhibit 38. He identified muddemal receipt; copy of wireless message sent to Superintendent of Police; original letter seeking permission.

He is also extensively cross examined during which he answered that he is unable to state who recorded information in station diary. He answered that when person was spotted standing on platform no.2, at that time 8 to 10 persons were seen standing near him. He answered that panchanama is in the handwriting of constable Birajdar and he admitted that said constable Birajdar has not caused signature over it. He answered that photocopies were prepared at a shop outside the S.T. Stand. That, 3 copies of panchanama were prepared, 2 to be photocopies and 1 to be original. One was given to accused and one was retained for record of police station. He answered that writer constable was always possessed with blank papers, carbon and other material. He further answered that sealing was done by applying wax and sample was handed over to Mohrir at police station. He admitted that after handing over sample at police station, seal was not affixed. The rest is all denial.

CriAppeal-519-2004

ANALYSIS

8. During argument, fundamental objection raised, thereby

questioning the veracity of prosecution version is that, there is utter

disregard to the mandatory procedure laid down in the NDPS Act,

more particularly there is contravention and violation of Sections 52,

52-A of NDPS Act, not handing over copy of panchanama to the

accused. In support of such case, reliance is sought on above rulings.

9. In order to gauge and test veracity of the above submissions, it

would be relevant to reproduce Section 52-A of the NDPS Act in its

entirety.

"52A. Disposal of seized narcotic drugs and psychotropic substances.--

(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner CriAppeal-519-2004

as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared;

(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

CriAppeal-519-2004

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

10. The above discussed provision describes procedure and manner

of seizing, preparing inventory of seized articles, forwarding the

sealed seizure and further getting inventory certified through

Magistrate, that too forthwith. The above provision also deals with

procedure of disposal of seized contraband. It also provides for

snapping photographs of the seizure and drawing of sample in

presence of Magistrate.

11. Considering the rigors of the NDPS Act, the Hon'ble Apex Court

in numerous judgments has casted a duty on prosecution to strictly

and scrupulously adhere to the mandatory requirements referred CriAppeal-519-2004

above, with sole intention to ensure fair play in the process of

investigation, more particularly in the backdrop of magnanimity of

the punishment provided under it. The obvious reason for insistence

of strict compliance of mandatory procedure is to make the best

evidence available for appreciation.

12. The mandate of strict compliance of statutory provisions and

procedure is echoed in numerous landmark judgments like Noor Aga

v. State of Punjab (2008) 16 SCC 417, Union of India v. Mohanlal

AIRONLINE 2016 SC 606, Jitendra v. State of MP (2004) 10 SCC 562,

Union of India v. Jarooparam (2018) 4 SCC 334, and recent rulings in

the case of Mangilal v. State of M.P. 2023 INSC 634 and Yousuf @

Asif v. State 2023 INSC 912, wherein above and previous settled

judicial pronouncements are reiterated.

13. Keeping the above discussed legal position in mind, and on

careful re-appreciation of the evidence, the patent infirmity which is

noticed here is that, after alleged seizure, PW6 PSI Sharma was not

diligent in adhering to the requirements spelt out in Section 52-A of

the NDPS Act. It is emerging that he has failed to approach Magistrate

having jurisdiction forthwith, to comply with Section 52-A(2)(a), (3)

and (4). What he has done is that he has secured presence of only CriAppeal-519-2004

Naib Tahsildar, who admittedly was a mere Gazetted officer, but

above discussed provisions mandate presence of Magistrate. Only

those samples which are shows to be drawn in presence of a

Magistrate are permitted to be declared as primary evidence. No

application has been made to the Magistrate and procedure of

drawing sample is apparently not done in presence and under the

eyes of the Magistrate. This is a serious infirmity and deviation,

inviting doubt about the very seizure. Therefore, even if CA report is

positive, above procedure not being followed, the seizure cannot be

said to be primary evidence. Admittedly, even remaining seizure i.e.

after drawing sample, is not before the court and in what manner it

was disposed, has neither come in Investigating Officer's evidence nor

in the evidence of PW6 PSI Sharma. Admittedly, seizure, sampling,

sealing is shown to be done at the platform itself and not before

Magistrate, as is mandatorily contemplated. Resultantly, there is force

in the submission in appeal that there is utter disregard and non-

compliance of mandatory procedure.

14. Apart from above serious lapses, it has also come on record that

copy of panchanama, which is expected to be extended to accused

forthwith, is not demonstrated to be handed over. Pancha PW1

Bhimraj, in his cross, has admitted that no papers were handed over CriAppeal-519-2004

to accused in his presence. This Hon'ble court in the case of Hasan

Imam Inamdar (supra), has considered failure of supply of copy of the

panchanama to the accused immediately as a serious prejudice to the

accused.

15. Apart from there being no distinct evidence of handing over

copy of panchanama to the accused immediately, the scriber to the

panchanama namely, Birajdar, has not been examined. Equally,

constable Kendre, who arranged for trader with weighing scale, has

not been examined. Serious dent is inflicted to the prosecution

version as PW4 Pathan Asif Khan, whose services were said to be

extracted for weighing contraband, has not supported prosecution.

16. Very informant PSI Sharma admitted in cross that after seizure

was handed over at the police station, seal was not affixed. His such

answer creates doubt about the integraty of seizure. PW2 carrier

claims to have received muddemal on 10.08.2003 and though he

handed over muddemal at CA Aurangabad on 11.08.2003, he has

admitted in cross that the letter addressed to the CA was dated

08.08.2003.

CriAppeal-519-2004

17. Therefore, even if, as version of PW2, there were holidays on

09.08.2003 and 10.08.2003, contraband has not been handed over

forthwith. Another point which needs to be highlighted is that,

Gazetted officer PW3 Vitthal Khandapure, even at the time of very

raid, i.e. at initial stage, claims to have learnt from police i.e. raiding

party that the bag contained ganja. How, without CA analysis report,

it was open for police to inform him above, further creates doubt

about the very procedure of receipt of secret information and raid

being successfully executed. Another blow that is inflicted to the

prosecution story is by their own witness PW3 Gazetted officer, who

in his examination-in-chief, after identifying his signature over the

panchanama, deposed that he does not recollect as to whether

accused sitting in the dock is the said person. Such evidence of star

and independent witness creates a cloud of doubt over the

apprehension of accused.

18. To sum up, here, from above discussed analysis, it is clear that

mandatory procedure has not been adhered to and followed. Coupled

with above infirmities, it is manifest that prosecution case is full of

serious doubts which go to the very root of the matter. Consequently,

appellant succeeds. Hence, the following order is passed :

CriAppeal-519-2004

ORDER

I. The appeal is allowed.

II. The conviction awarded to the appellant Rajendra s/o Jagannath Rathod, by learned Special Judge, Latur in Special Case No. 14 of 2003 for contravention of Section 8(c) r/w Section 20(1)(b) of NDPS Act on 09.08.2004 stands quashed and set aside.