Bombay High Court
Digambar Bapurao Landge vs The State Of Mah on 26 February, 2025
2025:BHC-AUG:5406
-1- Cri Appeal No. 877.2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 877 OF 2004
Digambar Bapurao Landge,
Age : 40 Years, Occu. : Auto Driver,
R/o. Banwas, Tq. Pallam,
Now HUDCO/116, Nanded. ..... Appellant
(Ori. Accused)
Versus
The State of Maharashtra ..... Respondent
.....
Advocate for Appellant : Mr. Shrikant B. Madde
APP for Respondent-State : Mr. V.M. Jaware
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 23rd January, 2025
PRONOUNCED ON : 26th February, 2025
JUDGMENT :
1. Convict of offence under Section 8(c) punishable under
Section 20(1)(b) of the Narcotic Drugs and Psychotropic Substances
Act (in short, "NDPS Act"), takes exception to judgment and order
dated 13.12.2004, passed by learned Special Judge, Latur in Special
Case No.03 of 2003.
-2- Cri Appeal No. 877.2004
IN NUTSHELL, CASE OF THE PROSECUTION IS AS UNDER :
2. Acting on a secret information, Mr. Mahesh Sharma,
Police Sub Inspector, Udgir Police Station, planned and arranged raid
to be carried out in the vicinity of Udgir Bus Stand. Said officer
headed the raiding team compromising of police staff, panchas, trader
and photographer and they came across the appellant, whose
description matched with the secret information. After completing the
formalities, they introduced themselves and made inquiry with him
and also offered their own search and thereafter, conducted search of
bag in his possession which found to be containing 4 Kg. 800 Grams
Ganja. Sample of 100 Grams Ganja was drawn. Seizure was
conducted. The appellant was brought to the police station and on
report of police officer, crime was registered.
3. After investigation and on gathering sufficient evidence,
the appellant was charge-sheeted and tried before learned Special
Judge, Latur vide Special Case No.03 of 2003. Before learned trial
court, prosecution adduced evidence of in all seven witnesses and also
relied on documentary evidence like FIR, Panchnama, C.A. report, etc.
After appreciating the oral and documentary evidence, learned trial
court has accepted the prosecution case as proved and by judgment
and order dated 13.12.2004, convicted the appellant for offence
-3- Cri Appeal No. 877.2004
under Section 8(c) punishable under Section 20(1)(b) of the NDPS
Act and sentenced him to suffer imprisonment for four years.
Precisely, said judgment and order of conviction is now assailed
before this court on various grounds spelt out in the appeal memo.
SUBMISSIONS
ON BEHALF OF THE APPELLANT :
4. Heard learned counsel for the appellant at length. The
principle grounds of challenge are that, there is non compliance of
provisions of Section 42(2) of the NDPS Act. That, there is no
convincing, cogent and reliable evidence. That, provisions laid down
under Sections 50 and 52 of the NDPS Act are also contravened. That,
there is no independent witness. That, panchas have not supported.
That, any gazetted officer was not present which was mandatory and
for above reasons, impugned judgment is sought to be set-aside.
5. Learned counsel has placed reliance on rulings of the
Hon'ble Apex Court in following cases.
i) Simarnjit Singh Vs. State of Punjab, reported in 2023
(3) CriCC 160.
ii) Yusuf @ Asis Vs. State, reported in 2023 (4) RCR
(Criminal) 686.
iii) Hasan Imam Inamdar Vs. State of Maharashtra,
reported in 2003 All.M.R. (Cri.) 1889.
-4- Cri Appeal No. 877.2004
ON BEHALF OF THE RESPONDENT-STATE :
6. In answer to above, learned APP opposed on the ground
that, acting on a secret information, raid was conducted and it turned
out to be successful as the appellant was found in possession of 4 Kg.
800 Grams Ganja, which was in his bag and which was in his very
possession. Therefore, it was a conscious possession. That, C.A. report
of seizure is positive. Learned APP pointed out that, I.O. did take steps
to secure presence of Tahsildar and other gazetted officers, but as
they were not available and as there was no time to be wasted, after
taking necessary noticing in the station diary, which are got proved
through I.O., raid was conducted. As such, there is no violation.
According to him, merely on said doubt, no benefit would accrue to
the appellant.
7. In support of above submissions, learned APP has placed
reliance on the ruling of the Hon'ble Apex Court in case of Bharat
Aambale Vs. State of Chhatisgarh, reported in 2025 SCC Online SC
110.
EVIDENCE BEFORE THE TRIAL COURT :
8. In support of its case, the prosecution has examined in all
seven witnesses. Their role and status and the sum and substance of
their evidence can be summarized as under :
-5- Cri Appeal No. 877.2004
PW1 Mr. Dhanraj Vishwanath Patwari, Panch to the seizure
panchnama. He did not support to the prosecution and turned
hostile.
PW2 Mr. Dilip Ganptatrao Gaikwad, Panch to the seizure
panchnama. He also did not support to the prosecution and
turned hostile.
PW3 Mr. Shahabuddin Burhansab Shaikh, Naik Police Constable. In
para.1 of his substantive evidence at Exh.13, he narrated as
under :
"1. On 23-12-2002 I was on duty at Udgir City police
station. On that day at about 11.00 A.M. PSI Sharma called me.
He informed me to take the sample of ganja of crime No.
3087/2002 to C.A. office Aurangabad. Thereupon he handed
over the sample in the form of cotton bag in sealed condition
alongwith letter. Thereupon in the said night at about 11.45
P.M. I left Udgir by train, for reaching to Aurangabad. On
24-12-2002 I reached Auranagabad in the morning at about
7.00 A.M. I reached C.A. office at about 11.00 A.M. At about
11.30 A.M. I handed over the sample to C.A. Office
Aurangabad and obtained endorsement on the copy of letter.
Copy of the said letter now shown to me is the same with
endorsement. It is marked at Exh.14. On next day I came to
Udgir and handed over copy of letter to PSI Patel. The sample
produced in the court is the same one."
-6- Cri Appeal No. 877.2004
PW4 Mr. Abdul Bashir Mahboob Patel, P.S.I., Udgir Police Station.
In para.1 of his substantive evidence at Exh.15, he narrated as
under :
"1. On 22-12-2002 I was on duty as second P.S.I. at Udgir
city police station. On 23-12-2002 investigation of crime
No.3067/2002 was handed over to me. On that day I recorded
statements of witnesses PSI Sharma instructed Shaikh
constable to take sample to C.A. office Aurangabad. In due
course C.A. report was received. It is marked at Exh.16. After
completion of investigation charge sheet was submitted in the
court. I have also produced on record true copies of station
diary entries. The copies now shown to me are the same.
Contents are as per original. It is marked at Exh.17. Accused
was arrested by PSI Sharma. Accused before court is the same
person."
PW5 Mr. Mahesh Murarilal Sharma, P.S.I., Udgir Police Station. In
para.1 of his substantive evidence at Exh.21, he narrated as
under :
"1. On 22-12-2002 I was at Udgir City police station. In the
said night at about 9.35 P.M. I received a secret information
that a person has arrived at Udgir bus stand from Karnataka
state and is in possession of ganja. Then I informed on phone
to Dy.S.P. I also informed S.P. and also to P.I. I try to contact
the Tahsildar on phone but he was not available. I tried to
contact govt. medical officer, however this phone was not
working. Thereupon I sent constable Kendre for calling
-7- Cri Appeal No. 877.2004
panchas. I sent constable Gadge to call trader and a
photographer. After some time all came and P.I. also came to
the police station. Thereafter at about 9-55 P.M. we proceeded
to bus stand by a jeep. I myself, PI Shinde, constable Kendre,
constable Gadge, constable Fulari, two panchas, a trader and
photographer where in the said jeep. We all reached at the bus
stand. The jeep was parked at a site. We proceeded towards
platform No.1. A person was seen sitting on a bench on
western side of the said platform. As discription of the said
person was matching with the informed discription. The said
person was enquired about his name with other preliminary
enquiries. He disclosed his name as Digambar Bapurao Landge
resident of Banwas Tq. Palama and presently residing at
Nanded. He was enquired for the contents of the bag. He
informed that household materials is in the bag. Thereupon I
myself and PI Shinde introduced ourselves to the said person
as police officers, and the said person was informed about our
intention to conduct search with option in present of P.I.
Shinde as gazetted officer or in presence of magistrate. The
said person consented for conducting search in presence of PI
Shinde. Then we ourselves gave our search to him. Thereupon
his search was conducted. In the bag there was one more bag
use for keeping manual. After opening the inner bag ganja
giving strong odour was found. The said ganja was weighed by
the trader. It was weighed 4 Kg and 800 gram. 100 gram ganja
was separately collected for sample. Sample and remaining
ganja was packed and sealed. Signature of panchas and trader
were obtained on panchanama. Signature of accused was also
obtained on panchanama. Thereupon alongwith accused we
-8- Cri Appeal No. 877.2004
came back to police station. Crime was registered. I recorded
my complaint. Complaint now shown to me bears my
signature. Receipt for property also bears my signature. The
receipt was prepared by me after handing over the property.
The bag of muddemal shown to me is the same. Contents of
panchanama are correct. Panchanama bears my signature. It is
marked at Exh.22. The contents of complaint are correct. It is
marked at Exh.23. The contents of muddemal receipt are
correct. It is marked at Exh.24. Station diaries entries were
taken by me. Accused before court is the same person."
PW6 Mr. Shamshoddin Gulamrasul Bagwan is a fruit seller. In para.1
of his substantive evidence at Exh.25, he narrated as under :
"1. On a day about a year ago I was called by the police. A
constable came to me and informed that I am called by Sharma
Saheb. I was also told to take alongwith me scale and weight
measures. According I went to police station alongwith, scale
and weight measures. I was told that raid is to be conducted at
bus stand. I was taken to bus stand in a jeep. Sharma saheb
and Shinde saheb and 2-3 other persons were present at the
police station. We came to bus stand. After going to bus stand a
person was accousted who was sitting there. A bag was with
the said person. Officer informed the person that, his bag is to
be searched. Sharma informed that for search he can be taken
to other officer. The said person informed that his search may
be conducted at the said place. The bag was opened. It was
opened by Sharma. In the said bag green leaves with bad smeel
were found. I was asked to weight the said material by
-9- Cri Appeal No. 877.2004
informing that it is ganja. It was weighing 4 kg and 800 gram.
100 gram ganja was seperately collected. Thereafter my
signature was obtained and I was taken to police station. The
panchanama now shown to me bears my signature. I am
unable to identify the said person because of lapse of
considerable long time."
PW7 Mr. Dinkar Suryabhan Shinde, P.I., Udgir Police Station. In
para.1 of his substantive evidence at Exh.26, he narrated as
under :
"1. On 22-12-2002 I wa son duty as P.I. at Udgir city police
station. On that day I was at my residence. In the night time at
about 9.35 P.M. P.S.I. Sharma informed me at my residence
about the information received by him. Immediately I went to
police station. P.S.I. Sharma by that time made necessary
arrangement for conducting a raid. Accordingly two panchas, a
trader came to police station. Thereafter we all proceeded by a
jeep. At about 10-00 P.M. we reached at S.T. bus stand Udgir.
As per information platform No.1 was inspected. A person was
seen sitting on a bench on the western side of the platform
with a gunny bag on his laps. He was enquired. He was
enquired by PSI Sharma. About the contents of the bag, name
and destination to the said person. Initially the said person
avoided to give answers. However, ultimately he informed that
ganja is kept in the said gunny bag. Thereupon I introduced
myself as police officer and also panchas and informed him
about intention to conduct his search. He was given option to
conduct the search in presence of Tahsildar. However he
consented for search in my presence. Thereafter search of in all
-10- Cri Appeal No. 877.2004
members of raiding party was given to the said person.
Thereafter in presence of panchas bag was opened by PSI
Sharma. In the said bag ganja was found. The said ganja was
weighed by a trader. It was weighing 4 kg. 800 gram. 100
gram ganja was separately collected and was kept in cotton
bag. The said bag was sealed with lac seal. Thereafter on query
the said person disclosed his name as Digambar Bapurao
Landge resident of Banwas Tq. Pala,, presently residing at
Nanded. Detail panchanama was prepared by PSI Sharma at
the said place. Thereafter alongwith accused and seized ganaja,
we came back to police station. At police station PSI Sharma
recorded his complaint. Crime was registered against the
accused. The panchanama shown to me bears my signature.
Accused in dock is the same person."
ANALYSIS
9. Re-appreciated the above evidence.
10. Crucial evidence is of PW5 Mr. Mahesh Sharma, PSI and
he, in his evidence at Exh.21, has stated that, while he was on night
duty, at around 9.35 p.m., secret information was received about
arrival of a person at Udgir Bus Stand from Karnataka State Transport
Bus and said person to be in possession of Ganja. He claims to have
reported his superiors i.e. Dy.S.P. as well as S.P. He categorically
stated that, he also tried to contact the Tahsildar on phone, but he
-11- Cri Appeal No. 877.2004
was not available. That, he also tried to contact government medical
officer, but his phone was not working. Therefore, he sent other
constable for arranging panchas, trader and photographer. He further
stated that, at around 9.55 p.m., they all proceeded to the bus stand.
A person, whose description matched with the information received,
was approached. Police party introduced themselves and made
inquiry with him and also offered their own search and thereafter,
conducted search of bag in his possession which allegedly contained 4
Kg. 800 Grams Ganja. Sample of 100 Grams Ganja was segregated
and remaining Ganja was seized. The accused was brought to the
police station. PW5 Mr. Mahesh Sharma lodged report against the
accused and handed over the seized muddemal and panchanama was
drawn to that effect.
Above officer is subjected to extensive cross-examination.
However, he has reiterated therein that, the description received on
secret information was noted in the station diary and he has already
placed it on record, which is marked by learned trial Judge as Exh.17.
That, he is unable to state the registration number of state transport
buses which were allegedly parked there. He has answered that, at
that time, about 25 passengers were present at the bus stand. Then he
was questioned about location of canteen and whether there was
luggage of other passengers kept at platform No.1. Rest is all denial.
-12- Cri Appeal No. 877.2004
11. Another crucial witness of the prosecution seems to be
PW6 Shamshoddin Gulamrasul Bagwan, a fruit seller and he, in his
evidence at Exh.25 has clearly stated that, he was approached by
police and he joined them by carrying weighing scale. He stated about
PW5 Mr. Mahesh Sharma approaching a person sitting with a bag.
That, the said person being searched and on opening the bag, green
leaves having bad smell to be found therein. He specifically stated
that, he was asked to weight the said material and it was weighing 4
Kg. 800 Grams, and quantity of 100 Grams was taken out for sample.
Even though he was cross-examined, no admission has
been elucidated in his cross.
12. Apart from above evidence, there is evidence of PW7
P.I. Mr. Dinkar Shinde, another police officer. He was also party to
the raid and he has also reiterated what PW5 Mr. Mahesh Sharma
stated.
13. Therefore, here, oral account of police officers and that of
the fruit seller, who carried out weighing of the seizure has remained
intact and unshaken. Though other panchas have not supported,
evidence of above three witnesses does inspire confidence.
-13- Cri Appeal No. 877.2004
14. As regards to the ground of non-compliance of alleged
mandatory provisions, in case Bharat Aambale (supra), the Hon'ble
Apex Court very recently has held that purpose of standing
order(s)/rules in Section 52-A of the NDPS Act are meant only for
guidance to the police officers, ensuring fair procedure. What
prejudice has been caused due to above alleged non-compliance has
not been clarified by learned counsel for the appellant. Though there
is absence of gazetted officer, there is plausible explanation that, in
spite of efforts, Tahsildar and medical officer could not be contacted.
However, note has been taken in this regard into station diary.
Therefore, it is not a case that there is no material and merely the
appellant is apprehended.
15. There is no reason to disbelieve the testimonies of police
officers and independent witness i.e. fruit seller. So also, there is no
reason for false implication and no defence to that extent is also
taken. Only ground of challenge is non-compliance of procedure.
However as stated above, in view of above judgment of the Hon'ble
Apex Court, even said ground has no substance. Therefore, taking
overall survey of evidence and above rulings, there is no infirmity in
the findings recorded by the learned trial Judge so as to interfere.
-14- Cri Appeal No. 877.2004
16. In view of above, the appeal stands dismissed.
[ABHAY S. WAGHWASE, J.]
asd
