[Cites 18, Cited by 0]

Bombay High Court

Rahul Nilkanth Pawar vs The State Of Maharashtra on 24 February, 2026

2026:BHC-AUG:9303


                                          (1)                    901criapl966.22

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                              901 CRIMINAL APPEAL NO.966 OF 2022
                                             WITH
                             CRIMINAL APPLICATION NO. 3170 OF 2025

                1.   Rahul Nilkanth Pawar
                     Age-25 Years, Occu- Labour,

                2.   Satish Raghunath Jadhav,
                     Age-24 Years, Occu-Labour

                3.   Somnath Shivaji Jadhav,
                     Age-24 Years, Occu-Labour,

                     All R/o. Malegaon Tanda, Tq. Aurad
                     Dist. Bidar (Karnataka)                  ...APPELLANTS

                     VERSUS

                1.   The State of Maharashtra                 ...RESPONDENT

                Mr. Harshwardhan Akolkar, Advocate i/b Mr. Nikhil D. Sonwane,
                Advocate for the appellants,
                Mrs. U. S. Bhosale, APP for the respondents/State

                                    CORAM : RAJNISH R. VYAS, J.
                                       DATE : 24th FEBRUARY, 2026


                JUDGMENT :

1. Heard the learned Advocate for the appellants and

learned APP.

2. The original accused/ appellants have challenged the

conviction awarded in Special Case (NDPS) No. 01/2021 dated 23-

11-2022 passed by the Special Judge (NDPS), Udgir convicting the

1 of 37 (2) 901criapl966.22

appellants for commission of offences punishable under Sections

20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act,

1985 [hereinafter would be referred as 'the Act of 1985' for the sake

of brevity] and directed to suffer rigorous imprisonment for a period

of ten years. A fine amount of Rs. 1 Lakh each was also imposed upon

the appellants. In default of payment of the fine, the accused were

directed to suffer imprisonment for one year.

3. In short, it is the case of the prosecution that on 08-10-

2020, when the Police Officers were discharging their duty on the

highway by checking the vehicles, they found a Bolero jeep coming

from village Hali towards Udgir. The persons in the vehicle noticed

the Police Officers checking the vehicles and therefore turned the

jeep towards Handerguli. PW-1, along with his companion, stopped

the jeep near the farm of one Anant . On being enquired, the driver of

the vehicle informed that the vehicle was carrying Ganja.

4. This brief discussion of the prosecution case, resulted

into filing the report at the instance of the Investigating Agency of

recording the information, forwarding to the superior officer,

carrying out the panchanama, preparation of inventory, making the

proper application before the Magistrate and so also forwarding the

2 of 37 (3) 901criapl966.22

material which was found in the jeep for chemical analysis and

ultimately filing of the charge-sheet.

5. The trial court thereafter framed the charge against the

present appellants on 04-03-2021 below Exh.8 for commission of

offences punishable under Section 20 (b) (ii) (B) of the Act of 1985.

At this juncture, it is necessary to mention here that the charge was

subsequently altered by the learned Presiding Officer to Section 20(b)

(ii)(C) of the Act of 1985 since what was seized was a commercial

quantity. To bring home the charge, the prosecution has examined

eight witnesses as follows:

Rank    Name                          Nature of Evidence
PW-1    Ashok Bapurao Malwade         Police Naik
PW-2    Hasan Khurshid Pathan         Panch Witness
PW-3    Magar Tatyarao Mule           Panch Witness
PW-4    Somesh Nagnath Mahajan        Witness
PW-5    Govind Laxmanrao Kharat       Panch Witness
PW-6    Samadhan              Shankar Photographer
        Narwate
PW-7    Ganesh Manikrao Sondare       Investigating Officer
PW-8    Balasaheb          Manohar Investigating Officer
        Narwate

6. Several documents were proved during the course of the

trial. After recording the appellants' evidence statements, they were

questioned under Section 313 of the Cr. P. C. In the said statements,

3 of 37 (4) 901criapl966.22

the appellants stated that they were implicated in a false case. The

trial court thereafter convicted the appellants as stated above and, in

accordance with the mandate of Section 235 of code of criminal

procedure , imposed a sentence of 10 years' imprisonment.

7. Mr Akolkar, learned Advocate for the appellants, has

raised the following grounds: there is a mention of different

registration numbers in various documents relied upon by the

prosecution, as PW-1 in his deposition has stated that the vehicle

number was AP-25-BH-0108, whereas PW-2-Panch has stated it as

AP-20-KV-108, and PW-5 has mentioned the registration number as

AP-28-BH-0108.

8. According to him, PW-6-Photographer, when clicking the

photograph, did not take the photograph in such a manner that it

would show the registration number of the vehicle. He, thus,

submitted that this particular lapse goes to the roots of the matter

and therefore ought not to have been ignored by the trial court.

9. Mr Akolkar, learned Advocate for the appellants,

contended that there is a breach of the mandatory provision of

section 42 of the act of 1985, as the information received was not

communicated to the senior officer within 72 hours.



                                                                   4 of 37
                               (5)                      901criapl966.22

10. Finally, he contended that there are several lacunas in

the case of the prosecution and benefit of which is required to be

extended to the appellants.

11. One more ground which Mr Akolkar, learned Advocate

for the appellants, was regarding the difference in the signatures of

the witnesses on various documents.

12. He has relied upon the law laid down by the coordinate

bench of this court in the case of Aspaq N. Ahmed Vs State of Goa

reported in 2005 SCC OnLine Bom 1145. He has also relied upon the

decision in Bahadur Singh v. State of Madhya Pradesh and others ,

reported in AIR 2002 SC 289.

13. Per contra, learned APP has argued the following

grounds: (a) just because the different registration numbers are given

in the testimony, it will not go to the root of the matter. (b) It is not

even the case of the appellants that some other vehicle was involved

or the vehicle in question is planted. (c) So far as compliance with

Section 42 of the act of 1985 is concerned, she submitted that a

distinction has to be drawn between mandatory compliance and

compliance that can be done at a later point in time. She relied upon

the judgment of the Hon'ble Apex Court in the case of Karnal Singh

5 of 37 (6) 901criapl966.22

Vs State of Haryana reported in 2009 AIR SCW 5265 . According to

her, there is absolutely no difference in the signature and just an

interference is drawn by the appellants.

14. Finally, she contended that there are no omissions and

contradictions, and the offence is rightly proved by the prosecution.

15. It is in this background that I have gone through the

record of the case and have pondered over the arguments raised by

the respective counsels. Since the appellants are convicted for the

commission of offences punishable under Section 20(b) (ii) (C) of the

Act of 1985, it will have to be seen whether the prosecution has

proved its ingredients.

16. Section 2 clause-b of the Act of 1985 defines Ganja-that

is, the flowering or 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.

17. The said Act more particularly, in Section 2 (viia),

defines ; commercial quantity in relation to narcotic drugs and

psychotropic substances, means any quantity greater than the

quantity specified by the Central Government by notification in the

Official Gazette.


                                                                 6 of 37
                            (7)                       901criapl966.22

18. The narcotic drug under clause (xiv) of Section 2 means

coca leaf, cannabis (hemp), opium, poppy straw and includes all

manufactured drugs. The aforesaid discussion would reveal that

Ganja would fall under the Narcotic Drugs.

19. Section 20 (b)(ii)(C) reads as under:

20- Punishment for contravention in relation to cannabis plant and cannabis- whoever, in contravention of any provision of this Act or any rule made or condition of licence granted thereunder-

(b) Produces, manufactures, possesses, sells, purchases, transports, imports, exports, or uses cannabis,

(ii) where such contravention relates to sub-clause (b),

-- (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to a fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;

Provided that the court may, for reasons to be recorded din the judgment, impose a fine exceeding two lakhs rupees.

20. Thus, it will have to be seen whether the appellants were

transporting the Ganja or not. In this regard, it is necessary to look

into the testimony of PW-1. PW-1 Ashok Malwade, in his deposition,

has stated that since the year 2017, he was working on the post of

driver with the Wadwana Police Station and on 08-10-2020 at about

12 o'clock, he was deputed at Wadwana Pati to Hali village road for

7 of 37 (8) 901criapl966.22

checking motorcycles along with police constable Bembde and 2-3

other Home Guards. While they were checking vehicles on the Sukani

to Handarguli village road between about 03.00 and 04.00 pm, one

Bolero jeep bearing registration number AP-25-BH-0108 was

proceeding from the village Hali towards Udgir.

21. As the PW-1 and other officers were checking the

vehicles, the jeep turned towards the village Handerguli; it was

therefore chased by the PW-1 and ultimately stopped near the field of

Anant Bhonsale, r/o Handerguli. When PW-1 enquired from the jeep

driver, he disclosed that Ganja was stored in the jeep; therefore, PW-

1 immediately informed API Narwate (PW-8). Thereafter, PW-8

informed the superior officer, who reached the incident spot.

22. PW-8-Narwate, API then called the weigh man at the

spot. The Executive Magistrate and Photographer also arrived there.

PW-8 then weighed nine sacks containing Ganja, totalling 176.130

Kg. Those sacks were then sealed and seized. PW-1 further deposed

that thereafter, he went to the police station and lodged a report

against Rahul Pawar and two accomplices with him for

transportation and possession of Ganja. The said report/complaint

was proved by this witness, below, Exh. 18.





                                                                8 of 37
                            (9)                      901criapl966.22

23. The defence then cross-examined PW-1 and he admitted

that the Wadwana Police Station duty allotment register is kept and

that on 08-10-2020, he attended duty at 09.00 in the morning. He

also made the necessary entry in the register regarding his

deployment to check the motorcycles. on that day, he, along with

others, was standing on the left side of the Udgir-Ahmedpur road,

which was within the jurisdiction of Sukani village, and that they had

checked 25 vehicles till 04.00 evening. The entries of which were

duly taken in the registration. Cases were also initiated against some

drivers. He stated that from 300 to 400 feet, one could have noticed

that they were standing on the road, and at that time, PW-1, along

with one Constable and three Home Guards, were present on the

spot.

24. PW-1 then admitted that the Assistant Sub-Inspector of

Police is his immediate superior. On that day, his senior ASI, Yedke,

was present in the police station. He admitted that the information

provided to him by the jeep driver was not written/noted by him, and

a personal search of the accused was conducted on that day. Also, the

fact that the complaint was filed after two hours of intercepting

vehicle.





                                                                9 of 37
                            (10)                       901criapl966.22

25. PW-1 further admitted that at about 05.00 pm, the

vehicle was seized, and at about 07.00 to 07.30 pm, the complaint

was lodged. From the spot of the incident, all of them reached the

police station and lodged the report. In the sacks were moist green

leaves and seeds, and after noticing the vehicle, PW-1 realised it was

from a different State.

26. PW-1 admitted that when he was working with the

Wadwana Police Station, there was no case under the NDPS Act

registered, and he showed his ignorance about whether earlier to it

under the NDPS Act case was registered . He denied the suggestion

that Ganja was not seized from the accused persons.

27. The testimony of the aforesaid witness would reveal that

what was tried to be extracted from this PW-1 by the defence is the

fact of not noting the information given by the driver of the jeep and

the timing of intercepting the jeep and lodging the complaint. The

defence also doubted the presence of the PW-1 at the spot of the

incident, since, according to it, the allotment register was not

produced on record.

28. Since PW-1 has stated that he has immediately informed

the API Narwate-PW-8, it is relevant to go through his testimony. PW-



                                                                10 of 37
                            (11)                     901criapl966.22

8 Balasaheb Narwate has stated that on 08-10-2020, he was attached

to the Wadwana Police Station as In-Charge, and on that day, the

Police Constables Bembde and Malawade had gone to check the

motorcycle. Since these two persons found a Bolero in suspicious

condition, they informed PW-8 about the Ganja found in the vehicle.

Accordingly, PW-8 informed his superior officer and took entry in the

station diary. PW-8 then reached the spot of the incident, searched

the vehicle, and confirmed the information supplied to him.

Thereafter, said information was given to the Dy. S. P. Ashwini Patil,

and a letter was issued to the Executive Engineer to remain present at

the spot. One Constable was sent for calling along with a scaling

machine, and in the presence of Dy. S.P. Ashwini and the Executive

Magistrate; seizure was made, and a seizure panchanama was

prepared, which was at Exh. 26. He identified his signature on the

said panchanama. Also, the letter issued, calling upon the weighman

to remain present, below Exh. 81. The station diary entry No. 27

dated 08-10-2020, as well as station diary entries Nos 18 to 24 dated

08-10-2020, were also proved by this witness, which was marked

Exh. 82 to 89. He, thus, deposed that the accused were arrested.

29. PW-8 was then subjected to cross-examination by the

defence, in which he admitted that he did not lodge the first

11 of 37 (12) 901criapl966.22

information report, but read it. He stated that the word 'I' in line 8 of

the complaint referred to Malwade. He further admitted that in the

station diary entry, the name of persons who have given information

is recorded, and station diary entry No.18 does not disclose the name

Malwade. He also admitted that the information he received

pertained to three persons, and there is no reference in the complaint

Exh. 18 or the panchanama Exh. 26 that the suspect ran away from

the spot. He admitted that in Exh. On 18 and 26, there is no

reference to persons who ran away was apprehended.

30. He admitted that the immediate superior post of an

Assistant Police Inspector is that of a Police Inspector. He volunteered

that at the relevant time, he was serving as the In-Charge Police

Station Officer. His immediate superior was Dy. S. P. Since there was

no post of Police Inspector in this Police Station, the investigation

was handed to the Police Inspector Sonadare, Jalkot Police Station.

He admitted that when he reached the scene of the incident, the sun

had not set. But when the panchanama was prepared, it was sunset.

He submitted that in the panchanama, where 'I' is referred to, it

means PW-8, the pancha, and the officers. He further admitted that

he had disclosed to the aforesaid persons that he is a gazetted Officer

and that no written order was given to him authorising him to search.




                                                                 12 of 37
                               (13)                    901criapl966.22

He was referred to the portion marked 'A' in the panchanama below

Exh. 26, which he admitted was correct. The other suggestion given

to this witness was denied.

31. Thus, it is clear that the defence has first challenged the

competence of the officer to carryout the search and the case was

made to be built that in fact the persons who ran away from the spot

of the incident were never apprehended and therefore, it can be said

that only two persons were found in the jeep.

32. Learned counsel for the appellants has contended that

since there is absolutely no investigation regarding the person who

ran away, the entire story of the prosecution became suspicious.

33. At this stage, it is necessary to mention here that Exh. 81

is the letter issued to the Assistant Engineer, MSEB, Branch Hali, for

providing two Government employees to act as Panchas. Exh. 82 is

the station diary entry, in which it is categorically mentioned that

after complying with the directions given by the Hon'ble Apex Court

three persons were arrested under the provisions of the Act of 1985

in Crime No. 148/2020. The information about the arrest was given

to their relatives, and the accused were locked up.





                                                                13 of 37
                            (14)                     901criapl966.22

34. Exh. 83 is the station diary entry dated 08-10-2020 at

17.16, which shows that the Sub-Inspector has taken the said station

diary entry mentioning that Police Constable Batch No. 1745 Bembde

has informed on telephone that while those persons were checking

the vehicles, one Bolero jeep bearing registration No. AP-28-BH-0108

stopped after noticing that the police were checking the vehicles and

found it suspicious. The police constable and others approached the

said jeep and began an enquiry, at which time one person alighted

from the jeep and ran away. On being questioned by the other two

persons, they admitted that the vehicle was carrying Ganja. The

vehicle was then inspected, during which sacks containing Ganja

were found; therefore, PI Narwate, along with other staff, proceeded

towards the spot.

35. Exh. 84 is the station diary entry dated 08-10-2020 at

17:36, which states that the Sub-Inspector Narwate informed that, for

preparing the panchanama, the Tahasildar was summoned, and so

also the weighman along with the machine. Exh. 85 is a station diary

dated 08-10-2020 at 17.40, records that the Sub-Inspector instructed

Police Constable Murudkar (671) to bring the investigation kit to the

incident site.





                                                              14 of 37
                              (15)                   901criapl966.22

36. Exh. 86 station diary entry discloses that Sub-Inspector

Narwate had informed the Police Naik Yemle (1252) regarding

securing Panchas.

37. Exh. 88 is a station diary entry dated 08-10-2020 at

22.07, in which it is mentioned that the Sub-Inspector Narwate took

the entry after reaching the incident spot. At this place, the Sub-

Divisional Police Officer, Ahmedpur, the Executive Magistrate,

Kharat, Udgir, and the panchas, along with the Photographer, were

present, in whose presence the Ganja was weighed. It was 176 kg 13

g, which was worth Rs. 17,61,300/-. Ganja was kept in white nine

sacks and from which sacks sample of 250 gram was collected, so

also to produce before the court and further from each sacks 100

gram was collected and also for depositing it in the Muddemal 100

gram was collected and thus total 4 kg and 5 gram sample was taken

and seized on which the signature of panchas as well as Officers were

taken which was further sealed. Likewise, the station diary entry

shows that panchas were asked to take a personal search of the

officers. The accused persons were then taken into custody and

finally taken to the police station.

38. Aforesaid entries would clearly reveal that entry in the

station diary was taken regarding the procedure that was adopted.


                                                              15 of 37
                                 (16)                         901criapl966.22

39. As already stated, this witness, PW-8, has categorically

stated about the procedure followed, and the General Diary entries

are taken. Just because station diary entries show that one person ran

away and was not apprehended, that will not go to the root of the

matter. Further, it is not even the case of the appellants that they

were not persons on the spot. PW 8 at the relevant time, was working

as In-Charge of the Police Station, and his immediate superior was

Dy. S.P, which officer was also present when the procedure was

carried out. Coming to the portion marked A in Exh. 26, it is

necessary to mention that Exh. 26 is the seizure panchanama dated

08-10-2020. The portion mark is at last page of the panchanama

which states that 'vkeP;k o iapkP;k lghP;k fPkB;k ykowu iks-LVs- ps yk[k fly

eksgj dsyh o brj xkatkps iksR;koj vkeP;k o iapkP;k lfgP;k fpB;k ykowu iks-LVs- yk

tek dsys'. The said panchanama would reveal that it is signed by the

PW-8, PW-5, panchas, and other accused persons.

40. From the testimony of PW-8, it has come on record that

the investigation was handed over to PW-7 Ganesh Sondare, and

therefore, it is necessary to go through his testimony. PW-7, in his

testimony, states that on 08-10-2020, he was working as a Police

Inspector at Jalkot Police Station, and that the Police Stations of

Jalkot and Wadwana fell under the jurisdiction of the Sub-Divisional

16 of 37 (17) 901criapl966.22

Police Officer, Ahmedpur. On 08-10-2020 Mrs. Patil Sub-Divisional

Police Officer, handed over the investigation of crime No. 148/2020

to PW-7 by oral order. The necessary documents were handed over to

him by the PW-8, including the first information report, complaint,

seizure panchanama, etc. During the course of the investigation, he

seized the accused's mobile phones and prepared the panchanama

below, Exh. 32 to 34.

41. PW-7 stated that on 09-10-2020, he submitted an

application to the court of Judicial Magistrate First Class, Udgir, for

the preparation of an inventory of seized Muddemal property. The

application/ letter to that effect was below Exh.54. The Judicial

Magistrate First Class, Udgir then conducted the inventory and issued

certificate below Exh.55. He deposed that during the course of the

investigation, he recorded the statement of the witnesses, accused

Nos. 1 to 3 and prepared the panchanama.

42. In the cross-examination, he has admitted that

Muddemal Clerk used to give a receipt for whatever Muddemal was

given to them. He had not recorded the statement of Muddemal Clerk

of Wadwana Police Station. He admitted that there was no mention

of Muddemal sample packets in the Muddemal receipt. He admitted

that a personal search of the accused was conducted, and mobile

17 of 37 (18) 901criapl966.22

phones were found, and he was aware that the case was registered

under the NDPS Act. He admitted that the search of the said persons

was conducted in compliance with the provisions of the NDPS Act,

and that the location of the mobile phone can be obtained from the

SDR of the mobile phone tower. He did not obtain the CDR and SDR

of the mobile phones.

43. PW-7, in his cross-examination, admitted that there is a

special Gazette and notification of Maharashtra State regarding

declaring the posts and ranks of gazetted officers for cases under the

NDPS Act, and under the Gazette notification, officers of ranks above

Police Inspector are gazetted officers for the NDPS Act in the State of

Maharashtra. He submitted that he had not investigated this case

with Shahid Sharif. The PW-7 denied other suggestions.

44. PW-7's testimony regarding the submission of the

application to the Magistrate for conducting the inventory and

preparation of the inventory under the supervision of the Magistrate,

and proving those documents is not at all subject to cross-

examination by all the accused. It, thus, logically follows that the

prosecution does not seriously dispute the aforesaid aspect.





                                                                18 of 37
                             (19)                     901criapl966.22

45. At this stage, testimony of PW-2, 3 and 5 who acted as a

panch is also required to be taken into consideration.

46. PW-2 is Hasan Pathan, stated that at the relevant time,

he was serving as a technician in MSEB. On that day, he and one

Magar went to Wadwana Police Station as per the direction issued by

the superior officer, reached the Police Station at about 04.00 to

04.30, where they met PW-8, who took them to the vicinity of the

village Sukane. At that place, one Bolero registration No. AP-20-KV-

108 was on the spot, and three people were in the jeep. Also, nine

sacks containing Ganja were in the dicky. After some time, the

Tahasildar & SDPO arrived at the spot, and the photographer and the

weighman were called there. The person with the electronic weighing

machine weighed nine bags separately, and the total was 176.31

kilograms. He has given the weight of Ganja and other bags. The

Tahasildar & SDPO Ashwini, PW-8, checked the bags containing

Ganja. Those bags were seized, and a panchanama was prepared. He

identified the Panchanama shown to him. He admitted that the

contents were correct, and his signature at Sr. No. 1 & signature at

Sr. No. 2 were of Mr. Magar. Panchanama was proved below Exh.

26. He identified the Muddemal, which was shown to him. He stated

that the envelope does not bear his signature.




                                                               19 of 37
                             (20)                     901criapl966.22

47. In the cross-examination, he has admitted that on one

occasion he has deposed before the court as a panch, which was the

case of the Wadwana Police Station. There were eleven technicians,

apart from him, in the Hali Section, and at about 04.00 pm, Raju

called him over the phone and said Raju had received a call from the

Police about an hour earlier, i.e., 03.00 pm. At the relevant time, PW-

2 was at village Kini, and Rajiv told him to reach at Wadwana Police

Station. Accordingly, he reached there between 04.15 to 04.30 pm.

He was at the police station for an hour, and the distance between

Wadwana Police Station and the village of Sukani was 6-7 km.

48. He admitted that he went to the spot on his motorcycle,

and the police reached him by jeep. Magar was a resident of the

village Sukani, but he did not go to Wadwana Police Station; he went

directly to the spot. When they reached on the spot, the police were

checking the vehicles on the road. He stated that he went directly to

his village and reached his house at 10.00 pm, and he had left the

spot at 09.30 pm. He also admitted that he did not sign any paper

after reaching the house, and that the next day he did not visit the

spot. The suggestion that panchanama was not prepared was denied.

He admitted that the case of the electricity theft is registered, and

Hali was within the jurisdiction of Wadwani Police Station. He

20 of 37 (21) 901criapl966.22

further stated that during his tenure, 4-5 cases of electricity theft

were registered with the Wadwana Police Station, and in those cases,

they needed police help. He then denied that, at the police's instance,

he had signed a false panchanama.

49. Challenging the testimony of the aforesaid witness,

learned counsel for the appellants submitted that PW-2 is the stock

witness. He has deposed as a panch on the earlier occasion and

witness is also interested. According to the learned Advocate for the

appellants, various cases of electricity theft were registered at the

Wadwana Police Station, for which the assistance of the police was

required and since this witness was working with MSEB, his interest

is apparent. The learned Advocate for the appellants thus stated that

the testimony of this witness cannot be relied upon, as he has also

admitted that the envelope does not bear his signature.

50. The learned APP contended that this witness is reliable

and thus, he has deposed what he has seen, which is clear from the

holistic reading of the testimony of witness.

51. It is necessary to mention here PW-2 is an independent

witness. He has admitted that various complaints of thefts were

registered with the Wadwana Police Station, and they need the help

21 of 37 (22) 901criapl966.22

of the police in those matter. It is pertinent to mention here that the

cases registered regarding the theft of electricity were not personal

cases of the PW-2; therefore, it cannot be said that PW-2 is an

interested witness. Just because PW-2 stated that the envelope does

not bear his signature does not mean that said testimony must be

ignored.

52. Only on the ground that witness is working with the

MSEB, which has lodged cases of theft of electricity, in which help of

Police is required, it can not be concluded that he will depose falsely.

Deposing as a panch in a single case, on earlier occasion, cannot

brand this witness as a habitual panch. Thus, this witness's testimony

cannot be ignored.

53. Coming to the testimony of PW-3-Magar, he is also a

witness who has stated about the seizure of the mobile phones from

the accused. At this stage, the testimony of PW-3 need not be

discussed in detail, as the seizure of the mobile phone is also not

relied upon by the prosecution, since neither the CDR nor the

location of this witness has been collected. But one issue raised by

the learned Advocate for the appellants requires discussion. This

witness has admitted that the signature on the summons report

adjacent to the panchnama Exh. 26 & 16 appears to be different. The

22 of 37 (23) 901criapl966.22

appellants submitted that the possibility cannot be ruled out that Exh

26, which is the seizure panchanama, and Exh. 32, which is the

seizure of mobile phones, is also Exh. 33 and 34, are planted

documents.

54. The said contention of the learned counsel for the

appellants cannot be taken into consideration, since in his cross-

examination, PW-3 has categorically admitted that it is due to the ink

of the pen that the signatures could not be imprinted. He also showed

his willingness to put his signature before the court. Testimony, thus,

will have to be seen in the aforesaid background. There is nothing to

show that the aforesaid documents are planted.

55. PW-4 is one Somesh, who has deposed that he runs a

grocery shop and that there was an electric weighing machine in his

shop. On 08-10-2020, Police Constable asked whether PW-4 has an

electric weighing machine, to which he replied in the affirmative. He

then took the machine to the incident site, where 5-7 police

personnel and other people were present. The police caught Ganja

and weighed it on an electric scale. There were 8-9 bags of Ganja,

and the total weight was approximately 80-90 kilograms.





                                                               23 of 37
                              (24)                      901criapl966.22

56. During cross-examination, he admitted that no written

intimation letter was given to him. Signature was also not obtained.

He admitted that on 08-10-2020 he returned to the shop around

09.00 to 09.30 pm. Thereafter he went to home. Other suggestions

were denied.

57. Learned Advocate for the appellants submitted that the

entire prosecution story falls on the ground, since PW-4 has

categorically stated that the total weight of the bags was

approximately 80-90 kilograms. In contrast, the prosecution claims

that the weight of Ganja was 176.130 Kilograms. He therefore

contended that the story of the prosecution cannot be believed, and it

is clear that the police authority had planted Ganja to falsely

implicate the accused persons.

58. Per contra, Mrs Bhosale, learned APP submitted that

those witnesses have given an approximate weight of Ganja and even

otherwise, it will not affect the case of the prosecution.

59. The learned APP is right in advancing her arguments that

the weight given by the aforesaid witness is approximate, and that

just because this witness has given approximate weight, it does not

mean that his testimony is to be ignored. Neither suggestion was

24 of 37 (25) 901criapl966.22

given to this witness nor any other witness that weight of Ganja was

not properly done. Even otherwise, 80 KG of Ganja is commercial

quantity and therefore, the testimony will not create dent in the case

of prosecution. In that view of the matter, I do not find any merit in

the argument advanced by the learned Advocate for the appellants.

60. PW-5- Govind Kharat, who at the relevant time was

working as a Nayab Tahasildar, Revenue, Udgir. He deposed that on

08-10-2020, he was informed by the Tahasildar, in writing, to visit

the spot of the incident. A jeep carrying Ganja was intercepted. He

then identified the written order and proved below Exh. 37. In

pursuance of the order, he reached the spot of the incident at about

06.45 pm, which was near the agriculture field of Bhosale-a Bolero

jeep bearing registration No.AP-28-BH-0108 was parked at the spot.

API Narwate, along with police personnel, weigh-man, panchas, and

three accused were sitting in the jeep. When questioned, accused

Pawar said there was Ganja in the car. Thereafter, PW-5 checked the

car, in which there were nine sacks containing cannabis leaves and

mixed cannabis, and the weight was 176.83 Kg.

61. PW-5 deposed that 250 kg was taken from each bag of

Ganja. Sample of 200 grams to send to the court. Sample packets and

pockets to send to the court. In total, eighteen pockets were sealed,

25 of 37 (26) 901criapl966.22

and the signatures of API Narwate and two witnesses were obtained

on the labels, which were pasted on eighteen packets. Panchanama

was prepared. He, along with API and two panch, signed on it. So,

three other accused also signed the panchanama before PW-5. The

seizure panchanama below Exh. 26 was shown to this witness, who

identified it and stated that it bears his signature, the signature of

API, and the panch witnesses. He deposed that the contents of the

panchanama were correct.

62. PW-5 was subjected to cross-examination in which he

admitted that he received a written order of the Tahasildar at 05.45

pm, to which the police papers were not attached. In Exh. 37, the

written order of the Tahasildar did not mention that the car was

caught in the village. He stated that he did not read a letter from the

Wadwana Police addressed to the Tahasildar, and that the Police

Station Wadwana had a radius of approximately 40 km. He had no

occasion to speak to the police until he reached the spot. The distance

from the police station to the place of occurrence was approximately

18 to 20 kilometers. He stated that the logbook was maintained,

showing the vehicle's movement, but showed ignorance as to whether

he made a note in the logbook. He admitted that the police did not

record his statement during the procedure and did not call a copy of

26 of 37 (27) 901criapl966.22

the government vehicle's logbook. He reached the scene of the

incident at 06.30 pm and remained for 1.5 hours. Then, left the spot

of occurrence at about 08.00 to 08.15 pm and reached home at 09.30

pm. Thereafter, he did not visit the spot. At the spot, six police

personnel were present. He reached the car before the panch

witnesses.

63. He admitted that revenue officers do not have police

powers. He had read the panchanama that day. Panchanama Exh. 26

was shown to the witness. The contents of the panchanama, "We

affixed our and the panch witnesses' signatures and affixed the lac

seal of the and affixed our and the signatures of panch witnesses on

the other ganja bags and deposited them in the police station," are

true. He told the contents of the panchanama to the police, who

wrote it down, a process that took half an hour. He admitted that he

signed the panchanama before leaving the spot of occurrence. He

admitted that no goods were removed from the bag during weighing.

He admitted that the bags contained greenish-brown leaves and

seeds. He admitted that he knew each part of the plant, and that the

samples preserved for the court are not before the court. He denied

other suggestions.





                                                             27 of 37
                            (28)                      901criapl966.22

64. The testimony of this witness clearly shows that the

procedure was duly followed, and thereafter, the seizure was carried

out. Nothing has been brought on record by the defence to show that

the testimony of this witness was suspicious. In fact, the defence has

also not seriously disputed the testimony of PW-5.

65. According to the learned APP testimony of this witness,

more particularly, cross-examination would show that approximately

six persons were present at the spot of the incident, which clearly

shows that there was compliance with Section 42 of the Act of 1985.

The question whether there is proper compliance or not will be

addressed in later part of judgment.

66. PW-6-Samadhan is the photographer who has deposed

that on 08.10.2020 at 06.00 pm, Police Constable had been to his

shop and asked him to take a photograph of the vehicle containing

Ganja, which was caught near the farm of Anantrao. He then went to

the spot where a Bolero jeep was parked on the side of the road, with

an Andhra Pradesh registration and passing. PW-6 snapped off the

vehicle and also took photographs of sacks removed from the vehicle.

He could identify, if the photograph shown to him. Photographs were

marked as Articles D, E, F & G, respectively. He also stated that he

issued a consent letter stating that he was ready to snap photographs.


                                                               28 of 37
                             (29)                     901criapl966.22

He could identify the consent form if shown. He identified his

signature and said the letter was marked at Exh. 42. The contents he

admitted to be correct. He stated that he took the photograph with a

digital camera, and a certificate was issued. He stated that he could

identify the said certificate if shown to him. The certificate was then

shown to him, which was signed and stated that the contents were

true. The said certificate was at Exh. 43. In cross-examination, this

witness admitted that there were many photographers' shops in

Wadwana, and he went to the spot with Police Constable Murudkar.

On 08-10-2020 or 09-10-2020, he went to the police station to have

the photographs taken. He did not take a photograph of the accused

in the police station. He stated that on 09.10.2020, he went to the

police at around 10.00 am. As he wanted to go to Udgir with the

Police, he went to the Wadwana Police station. He stated that on 08-

10-2020, he was at the spot for approximately 2-3 hours, reached the

spot at 06.00 pm, left the place at 08.00 pm, and came home at

08.30 to 08.45. A photograph of the vehicle's number plate was taken

at the spot, and the entire number plate was visible in the photo. He

snapped approximately 20-25 photos.

67. He admitted that the car's number plate is not visible in

the photos taken before the court. He denied the suggestion that the

29 of 37 (30) 901criapl966.22

photographs in Articles D & E were taken on police station premises.

Still, he admitted that Articles D & E are not the photographs of the

place of occurrence. He admitted that photographs in Articles D to G

are not of the place of occurrence of weighing. He admitted that he

gave 20-25 snaps to the police, which were not returned to him. He

admitted that the photograph has both delete and edit options, and

that it can be used to modify the original photos. He admitted that

the camera he used to snap the photos had a memory card. He

admitted that he connected the memory card to the computer system

and took the photos on the desktop. He admitted that he had not

given the memory card to the police. He was unaware of the crime

number, the nature of the crime, and that the certificate must be

given under the Indian Evidence Act.

68. PW-6 in the cross-examination has admitted that the

certificate at Exh.43 prepared by police, and thereafter, he signed it.

He denied the suggestion that Exh. 42 and 43 were signed at the

police's behest. He admitted that the police did not issue any receipt

for the photos he took.

69. Learned Advocate for the appellants submitted that this

witness has admitted that police issued Exh 43, and thereafter, he

signed it. Exh.43 is issued under Section 65(B)(4) of Indian evidence

30 of 37 (31) 901criapl966.22

act . It is necessary to mention here that, though this witness admits

that the certificate was prepared and that he thereafter signed it, the

said sentence cannot be read in isolation. He has categorically denied

that he signed 43 and 42 at the police's behest. Thus, the prosecution

rightly proves 43. Exh. 42, which is a consent letter.

70. As already stated this photographer has deposed about

taking of photographs, issuance of certificate under Section 65(B)(4)

of the Evidence Act and therefore, testimony of this person cannot be

disbelieved.

71. Learned Advocate for the appellants has relied upon the

law laid down by the coordinate bench of this court in Aspaq N.

Ahmed (supra), stated more particularly para 13, to buttress his

contention that different signatures go to the roots of the matter,

entitling the accused to acquittal. Aforesaid judgment was cited

relying upon para 11, wherein the court has observed that PW-3,

Gangadhar, stated that he acted as a panch witness and then he acted

as a panch in two other cases also. Relying upon the said judgment

the learned Advocate stated that even PW 2, in the case in hand has

earlier acted as Panch and therefore, his testimony is required to be

brushed aside in the light of as already stated. since in earlier part of

judgment, I have already discussed the testimony of PW2 and in the

31 of 37 (32) 901criapl966.22

background it can be said that the judgment cited of the coordinate

bench of this court was totally different in the facts of the case.

72. To counter the arguments by the appellants that the case

was not proved beyond a reasonable doubt, the learned APP has

relied upon the observations made by the Hon'ble Apex Court in the

case of Ramakant Rai Vs Madan Rai and others reported in 2003

(12) SCC 395.

"24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense."

73. She has thus submitted that nothing has been brought on

record to show that there was really 'reasonable doubt' in the case of

the prosecution. She is right in saying so, as the defence has not

brought anything on the record to show there was something

suspicious, which goes to the root of the matter and therefore, it

cannot be said that there was a reasonable doubt in a case of

prosecution . It needs to be appreciated that the simple rules of

Arithmetic and Multiplication cannot be applied when separate pieces

32 of 37 (33) 901criapl966.22

of evidence are dependent. Different pieces of evidence in a criminal

trial must be considered holistically. Then the opinion has to be

formed on whether the prosecution's case has a ring of truth.

Testimony of witnesses in present case would clearly reveal a ring of

truth in a case of prosecution.

74. Learned APP has relied upon the judgment in the case of

Jyothi @ Nagajothi Vs The State in Criminal Appeal No.259 of 2025

dated 11-12-2025, particularly para 30, which reads as under:

"30. This Court, in Noor Aga v. State of Punjab & Anr. ((2008) 16 SCC 417), has similarly observed in paragraph 98 that a slight difference in the weight of the sample is not so material as to undermine the prosecution's case, and cannot by itself justify discarding otherwise reliable evidence."

75. She by relying on the observations made by the Hon'ble

Apex Court has stated that just because there is a difference in the

weight of the sample it does not undermine the prosecution's case,

and it cannot justify discarding the other reliable evidence. She is

right in relying upon the said judgment; what is required to be seen is

the entire case and not a single piece of evidence only.

76. Coming to the contention that there was absolutely no

compliance with section 42 the act of 1985, , guidance can be taken

from law laid down by the the Hon'ble Apex Court in the case of

33 of 37 (34) 901criapl966.22

Karnal Singh Vs State of Haryana reported in 2009 AIR SCW 5265 ,

more, particularly following observations:

17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirement of the section 41(1) and Section 42(2) nor did Sajan Abraham hold that requirement of Section 42(1) and Section 42(2) need to be fulfill at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section

42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof

34 of 37 (35) 901criapl966.22

to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.

77. In the aforesaid background and considering the

testimony of PW-1 and PW-8, as well as station diary entries, stated

above, it would clearly reveal that the mandate of section 42 of the

act of 1985, was duly complied with. It is already observed by the

Hon'ble Apex Court that it is not every breach that will go to the root

of the matter, but the question is whether there is substantial

35 of 37 (36) 901criapl966.22

compliance or not. The question is one of urgency and expediency.

The fact cannot be ignored that it was a chance recovery. It further

required to be taken into consideration that the accused had turned

the direction of the vehicle when they saw the police party and

vehicle was required to be chased.