[Cites 7, Cited by 0]
Bombay High Court
Aas Mohd. S/O Mohd. Shakur vs The State Of Maharashtra Thr. The Police ... on 25 February, 2026
2026:BHC-NAG:3244
1 apeal573.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.573/2024
Aas Mohd. S/o Mohd. Shakur,
aged about 29 Yrs., Occ. Auto Driver,
R/o Ward No.28, Midhanpur,
Tah. & Distt. Baghpat (U.P.) ... Appellant
- Versus -
State of Maharashtra,
through the Police Inspector,
P.S. Butibori, Nagpur. ... Respondent
-----------------
Mr. A.R. Rawlani, Advocate for the Appellant.
Mr. U.R. Phasate, A.P.P. for the Respondent/State.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 12.01.2026.
DATE OF PRONOUNCING THE JUDGMENT: 25.02.2026.
JUDGMENT
This is an Appeal under Section 415 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short "BNSS") against the
judgment and order dated 05.09.2024 passed by the Special
Court NDPS Act, Nagpur in Special (NDPS) Case No.549/2021
convicting the Appellant for the offence punishable under
Section 20(C) read with Section 8(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short "the said Act") and
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sentencing him to suffer rigorous imprisonment for 12 (Twelve)
years and fine of Rs.1,00,000/-, in default to pay fine, to undergo
rigorous imprisonment for 1 (One) year.
2. The prosecution's case, as revealed from the police report, is
that, the Informant Policeman attached to the Butibori Police
Station, received secret information that, on 03.07.2021 one
Toyota Altis Car DL-7-CG-4341 was carrying the contraband
(Ganja) from Chandrapur to Butibori, Nagpur for selling. After
making necessary station diary entry and informing the superiors
and arranging the Panchas, the Informant, his superior and the
Panchas reached the spot and put the barricades. The aforesaid
car came from Chandrapur side and same was stopped. The
Appellant was driving the said car. After completing the necessary
formalities, the vehicle was checked and below the rear seat 35
packets wrapped in plastic were found. There was pungent smell
from the said packets and the same was found to be substance like
Ganja. All the bundles were opened and put in four (4) plastic
bags marked as "ABCD". The substance was weighed and it was
found 68 Kilograms 110 Grams. The samples were drawn from
the four (4) bags. The samples and the substance came to be
sealed. The Appellant was taken in the custody. The report was
lodged and Crime No.289/2021 came to be registered against the
Appellant. The Appellant came to be produced before the learned
Magistrate. Inventory of the substance was conducted and the
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samples were drawn. The samples were sent to the Forensic
Science Laboratory (FSL). The substance was found to be
'Ganja'. On completion of the investigation, the Appellant came
to be chargesheeted.
a. The learned trial Court framed the Charge below Exh.3 for
the offence punishable under Section 20(C) for contravention of
the provisions of Section 8(c) of the said Act. The Appellant
pleaded not guilty and claimed to be tried. To prove the Charge,
the prosecution examined in all following ten (10) witnesses.
i) The Panch witness Mr. Bhagwan Chirkuji Nanhe who was
present on the spot when the vehicle was intercepted and
checked, as P.W.1,
ii) The Informant and Member of Raiding Party Ashish
Devidas Morkhede, as P.W.2,
iii) The Photographer Mahendra Sukhchand Pardhi, as P.W.3,
iv) The Policeman Pradeep Arvind Deshmukh, as P.W.4,
v) The Policeman Manish Vasantrao Karnake, as P.W.5,
vi) The Photographer Sushil Pruthav Meshram, as P.W.6,
vii) The Investigating Officer Omprakash Gangadhar Kokate,
as P.W.7,
viii) The Muddemal Moharir of the Police Station Sastish
Dnyaneshwar Sontakke, as P.W.8.
ix) The witness Ranpal Tajpal Baisoya, as P.W.9 and
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x) The Muddemal Moharir of the Police Station Bhimaji
Hindurao Patil, as P.W.10.
b. The relevant documents such as Report, Station Diary
Entries, Panchanamas, the Inventory Memo, the Report of
Chemical Analyzer (C.A. Report) etc. were brought on record in
the evidence of the above referred witnesses. After prosecution
closed its evidence, the statement of the Appellant came to be
recorded under Section 351 of the BNSS. The Appellant denied
the prosecution's case and claimed false implication. Considering
the evidence available on record, the learned trial Court passed
the impugned judgment and order convicting and sentencing the
Appellant as above.
3. Heard the learned Advocate for the Appellant and the
learned A.P.P. for the State. Scrutinized the evidence available on
record.
4. It is submitted by the learned Advocate for the Appellant
that, there was non-compliance of the provisions of Section 42 of
the said Act. The information was not given by the Informant to
the superior in writing. The documents of information were
prepared subsequently. It is submitted by the learned A.P.P. that,
the evidence on record shows that, there was compliance of the
provisions of Section 42 of the said Act. The testimony of the
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Informant and the Policeman is corroborated by the
contemporary documents.
5. Section 42 of the said Act is in respect of " power of entry,
search, seizure and arrest without warrant or authorization".
Sub-section (1) of Section 42 requires that, any officer
empowered by the Government in that regard, if has reason to
believe from personal knowledge or information given by any
person and taken down in writing that any narcotic drug or
psychotropic substance, or controlled substance in respect of
which an offence punishable under the said Act has been
committed, he may take the necessary action as provided in the
said section. Sub-Section (2) of the said Section provides that, the
said information which the officer takes down in writing under
Sub-Section(1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to
his immediate official superior.
6. The testimony P.W.2 Ashish D. Morkhede shows that, in
the year 2021 he was attached to the Butibori Police Station as the
Police Sub-Inspector. On 03.07.2021 when he was on Detection
Duty, he received information that, the blue coloured Toyota
Alits DL 7 CG 4341 was carrying the contraband from
Chandrapur to Butibori via Nagpur. He made the station diary
in that regard. He informed about the same to P.W.7 Omprakash
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G. Kokate, the Police Inspector of the said Police Station. He
informed the Superintendent of Police and the Sub-Divisional
Police Officer (SDPO) about the said information (Exh.26) and
also made the station diary entry in that regard (Exh.25). He sent
the information to the SDPO in that regard in writing (Exh.27).
His evidence shows that, Exh.25, the copy of station diary entry
about the secret information of contraband in the said vehicle,
was having the signature of P.W.7 Omprakash G. Kokate. The
copies of station diary entries corroborate his testimony. His
cross-examination shows that, the said evidence of this witness in
respect of above referred aspects remained unshaken. Nothing
material has come in the cross-examination so as to create any
dent in his above discussed testimony.
7. Further, the evidence of P.W. 7 Omprakash G. Kokate
shows that, on 03.07.2021 while he was on duty, P.W.2 Ashish D.
Morkhede informed him of the secret information in respect of
contraband being transported in the above referred vehicle from
Chandrapur. His evidence shows that, he asked him to take the
permission from the senior and P.W.2 Ashish D. Morkhede
accordingly took the permission. Even the cross-examination of
this witness remained unshaken. This evidence of the two
prosecution witnesses (P.W.2 and P.W.7) clearly shows that, there
was compliance of the provisions of Section 42 of the said Act as
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the information was taken down in writing and the same was
having signature of P.W.7 Omprakash G. Kokate showing that,
the copy of the information was supplied to him. Further the
written information was given to the superior officers and the
superior officers gave permission in writing.
8. The evidence of P.W.2 Ashish D. Morkhede, the Policeman
who received the secret information, shows that, he arranged the
Panch witnesses, the Photographer and the person having
weighing machine. Exhibits 32 and 33 copies of the station
diary entry in that regard are brought on record in his evidence.
He deposed that two Panchas came to the Police Station and he
gave information to the Panchas, issued intimation
communication as per Section 160 of the Code of Criminal
Procedure. Before leaving for spot, the Panchas took personal
search of the police party and did not find any contraband in their
possession. Pre-trap Panchanama below Exh.12 was prepared
and they left for the spot of incident with P.W.7 Omprakash G.
Kokate. His evidence shows that, the car which was being driven
by the Appellant was intercepted. The Appellant was issued the
intimation letter below Exh.13 pursuant to the provisions of
Section 50(1) of the NDPS Act. His evidence shows that, 35
square packets were found in the backside of the rear seat and
same was smelling like Ganja. The contents of the said packets
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were removed in four (4) white sacks. The substance weighed 68
Kg. 110 Grams. Thereafter 25 grams of substance was removed
from each sack. Samples were sealed and lebelled. Post-trap
Panchanama was prepared. The Form for sending the samples to
the Chemical Analyzer was filled therein which was at Exh.35.
His evidence shows that, there was scratching on the date in
Exh.14, Seizure Panchanama, however, he explained that due to
typographical mistake the date '07/03' came to be typed and so
he corrected it as '03/07'. He further explained that, the date
'07/03/21' below his signature was also typing mistake and since
it was not noticed by him, the same remained incorrect. Though
he was cross-examined by the defence, nothing material has come
on record so as to discard his testimony. His cross-examination
shows that, the Tollplaza is 50 to 60 meters away from the spot of
incident and, therefore, the car was not captured in the CCTV
Footage of the said Tollplaza.
9. The evidence of P.W.1 Bhagwan C. Nanhe shows that, he
was one of the Panch in the said process deposed by P.W.2. His
evidence corroborates the testimony of P.W.2. His evidence
shows that, the packets of samples taken out of the four sacks
were sealed. Nothing has come in his cross-examination so as to
discard his testimony in respect of seizure of the substance from
the vehicle which was being driven by the Appellant. In the
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cross-examination it is clarified that the date '07/03/2021' was
incorrect. The evidence of Panch witness gets corroborated by
the documents which were prepared at the relevant point of time.
10. The evidence of P.W.6 Sushil P. Meshram shows that,
he reached on the spot and clicked photographs on the spot where
the vehicle driven by the Appellant was stopped and the
contraband was seized. As regards to his evidence in the
cross-examination that, he reached after the vehicle was stopped,
it is clear from his further cross-examination that, as the
Photographer Pardhi was not available, therefore, he was called.
The learned A.P.P. has rightly submitted that, this aspect is clear
from the Post-trap Panchanama below Exh.12.
11. The evidence of P.W.7 Omprakash G. Kokate shows that,
he accompanied the Raiding Party in the capacity of Gazetted
Officer. His testimony corroborates the testimony of P.W.2 Mr.
Ashish D. Morkhede. Though in his cross-examination it has
come on record that, he has not given permission in writing to
P.W.2, it will not be sufficient to create any dent in the
prosecution's case as it is already discussed that, the SDPO had
granted permission to P.W.2 for doing the needful after receipt of
the secret information. Not signing the Pre-trap Panchanama and
Post-trap Panchanama below Exh.12 by this witness is not at all
10 apeal573.2024.odt
fatal for the prosecution as he had gone with the Raiding Team as
a Gazetted Officer.
12. From the above discussed evidence on record, the
prosecution has established that, on receipt of secret information,
P.W.2 along with Panch witnesses, Photographer and P.W.7
Omprakash G. Kokate, reached the spot, intercepted the vehicle
which was being driven by the Appellant and substance in 35
bags came to be seized from the vehicle.
13. It is submitted by the learned Advocate for the Appellant
that, the evidence on record shows that, no separate samples were
drawn from each packets, which the prosecution witnesses
claimed to have been seized from the car which was being driven
by the Appellant. He submitted that, the contents of all the 35
packets were mixed and thereafter the samples were drawn, which
was not permissible in view of the Narcotic Drugs and
Psychotropic Substances (Seizure, Storage, Sampling and
Disposal) Rules, 2022. On this point, he relied on the judgment
in Union of India V/s. Bal Mukund and others, (2009) 12 SCC
161 and in Shiv Sa Jaat V/s. State of Chhattisgarh through Police
Station Bemetara, 2023 SCC OnLine Chh 4300. It is submitted
by the learned A.P.P. that, no illegality was committed by mixing
the contents of all the packets of the substance and drawing
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samples from the said substance. It is submitted that, the
extracting of the samples will not vitiate the seizure. He relied on
the decision in Bharat Aambale V/s. State of Chhattisgarh, (2025)
8 SCC 452.
14. In Union of India (supra) P.W.7 therein had taken samples
of 25 gram each from all the bags and then mixed them and sent
to the Laboratory. It was observed that, there was nothing to
show that, an adequate quantity from each bag had been taken
and it was requirement in law. The said decision was primarily on
the aspect of confessions made by the accused therein. In Shiv Sa
Jaat (supra) the contraband weighing 285.600 Kgms. was seized
which was kept in 12 bags and mixed entirely and two samples
packets each containing 50 grams were prepared. It was observed
that, while preparing the sample packets, the Standing Orders
dated 15.03.1988 and 13.06.1989 were not complied with and
the samples packets were prepared contrary to those Standing
Orders. There were also several lacunae in the said case as can be
seen from para 17 of the said judgment. There is a reference of
judgment in Basant Rai V/s. State, (2012) 130 DRJ 471 wherein
it is observed that, if 8 packets were allegedly recovered and
only 2 packets were having contraband substance and rest six
packets did not have any contraband, though all may be of the
same colour, when we mix substances of all 8 packets into one or
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two, then definitely, the result would be of the total quantity and
not of the two pieces. It was observed that, therefore, process
adopted by the prosecution created suspicion. In Bharat Aambale
(supra) the issue was that, whether the conviction stood vitiated
due to non-compliance of Section 52-A of the NDPS Act. The
final conclusion is summarized in para 56 of the said judgment.
15. Coming to the case at hand the evidence of P.W.1 Bhagwan
C. Nanhe, evidence of P.W.2 Ashish D. Morkhede and P.W.7
Omprakash G. Kokate shows that, the substance in 35 packets
were mixed and distributed in four (4) separate sacks and samples
from each sack were drawn. According to the evidence of P.W.10
Bhimaji H. Patil, who was the Police Inspector of the Butobori
Police Station, he certified the extract from the Muddemal
Register under his signature which was at Exh.100. According to
him, the seized Muddemal was deposited in the Muddemal Room
on 03.07.2021 as per the entry in the said extract. His evidence
shows that, the Muddemal In-Charge A.S.I. Wadme retired.
Further, according to P.W.8 Satish D. Sontakke investigation of
the crime came to him on 04.07.2021 and the samples were sent
to the Chemical Laboratory through Police Constable pursuant to
Duty Pass below Exh.69. The evidence of P.W.4 Pradeep A.
Deshmukh, Police Constable, shows that, when he was on duty
on 06.07.2021, P.W.8 Satish D. Sontakke directed him to deposit
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the samples to the Chemical Laboratory and he took the samples
from the Muddemal Room and deposited the same with the
Laboratory on the same day. The evidence of P.W.2 Ashish D.
Morkhede, the Informant and the Officer who was the Member
of the Raiding Party shows that, the C.A. Form below Exh.35
bears the date 05.07.2021. He volunteered that, the said Exh. 35
was made outward on 5th. Exhibit 100, which is the extract of the
Muddemal Register, has the entry of the said Exh.35, however, it
nowhere shows that, the samples were handed over to P.W.4
Pradeep A. Deshmukh, Bakkal No.84 on 06.07.2021 as claimed
by him. On the contrary, the entry in respect of the said Exh.35
dated 05.07.2021 shows that, the packets were handed over to
N.P.C. Mandhare, Bakkal No.682. This is the material
discrepancy in the prosecution's evidence. Undisputedly,
Policeman having Bakkal No.682 whose name is mentioned in
the Exh.100 Muddemal Register as the one to whom the samples
were handed over is not examined by the prosecution. The
suggestion is given in the cross-examination of P.W.8 Satish D.
Sontakke that, no samples were sent to the Laboratory at the
hands of P.W.4 Pradeep A. Deshmukh. So the evidence to show
that, the samples drawn on 03.07.2021 were sent to the Chemical
Analyser is missing.
14 apeal573.2024.odt
16. The evidence of P.W.8 Satish D. Sontakke, the Investigating
Officer, shows that, he wrote the letter dated 09.07.2021 to the
learned Magistrate for Inventory, of the seized substance and
17.07.2021 was the date given by the Magistrate for Inventory of
the seized substance and the Inventory was done on 17.07.2021.
The evidence of P.W.10 Bhimaji H. Patil further shows that, if the
Muddemal is removed out of Muddemal Room, the entry in the
register is to be made and there was no entry in the Muddemal
Register that, the Muddemal was sent on 17.07.2021 to the
Court. The Inventory Certificate is brought on record at Exh.89
in the evidence of P.W.8 Satish D. Sontakke. In the cross-
examination he admitted that, in the said Inventory Certificate
number of Muddemal is mentioned as '22/2021', which was
wrong. His evidence shows that, Muddemal number of the
substance in this case was '30/2021'. He admitted that, in para 9
of the Inventory Certificate the Muddemal Number '30/2021'
was not mentioned. He further admitted that, in Exh.86 which
was the letter addressed to the Magistrate for Inventory, there was
no mention of the Muddemal Number. Suggestion is given that,
the Muddemal produced before the Court for Inventory and the
photographs were of different case. Suggestion is given that
incorrect documents were sent and the C.A. Reports were false.
Further, the learned Advocate for the Appellant has rightly stated
that, the Inventory Certificate below Exh.89 shows that, the
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samples were taken only from the 4th sack marked 'D' and not
from the sacks marked as 'ABC'. With this evidence on record
the evidence of P.W.5 Manish V. Karnake that, on 03.08.2021 he
deposited two sealed packets to the Chemical Laboratory is of no
help to the prosecution. True it is that the Exh.100 shows the
entry of 03.08.2021 regarding samples for the Inventory, it
becomes inconsequential in view of the above evidence which do
not establish that, the substance was taken for Inventory.
17. P.W.3 Mahendra S. Pardhi deposed that, he was the
Photographer having Nikon D 7000 Camera and the Butibori
police called him to click the photos of the Inventory on
17.07.2021 and he went to the Butibori Police Station and from
there went to the Court of Magistrate where the Inventory was
prepared and he clicked the photographs. However, Inventory
Certificate below Exh.89 shows that, Photographer by name
Mahendra Sukhchand Sontakke was present. Para 7 of the
Inventory Certificate shows that, all the necessary photographs
were taken by photographer Mayur Sureshrao Gawande. There is
no explanation from the prosecution as to why different names of
the Photographers in the Inventory Certificate are shown, though
first page of Exh.89 shows the name of P.W.3 Mahendra S.
Pardhi as the Photographer.
16 apeal573.2024.odt
18. The above discussed evidence shows that, the prosecution
utterly failed to establish that, the samples submitted to the
Chemical Laboratory which issued the C.A. Reports at Exhs.90,
91 and 92 showing the substance as 'Ganja' were from the
substance seized from the Appellant. There is no evidence to
establish that, the samples of the substance seized from the
Appellant were sent to the Laboratory for examination. This
being so, the said C.A. Reports will not be incriminating in
nature. Unless it is established that, the seized substance was the
contraband covered by the NDPS Act, the conviction cannot be
sustained. Considering the above referred serious infirmities in
the prosecution's case, the benefit goes to the Appellant. The
lacunae or the discrepancies as discussed above leads to the only
conclusion that, the Appellant is entitled for acquittal. Hence, the
following order:-
ORDER
i) The Appeal is allowed.
ii) The conviction and sentence imposed by the learned trial
Court convicting the Appellant for the offence punishable under
Section 20(C) read with Section 8(c) of the NDPS Act, 1985
sentencing him to suffer rigorous imprisonment for 12 (Twelve)
years and fine of Rs.1,00,000/-, in default to pay fine, to undergo
rigorous imprisonment for 1 (One) year vide judgment and order
dated 05.09.2024 passed by the Special Court NDPS Act,
17 apeal573.2024.odt
Nagpur in Special (NDPS) Case No.549/2021 is quashed and set
aside.
iii) The Appellant is acquitted of the offence punishable under
Section 20(C) read with Section 8(c) of the said Act.
iv) The fine amount, if any, paid by the Appellant be refunded
to him.
v) Rest of the operative part in relation to seized Articles
remains intact.
vi) Record and proceedings be sent back to the learned trial
Court.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 25/02/2026 11:07:35
