MANGILAL BARKU PAWARA v. THE STATE OF MAHARASHTRA
Case Details
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD BAIL APPLICATION NO. 147 OF 2022 MANGILAL BARKU PAWARA VERSUS THE STATE OF MAHARASHTRA Shri. Vijay B. Patil, Advocate for the applicant Shri. S. B. Narwade, APP for the respondent/State CORAM : M. G. SEWLIKAR, J. RESERVED ON : 08th March, 2022 PRONOUNCED ON : 17th March, 2022 PER COURT :- 1. This is an application under Section 439 of the Code of Criminal Procedure for releasing the applicant on bail in connection with Crime No. 043 of 2020 registered with Shirpur Taluka Police Station, Dist. Dhule for the offences punishable under Sections 20(b), 22(c), 20(ii)(c) of NDPS Act. 2. The informant who is an Assistant Police Inspector
Facts
filed the FIR stating therein that on 16th June, 2020 at 9.30 a.m. that he was called by Shivaji Budhwant from Local Crime Branch and informed him that he got secret information that the applicant from Lakdya Hanuman village, Taluka Shirpur had ba147.18 1 collected Ganja beside his house in the field of the applicant Mangilal Pawara. Accordingly, raiding party was formed and the spot mentioned in secret information was raided. The raiding party reached the field of the applicant in Lakdya Hanuman village at 03.20 p.m. On seeing the raiding party, the persons standing in the field started running. The Officer from Shirpur Taluka Police Station identified the said person and started calling him Mangilal stop. However, he ran away. In this field, the raiding party found that near the house under construction there was a heap of leaves of green colour, seeds and husk of twigs covered under several plastic gunny bags. On weighing the said Ganja it was found to be of 30.500 kilograms in one plastic bag. There were 128 bags. Thus, total Ganja found was 3904
Legal Reasoning
trial. At this prima facie stage it is clear that applicant was standing near the heap of Ganja and on seeing police party he started running. This itself proves that he was having possession of Ganja. Otherwise there was no need for him to run away on seeing the policy party. He has further submitted that whether there was compliance or not of Section 42 of the NDPS Act, the same can be gone into at the stage of trial. He placed reliance following cases. 2020 DGLS (SC)78 (State of Kerala Versus 2022 LiveLaw(SC)245 (Sukhdev Singh Vs. The (i) State of Punjab) (ii) Rajesh) (iii) 2001 DGLS (SC)1153 (State of Madhya Pradesh Versus Kajad) (iv) CRM-M25786-2021 (O&M) (Rajbir Versus State of Haryana) ba147.18 5 8. I have given thoughtful consideration to the submissions of both the learned counsel. In the case of Union of India through Narcotics Control Bureau, Lucknow Versus Md. Nawaz Khan, 2021 DGLS (SC) 490, the Hon’ble Supreme Court held that the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial. Therefore, at this stage the same cannot be considered. 9. When the raiding party raided the house by the side of which applicant was standing, the applicant started running. One of the officers identified him and called out to him to stop. But the applicant ran away. It is true that at present no documentary evidence is placed on record to show that the applicant was the owner of the field or of the house. However, it is pertinent to note that the cannabis plants were not grown in the field but the same was packed in 128 plastic bags. The question of proof of ownership of the land and the house would arise only when that the cannabis plants were grown in the field or that the Ganja was seized from the house. In the case at hand this is not the factual position. Ganja was found stored by ba147.18 6 the side of a house and therefore, failure to collect proof int his regard cannot enure to the benefit of the applicant. The conduct of the applicant in running away from the place where Ganja was stored shows his possession over the Ganja. Otherwise there was no reason for him to run away on seeing the police party. Therefore, once possession is established, the person who claims that it was not a conscious possession has to establish it because it is within his special knowledge. The quantity of Ganja seized is 3904 kilograms. 10. In the case of Bail Application No. 1329 of 2021 husk of Ganja was seized and in the CA report it was mentioned that flowering/fruiting tops with greenish colored leaves, seeds and stalks were examined. Therefore, this Court (Coram : M. G. Sewlikar, J.) observed that the contraband article which was not seized was sent to the Chemical Analyzer. However, it is not the factual position in the case at hand. Green leaves, seeds, stalks were seized and they were sent to the Chemical Analyzer. The only difference is the Chemical Analyzer has mentioned fruiting tops. Whether fruiting tops were sent or not can be determined only during trial. At this stage it cannot be said that fruiting tops ba147.18 7 were not sent. In this view of the matter, having considered the quantity of Ganja seized from the applicant, I am not inclined to release the applicant on bail. Hence the order.
Arguments
kilograms. Accordingly, the said Ganja was seized, panchnama was drawn, samples were taken and forwarded to the Chemical Analyzer for analysis. 3. 4. Charge-sheet has been filed. Heard learned counsel Shri. P. B. Patil for the applicant and learned APP Shri. Narwade for the ba147.18 2 respondent/State. 5. Shri. Patil, learned counsel submitted that there is nothing on record to show that the house under construction belonged to the applicant or the field on which the house was being constructed belongs to the applicant. Therefore, it cannot be said that the applicant is the owner of the said field or the said house. He further submitted that the procedure under Section 42(1) of the NDPS Act has not been followed. He submitted that the prosecution has seized green leaves, husk of twigs, seeds from the spot of the incident. However, chemical analyzer report shows that the fruiting tops with greenish colored leaves, seeds and stalks were examined by the Chemical Analyzer. He submitted that this shows that the material which was not seized by the prosecution has been examined by the Chemical Analyzer. Therefore, it cannot be said that the material seized from the applicant was Ganja. He submitted that in terms of Section 2(iii)(b) of the NDPS Act, if fruiting tops are accompanied then only seized leaves and twigs deserved consideration. If fruiting tops are absent, twigs, green leaves and seeds cannot be termed as Ganja. He submitted that ba147.18 3 applicant was not found at the spot. He was identified by some one from the raiding party. Allegedly applicant was identified by the said officer and he called out Mangilal stop. On the basis of this hearsay statement, it cannot be said that the person who had run away was the applicant. Applicant is behind bars since 20th July, 2021. He submitted that there is nothing on record to show that applicant was in conscious possession of the Ganja. He, therefore, prayed for allowing the application. 6. He placed reliance on the following cases:- 2008(2) AIR Bom R 538 2016 DGLS (SC) 624 (i) (ii) (iii) Bail Application No. 2108 of 2016 (Rajaram Kadu Vs. The State of Maharashtra) (iv) Criminal Bail Application No. 3033 of 2021 (Rameshwar Ambadas Sasare Vs. The State of Maharashtra) (v) Bail Application No. 568 of 2021 (Raju Bhavlal Pawar and ors. Vs. The State of Maharashtra) (vi) Bail Application No. 960 of 2021 (Rajendra Shankar Sonawane Vs. The State of Maharashtra) (vii) Bail Application No. 1232 of 2021 (Rehamsing Jalamsing Bhil Vs. The State of Maharashtra) (viii) Bail Application No. 1329 of 2021 (Ramesh Prakash Jadhav Vs. State of Maharashtra). 7. Learned APP Shri. Narwade for the respondent/State submitted that it is the practice of Chemical Analyzer to mention in all CA reports in the column of appearance as ba147.18 4 flowering/fruiting tops with greenish colored leaves, seeds and stalks. The quantity of Ganja seized from the applicant is 3904 kilograms. He submitted that therefore, it cannot be said that the material which was not seized was sent to the Chemical Analyzer. The letter which has been forwarded to the Chemical Analyzer shows that green leaves, seeds, twigs were forwarded to the Chemical Analyzer. He further submitted that whether the the possession was conscious or not can be considered during
Decision
ORDER . Application is dismissed. [M. G. SEWLIKAR, J.] ssp ba147.18 8