High Court

Legal Reasoning

-1- Cri Appeal No. 877.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 877 OF 2004Digambar Bapurao Landge,Age : 40 Years, Occu. : Auto Driver,R/o. Banwas, Tq. Pallam, Now HUDCO/116, Nanded. ….. Appellant (Ori. Accused)VersusThe State of Maharashtra ….. Respondent …..Advocate for Appellant : Mr. Shrikant B. MaddeAPP for Respondent-State : Mr. V.M. Jaware….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 23rd January, 2025 PRONOUNCED ON : 26th February, 2025JUDGMENT : 1.Convict of offence under Section 8(c) punishable underSection 20(1)(b) of the Narcotic Drugs and Psychotropic SubstancesAct (in short, “NDPS Act”), takes exception to judgment and orderdated 13.12.2004, passed by learned Special Judge, Latur in SpecialCase No.03 of 2003. -2- Cri Appeal No. 877.2004IN 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 raidto be carried out in the vicinity of Udgir Bus Stand. Said officerheaded the raiding team compromising of police staff, panchas, traderand photographer and they came across the appellant, whosedescription matched with the secret information. After completing theformalities, they introduced themselves and made inquiry with himand also offered their own search and thereafter, conducted search ofbag in his possession which found to be containing 4 Kg. 800 GramsGanja. Sample of 100 Grams Ganja was drawn. Seizure wasconducted. The appellant was brought to the police station and onreport of police officer, crime was registered. 3.After investigation and on gathering sufficient evidence,the appellant was charge-sheeted and tried before learned SpecialJudge, Latur vide Special Case No.03 of 2003. Before learned trialcourt, prosecution adduced evidence of in all seven witnesses and alsorelied on documentary evidence like FIR, Panchnama, C.A. report, etc.After appreciating the oral and documentary evidence, learned trialcourt has accepted the prosecution case as proved and by judgmentand order dated 13.12.2004, convicted the appellant for offence -3- Cri Appeal No. 877.2004under Section 8(c) punishable under Section 20(1)(b) of the NDPSAct and sentenced him to suffer imprisonment for four years.Precisely, said judgment and order of conviction is now assailedbefore this court on various grounds spelt out in the appeal memo.SUBMISSIONSON BEHALF OF THE APPELLANT :4.Heard learned counsel for the appellant at length. Theprinciple grounds of challenge are that, there is non compliance ofprovisions of Section 42(2) of the NDPS Act. That, there is noconvincing, cogent and reliable evidence. That, provisions laid downunder 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 andfor above reasons, impugned judgment is sought to be set-aside. 5.Learned counsel has placed reliance on rulings of theHon’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. 877.2004ON BEHALF OF THE RESPONDENT-STATE :6.In answer to above, learned APP opposed on the groundthat, acting on a secret information, raid was conducted and it turnedout 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 verypossession. Therefore, it was a conscious possession. That, C.A. reportof seizure is positive. Learned APP pointed out that, I.O. did take stepsto secure presence of Tahsildar and other gazetted officers, but asthey were not available and as there was no time to be wasted, aftertaking necessary noticing in the station diary, which are got provedthrough I.O., raid was conducted. As such, there is no violation.According to him, merely on said doubt, no benefit would accrue tothe appellant. 7.In support of above submissions, learned APP has placedreliance on the ruling of the Hon’ble Apex Court in case of BharatAambale Vs. State of Chhatisgarh, reported in 2025 SCC Online SC110.EVIDENCE BEFORE THE TRIAL COURT :8.In support of its case, the prosecution has examined in allseven witnesses. Their role and status and the sum and substance oftheir evidence can be summarized as under : -5- Cri Appeal No. 877.2004PW1Mr. Dhanraj Vishwanath Patwari, Panch to the seizurepanchnama. He did not support to the prosecution and turnedhostile.PW2Mr. Dilip Ganptatrao Gaikwad, Panch to the seizurepanchnama. He also did not support to the prosecution andturned hostile.PW3Mr. Shahabuddin Burhansab Shaikh, Naik Police Constable. Inpara.1 of his substantive evidence at Exh.13, he narrated asunder :“1.On 23-12-2002 I was on duty at Udgir City policestation. 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 handedover the sample in the form of cotton bag in sealed conditionalongwith letter. Thereupon in the said night at about 11.45P.M. I left Udgir by train, for reaching to Aurangabad. On24-12-2002 I reached Auranagabad in the morning at about7.00 A.M. I reached C.A. office at about 11.00 A.M. At about11.30 A.M. I handed over the sample to C.A. OfficeAurangabad and obtained endorsement on the copy of letter.Copy of the said letter now shown to me is the same withendorsement. It is marked at Exh.14. On next day I came toUdgir and handed over copy of letter to PSI Patel. The sampleproduced in the court is the same one.” -6- Cri Appeal No. 877.2004PW4Mr. Abdul Bashir Mahboob Patel, P.S.I., Udgir Police Station.In para.1 of his substantive evidence at Exh.15, he narrated asunder :“1.On 22-12-2002 I was on duty as second P.S.I. at Udgircity police station. On 23-12-2002 investigation of crimeNo.3067/2002 was handed over to me. On that day I recordedstatements of witnesses PSI Sharma instructed Shaikhconstable to take sample to C.A. office Aurangabad. In duecourse C.A. report was received. It is marked at Exh.16. Aftercompletion of investigation charge sheet was submitted in thecourt. I have also produced on record true copies of stationdiary entries. The copies now shown to me are the same.Contents are as per original. It is marked at Exh.17. Accusedwas arrested by PSI Sharma. Accused before court is the sameperson.”PW5Mr. Mahesh Murarilal Sharma, P.S.I., Udgir Police Station. Inpara.1 of his substantive evidence at Exh.21, he narrated asunder :“1.On 22-12-2002 I was at Udgir City police station. In thesaid night at about 9.35 P.M. I received a secret informationthat a person has arrived at Udgir bus stand from Karnatakastate and is in possession of ganja. Then I informed on phoneto Dy.S.P. I also informed S.P. and also to P.I. I try to contactthe Tahsildar on phone but he was not available. I tried tocontact govt. medical officer, however this phone was notworking. Thereupon I sent constable Kendre for calling -7- Cri Appeal No. 877.2004panchas. I sent constable Gadge to call trader and aphotographer. After some time all came and P.I. also came tothe police station. Thereafter at about 9-55 P.M. we proceededto bus stand by a jeep. I myself, PI Shinde, constable Kendre,constable Gadge, constable Fulari, two panchas, a trader andphotographer where in the said jeep. We all reached at the busstand. The jeep was parked at a site. We proceeded towardsplatform No.1. A person was seen sitting on a bench onwestern side of the said platform. As discription of the saidperson was matching with the informed discription. The saidperson was enquired about his name with other preliminaryenquiries. He disclosed his name as Digambar Bapurao Landgeresident of Banwas Tq. Palama and presently residing atNanded. He was enquired for the contents of the bag. Heinformed that household materials is in the bag. Thereupon Imyself and PI Shinde introduced ourselves to the said personas police officers, and the said person was informed about ourintention to conduct search with option in present of P.I.Shinde as gazetted officer or in presence of magistrate. Thesaid person consented for conducting search in presence of PIShinde. Then we ourselves gave our search to him. Thereuponhis search was conducted. In the bag there was one more baguse for keeping manual. After opening the inner bag ganjagiving strong odour was found. The said ganja was weighed bythe trader. It was weighed 4 Kg and 800 gram. 100 gram ganjawas separately collected for sample. Sample and remainingganja was packed and sealed. Signature of panchas and traderwere obtained on panchanama. Signature of accused was alsoobtained on panchanama. Thereupon alongwith accused we -8- Cri Appeal No. 877.2004came back to police station. Crime was registered. I recordedmy complaint. Complaint now shown to me bears mysignature. Receipt for property also bears my signature. Thereceipt was prepared by me after handing over the property.The bag of muddemal shown to me is the same. Contents ofpanchanama are correct. Panchanama bears my signature. It ismarked at Exh.22. The contents of complaint are correct. It ismarked at Exh.23. The contents of muddemal receipt arecorrect. It is marked at Exh.24. Station diaries entries weretaken by me. Accused before court is the same person.”PW6Mr. Shamshoddin Gulamrasul Bagwan is a fruit seller. In para.1of his substantive evidence at Exh.25, he narrated as under :“1.On a day about a year ago I was called by the police. Aconstable came to me and informed that I am called by SharmaSaheb. I was also told to take alongwith me scale and weightmeasures. According I went to police station alongwith, scaleand weight measures. I was told that raid is to be conducted atbus stand. I was taken to bus stand in a jeep. Sharma saheband Shinde saheb and 2-3 other persons were present at thepolice station. We came to bus stand. After going to bus stand aperson was accousted who was sitting there. A bag was withthe said person. Officer informed the person that, his bag is tobe searched. Sharma informed that for search he can be takento other officer. The said person informed that his search maybe conducted at the said place. The bag was opened. It wasopened by Sharma. In the said bag green leaves with bad smeelwere found. I was asked to weight the said material by -9- Cri Appeal No. 877.2004informing that it is ganja. It was weighing 4 kg and 800 gram.100 gram ganja was seperately collected. Thereafter mysignature was obtained and I was taken to police station. Thepanchanama now shown to me bears my signature. I amunable to identify the said person because of lapse ofconsiderable long time.”PW7Mr. Dinkar Suryabhan Shinde, P.I., Udgir Police Station. Inpara.1 of his substantive evidence at Exh.26, he narrated asunder :“1.On 22-12-2002 I wa son duty as P.I. at Udgir city policestation. On that day I was at my residence. In the night time atabout 9.35 P.M. P.S.I. Sharma informed me at my residenceabout the information received by him. Immediately I went topolice station. P.S.I. Sharma by that time made necessaryarrangement for conducting a raid. Accordingly two panchas, atrader came to police station. Thereafter we all proceeded by ajeep. At about 10-00 P.M. we reached at S.T. bus stand Udgir.As per information platform No.1 was inspected. A person wasseen sitting on a bench on the western side of the platformwith a gunny bag on his laps. He was enquired. He wasenquired by PSI Sharma. About the contents of the bag, nameand destination to the said person. Initially the said personavoided to give answers. However, ultimately he informed thatganja is kept in the said gunny bag. Thereupon I introducedmyself as police officer and also panchas and informed himabout intention to conduct his search. He was given option toconduct the search in presence of Tahsildar. However heconsented for search in my presence. Thereafter search of in all -10- Cri Appeal No. 877.2004members of raiding party was given to the said person.Thereafter in presence of panchas bag was opened by PSISharma. In the said bag ganja was found. The said ganja wasweighed by a trader. It was weighing 4 kg. 800 gram. 100gram ganja was separately collected and was kept in cottonbag. The said bag was sealed with lac seal. Thereafter on querythe said person disclosed his name as Digambar BapuraoLandge resident of Banwas Tq. Pala,, presently residing atNanded. Detail panchanama was prepared by PSI Sharma atthe said place. Thereafter alongwith accused and seized ganaja,we came back to police station. At police station PSI Sharmarecorded his complaint. Crime was registered against theaccused. The panchanama shown to me bears my signature.Accused in dock is the same person.”ANALYSIS9.Re-appreciated the above evidence. 10.Crucial evidence is of PW5 Mr. Mahesh Sharma, PSI andhe, in his evidence at Exh.21, has stated that, while he was on nightduty, at around 9.35 p.m., secret information was received aboutarrival of a person at Udgir Bus Stand from Karnataka State TransportBus and said person to be in possession of Ganja. He claims to havereported his superiors i.e. Dy.S.P. as well as S.P. He categoricallystated that, he also tried to contact the Tahsildar on phone, but he -11- Cri Appeal No. 877.2004was not available. That, he also tried to contact government medicalofficer, but his phone was not working. Therefore, he sent otherconstable for arranging panchas, trader and photographer. He furtherstated 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 madeinquiry with him and also offered their own search and thereafter,conducted search of bag in his possession which allegedly contained 4Kg. 800 Grams Ganja. Sample of 100 Grams Ganja was segregatedand remaining Ganja was seized. The accused was brought to thepolice station. PW5 Mr. Mahesh Sharma lodged report against theaccused and handed over the seized muddemal and panchanama wasdrawn to that effect. Above officer is subjected to extensive cross-examination.However, he has reiterated therein that, the description received onsecret information was noted in the station diary and he has alreadyplaced it on record, which is marked by learned trial Judge as Exh.17.That, he is unable to state the registration number of state transportbuses which were allegedly parked there. He has answered that, atthat time, about 25 passengers were present at the bus stand. Then hewas questioned about location of canteen and whether there wasluggage of other passengers kept at platform No.1. Rest is all denial. -12- Cri Appeal No. 877.200411.Another crucial witness of the prosecution seems to bePW6 Shamshoddin Gulamrasul Bagwan, a fruit seller and he, in hisevidence at Exh.25 has clearly stated that, he was approached bypolice and he joined them by carrying weighing scale. He stated aboutPW5 Mr. Mahesh Sharma approaching a person sitting with a bag.That, the said person being searched and on opening the bag, greenleaves having bad smell to be found therein. He specifically statedthat, he was asked to weight the said material and it was weighing 4Kg. 800 Grams, and quantity of 100 Grams was taken out for sample. Even though he was cross-examined, no admission hasbeen elucidated in his cross.12.Apart from above evidence, there is evidence of PW7P.I. Mr. Dinkar Shinde, another police officer. He was also party tothe raid and he has also reiterated what PW5 Mr. Mahesh Sharmastated. 13.Therefore, here, oral account of police officers and that ofthe fruit seller, who carried out weighing of the seizure has remainedintact and unshaken. Though other panchas have not supported,evidence of above three witnesses does inspire confidence. -13- Cri Appeal No. 877.200414.As regards to the ground of non-compliance of allegedmandatory provisions, in case Bharat Aambale (supra), the Hon’bleApex Court very recently has held that purpose of standingorder(s)/rules in Section 52-A of the NDPS Act are meant only forguidance to the police officers, ensuring fair procedure. Whatprejudice has been caused due to above alleged non-compliance hasnot been clarified by learned counsel for the appellant. Though thereis absence of gazetted officer, there is plausible explanation that, inspite 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 theappellant is apprehended. 15.There is no reason to disbelieve the testimonies of policeofficers and independent witness i.e. fruit seller. So also, there is noreason for false implication and no defence to that extent is alsotaken. Only ground of challenge is non-compliance of procedure.However as stated above, in view of above judgment of the Hon’bleApex Court, even said ground has no substance. Therefore, takingoverall survey of evidence and above rulings, there is no infirmity inthe findings recorded by the learned trial Judge so as to interfere. -14- Cri Appeal No. 877.200416.In view of above, the appeal stands dismissed. [ABHAY S. WAGHWASE, J.]asd