APEAL.1020-2006.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1020 OF 2006 WITH CRIMINAL APPLICATION NO.152 OF 2011 IN CRIMINAL APPEAL NO. 1020 OF 2006 Mr. Madhukar Swami Pallerala ) An adult, Indian inhabitant, aged ) 23 years Occ-service, residing at ) village Challagarigc Chital, Dist- ) Warangal, Andhra Pradesh ) now lodged at Kalhapur Central ) Prison, Kolhapur. ) ...Appellant. Vs. The State of Maharashtra ) ...Respondent. At the instance of Matunga Police ) Station in their C.R. No.3/04 ). ---- Mr. Taraq Sayed, for the Appellant. Mrs. A.A. Mane, APP for the State. ---- CORAM: U. D. SALVI, J. MARCH 29, 2011. ORAL JUDGMENT: 1 Conviction of the appellant-accused under Section 20(b) 1 APEAL.1020-2006.sxw read with Section 8(c) of N.D.P.S. Act, 1985 and consequent sentence to suffer R.I. for 10 years and to pay a fine of Rs.1,00,000/-, in default to suffer R.I. for six months in NDPS Special Case No.46 of 2005, is in question in the present appeal. 2 The appellant-accused Madhukar Pallerala and co- accused Ramesh Maduriklha both resident of village Challagarige, District-Warangal, Andhra Pradesh were apprehended in course of Nakabandi at Green Grass Hoffer chowkey on Bhau Daji Road, Matunga, Mumbai in the early hours of 16.12.2004. Both of them were traveling in a taxi bearing no. MH-01-J-7823. The appellant- accused Madhukar was found seated on the rear seat with black coloured rexine bag and the co-accused Ramesh was found seated next to the driver of the taxi. Search of the rexine bag led to recovery of 17.5 Kg. of ganja leaves. Two samples of 50 gms. were duly drawn in the presence of the panchas and ganja was seized. A crime was registered at CR No.3 of 2004 under Sections 20 read with Section 8C and Section 29 of N.D.P.S. Act, 1985 at Matunga Police Station, Mumbai against both of them. 2 APEAL.1020-2006.sxw 3 Forensic investigations confirmed the presence of ganja in the seized articles. The Appellant-accused along with co-accused were charge-sheeted. In due course the case came up for hearing before the learned Special Judge for NDPS cases, Greater Mumbai and charges under Section 20(b) and 29 read with Section 8(c) of N.D.P.S. Act came to be framed (Exh.3A). The accused pleaded not guilty and claimed to be tried. 4 The prosecution examined PW-1- Nathubhai Dinkar Gaikwad, P.C. (Exh.9), PW-2 Tilakraj Uppal, panch (Exh.12), PW- Gurucharansingh Gujral Raja- Taxi driver (Exh.14), PW-4- Damodar Ratnapa Tharkar P.C. (Exh.15), PW-5- Sanjay Shamrao Prabhawale, Asstt. CA (Exh.17) and PW-6- Murlidhar Patangrao Chavan, API I.O. (Exh.21). F.I.R.at Exh.10. Seizure panchanama at Exh.13, forwarding memo at Exh.16, data sheet maintained at the office of FSL at Exh. 18, CA report at Exh.19, copy of the forwarding memo is at Exh.20 and special report at Exh.22 were further adduced in evidence in support of the prosecution case. Both the accused controverted the 3 APEAL.1020-2006.sxw prosecution case vide their statements at Exh.24 and Exh.25 respectively. 5 Mr. Sayed, the learned Advocate for the appellant- accused submitted that the case in hand being the one of chance recovery from the baggage carried on the back seat of the taxi would not attract the provisions of Sections 42 and 50 of N.D.P.S. Act, 1985. He submitted, however, the prosecution suffered from infirmity in the evidence which rendered the prosecution’s case of seizure of ganja leaves a questionable proposition. In order to acquaint this court with infirmity in evidence, he took the court through the entire evidence and pointed out that nowhere the seizing officials or any private individual examined as pancha or eye-witnesses had identified the substance seized at the material time as the one which was presented before the court, and sent to CA for further forensic investigation. From the evidence of PW-4- Damodar Ratnapa Tharkar P.C. the mystery regarding the seized articles deepened further with the fact that the sample envelopes given to him were kept overnight with him before being delivered to the office of the Forensic Science 4 APEAL.1020-2006.sxw Laboratory and there was variation between the outward numbers noted on the forwarding letter purportedly dated 21.12.2004 carried to the FSL by PW-4- Damodar Ratnapa Tharkar P.C., and the forwarding memo produced by the Chemical Analyzer PW-5- Sanjay Shamrao Prabhawale from his record. 6 Seizure of 17.5 Kgs. of contraband-ganja leaves from a bag lying on the rear seat of Taxi bearing registration no. MH-01- J-7823 carrying the appellant-accused on the same seat on 16.12.2004 between 3.00 a.m. an 4.30 a.m. in the course of nakabandi, is found revealed in the testimony of PW-1- Nathubhai Dinkar Gaikwad, P.C. and PW-6- Murlidhar Patangrao Chavan, API at Matunga Police Station. 7 It was a chance recovery in the course of nakabandi at Bhau Daji Road, Matunga, Mumbai and, therefore, the police called the panchas after the discovery of bag suspected to be containing contraband article ganja. 5 APEAL.1020-2006.sxw 8 PW-2 Tilakraj Uppal a local taxi man was one of the panchas. He deposed that the appellant-accused who was found seated on the rear seat of the taxi bearing registration no. MH-01- J-7823 with one black coloured rexine bag by his side was unable to give replies to the police inquiry regarding contents of the bag and the search taken by the police had resulted in recovery of 17.5 Kgs of ganja. Significantly, he did not describe how it looked like or smelt and did not happen to identify the contents of the said bag as ganja. However, he proceeded to depose that two samples were drawn from the said contents of the bag and the same were packed and sealed in the paper packets and the paper packets were signed by him. He identified the rexine bag and the sample packets shown to him in the course of his evidence. He identified seizure panchanama (Exh.13) and vouched its contents as correct. Nowhere in his evidence PW- Tilakraj Uppal identified either the contents of the rexin bag or the contents of the sample packets shown to him in course of his evidence. It is this infirmity in the evidence which was made trump card in the present appeal on the basis of the proposition that identity of the contraband seized remained questionable. 6 APEAL.1020-2006.sxw 9 Mrs. Mane, the learned APP for the State submitted that the panchanama at Exh.13 to which PW-2 Tilakraj Uppal owed allegiance described the contraband and as such the identification of the contraband before the court no longer remained questionable. It is true that PW-2 Tilakraj Uppal did subscribe his signature to the seizure panchnama at Exh.13 and vouched its correctness in his substantive evidence. However, to prove a fact of the seizure of the very contraband described in the panchanama, PW-2 Tilakraj Uppal ought to have identified the very contraband which was produced before the court as article 1/1 as the contraband found in the black rexine bag seized from the custody of the appellant-accused at the material time. Identification of the contents of the sample packets articles 1/2 and 1/3 by PW-2 Tilakraj Uppal was equally necessary to establish that those were the samples which were drawn from the contraband seized at the material time. Strangely the seizing officer PW-6 Murlidhar Patangrao Chavan failed to identify the contents of the sample packets (articles 1/2 and 1/3 ). 7 APEAL.1020-2006.sxw 10 PW-3 Gurucharansingh Gujral Raja- Taxi driver of taxi bearing no. MH-01-J-7823 made general reference to the seizure made by the police at the material time. PW-5- Sanjay Shamrao Prabhawale, Asstt. CA claimed in his evidence that he had analyzed the contents of the sealed enevelopes marked “A” and “B” and had resealed the enevelopes and prepared CA report at Exh.19 from the noting made by him in data sheet at Exh.18. According to him the analysis of the samples done by him showed the presence of 0.48 % and 0.57% of △9 THC in samples “A” and “B” respectively. His cross examination brought nothing material to doubt forensic investigation done by him. However, his evidence does not demonstrate that the contents of sample packets (articles 1/2 and 1/3 ) before the court were analyzed by him for the purposes of forensic investigation. The mystery about the identity of the contraband and the samples is further compounded by the discrepancy in the outward numbers found recorded on the forwarding memo Exh.16 and Exh.19, and the failure of the prosecution to prove by cogent evidence the movement of the samples with reference to the muddemal register. 8 APEAL.1020-2006.sxw In result the, the prosecution case fails and appellant-accused deserves to be given the benefit of doubt. 11 Hence, the appeal is allowed. The appellant-accused is acquitted of the offences punishable under Section 20(b) read with Section 8(c) of the N.D.P.S. Act, 1985 and is ordered to be set at liberty unless required in any other case. 12 In light of the above order, Criminal Application No.152 of 2011 does not survive and same is disposed as such. (U. D. SALVI,J.) 9