IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2380 OF 2008 CRIMINAL APPLICATION NO. 2380 OF 2008 CRIMINAL APPLICATION NO. 2380 OF 2008 The State of Maharashtra ...Applicant/ Appellant (Orig.Complainant) vs. Nandlal Irasan Patel alias Nandlal Nagu Choudhary ...Respondent (Orig.Accused) Mrs.M.H. Mhatre, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : NOVEMBER 26, 2008 DATED : NOVEMBER 26, 2008 DATED : NOVEMBER 26, 2008 P.C. :- P.C. :- P.C. :- 1. Heard learned APP for the State. 2. The State of Maharashtra is challenging the judgment and order passed by the Adhoc Additional Sessions Judge, Sangli whereby he was pleased to acquit the respondent accused for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychologic Substances Act, 1985. 3. The learned APP has taken me through the record and proceedings and the judgment and order passed by the trial court. The prosecution case is that on 3rd - 2 - October, 2007, PW1 complainant was taking a round at the Miraj Railway Police Station alongwith police staff on platform no.1 at about 4 p.m. He noticed that one person was sitting with a plastic bag and when inquiry was made by the PW1, the said person got frightened and further inquiry disclosed that there was ganja in his bag. Thereafter, information was given to PI Dilip Jadhav who subsequently came there alongwith panch witnesses and the person who had weighing machine. Thereafter, panchanama was prepared and ganja for Rs.10,000/- weighing five and half kg. was found in the bag. The respondent was arrested. 4. The learned APP submitted that all the witnesses including the independent witness had supported the prosecution case and ganja worth about five and half kg. was recovered from the possession of the respondent. He submitted that the Asstt.Chemical Analyser PW8 already had given an opinion that the seized article was ganja which was the contraband article. He submitted that since there was no proper seizure, the mandatory provisions of NDPS Act so far as seizure are concerned - 3 - would not be applicable in the present case. 5. It is not possible to accept the submission made by the learned APP for the State. I have perused the evidence of PW1 and PW2, PW7 Dilip Jadhav, PW5 Gajanan Salunke, PW6 Prashuram Swami, PW8 Rajendra Kokare as also PW3 Dilip Chorage and PW4 Rajaram Patil. The trial court, in my view, has correctly recorded the finding that there was variance in the statement of PW7 and others as to when the samples were brought back from PW8. The trial court has recorded that though constable Salunke handed over these samples in brown paper to the Chemical Analyser, constable Kshirsagar who carried the muddemal property to the CA was not examined. Further, it appears that there is no evidence on record to show that where the property was kept till it was forwarded through constable Swami to the CA. PW 5 does not reveal when constable Kshirsagar handed over the sample to the CA. The trial court also was justified in holding that no entry was made in the registrar stating when the samples were brought back by constable Kshirsagar and whether the said property was in a sealed - 4 - condition when it was handed over to CA. The trial court, therefore, has expressed doubt about the alleged prosecution case and has observed that possibility of tampering could not be ruled out. Further from the evidence of PW8, it can be seen that there is a discrepancy regarding the number of samples which were sent to the CA. The forwarding letter dated 4th October, 2007 records that three samples have been sent. However, on 8th October, 2007, only one sample was sent. There is also no forwarding letter sent on 8th October, 2007. 6. There is also improvement in the statements of PW1 and PW2 regarding the manner in which the property was seized. They have also made improvements regarding the possession of the plastic bag by the respondent accused. Taking an overall view of the matter, therefore, in my view, there is no infirmity or illegality in the order passed by the trial court. No case, therefore, is made out for grant of leave. 7. Leave, therefore, is refused. Appeal does not - 5 - survive. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)