1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1086 OF 2005 1 Vithal Narayan Ghumare ) aged 53 years, Resident of ) Mahijalgaon, Taluka Karjat ) District Ahmednagar. ) ) 2 Jalindar Narayan Ghumare, ) aged 43 years, residing at ) Ghumare, Taluka : Karjat, ) District Ahmednagar ) (Accused are in jail in Yerawada ) Central Prison.) ) ..... Appellants. (Accused Nos. 2 and 3) V/s State of Maharashtra ) ...... Respondent. ----- Mr. A.G. Toraskar for the appellants. Mr. Rajesh More, APP for the State. ------ ALONGWITH CRIMINAL APPEAL NO.149 OF 2006 Motiram Valu Rathod ) aged : 62 years, resident ) of Devthana, At post : Usvad ) Tal : Mantha, District: Jalna ) [Presently lodged at Solapur ) District Prison, Solapur.] ) ......Appellant. (Orig. Appellant No.1) V/s The State of Maharashtra ....... Responent. ------ Mr. A.G. Toraskar advocate appointed as amicus curiae for the appellant. 2 Mr. Rajesh More, APP for the State. ------ CORAM: V.M. KANADE, J. DATE: 14th October, 2008 ORAL JUDGMENT: 1. Mr. A.G. Toraskar, Counsel appearing on behalf of the appellant in Criminal Appeal No.1086 of 2005 is appointed as amicus curiae to appear on behalf of the appellant in Criminal Appeal No.149 of 2006 as the advocate for the appellant in Criminal Appeal No.149 of 2006 remained absent when the matter was called out. 2. Both these appeals can be conveniently disposed of by a common judgment as the facts and points involved therein are identical. 3. Heard the learned Counsel appearing on behalf of the appellants and the learned APP appearing on behalf of the State. 4. Appellants are convicted by the Trial Court for the offence punishable under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lac. 5. Prosecution case is that the Investigating Officer received information from two constables that the accused were apprehended near S.T. Bus and they were found to be in possession of 41.980 Kgs 3 Ganja worth Rs 2,09,900/-. Panchanama was prepared and the Trial Court, on the basis of evidence adduced by the prosecution, convicted the appellants under section 20(b) of the NDPS Act. 6. Counsel for the appellants submitted that the prosecution has not established that the contraband material was found in possession of the appellants. He further submitted that muddemal articles were not sealed and further that the muddemal articles were not properly weighed at the time when the panchanama was made. He submitted that, in the absence of muddemal property being sealed by the prosecution witnesses, it is difficult to rely on the said evidence. He submitted that the appellants were not carrying contraband since it was not found in their possession but it was found in a bus which was accessible to many passengers who were travelling in the same bus. He submitted that, therefore, there was non-compliance of section 42 (2) of the said Act since the information which was received by the Investigating Officer was not reduced into writing. Further, it is submitted that there was non-compliance of section 57 of the said Act and no report of arrest & seizure was brought to the notice of Superior Officer within 48 hours. He submitted that, in fact, neither the driver nor the conductor nor any of the passengers was examined. He further submitted that no independent witness was examined in support of the prosecution case. He further submitted that there is also non-compliance of section 55 of the said Act. 7. The learned APP appearing on behalf of the State has taken me through the judgment and order of the Trial Court as also the evidence which is brought on record. 4 8. After having gone through the said evidence, in my view, prosecution has miserably failed in proving that the contraband was found in possession of the appellant-accused. When the panchanama was made, it was stated in the panchanama that the accused were standing outside the bus and that five bags containing Ganja were seized. However, no witness has been examined by the prosecution for the purpose of proving that these bags were brought by the appellants-accused and were kept beneath their seats. It has not been established that the appellants were sitting on the seats below which these bags were kept. In view of absence of this evidence, the entire prosecution case falls to the ground as conscious possession of the contraband has not been established. Presumption about the knowledge and contents of the bags would arise only after the initial burden of establishing conscious possession is discharged by the prosecution. Surprisingly, neither the conductor nor the driver of the bus nor any of the passengers who was traveling in the said bus has been examined. Prosecution case is that two constables reported to the Police Station that two persons were caught and that they were in possession of the said bags, containing contraband – Ganja. Though it is true that there was no prior information received by the Investigating Officer and, therefore, the question of recording this information in writing did not arise particularly because it was a chance discovery made by the two constables, yet, it was necessary for the prosecution to establish that two appellants were carrying these bags and had kept them in the said bus. On this ground alone, the prosecution case falls to the ground. 9. Apart from that, from the evidence of P. W. 1 – Vasant Ugale, it can be seen that he has stated in his evidence that the muddemal 5 articles were not pasted by gum but were affixed by pins. He has not been in a position to name the police constable who took out 250 gms. of Ganja from each bag. It is, therefore, difficult to rely on his evidence when he says that the contraband – Ganja was found in possession of the appellants – accused. P. W. 2 – Digambar Jadhav has stated that he received information on mobile phone. He has admitted that contraband material was not sealed but was wrapped in a brown paper. P.W 3 – Rajkumar Shriman has stated that three persons were found having in their possession five bags. However, he has admitted that he is not in a position to tell the seat number under which five bags were kept. From the evidence of P.W. 1 and P.W. 3, therefore, also it cannot be said that the appellants were in conscious possession of the said five bags. P.W. 7 – Inayatulla Kazi, muddemal clerk has also stated that when the muddemal property was handed over to him, he did not affix is seal or his signature on it. Even the Investigating Officer P. W. 8 – Ashok Vandekar has stated that he did not affix his seal on the samples. Thus, it can be seen that the prosecution has failed to establish that there was a proper compliance of the provisions of sections 55 and 57 of the NDPS Act. The Trial Court, therefore, erred in recording finding against the present appellants on the basis of the aforesaid evidence. Appellants are in jail since the date of their arrest. 10. For the aforesaid reasons, the following order is passed:- O R D E R In the result, the judgment and order passed by the Trial Court is 6 set aside. Appellants in both the above appeals are acquitted of the offence with which they are charged. Appellants be released forthwith unless they are wanted in any other case. Both the appeals are allowed in the above terms and disposed of. (V.M. KANADE, J.)