1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.585 OF 2008 Mohamad @ Hamya Razzak Pathan Age- 55, R/o Kathada, Near Masjid, Bagwanpura, District Nashik. .... Appellant. V/s State of Maharashtra .... Respondent. ----- Mr. Ayaz Khan for the appellant. Mr. Rajesh More, APP for the respondent State. ----- ALONGWITH CRIMINAL APPEAL NO.586 OF 2008 Mehrunissa Mohamad Pathan Age-60, R/o Kathada, Near Masjid, Bagwanpura, District Nashik. ....Appellant V/s State of Maharashtra ...... Respondent. ---- Mr. A.P. Mundargi, Senior Advocate with Mr. Ayaz Khan & R.S. Bidkar for the appellant. Mr. Rajesh More, APP for the respondent - State. ----- CORAM: V.M. KANADE, J. DATE : 16th December, 2008 ORAL JUDGMENT: 2 1. Heard the learned Counsel appearing on behalf of the appellants and the learned APP appearing on behalf of the State in both the Criminal Appeal Nos.585/2008 and 586/2008. 2. Appellants in both these appeals are challenging the judgment and order dated 23/06/2008 passed by the Ad-hoc Additional Sessions Judge-1 & Special Judge, Nashik by which the learned Judge was pleased to convict both the appellants under section 235(2) of Cr.P.C. for the offence punishable under section 20(C) of the NDPS Act and under section 25 of the said Act and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1 lakh each and in default of payment of fine to suffer further simple imprisonment for six months. 3. Prosecution case, in brief, is that the Complainant- P.W.1 Pratap Patil who was working as Police Inspector at Bhadrakali Police Station and other police officers were informed by Mr. Anil Jagtap, who was Police Inspector at the said Police Station that he received an information that the appellant Mohamad was dealing in ganja near Juna Kathada Masjid and that he had stored ganja in his premises. This 3 information was given to LCB and DCP on telephone. Upon receiving the information, ACP Thorat arrived at the spot and he, alongwith P.I. Jagtap, some police staff alongwith two panch witnesses went to the said place and they also carried weighing and sealing material with them. Some police staff of Dindori Police Station also was already there. The said staff informed P.W.1 and others that Mohamad had a field within the limits of Dindori and, in the raid, which was effected, number of ganja bags were seized from the premises standing on the said land. They informed P.W.1 that they had come to the said place in search of additional contraband. The house was found to be locked. They, therefore, called key maker who prepared a key and opened the lock. Nothing was found on the first and second floor. On the third floor, however, there was a door towards Eastern direction and this door had a front niche which was meant to conceal the existence of the door. When the said niche was removed, the door was opened and they found that there were gunny bags filled with ganja having strong smell. All the bags were weighed and it was found to contain 1035 Kg. ganja. Further procedure of sealing was done. Panchanama was prepared. Raiding party came back to the Police Station and the 4 First Information Report was lodged which is at Exhibit-18. Both the accused surrendered to Dindori Police Station. Charge- sheet was filed and the Trial Court, on the basis of the evidence adduced by the prosecution, convicted the appellants for the aforesaid offence. 4. Mr. Mundargi, the learned Senior Counsel appearing on behalf of the appellant Mehrunissa Mohamad Pathan in Criminal Appeal No.586 of 2008, firstly submitted that the FIR had been tampered by the Investigating Officer. He invited my attention to Exhibit-18 which was a statement of P.W.1 which is recorded on the FIR Exhibit-51. He submitted that number of very crucial paragraphs from Exhibit-18 were not mentioned in the FIR Exhibit-51. He, therefore, submitted that there was a grave doubt about the actual information which was received by P.W.1 and the actual incident which had taken place on that date. He then submitted that even the permission which was obtained after information in writing was given to the superior authorities also appear to be fabricated. He invited my attention to the time at which the said information was received viz. 16.40 p.m. which was indicated at Exhibit-29. He submitted that, on the other 5 hand, the panchanama indicated that it had commenced at 16.45 p.m. He submitted that none of the officers who had given information viz. P.I. Anil Jagtap and other Officer ACP Thorat who had given permission at Exhibit-30 were ever examined. He submitted that, therefore, the procedure which was allegedly followed by the prosecution of reducing the information in writing and seeking permission to raid the premises appear to be doubtful. He then invited my attention to the evidence of prosecution witnesses. He submitted that P.W.1 - Pratap Patil was the complainant who had recorded the FIR. P.W. 2 - Keru Thakre was the panch who turned hostile. P.W. 3 - Bhausaheb More was the Chemical Analyser, FSL, Nashik. P.W. 4 - Krishnarao Jadhav was the Investigating Officer and P.W. 5 - Nivruti Kakad was the carrier. He submitted that the appellant had examined herself as defence witness and had brought on record the agreement at Exhibit-66 which indicated that this portion of the property was given on rent to one Sachin Chaudhary. He submitted that the prosecution had utterly failed in establishing that the appellant had knowledge about the contraband being stored in her premises and there was no material brought on record to establish this fact. He submitted 6 that the prosecution had not examined any independent witness such as neighbours in the vicinity to show that the appellant had knowledge about the premises being used for the purpose of storing contraband. He submitted that, therefore, ingredients of section 25 of the NDPS Act had not been established against the appellant. He submitted that the Trial Court has not given any cogent reasons on this aspect of knowledge of the appellant that the premises was used for storage of contraband. He further submitted that no independent witness had supported the case of the prosecution. The first panch witness had turned hostile and the other panch witness had not been examined by the prosecution. He further submitted that at no point of time the appellant was named as an accused either in the first FIR or in the second FIR and only after the municipal records were examined, she was added as an accused in the said case. Lastly, it is submitted that there was no identification of the alleged contraband which was seized. He invited my attention to the evidence of P.W.1, P.W.4 and P.W.2. He submitted that none of these witnesses had identified the drug in court at the time of their evidence. 7 5. Mr. Ayaz Khan, the learned Counsel appearing on behalf of Mohamad @ Mahmya Razzak Pathan, appellant in criminal appeal No.585 of 2008 firstly submitted that the provisions of section 25 were not attracted in his case. He secondly submitted that the appellant was not in the house and that the house itself was lcoked. Thirdly, he submitted that the appellant was not the owner of the house which was evident from the municipal records. He submitted, fourthly, that the room itself was given on rent to one Sachin Chaudhary under the lawful agreement which was executed by his wife in favour of Sachin Chaudhary. He then submitted that wife of the appellant Mohamad had given evidence in court that he had gone to Huj and, thereafter, had gone to Ajmer. He submitted that this was not controverted by the prosecution in the cross-examination. 8 6. The learned APP appearing on behalf of the State, on the other hand, invited my attention to the judgment of the Trial Court. He submitted that the Trial Court has taken into consideration evidence of witnesses and had accordingly held that charges against the appellants had been proved. He submitted that, therefore, no case was made out to interfere with the finding recorded by the Trial Court. 7. In the present case, prosecution has examined about 5 witnesses. Out of these five witnesses, P.W. 2 - Keru Thakre, a seizure panch had turned hostile and even, in cross-examination, he has not made any statement in favour of the prosecution. His evidence, therefore, will have to be discarded totally. P.W. 3 - Bhausaheb More was a Chemical Analyser and the appellants have not challenged his testimony. Similarly, P.W. 5 - Nivruti Kakad was a carrier and his testimony also has not been seriously challenged by both the appellants. The entire case of the prosecution, therefore, rests on the evidence of the complainant P.W.1 - Pratap Patil who has recorded FIR and the Investigating Officer P.W. 4 - Krishnarao V. Jadhav. It is true that even if panch witness turns hostile, prosecution can establish 9 seizure if the evidence of seizure given by the Police Officer is sufficiently corroborated by the other evidence and the accused can be convicted on the basis of the said evidence. However, in this case, entire prosecution case essentially proceeds on the footing that both the appellants are owners of the premises and were aware that the said premises was being used for the purpose of storing contraband. It would be, therefore, necessary to examine the charge which is levelled against both the appellants. The appellants had been firstly charged for being in possession of 1035 kgs. of ganja which was a commercial quantity, in contravention of provisions of section 20(C) of the NDPS Act and, alternatively, they have been charged for having committed an offence punishable under section 25 of the NDPS Act, 1985 for having control over their residence and being the owners and occupiers, allowing the house to be used for storing 1035 kgs. of ganja. 10 8. For the purpose of establishing the case under section 25 of the NDPS Act, it is necessary to prove that the accused had knowledge that the said premises were used for the purpose of storing psychotropic drug or substance. It would be fruitful to have a look at the provisions of section 25 of the NDPS Act, which reads as under :- "Section 25. Punishment for allowing premises, etc., to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence." Perusal of the aforesaid provision clearly reveals that the burden of establishing knowledge on the part of the appellants is on the prosecution. In order to prove that the accused had knowledge that their premises was being used for the purpose of storage of 11 narcotic drug or substance, some material has to be brought on record to establish this fact. Secondly, so far as the first charge is concerned, prosecution has to establish that the appellants were in conscious possession of the said contraband of 1035 kgs of ganja. In the light of aforesaid provision, it will have to be seen whether the prosecution has established its case beyond reasonable doubt. 9. It is an admitted position that the premises in question was found to be locked and P.W.1 in his evidence has stated that they had to call for key maker to open the lock. This fact which has been stated by P.W.1 in his evidence is also revealed from the panchanama which has been proved by P.W.1. Once it has been held that the premises was locked and that the appellants were not in the house or the premises from where the contraband was allegedly recovered, it has to be shown by the prosecution that the appellants were aware or had knowledge that the said contraband was stored in those premises. In the present case, the entire manner in which the investigation had been carried out by the Investigating Agency creates a serious doubt about the veracity of the statement made by P.W.4 - 12 Investigating Officer and the complainant P.W.1. There is some substance in the submissions made by the learned Senior Counsel appearing on behalf of the appellants. It appears that certain vital portion of the statements made by the complainant P.W.1 in his evidence is not reflected in the FIR which is in the prescribed form and which is at Exhibit-51. It is no doubt true that the statement of the complainant which is recorded initially and the FIR which is recorded in the prescribed form may not be in identical terms. However, it is expected that when the FIR is recorded in the prescribed form, there should not be any inconsistency in the said two statements. In the present case, defence has succeeded in bringing on record 8 omissions in the FIR which is at Exhibit-18 and the FIR which is in the prescribed form at Exhibit-51. Certain crucial facts have not been incorporated in Exhibit-51. These facts pertain to the information which was received by the complainant from Mr. Anil Jagtap, P.I., presence of P.I. - K.V. Jadhav, ACP Mr. Thorat and other officers at the time of raid, the procedure of sealing which was undertaken after the contraband was seized and the fact that officers from LCB and Dindori Police Station having informed the complainant that the similar raid had been 13 carried on the land owned by Mr. Mohamad at Dindori where the bags containing contraband-ganja were also seized. All this vital information which is at Exhibit-18, surprisingly, does not find place in the FIR which is recorded in the prescribed form and which is at Exhibit-51. It is pertinent to note that the learned Special Judge gave an opportunity to the complainant to explain as to how this discrepancy had occurred in the said two vital documents. The only explanation which is given by P.W.1 - Pratap Patil is that the scribe who took down the FIR at Exhibit- 51 did not scribe certain paragraphs from Exhibit-18. Though this is a very serious lapse on the part of the Investigating Agency, Trial Court has discarded this discrepancy by merely saying that there is bound to be some difference in the statement of the complainant which is initially recorded and the statement which is found in the FIR in the prescribed form. In my view, this is a strong circumstance which indicates that the entire basis on which the investigation of the case had commenced itself is based on a foundation which is very weak. Trial Court, in my view, therefore, was not justified in discarding this discrepancy for the reasons stated in the judgment. This impression is fortified by the fact that none of those persons who were present 14 at the time of conduction of the raid as mentioned in Exhibit-18 was ever examined. The person who has given report viz. P.I. Mr. Jagtap has not been examined. Similarly, ACP - Thorat and other Officers of LCB and Dindori Police Station have not been examined by the prosecution. No explanation has been given as to why these witnesses though they were very relevant for the purpose of corroboration of the prosecution case were not examined. After the first panch witness turned hostile, the prosecution did not examine the other panch witness to establish seizure of the contraband. When the prosecution had chosen not to examine any other independent witness from the neighbouring locality and since, admittedly, the premises was situated in a crowded locality, the least that the prosecution could have done was to examine the other panch witness, after the first panch witness had turned hostile. Therefore, non-examination of other panch witness also creates doubt about seizure of the contraband from the said premises and an adverse inference, therefore, has to be drawn against the prosecution that the said panch witness was not examined because, possibly, he would not have supported the prosecution case. Quite surprisingly neither P.W.1 nor the panch witness or Investigating Officer have stated that 15 they had identified the contraband in the Court. Prosecution case, therefore, in the first place, of seizure of the contraband from the premises in question appears to be doubtful. The first charge, therefore, in any case, has not been established by the prosecution. 10. So far as the second alternative charge is concerned, it has been established by the defence witness accused No.2 - Meharunissa the appellant in Criminal Appeal No.586 of 2008, that she had given the said premises on rent and a regular document has been executed on a stamp paper which was purchased in the name of the tenant. No attempt had been made by the Investigating Officer to find out whereabouts of this tenant who was allegedly in possession of the said room. A suggestion has been made that a case under NDPS Act is pending against the said tenant Shri Sanchin Chaudhary. Trial Court, in my view, has erred in discarding the evidence of the appellant - Meharunissa merely on conjecture and surmise that the said document appears to be a got up document. In my view, the appellant - Meharunissa has clearly brought on record a document which indicates that she was not in possession of the 16 said room. Trial Court has attributed knowledge to the appellants only on conjecture that being the residents of the ground and first floor, it is improbable that they would not have known if huge quantity of ganja contained in gunny bags was taken to the terrace. In my view, the inference which is drawn by the learned Special Judge is incorrect and the burden is on the prosecution to establish that the owner of the premises had knowledge about the said premises being used for storing contraband drug. The aforesaid circumstances clearly establish that the appellants did not have any knowledge about the fact that the said room was used for storing contraband drug. Firstly, accused - Meharunissa had entered into lawful agreement with Sachin Chaudhary and gave the said premises on rent three months prior to the said incident. Secondly, the said premises was locked and this fact has been admitted by the complainant P.W.1 and P.W. 4 - Investigating Officer and, thirdly, Meharunissa, in her evidence, has stated that she was not in town which fact also has been established from the fact that they had surrendered before the Dindori Police Station. Prosecution, therefore, in my view, has completely failed in establishing that the appellants were either occupying the said premises or had 17 knowledge that the said premises was being used for the purpose of storing contraband - drug. So far as the appellant Mohamad is concerned, it is an admitted position that he is not the owner of the premises or occupier of the premises. Provisions of section 25 of NDPS Act, therefore, are not attracted so far as the appellant Mohamad is concerned. Taking an over all view of the matter, appellants are entitled to get benefit of doubt and, therefore they will have to be acquitted of the offence with which they are charged. The judgment and order of the Trial Court, therefore, will have to be set aside and the appeals will have to be allowed. 11. Accordingly, the following order is passed :- O R D E R Both the appeals are allowed. The judgment and order of the Trial Court is set aside. Appellants are acquitted of the offences with which they are charged. Appellants be released forthwith unless they are required in any other case. The fine amount deposited by the appellants be returned to the appellants. Since both these appeals are allowed and disposed of, Criminal Application No.728 of 2008 in Criminal Appeal 18 No.586 of 2008 does not survive and the same is accordingly disposed of. (V.M. KANADE, J.)