1 Cri-A-5808-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 5808 OF 2010 Smt. Mehrunnisa Mohd. Pathan (presently in Judicial Custody) ... Applicant/accused No.6 Vs. State of Maharashtra ... Respondent/Complainant Mr. Shirish Gupte, Senior Counsel, i/b. Mr. Ayaz Khan,Advocate for the applicant. Mr.S.A.Shaikh, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 21st January, 2011. P.C. 1. The applicant seeks to be released on bail in Crime No.3036/2010 registered by Bhadrakali Police Station, Nashik under Section 8(c) read with Sections 20 and 29 of the N.D.P.S. Act. 2. Heard the learned Senior Counsel for the applicant and the learned APP for the State. 3. Prosecution case, in brief, is that the Police Inspector Mohan Mane along with staff from the Narcotic Control Bureau, Crime Branch, Mumbai, raided a place within the jurisdiction of Bhadrakali Police Station and seized 19 kgs. of 2 Cri-A-5808-10.sxw ganja from one Smt. Savita Ramesh Chaudhari. At that time, Inspector Mohan Mane came to know from said Savita Chaudhari that she had purchased ganja from one Chacha living in House No.3650, Juna Kathda, Samshan Bhumi Road, Near Dudari Masjid, Bhadrakali, Nashik. Inspector Mane conveyed this information to Police Inspector of Bhadrakali Police Station, who took entry of the same in the station diary and after informing his superior officer, raided the said house along with his staff and panchas. Mohd. Razak Pathan @ Chacha was not found in the house, though the house belongs to him, but four other persons were found in the house and in their presence, search of the different parts of the house was conducted. In all 89 bags containing 2418 kg. ganja were recovered. From each of the bag, sample was taken. The samples were duly wrapped in packets; labels bearing signatures of the panchas were affixed and they were sealed with the seal of the police station. About all this proceeding, a panchnama was prepared on the spot on 30.4.2010. On the same day, Police Sub-Inspector Devidas Kungar, who was member of the raiding party, lodged FIR on the basis of which, offence came to be registered. As per the FIR, the house was in occupation and possession of Mohd. Razak Pathan @ Chacha and his wife Mehrunnisa, who is applicant before this Court, but both of them were not present in the house. The sealed sample packets and other property were deposited with the Police Station. On 5.5.2010 the sample packets were sent to C.A. along with the 3 Cri-A-5808-10.sxw covering letter through a Police Constable. C.A. report dated 2.8.2010 was received showing that ganja was detected in each of the 89 samples. The present applicant was arrested on 1.5.2010. Investigation is completed and charge-sheet is filed. 4. Learned Senior Counsel contended that the description of the property, which was seized from the said house, does not conform to the definition of ganja because as per the said panchnama the property contained leaves, stems and seeds. The learned Counsel contended that as per definition in Sec. 2(iii)(b), ganja, mean the flowering of fruiting tops of the cannabis plant excluding the seeds and leaves when not accompanied by the tops. If only seeds and leaves are found, they are not included in ganja, but if the seeds and leaves are found along with flowering of fruiting tops, they are included in ganja and to support this argument, the learned Counsel placed reliance upon Sunil and Ors. vs. State Manu/HP/0424/2009, a Judgment from Himachal Pradesh High Court. There can be no dispute about this legal proposition. On the basis of this, the learned Counsel contended that because the panchnama and the FIR do not show that the flowering of the fruiting tops were found, it must be held that what was seized was not ganja. It is true that in the panchnama and the FIR there is no mention of flowering of fruiting tops. The police officer described the property as the 4 Cri-A-5808-10.sxw property containing leaves, stem or seeds. However, the panchnama also shows that at the spot from each bag sample was collected and all those samples were duly labelled and sealed. The record also reveals that the said samples along with the remaining property were deposited with the in charge of the property room at the police station on the same day. On 5.5.2010, samples were sent to C.A. along with a covering letter. The C.A. report shows that samples were received with a covering letter with seals intact. Prima facie, it shows that samples as collected from the said packets at the spot were received by the C.A. and the C.A. reported that ganja was detected in each of the said 89 samples. 5. Besides the rubber stamp of the police station in Marathi indicating that the said letter was being sent by the Bhadrakali Police Station, on the said letter there are two specimen impressions of seal of the Police Sub-inspector of the Police Station. Inspector Bhosale was the Senior Inspector at the relevant time and he was in charge of the police station. The learned Senior Counsel contended that covering letter did not bear specimen of the seal of Senior Inspector of the Police Station and therefore it must be held that samples were not properly sealed and that Section 55 was not complied. The learned APP, on instructions from PI K.D.Ghodke states that earlier the Bhadrakali Police Station was headed by an officer of the rank of Sub-Inspector and that the old seal of the police station has 5 Cri-A-5808-10.sxw been used. On the covering letter, there appears specimen of the seal of the Police Sub-Inspector of Bhadrakali Police Station. Whether the seal was the same seal which was used for sealing material and whether it was the seal of the Station House Officer of the Police Station as required under Section 55 of the NDPS Act can be examined only at the time of trial. In view of this material, at this stage, it is difficult to come to conclusion that the samples were not properly sealed or that Sec. 55 was not properly complied and for the same reason, at this stage, it cannot be presumed that the samples were tampered before they were deposited with the office of C.A. 6. The learned Senior Counsel also contended that as per Section 42, the officer receiving information about commission of a crime under the NDPS Act has to note down and inform his superior officer. In the present case, as per the station diary entry and also as per the contents of FIR, Police Inspector Mohan Mane of Narcotic Bureau, during raid and seizure of ganja from one Savita Chaudhary got information from her that she had purchased ganja from Chacha in the particular house. This information was communicated by Inspector Bhosle to his superior and then he arranged the raid and seized the ganja. From the police papers, prima facie, it appears that Sec. 42 was applied by Police Inspector Bhosle. However, the learned Senior Counsel contended that there is no material 6 Cri-A-5808-10.sxw to show that Inspector Mohan Mane had complied with Sec. 42. As far as Inspector Mohan Mane is concerned, it appears that he had received the information about ganja before proceeding to Nashik for search and seizure from Smt. Savita Chaudhari. About that seizure a separate case has been registered. Whether Inspector Mohan Mane had recorded that information and communicated that information to his superior or not can be examined in that case. As far as information about this case is concerned, Inspector Mohan Mane allegedly got information from Savita Chaudhary at the time of seizure and he immediately communicated the same to Inspector Bhosle of Bhadakali Police Station having jurisdicion over the area. Inspector Mohan Mane did not undertake the search and seizure from the house of the accused. As soon as he got information from Savita Chaudhari, he communicated the same to the concerned police officer. Inspector Bhosle got the information pertainig this case and he appears to have complied the mandatory provisions of Sec. 42. Whether in fact the provisions were strictly complied or not can be examined at the time of trial. 7. The learned Counsel contended that if there is non-compliance of the mandatory provisions of law on that ground itself appeal can be granted and therefore that aspect needs to be considered at the time of deciding the bail application. In this respect, he is supported by the Judgment of the Supreme Court 7 Cri-A-5808-10.sxw in Sarija Banu vs. State 2004 Drugs Cases (Narcotics) 119. He also placed reliance upon the Directorate of Revenue and another vs. Mohammed Nisar Holia (2008) 1 SCC (Cri) 415 which was an appeal against acquittal by the High Court after conviction by the trial Court. In para 19, the Supreme Court reiterated the legal position that if the statutory requirements of the mandatory provisions are not complied with, the benefit will go to the accused. In the present case, at least, at this stage, prima facie, it is difficult to come to conclusion that mandatory provisions of law were not complied. 8. The learned Senior Counsel vehemently contended that even though the present applicant is wife of Mohd. Razak Pathan @ Chacha, she cannot be held to be in conscious possession of the said property because the house belongs to her husband and her husband might be in possession of the same. If it would be a small quantity, hidden in some part of the house, possibly, it could be said that the present applicant was not aware about the same, but the spot panchnama shows that in all 89 bags containing 2418 kgs. of ganja were recovered from three rooms of the house, practically these rooms must be full with gunny bags containing ganja. Therefore, it is difficult to accept the contention that the present applicant was not in possession or in conscious possession. Taking into consideration all the facts and circumstances and the huge quantity of ganja, it is 8 Cri-A-5808-10.sxw not a fit case to grant bail. 9. Therefore, the application stands rejected. However, as the applicant is woman aged about 60 years, the trial Court shall expedite the hearing of the case and decide the same preferably within six months. (J.H.BHATIA,J.)