(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 31 OF 2001 Satnamsingh s/o. Gurudayal Singh Sodi, Age : 45 years, Occupation : Jathedar, .. Appellant R/o. Gurudwara, Nanded. (Original accused) versus The State of Maharashtra, Through Police Station, Vazirabad, Nanded. .. Respondent. ....................... Mr. A.H. Kapadia, Advocate, for the appellant. Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. Date of reserving the judgment : 1st August 2011. Date of pronouncing the judgment : 12th August 2011. (2) JUDGMENT : 1. Heard learned Counsel for the parties. 2. Challenge in the present appeal is to the conviction and sentence imposed upon the appellant (original accused), by way of judgment and order dated 27th December 2000, rendered by the learned Sessions Judge & Special Judge, Nanded, in Special Case (NDPS) No. 24/1998, thereby convicting the appellant for the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985, for the alleged unlawful possession of 685 gms. opium, and sentencing him to undergo rigorous imprisonment for term of 12 years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine, to suffer rigorous imprisonment for two years more. 3. The factual matrix of the prosecution case is, that Police Constable Sudhir Khodve (PW 1), B. No. 1807, who was attached to Vajirabad Police Station, Nanded, at the relevant time, received a secret information on 13th May 1998, that the accused, namely, Satnamsing Sodi, was dealing in sale of contraband article i.e. opium at his residential house which was situated at Sainagar, Naginaghat Road, at Nanded. Accordingly, he submitted written report to that effect to Home Deputy (3) Superintendent of Police, Shri Kadam, briefly giving nature of the information received by him and requested to grant permission to carry out raid at the house of the accused. Accordingly, in pursuance of the said report, Home Dy.S.P., Shri Kadam, directed Probationer Dy.S.P. Shri Sanjay Bannerjee (PW 2) to attend the raid and to accompany with the Police party for the search and seizure, as well as, he directed Police Constable Surjeetsingh to attend and participate in the raid. Accordingly, Probationer Dy.S.P. Shri Sanjay Bannerjee (PW 2), along with Police Constable Sudhir Khodve (PW 1) and Police Constable Surjeetsingh arrived at Vajirabad Police Station and handed over the letter of permission issued by Home Dy.S.P. Shri Kadam, to Police Station Officer and requested him to give more staff and also asked him to call Panch. Accordingly, two Panchas were called and they were informed about purpose of the raid. 4. Thereafter, at about 15.00 hours, Police Constable Surjeetsingh Bongai, Sudhir Khodve (PW 1), Dy.S.P. Sanjay Bannerjee, and other Police staff along with 2 Panchas proceeded to Naginaghat area towards house of the accused by Police jeep and reached there at about 15.15 hours, since Sudhir Khodve (PW 1) was knowing the said residential house due to his previous information and since he was attached to Vajirabad Police Station since last 4 - 5 years. After reaching the said (4) house, they found that there was a small iron gate which was opened by them and called the accused by his name, who arrived in front of the house. Accordingly, the Police personnel apprised him about their purpose of the visit and to conduct the search of his house in pursuance of secret information regarding unlawful possession of opium which he used to sell. The Police personnel also asked him, whether presence of Special Executive Magistrate was required for the search, but thereto he replied that it was not necessary. Accordingly, members of the raiding party and Panchas offered their personal searches to the accused, if he wanted, but he declined to take personal searches of the members of the raiding party. Thereafter, members of the raiding party and Panchas entered into his house and found that there was one wooden almira, in the front room which was one of the parts of that house and in the side rooms, his father used to reside. In the front room, wooden almira was kept close to the wall and it was chained without having any lock. Accordingly, the said almira was opened in the presence of Panchas and it was searched and in the lower compartment thereof, there was polythene bag containing 47 small packets, and each of them contained small quantity of opium, as well as, two other sachets having more quantity in each of them of opium. The small quantity in each of the 47 packets was approximately of 9 gms. and one of the sachets contained 82 gms and another sachet contained 180 gms (5) of opium, thus totalling 685 gms. opium was found in the said almira, since the said opium was weighed by calling a shopkeeper, namely, Shri Mange, along with weighing scale and weights. Thereafter, three samples of 10 gms. each were separated and were packed in three separate packets, and the said sample packets were affixed with the Lakh seals of the Police Station and the said sample packets were labelled with the signatures of Panchas. Accordingly, Dy.S.P. Sanjay Bannerjee (PW 2) prepared the detail seizure panchanama and seized the same sample packets, as well as, remaining stock of opium thereunder, and the accused was taken into custody and the Police personnel and Panchas returned back to Vajirabad Police Station along with the accused and seized articles. Police Constable Surjitsingh Boongai lodged FIR under Crime No. 6029/98, at the Police Station, which is at Exhibit 55, and the Muddemal property including sealed sample packets were handed over to the Muddemal Clerk who deposited the same in Muddemal store room. 5. Moreover, P.S.I. Shankar Mali (PW 10) was attached to Vajirabad Police Station at the relevant time and who was on duty on 13-5-1998 and he took entry in the station diary in respect of search and seizure and assumed investigation of the said matter. Accordingly, he recorded statements of Police (6) Constable Sudhir Khodve (PW 1) and other members of the raiding party including Dharamsingh Mange (PW 4) who had weighed the said opium. He also deputed Police Constable Rathod (B.No. 1620) i.e. carrier, and the sealed sample packets were handed over to him who carried the same and delivered to Assistant Chemical Analyser at Aurangabad, along with the forwarding letter Exhibit 53, dated 13-5-1998, on the same day. Accused was put under the arrest, and P.S.I. Shankar Mali (PW 10) also prepared the report in respect of search, seizure and arrest of the accused and forwarded the same to the Superintendent of Police, Nanded, on the day of raid itself and office copy thereof is produced at Exhibit 61. Pursuant to the said forwarding letter, Chemical Analyser's report was received, dated 13-7-1998, which disclosed opium containing 4.40 % morphine, which is produced at Exhibit 62. Accordingly, after completion of investigation, charge sheet was filed against the accused for the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985. 6. Thereafter, learned Sessions Judge & Special Judge, Nanded, framed charge against the accused on 20-8-1999 at Exhibit 17, for the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, but the accused pleaded not guilty to the said charge and claimed to be tried. (7) 7. To substantiate the charge levelled against the accused, the prosecution examined as many as 10 witnesses, as mentioned below : (1) P.C., Sudhir Khodve (PW 1) - To whom authorization was given for the raid. (2) Dy.S.P. Sanjay Bannerjee - Probationer Dy.S.P. who (PW 2) prepared seizure panchanama Exhibit 34. (3) Satwantsingh Hundal - Panch to seizure panchanama (PW 3) (Turned hostile) (4) Dharamsingh Mange - Shopkeeper who brought (PW 4) weighing scale and weights. (5) PHC Kanthiram Bokare - Muddemal Clerk. (PW 5) (6) Dy.S.P. Rajaram Kadam - Who granted permission to (PW 6) effect raid (Exhibit 32 and Exhibit 50) (7) Diwansingh Ladad - Panch to seizure panchanama (PW 7) (Turned hostile) (8) PC, Sudhakar Rathod - Carrier. (PW 8) (8) (9) PHC, Surjeetsingh - Who accompanied with the Boongai (PW 9) raiding party and lodged FIR Exhibit 55. (10) PSI, Shankar Mali - Investigating Officer (PW 10) 8. The defence of the accused was of total denial and the main pivot of his defence is that he used to reside in the premises owned by Gurudwara because he is an employee of Gurudwara, and that he was not residing at the house in question. He categorically denied that he was in conscious possession of contraband opium. He also denied his presence in the house during the course of search and seizure. Accordingly, he claimed to be innocent contending that he has been implicated in the present case falsely. 9. After considering the oral and documentary evidence, as well as evidence of Chemical Analyser's office, and after considering rival submissions advanced by the learned Counsel for parties, learned trial court convicted and sentenced the appellant as afore stated. 10. Being aggrieved and dissatisfied by the said order of conviction and sentence, the appellant (original accused) has (9) preferred the present appeal challenging the same and prayed for quashment thereof. 11. Before adverting to the submissions advanced by the learned Counsel for parties, it is necessary to deal with the material evidence adduced and produced by the prosecution, and coming to the evidence of prime witness of the prosecution i.e. Sudhir Khodve (PW 1), who has stated that he was attached to Vajirabad Police Station at Nanded in May 1998, and on 13-5-1998, he had received secret information to the effect that one Satnamsing Gurudayalsing Sodi was dealing in sale of contraband opium at his residential house, and he came to know that the said house is situated at Sainagar, Naginaghat Road, Nanded. Accordingly, he gave the said information to Home Dy.S.P. Shri Kadam i.e. PW 6 in writing and also gave a report requesting permission to effect raid on the house of the said accused. Thus, permission to carry out the raid was accorded to him by Rajaram Kadam (PW 6) and he also directed the Probationer Dy.S.P. Sanjay Bannerjee (PW 2) to attend the said raid by accompanying with the raiding party, and the said report is produced at Exhibit 32. Thereafter, he himself, Dy.S.P. Sanjay Bannerjee (PW 2) and Police Constable Surjeetsingh came to Vajirabad Police Station and showed the permission to Police Station Officer i.e. P.S.I. Shankar Mali (PW 10), and requested (10) him to give staff members for the raid. Moreover, two Panchas were called and accordingly, at about 15.00 hours, Police Head Constable Surjeetsingh Bongai (PW 9), he himself, Probationer Dy.S.P. Sanjay Bannerjee (PW 2) and other Police staff along with Panchas proceeded to Naginaghat area by jeep, and they reached at the house of the accused at about 15.15 hours, since Sudhir Khodve (PW 1) was knowing his residential house due to his previous information and as he was attached to Vajirabad Police Station for the last about 4 - 5 years. He has stated that, after reaching the said house, there was a small iron gate to the house, and they opened the same and called the accused by name, and in response, he came in front of the house. Probationer Dy.S.P. Sanjay Bannerjee (PW 2) disclosed him about the purpose of their visit, that they desired to search his house in pursuance of receipt of secret information about possession of opium which he used to sell. Moreover, the accused was also asked whether Special Executive Magistrate was needed for the search, but the accused declined therefor. Thereafter, members of the raiding party offered their personal searches to the accused, but he declined to take the same. Thereafter, members of the raiding party and Panchas entered into his house and found one wooden almira in front of the room and it was chained without having any lock. The Police personnel opened the said almira in the presence of Panchas and found polythene bag containing 47 (11) small packets in the lower compartment thereof, and each of the said packets contained small quantity of opium, as well as, there were two other sachets having more quantity in each of them of opium. The small quantity in each of the 47 packets was approximately 9 gms. and one of the sachets contained 82 gms of opium, while another sachet contained 180 gms of opium, thus, totalling 685 gms of opium was found stored in the said almira. 12. Sudhir Khodve (PW 1) has further stated that the Probationer Dy.S.P. Sanjay Bannerjee (PW 2) deputed a Police Constable and called shopkeeper, namely, Dharamsingh Mange (PW 4) along with the weighing scale and weights, and thereafter opium contained in each packet was weighed by Dharamsing Mange (PW 4). Moreover, samples of 10 gms. each were collected in three separate sample packets and those sample packets were sealed and were signed by Panchas. So also, Probationer Dy.S.P. Sanjay Bannerjee (PW 2) prepared seizure panchanama and got sealed the stock of opium. Accordingly, accused was taken into custody and thereafter members of the raiding party returned to the Police Station along with the Panchas, accused and seized articles, and after arriving at the Police Station, Police Head Constable Surjeetsingh Boongai (PW 9) lodged complaint against the accused which was treated as FIR marked as Exhibit 55. (12) 13. During cross examination, Sudhir Khodve (PW 1) has admitted that he did not note down in writing the information received by him for his personal record, as well as, in application Exhibit 32, he did not mention date due to inadvertence. He also admitted that he did not disclose the information to P.S.I. or P.I. of Vajirabad Police Station i.e. his immediate official superiors, before permission was granted. He has also stated that the accused was having 4 - 5 brothers and there were not 6 - 7 rooms adjacent to the entrance gate on southern side, and at that time, excluding the front room, there were other two rooms on either side of the front room. He has further stated that the accused came out of the house from the middle i.e. front room when he was called. He has also stated that he did not see whether the room was given any number. He has also stated that he does not know whether brothers of the accused were residing in the same room. He has further stated that the women members and children were also present in the said house when the members of the raiding party visited the said house. 14. Moreover, case of the accused was put up before Sudhir Khodve (PW 1) during cross examination, and he stated that he does not know whether accused is "Jatthedar" of Chaoni. He has also stated that he does not know whether he resides in (13) that Chaoni due to his position as "Jatthedar", and he did not talk with the accused during last four years and prior to the incident. He has further stated that he personally went and called Dharamsingh Mange (PW 4), shopkeeper, along with weighing scale, who runs General Stores at Vajirabad, and to cover the distance between Naginaghat and his shop, 5 - 10 minutes are required, and to cover the distance between Police Station and his shop, 2 minutes are required. He has further stated that there were shops and houses around the place where the raid was effected. He has also stated that He did not try to collect weighing scale from nearby shop because he was not sure that traders in that locality would help him, and he was knowing Shri Munge since he used to purchase articles from him on account of proximity. A suggestion was given to him, that the accused was not concerned with the house which was searched on the relevant day, but the same was denied by him. It was also suggested to him that raid was carried out without legal authority, but the same also was denied by him. A suggestion was also given to him, that the Police party members fabricated false case against him, but the same was denied by him. 15. Coming to the evidence of Sanjay Bannerjee (PW 2), Probationer Dy.S.P., who has stated that he was Probationer Dy.S.P. at Nanded in the month of May 1998 and on 13-5-1998, (14) he was directed by Home Dy.S.P., Nanded, to accompany the members of the raiding party to conduct the raid on the basis of the report submitted by Sudhir Khodve (PW 1), and he was also directed to carry out the search and seizure of the house situated at Naginaghat Road, Nanded i.e. the house of the accused, namely, Satnamsingh, as per said information. Accordingly, he stated that he along with Police Constables went to Vajirabad Police Station, and the station diary entry was made regarding the permission granted by Home Dy.S.P. for the search. The Panchas were called and they were informed the purpose to carry out the raid, and at about 3.00 p.m., he along with members of raiding party proceeded from Vajirabad Police Station towards Naginaghat by jeep and reached there by 3.15 p.m. He has also stated that after reaching the said place, they found that entrance of the house was of iron gate and same was opened and thereafter knocked door of the front room, and thereupon, accused Satnamsingh came out of the room. Sanjay Bannerjee (PW 2) was in civil dress and he disclosed his identity to the accused and informed that they intended to carry out search of the house. He also informed him that if he so desire, then presence of Special Executive Magistrate can be secured, but he declined to exercise the said option. Thereafter, Sanjay Bannerjee (PW 2) offered his personal search, as well as, personal searches of the members of the raiding party, but he refused to take the said searches. (15) 16. Sanjay Bannerjee (PW 2) has further stated that thereafter they entered into the room and found that there was one wooden cupboard on the right side of the room and the same was in open condition. There was a polythene bag in the said cupboard which contained small packets and there were two other sachets in the same. The small packets contained approximately 9 gms of opium, whereas one of the larger sachets contained 180 gms. of opium and another packet contained 82 gms. of opium. Sanjay Bannerjee (PW 2) deputed one Police Constable and brought weighing scale from Dharamsingh Mange (PW 4). Accordingly, detail seizure panchanama was prepared by Sanjay Bannerjee (PW 2) which is at Exhibit 34. Moreover, he prepared 3 sample packets by removing 10 gms. of opium each, one from the larger sachet, second from another sachet and third from small packets (Pudis), and the said sample packets were sealed by affixing Lakh and the same were labelled with the signature of Panchas. Thereafter, members of the raiding party along with Sanjay Bannerjee (PW 2) returned to Vajirabad Police Station together with the accused and Muddemal articles. Accordingly, Police Head Constable Surjeetsingh Boongai (PW 9) lodged FIR which is at Exhibit 55, and Muddemal articles were deposited in Muddemal store room. (16) 17. In the cross examination, Sanjay Bannerjee (PW 2) had admitted that Panchanama was scribed by Police Constable and not by him, and also stated that he does not remember name of the said Police Constable. He has admitted that the panchanama does not disclose that he personally informed the accused about intention to search the house. He has also stated that at the relevant period, no special charge was given to him for any particular assignment at the Police Station. He has further admitted that he did not obtain any written acknowledgment from the accused regarding option given to him in respect of presence of Special Executive Magistrate or personal searches offered by them. He has also admitted that he was not having seal because he was under training. He has further stated that he did not call Panchas personally, but they were already called at the Police Station. 18. That takes me to the testimony of Rajaram Kadam (PW 6), Retired Dy.S.P., who has deposed in his deposition that he was attached to Police headquarter at Nanded as Home Dy.S.P. at the relevant time and on 13-5-1998, and while he was on duty at his office, Sanjay Khodve (PW 1) came to the office and gave him an application seeking permission to carry out raid at the house of accused Santnamsingh Gurudayalsingh because a secret information was received to the effect that he was deling in (17) contraband substances of narcotic, and hence, he directed him to carry out raid, and deputed Probationer Dy.S.P. Sanjay Bannerjee (PW 2) along with Police Head Constable Surjeetsingh Boongai (PW 9) and others. He has also stated that he gave such directions in writing and produced the letter to that effect at Exhibit 32. He has also stated that he gave written directions in his own writing and which is produced at Exhibit 50. He has further stated that he took necessary action orally about purpose of the raid and he satisfied himself for giving such permission. 19. During cross examination, Rajaram Kadam (PW 6) has admitted that the application of Police Constable Sudhir Khodve (PW 1) does not bear the date on top or below his signature, but it bears the date of receipt by him. He has also stated that on their own, Police Constable carried out raid of the house, and therefore, permission was given. He has further stated that he gave permission on the same letter and did not give any separate sanction order. A suggestion was given to him that he was not having authority to give permission, but the same was denied by him. It was also suggested to him that he did not properly appreciate the request letter and gave the permission, but same was also denied by him. 20. Turning to the deposition of Sudhakar Rathod (PW 8), (18) carrier, who has stated that he was attached to Vajirabad Police Station, Nanded, at the relevant time and was on duty on 14-5-1998, and he was given sealed sample packet in Crime No. 602/1998, for taking the same to the office of Assistant Chemical Analyser, Aurangabad. Accordingly, he took the said sealed packet from Head Constable Bokare along with forwarding letter in duplicate. Thereafter, he carried the said letter and sealed sample packet to the office of Assistant Chemical Analyser at Aurangabad, on 14-5-1998, and obtained acknowledgment of the concerned Clerk of the said office on O.C. and thereafter handed over said office copy to the P.S.O., and said O.C. is produced at Exhibit 53. 21. In the cross examination, Sudhakar Rathod (PW 8) has stated that there is seal on the forwarding letter, which also bears stamp of outward number. He has further stated that the acknowledgment was obtained on the same receipt of letter and no separate letter was received. A suggestion was given to him that he did not carry the sealed sample packet and handed over to Chemical Analyser's office at Aurangabad, but the same was denied by him. 22. That takes me to the testimony of complainant Police Head Constable Surjeetsingh Boongai (PW 9), who has stated (19) that he was attached to Vajirabad Police Station at the relevant time and was on duty on 13-5-1998, on which day, Sudhir Khodve (PW 1) received a secret information to the effect that accused was dealing with business of contraband opium and was keeping narcotic substance at his house situated at Naginaghat Road at Nanded. He has stated that accordingly, Sudhir Khodve (PW 1) discussed with him and thereafter both of them went to the office of Home Dy.S.P. at Police Headquarter and submitted written application to carry out the raid. In response,