1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 155 OF 2008 Subhash s/o Govind Dhadge, age 51 years, occ. Agriculture, r/o Nagar Devale, Taluka Nagar, District Ahmednagar ..Appellant VERSUS The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav, advocate for the appellant Shri K.J.Ghute Patil, APP for the respondent/State ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 04.2.2010 DATE OF PRONOUNCING THE JUDGMENT : .2.2010 JUDGMENT : (Per Shrihari P. Davare, J.) 1 This appeal is directed against the judgment and order dated 17.3.2008 rendered by learned Adhoc District Judge-1 and Additional Sessions Judge, Ahmednagar, in 2 Sessions Case No. 165 of 2006 convicting the accused for the offence punishable under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to suffer R.I. for the period of 15 years and to pay a fine o Rs. Two Lakhs with default condition for non-payment of fine to suffer simple imprisonment for one year, questioning the correctness and legality thereof and requesting the quashment thereof. 2 The factual matrix of the prosecution case can be summarised as under :- The alleged incident occurred on 21.6.2006 at about 7.00 a.m. at the house allegedly of the accused situated at Nagardeola Shivar near Kapurwadi Tank, Taluka Nagar, District Ahmednagar. On the said day, PW8 Devidas Sonwane was on combing operation duty in Mukundnagar area of Ahmednagar and PW9 Prakash Shinde, PW10 API Tatyasaheb Bhojane, Police Head Constable Nana Shirke and Police Constable Garje and other police staff were along with him at that time. It is alleged that at about 6.00 a.m., PW8 P.I., L.C.B. Sonwane received an information that one person namely Subhash Govind Dhadge i.e. accused herein resident 3 of Nagardeola Shivar, Dhadgevasti near Kapurwadi Percolation tank was selling ganja by storing the same in his house there. Accordingly, the said information was reduced into writing (Exh. 54) and PW8 P.I. Sonwane informed to his superior officer Deputy Superintendent of Police Beldar about receipt of the said information and obtained permission to effect the raid (Exh.53). Station diary entry was made byPW4 Head Constable Pawar in respect of said raid (Exh.36). Two panchas were called, as well as PW3 photographer Rajesh was called and members of the raiding party and panchas and photographer gave searches to each other and nothing was found with each other. Necessary formalities were observed and the members of the raiding party, panchas and photographer left the Bhingar Camp police station at 6.45 a.m. and went to Dhadgevasti via Kapurwadi Tank and arrived at the house and found that one person was present in Padvi in front of the said house wearing pyjama. PW8 P.I. Sonwane asked his name and address, who disclosed his name as Subhash Gonind Dhadge resident of Dhadgevasti i.e. accused herein. PW8 P.I. Sonwane introduced himself to him as well as introduced members of raiding party and panchas to him and disclosed about receipt of information that he possesses ganja and they wanted to take his personal search and search of his 4 house. He further stated that PW8 P.I. Sonwane himself was a Gazetted Officer and Special Executive Magistrate, L.C.B. and asked him whether he wanted the search to be carried out by any other Gazetted Officer, to which he declined. Members of the raiding party confirmed that he was the same person as per received information and they effected raid at about 7.10 a.m and the police personnel gave their identity to them and informed object of their arrival there and asked him whether he wanted his search to be taken before Gazetted Officer, but he declined therefor and permitted to take search of his house. The members of the raiding party also asked him to take search of the members of raiding party, but he refused therefor. 3 It is also the case of prosecution that thereafter the members of the raiding party entered into the house and found Malocha in his house and there was space leading to said Malocha and PW9 PSI Shinde peeped into the said space standing on a cot and noticed that 15 to 20 boxes were lying on Malocha. Hence, members of the raiding party took down those boxes and found in all 19 boxes. The photographer took the photographs of the events, which took place at the said house. The members of the raiding party found in all 236 5 kgs. and 100 gram dry ganja in polythene bags and nylon rope in the said boxes including the weight of the boxes and there was net ganja of 235 kgs. Thereafter members of raiding party separated two samples of 1 kg. Each for sending the same for chemical analysis and the said samples were packed and lebelled in presence of panchas and said boxes were sealed with the seal of L.C.B., as well as the remaining quantity of ganja was packed and lebelled in presence of panchas and said packet was sealed, as well as nylon rope and polythene bag was also taken charge of. 4 Thereafter PW8 P.I. Sonwane took the personal search of the said person and found the amount of Rs. 26,100/- in his possession and two mobile sets of Samsung and Indicom Company. They also found one scale i.e. Tankata as well as found one account book in the name of accused of Ahmednagar District Central Cooperative Bank, Branch Bhingar, Ahmednagar bearing account no. 7961 having photographs under the mattress on the cot. The memembers of the raiding party seized those articles in presence of panchas. The photographer PW3 Rajesh took the photographs of the said events. The afore said articles were seized under the panchanama Exh.56 and signature of the accused was 6 obtained thereon and copy of the said panchanama was delivered to him. PW8 P.I. Sonwane took the custody of the accused. 5 Since the offence was committed under the jurisdiction of Bhingar Camp police station and since PW10 P.I. Bhojane was incharge of the said police station and since he also was present along with the raiding party at the relevant time, the custody of muddemal property and accused was handed over to PW10 P.I. Bhojane. Accordingly PW9 PSI Prakash Shinde lodged the deailed report about the incident to Bhingar Camp police station and his statement was recorded at Exh.71. 6 Thereafter further investigation was carried out by PW10 Bhojane, who was attached to Bhingar police station as A.P.I. at the relevant time and he received all the papers along with muddemal property and he deposited the muddemal property with concerned Clerk of police station by preparing receipt to that effect. He also recorded statements of witnesses and arrested the accused under the arrest panchanama Exh.75. Thereafter on 27.6.2006 he sent 1 kg. Sample of ganja to the office of Chemical Analyser, Nasik 7 through Head Constable PW6 Vilas Khatol along with forwarding letter Exh.50. On 2.8.2006 PW10 A.P.I. Bhojane received the report regarding chemical analysis. Accordingly, after completion of investigation, PW10 A.P.I.Bhojane filed charge sheet against the accused. 7 Learned Additional Sessions Judge framed the charge against accused at Exh.10 for the offence punishable under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, “the N.D.P.S. Act”) and accused pleaded not guilty to the said charge. 8 To substantiate the charge levelled against the accused, the prosecution examined in as much as ten witnesses as mentioned below :- PW 1 Ashok Namdeo Dhavan, panch witness to seizure panchanama, turned hostile. PW2 Head Constable Nana Baburao Shirke, member of raiding party. PW3 Rajesh Raosahe Dudhe, photographer PW4 Sharad Gopal Pawar, who made station diary entry. 8 PW5 Shubhangi V. Kulkarni, Assistant Chemical Analyser. PW6 Head Constable Vilas Baburao Khatol, carrier. PW7 Sandeep Kardile, panch to panchanama regarding weighing of ganja, turned hostile. PW8 P.I. Devidas Baburao Sonwane, L.C.B. who received information and conducted the raid. PW9 PSI Prakash Shinde, complainant, who lodged the first information report Exh. 71. PW10 A.P.I. Tatyasaheb Mahadeo Bhojane, investigating officer. 9 The defence of the accused was of total denial and accused examined one defence witness i.e. his brother namely Madhukarj Govind Dhadge. Accordingly, the accused faced the trial for the afore said charge in Sessions Case No. 165 of 2006 and came to be convicted for the afore said charge and was sentenced to suffer above referred punishment and fine. Being aggrieved and dissatisfied by the said judgment and order, the appellant/accused has filed the present appeal and impugned the said judgment and order and prayed for quashment thereof. 10 Before adverting to the submissions advanced by 9 the learned counsel for the parties, it will be useful to scrutinize the material evidence adduced and produced by the parties and in the said context, coming to the deposition of PW8 P.I. Devidas Sonwane, he stated that on 21.6.2006 he was on combing duty in Mukundnagar area at Ahmednagar and PW9 P.S.I. Prakash Shinde, PW10 A.P.I. Bhojane, PW2 P.H.C. Shirke and other staff members were along with him and at about 6.00 a.m. He received an information that Suhash Govind Dhadge i.e. accused herein resident of Nagardevale Shivar, Dhadgevasti, near Kapuwadi percolation tank was selling ganga by storing the same in his house. Accordingly, he stated that he reduced the said information into writing (Exh.54) and made station diary entry to that effect at Exh. 55 and conveyed the said information to superior officer Dy.S.P. Beldar and obtained permission to effect the raid from the said superior officer vide letter Exh. 53. He further stated that accordingly he called panchas through P.C. Dahiphale and necessary formalities were observed and the members of raiding party and panchas proceeded to the afore said place referred in the information along with photographer PW3 Rajesh and arrived at Dhadgevasti through Kapurwadi tak and saw, one person in Padvi in front of the said house wearing pyjama and 10 confirmed his identity as well as members of raiding party disclosed their identity and also purpose of their arrival to him. 11 PW8 P.I. Devidas Sonwane further stated that further necessary formalities were observed in respect of search and seizure and conducted the searching of the house of the said person and found 19 boxes containing ganja weighing 235 kgs. At Malocha in the said house. The members of the raiding party separated 2 samples of 1 kg. Ganja each and the remaining quantity of ganja was packed, lebelled and sealed with L.C.B. seal in presence of panchas, as well as polythene bag and nylone rope were also seized under the seizure panchanama which was prepared at the said house (Exh.56). Moreover, the members of raiding party found one bank pass book as well as during personal search found cash of Rs.26100/- from the pocket of pyjama of accused as well as 2 mobile phones were found and same also were seized under the seizure panchanama (Exh.56). The photographer took the photos of above referred events. Moreover, copy of the said panchanama was handed over to accused and his signature was obtained thereon. 11 12 PW8 P.I. Devidas Sonwane further deposed that since the said offence was committed under the jurisdiction of Bhingar Camp police station and since PW10 A.P.I. Bhojane was incharge of said police station accompanying with members of raiding party, the custody of the muddemal property and the accused were handed over to A.P.I. Bhojane. PW9 P.S.I. Prakash Shinde lodged report about the afore said incident and same was treated as the first information report Exh. 71. 13 During the cross-examination, PW8 P.I. Devidas Sonwane stated that one Mr. Turekar was Home Dy. S.P. at the relevant time who was immediate superior of PW8 P.I. Devidas Sonwane, but he has not informed the Home Dy. S.P. about receipt of information to him. Hence, suggestion was given to him that he stated falsely that Dy. S.P. Beldar was his superior officer, but same was denied by him. He further stated that he had been to Bhingar Camp police station for making entry about receipt of such information in respect of alleged crime. He further admitted in the cross-examination that there is no photograph showing 19 boxes of muddemal property allegedly kept on Malocha of said house. He also admitted that there is no photograph of sealing of muddemal 12 property. He further admitted that there is no mention in the panchanama Exh. 56 and letter Exh. 55 about carrying polythene bag with them, as well as he admitted that there is no mention in Exh.55 and also in his statement recorded on 5.9.2006 that he had taken away seal of L.C.B. along with them while effecting the raid on the accused. He also stated that members of the raiding party used the seal of L.C.B. office on both the samples and he effected the raid in the capacity of P.I. of L.C.B. Office and he also further stated that office of L.C.B. And the office of Bhingar police station are independent offices. He also stated that he gave report, muddemal property and panchanama to PW10 A.P.I. Bhojane of Bhingar Camp police station for carrying out further investigation. However, he stated that he cannot say as to whether he was required to take the seal of concerned police station on the muddemal property while handing over the same to the concerned police station, although he was having detailed knowledge of the N.D.P.S. Act. Ultimately, he admitted that he has not obtained seal of Bhingar Camp police station including seal of concerned Muddemal Clerk on the muddemal property. He also admitted that after seizure of muddemal property, said muddemal property and the accused are required to be produced before the Magistrate. 13 He also stated that he has not obtained search and arrest warrant of the accused before effecting the raid on the accused. 14 PW8 P.I. Devidas Sonwane further stated in the cross-examination that there is no mention in the panchanama that they seized sample by affixing seal of L.C.B. as well as there is no mention in the panchanama that accused has shown his house as well as there is no mention in the panchanama that the said house was situated on the land by which he was not having Grampanchayat number, as well as there is no mention in the panchanama that PW8 P.I. Sonwane made inquiry of the said house of the accused, but he could not get it's Grampanchayat number. Suggestion was given to him that Padvi was not part and parcel of the said house, but same was denied y him. He also admitted in the cross-examination that the spot of offence has been shown in Survey No. 147, but he did not make inquiry about the owner of the said Survey Number. He further admitted that he has not personally produced the muddemal property and the accused before the Judicial Magistrate and Taluka Magistrate and he has not given report in writing to his senior officer. 14 15 That takes us to the deposition of PW9 P.S.I. Prakash Shinde, who also was one of the members of the raiding party and the complainant in the present case and has deposed in almost similar manner in respect of effecting raid as stated by PW8 P.I. Devidas Sonwane and further stated that after effecting raid, he lodged report against the accused about the incident under his signature which is at Exh.71 and Camp police station has registered the offence as per his report. He further stated PW10 A.P.I. Bhojane carried out the further investigation since the spot of the offence was under the jurisdiction of Bhingar Camp police station. In the cross- examination, he admitted that he cannot state as to whether the concerned building was owned by the accused. Hence, suggestion was given to him that accused was not residing in the said building, but same was denied by him. Suggestion was also given to him that accused was residing in Kapurwadi shivar, but same was denied by him. It was also suggested to him that during inquiry he and PW8 P.I. Sonwane came to know that accused has no concern with the said building, but same was denied by him. It was also suggested to him that the members of raiding party prepared false panchanama about seizure of bank pass book of the accused to show that 15 he was residing in the said building, but same was denied by him. 16 Keeping in mind the afore said depositions of PW8 P.I. Devidas Sonwane and PW9 P.S.I. Prakash Shinde and coming to depositing of PW10 A.P.I. Tatyasaheb Bhojane, who stated that in the month of June, 2006, he was attached to Bhingar Camp police station as A.P.I. and, he accompanied with PW8 P.I. Sonwane in the combing operation on 21.6.2006 and at the relevant time, PW8 P.I. Sonwane received the secret information. Accordingly, he gave the instructions in respect of effecting raid as per the information received, and after complying with the necessary formalities made station diary entry and proceeded for the raid in Kapurwadi Shivar in Dhadgevasti and accused was found there, and necessary formalities were observed and raid was effected. He also stated that PW8 P.I. Sonwane was having additional charge of Special Executive Magistrate of L.C.B. at the relevant time and search of the house of accused was conducted and members of raiding party seized ganja under the panchanama from the said house and offence was registered against the accused herein. He further stated that since the alleged offence had occurred within the jurisdiction of Bhingar Camp 16 police station, the S.P. ordered him to carry out further investigation in the matter and accordingly he received all the papers along with muddemal property. He also stated that he deposited the muddemal property with the concerned Clerk of police station by preparing receipt to that effect and recorded statements of witnesses and arrested the accused. He further stated that on 27.6.2006 he sent sample of one kg. ganja to the office of Chemical Analyser, Nasik through PW6 P.H.C. Vilas Khatol, carrier along with forwarding letter (Exh.50). Accordingly, chemical analysis report was received. He further stated that he received cash of Rs.2600/-, bank pass book (Exh.76) and two mobile phones in the muddemal property, as well as photographs were taken of the occurrence of the events during the raid. He further stated that after completion of investigation, he filed the charge sheet against the accused. 17 During the cross-examination he admitted that he has not produced the copy of the order of S.P. Directing him to carry out the investigation of the case. He also admitted that it was important aspect of his investigation that he should keep the muddemal property in safe custody till it is sent to the office of Chemcial Analyser, but muddemal 17 property was in the custody of concerned Clerk of the police station between the period from 21.6.2006 to 27.6.2006. He further admitted that it was important point to collect the documentary evidence showing ownership of their house upon which they effected the raid and he made inquiry about the ownership of the said building and it was revealed that it was owned by father of the accused. He was confronted with 7/12 extract of Gut No. 147/1 which is standing in the name of Govindrao Bhau Dhadge (Exh. 77). He was also confronted with the 7/12 extract of land bearing Gut No. 147/2 which was standing in the name of Govindrao Bhau Dhadge and Thakan Govindao Dhadge (Exh.78). He also stated that he knows Govindrao Bhau Dhadge. He further admitted that after receipt of custody of muddemal property, he has not produced the same before Tahsildar. 18 PW10 A.P.I. Bhojane further stated that it is necessary to prepare separate panchanama if the first sealed envelope of the muddemal property has been opened. He also stated that he has not recorded the statement of the concerned Clerk of muddemal property and Muddemal Clerk is not a competent person to state as to when and at what time muddemal property was removed and kept from his 18 custody. He further stated that it is necessary to take note whenever muddemal property is being sent to the office of Chemical Analyser on account of any difficulty and it is necessary to record statement of carrier in such a case, but he has not recorded the statement of PW6 Vilas Khatol. 19 During re-examination he stated that he has obtained certified copy of residential house of the accused and he has produced the same on record and he would show the said certificate which bears signature of Sarpanch of village and there is seal of Grampanchayat produced at Exh. 80. However, thereafter during cross-examination he stated that he tried to search out real owner of the said building and tried to obtain extract of the said building. Suggestion was given to him that document Exh. 80 is false and he has obtained the said document under influence from the said Gram Sevak, but he has denied the same. 20 As regards sending of samples to the office of Chemical Analyser, it is important to advert to the testimony of PW6 Vilas Khatol, who deposed that he was working as Police Head Constable and on 23.6.2006 he was deputed to carry out muddemal property at the office of Chemical 19 Analyser, Nasik and accordingly he took the custody of one letter in sealed condition and one envelope containing muddemal property also in sealed condition to Nasik. However, the concerned officer demanded the letter of the concerned police station. The envelope of muddemal property was sealed by L.C.B. Officer P.S.I. Shinde, hence the Chemical Analyser has not accepted the sample packet and accordingly he returned back to Bhingar Camp police station and handed over the muddemal property along with envelope to PW10 A.P.I. Bhojane. He further stated that on 26.6.2006 he was again deputed for the said work and accordingly on 27.6.2006 he left Ahmednagar and went to Nasik and carried the said muddemal property by affixing seal of Camp police station and deposited the said sample packet to the office of Chemical Analyser and obtained acknowledgment on forwarding letter Exh.50 and handed over the copy of said letter to PW10 A.P.I.Bhojane. Accordingly, entry in that respect was made in the station diary. In the cross- examination he was read over the contents of portion marked 'A' in his statement. He also deposed that he cannot state who has made the corrections of date 27th instead of 23rd on the top of forwarding letter Exh.50. 20 21 Turning to the testimony of PW5 Shubhangi Kulkarni, Assistant Chemical Analyser, who stated that on 27.6.2006 her office received the forwarding letter of Bhingar Camp police station and she received one sealed parcel and one forwarding letter and concerned Clerk gave the acknowledgment on the forwarding letter along with seal of the Chemical Analyser's office. She produced the said forwarding letter at Exh.42. She further stated that she opened and weighed the said sealed packet, which was of 990 gms. in weight. She collected the sample and took ethynol extract of the sample which was used for further analysis. She carried out colour test along with the controlled sample with the help of thin layer chromatographic technique and came to the conclusion that the exhibit was of ganja. Then again with the help of High Performance Liquid Chromatographic Technique, she gave opinion in respect of said sample and according to her opinion, ganga was detected in the sample, which falls under Section 2 (ii)(b) of the N.D.P.S.Act. She further stated that the exhibit contains 0.64 Tetra Hydro Cannominal and accordingly she issued the report about the same, which is at Exh.43. She also stated that she prepared data sheet in her hand writing while carrying said ganja test and produced the same at Exh.44 and external standard 21 report in printed form