1 Cri-Appeal-267-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 267 OF 1993 The State of Maharashtra ... Appellant Vs. Raju Abdul Rampure ) age 30 yrs. occ. Carpenter, ) of Kolhapur, 1479, C-Ward, ) Laxmipuri, Kolhapur. ).. Respondent (Orig. Accused) Shri Y.M.Nakhwa, APP, for the Appellant- State. None for the respondent. CORAM: J.H.BHATIA,J. DATE : 20th December, 2010. JUDGMENT: 1. This Appeal is filed by the State of Maharashtra against the Judgment and Order dated 6.11.1992 passed by the learned Sessions Judge, Kolhapur, whereby the accused-respondent was acquitted of the charges under Section 20(b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") and Section 66 of the Bombay Prohibition Act,1949. 2. To state in brief, prosecution case is that PW-1 ASI Dilip Mahadeo Ghumatkar, who was in charge PSI of Special Squad No.2 of Kolhapur, got information at about 6.50 p.m. on 5.4.1992 that the accused Raju Abdul Rampure 2 Cri-Appeal-267-93.sxw had stock of ganja at his house within the area of Laxmipuri Police Station and was selling the same. Therefore, he took an entry in the station diary of Laxmipuri Police Station and telephonically informed the District Superintendent of Police, Kolhapur and noted the same in the said station diary. Then he called two panch witnesses, namely, PW-3 Pratap Shinde and one Raju Chavan. Along with the panchas and police, he raided the house of the accused. He was found sitting in the door of the house with one hand in the german box (aluminium box). He was immediately caught and search was taken. The said german box contained 14 packets containing the ganja. Besides that, there was amount of Rs.93/-. Below the pckets and the amount, loose ganja weighing 1 kg. 955 gms. was found. Two samples of 100 grams each were taken and samples were duly sealed. The remaining ganja was also wrapped, sealed and seized and a panchnama of the same was prepared. After that the accused and the muddemal property were taken to Laxmipuri Police Station where ASI Ghumatkar haded over the said property and the accused to the officer-in-charge of that Police Station. He himself lodged a report on the basis of which Crime No. 150/1992 was registered against the accused. Further investigation was taken over by PSI Mahadeo Chougule PW-6. The samples were sent to C.A. The C.A. report confirmed that the sample was ganja. After investigation, charge-sheet was filed against the accused. Charges were framed against him. He pleaded not guilty. 3 Cri-Appeal-267-93.sxw 3. On behalf of the prosecution, in all seven witnesses were examined. Some documents were also placed on record. The learned trial Court acquitted the accused finding discrepancies in the oral evidence of the witnesses and also non- compliance of certain mandatory provisions of the NDPS Act. 4. Heard the learned APP for the State. None appears for the respondent-accused. perused the record and proceedings of the trial Court. 5. PW-1 ASI Dilip Ghumatkar is the main prosecution witness. As per his evidence, he was in charge PSI of Special Squad No.2. PW-2 Constable Baburao Mandekar was also attached to the same Special Squad No.2. PW-1 Dilip Ghumatkar deposed that on 5.4.1992, he got information that the accused had stock and was selling ganja illegally in his house and, therefore, he took entry at Sr.N.48 of Laxmipuri Police Station at about 6-17 p.m. He also deposed that he informed the Superintendent of Police telephonically and took entry at Sr.No.49 in the Station diary at 6.20 p.m. Exhibits 10 and 11 are the true copies of the said entry Nos. 48 and 49. According to him, after taking said entries, he took all the necessary material, including papers, thread, lac, seal, envelopes, balance matchbox, gum, etc. and along with the staff and two panch witnesses, raided the 4 Cri-Appeal-267-93.sxw house. Before leaving the Police Station, he took entry at Sr. No.50 in the Station diary at 6-25 p.m. According to him, he was aware about the house of the accused because previously also three cases were registered against the accused. They went to the house of the accused. He was sitting in the door with his legs outside he door and his buttock and other parts of the body inside the room. There was one german box inside the house and the accused had put his right hand in that box. On taking search of the said box, 14 packets containing ganja were recovered. Each packet contained 20 grams. Besides that, there was an amount of Rs.93/-. Beneath the currency notes and those packets, there was loose ganja which weighed 1 kg. 955 grams. Ganja in the said 14 packets was also mixed with the loose ganja and the pieces of paper used for making those packets were also seized and put in one envelope. Two samples of 100 gram ganja each were taken. Both the samples were wrapped and sealed. About all this procedure, the panchnama Exhibit 13 was prepared and it was signed by ASI Ghumatkar and both the panch witnesses. Accused had also put his signature to indicate that he had received the copy of the same. Thereafter, ASI Ghumatkar went to the Laxmipuri Police Station along with the accused and the muddemal property. He lodged the report Exhibit 14 and handed over muddemal as well as the accused to the In-charge of Police Station. PW-2 Constable Baburao, who was member of the raiding party and PW-3 Pratap Shinde, who was panch witness also supported the 5 Cri-Appeal-267-93.sxw evidence of ASI Ghumatkar. PW-4 Head Constable Vilas Dongre was the Station diary in charge at the Police Station. He received panchama Exhibit 13, FIR Ex. 14, muddemal property as well as the accused on 5.4.1992 at about 10.30 p.m. PW-6 PSI Mahadeo Chougule sent the samples to C.A. along with his covering letter Exhibit 19 through PW-5 Shripati Patil, who produced the same sealed packet along with the covering letter in the office of C.A. Exhibit 25 is the C.A. report confirming that ganja was detected in the sample. 6. After perusal of the evidence on record and the judgment of the trial Court, I find that there are several discrepancies in the evidence of witnesses and also non-compliance of certain mandatory provisions of NDPS Act. Section 42 of the NDPS Act requires that whenever an officer receives information about commission of the offence under the NDPS Act, he shall take down that information in writing and as per sub-section (2), he shall forward the said information to his immediate superior within 72 hours. In the present case, ASI Ghumatkar was not posted with Laxmipuri Police Station. He was attached to Special Squad No.2 and was in charge PSI of that Squad. Therefore, he was not in charge of the station diary of Laxmipuri Police Station. According to him, after getting the information, he took entry No.48 in the station diary and also noted at entry No.49 that he had telephonically informed the Superintendent of Police. 6 Cri-Appeal-267-93.sxw There is nothing to show that he had taken the charge of the station diary. Therefore, he was not expected to take entries in the station diary. He had admittedly not taken down the information independently of the entry No.48 or 49 nor there is any document with him to show that he had given the information to his superior and had taken any authorization for search and seizure. This was breach of mandatory provision of Section 42(2). Under Section 42, an officer can enter into and search any building, conveyance or place and seize any drug or substance etc., but that has to be done between the sunrise and sunset. If any building, conveyance or place is to be entered into,searched, etc. after the sunset and before sunrise, he has to obtain a warrant or special authorization from the superior officer in accordance with the proviso to sub-section (1) of Section 42. In the present case, the panchnama Ex.13 shows that panchnama was commenced at 18.25 hrs. and was completed at 20.50 hrs. From the oral evidence, it appears that the time of commencement of the panchnama is not correct, though the time of its completion may be correct. In the last sentence of the panchnama, it is mentioned that the panchnama was prepared and completed in electric light. From the evidence of PW-3 Pratap Shinde, it appears that firstly they had been to the area, but they could not locate the house of the accused. Then PSI Ghumatkar again gave them information and went to that place and found the accused in that particular house. It is material to note that entry No.50 was taken in the station 7 Cri-Appeal-267-93.sxw diary at 18.25 hrs. to the effect that the raiding party was leaving the Police Station. If the raiding party left the Police Station at 18.25 hrs., the panchname could not have been commenced at the same time. Naturally, it would take some time to reach the place and find the accused. In view of the evidence of PW-3, they took some time to search and locate the house of the accused. It is material to note that in the FIR Exhibit 14, ASI Ghumatkar had stated that the accused was found at 18.45 hrs. If the accused was found at 18.45 hrs. naturally, further proceedings must have started thereafter and not before. The writing of panchnama must have been commenced only after the search and after finding of the contraband article i.e. ganja. In the cross-examination of the witnesses, an attempt was made to show that the alleged search and seizure was done after the sunset and before sunrise. I have collected the information of sunrise and sunset of Kolhapur where this incident occurred. On 5th April, the time of sunrise is 6.25 hrs. and the time of sunset is 18.47 hrs. In view of this, it appears that the actual search and the further proceedings commenced after the sunset and itwas completed at 20.50 hrs. For the search and seizure after the sunset, PW-1 ASI Ghumatkar had not obtained any authorization from his superiors nor he had obtained any warrant from a Magistrate as required under Sections 41 and 42 of the NDPS Act. This was the first violation of the mandatory provisions. 8 Cri-Appeal-267-93.sxw 7. There is conflicting evidence of the witnesses about the actual incident. According to ASI Ghumatkar, he was knowing the house of the accused and, therefore, he directly went to the house of the accused along with staff and panchas. He explained that he was aware about the house of the accused because he had registered three cases against him earlier also. However, if PW-3 Pratap Shinde, the panch witness, is to be believed, the raiding party went in search of the house of the accused, but initially they could not find it and they returned. Thereafter, ASI Ghumatkar explained them the way leading to the house and then they went to the house of the accused where he was found. If the panch witness was present in the raiding party, his evidence about reaching the house of the accused could not be inconsistent with the evidence of ASI Ghumatkar. In view of the evidence of panch witness PW-3 Pratap, inference may be drawn that ASI was not in the raiding party initially and the members of the raiding party were not aware of the house. Therefore, they came back and then ASI explained the way to them and then they reached the house of the accused. If ASI Ghumatkar was there and he actually went to the house of the accused directly without any difficulty, inference may be drawn that PW-3 Pratap Shinde might not be in the raiding party. Next discrepancy is in respect of the manner in which the accused was found. According to ASI Ghumatkar, the accused was sitting in the door of the house and his legs were outside the door while his buttock and remaining 9 Cri-Appeal-267-93.sxw parts of the body were inside the room. According to PW-2 Constable Baburao Mandekar, only one hand of the person sitting in the room was visible and the person himself was not visible when they went to the house. PW-3 Pratap Shinde deposed that the accused was sitting in the courtyard. In view of this, the three witnesses about the same incident have given three different versions about the manner in which the accused was found sitting. According to PW-1 Ghumatkar, after the personal search, seizure and panchnama was completed, he took the accused and the muddemal property with him to Police Station. While leaving the spot, the accused himself locked the door of his house and the accused handed over the key of the lock to his wife. On the other hand, PW-3 Pratap Shinde deposed that the door of the house was only latched and not locked. This is also material discrepancy in the evidence of these two witnesses. 8. The evidence in the cross-examination of PW-3 Pratap Shinde reveals that loose papers or slips bearing signatures of the panchas were also found in a packet at the time of giving evidence before the Court. There is no valid explanation why on so many loose papers or slips signatures of panchas were obtained. If the signatures of panchas were obtained on such loose slips, the possibility of misuse of them could not be ruled out. 10 Cri-Appeal-267-93.sxw 9. ASI Ghumatkar deposed that he had taken all the necessary sealing material, including the seal with him while leaving the Police Station. As he was not the police officer in charge of the Police Station, he could not be in custody of the seal of that Police Station. He claims to have sealed the samples and other muddemal property with the seal in his possession and then he produced the said muddemal property along with panchnama Ex.13, FIR Ex.14 and the accused before PW-4 Head Constable Vilas Dongare, who was in charge of the Police Station at the relevant time i.e. at about 10.30 p.m. PW-4 Vilas Dongare admits that he received the property, but he did not put the seal of the Police Station Officer on the said articles. According to him, it was the duty of the Investigating Officer to take further steps and, therefore, he did not put the seal of PSO on those articles. PW-6 PSI Mahadeo Chougule was the officer,who took over investigation from the Head Constable Dongare on 6.4.1992. He also nowhere deposed that he had put the seal of the PSO on the articles. He sent the sample packet to C.A. along with the covering letter Ex.19 through PW-5 Constable Shripati Patil. Section 55 of NDPS Act provides that an officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him. It further provides that the said officer in charge of the Police Station shall allow any officer who may accompany such 11 Cri-Appeal-267-93.sxw articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the Police Station. It means if the officer-in-charge of the police station does not search and seal the property himself, he may authorize any other officer to accompany the property and to use the seal of such officer to affix on such articles. However, when such articles or samples are produced at the police station, the officer-in-charge shall also seal such samples with the seal of the officer-in-charge of the police station. This is mandatory provision to safeguard the samples so that they could not be tampered with. In the present case, ASI Ghumatkar sealed the property at the spot and produced the property at the police station. However, the samples were not sealed with the seal of officer-in-charge of the police station by the Station House Officer. This was also in violation of the mandatory provisions of Section 55. 10. Section 57 requires that the person making arrest or seizure shall, within 48 hours of such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior officer. In the present case, there is no evidence that ASI Ghumatkar submitted such report to his immediate superior officer. Thus, Section 57 was also not complied with. 12 Cri-Appeal-267-93.sxw 11. It also appears that PW-3 Pratap Shinde was not an independent witness. As per his evidence, he was working as auto rickshaw driver without having obtained any driving licence. This was known to the police and he had parked his auto rickshaw in the Laxmipuri Police Station while accompanying the raiding party. He admitted that because he was not having driving licence, he had showed his occupation as a labourer in the panchnama Ex.13. It shows that the police was aware that he was an auto rickshaw driver, but because he was not having driving licence, his occupation was shown as labourer. If it is so, it means he was obliged to act as per the desire of the police, otherwise, he could have been in trouble for working as auto rickshaw driver without valid driving licence. Therefore, this witness could not be treated as an independent and reliable person. 12. It is settled position of law that in an appeal against acquittal,the appellate Court shall not interfere unless it comes to conclusion that findings of the trial Court are absolutely wrong or perverse and against the facts. If two views are possible on the basis of the evidence on record, the appellate Court shall not substitute its own view for the view of the trial Court. In the present case, the trial Court has minutely considered the evidence and legal position before coming to conclusion that the prosecution had failed to prove the offence. In fact, I do not find any fault in the findings of the trial Court. Even if a different view could be 13 Cri-Appeal-267-93.sxw taken, still it would not be sufficient to interfere and set aside the order of acquittal merely because a different view could also be possible. 13. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.) 14 Cri-Appeal-267-93.sxw