{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.745 OF 2008 Bhagatsing Veeranna Bhukhya Age-24 years, Occ-Driver R/o Rajolu, Tq-Mahebubabad Dist-Warangal, Andhra Pradesh (At Present lodged in Nashik Road Central Prison as a Convict Prisoner No.C/7049) APPELLANT VERSUS The State of Maharashtra Through the complainant- Gulabsing Parihar, PSI Police Station, Omerga, RESPONDENT ....... Mr. M.A.Tandale, Advocate for appellant (Appointed) Mr. D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] RESERVED ON : 14th September 2010 PRONOUNCED ON : 16th September 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. A communication sent through jail by the appellant was registered as Criminal Appeal and accordingly we had appointed Advocate Mr.Tandale to represent the appellant in this {2} appeal before us. 2. The appellant, accused in Special case No.1/2008, who is convicted by the Ad Hoc Additional Sessions Judge, Osmanabad for an offence punishable u/s 20 (b) (ii) (c) Narcotic Drugs and Psychotropic Substances Act, 1985, vide judgment and order dated 19.06.2008 and sentenced to suffer Rigorous Imprisonment for 20 years and to pay a fine of Rs.1,25,000/-, in default to suffer Rigorous Imprisonment for further one year, has challenged his conviction and sentence by preferring the present criminal appeal. 3. The facts, in nutshell, leading to file the present appeal, may briefly be stated thus - a) PW-6 Gundappa Nagnath Kukate, Police Inspector, who was attached to Omerga Police Station on 02.02.2006, had received secret information at 11.10 a.m. that one tempo, bearing No.AP-36/W-2919, proceeding from Hyderabad to Bombay, was carrying sizable quantity of Ganja. Accordingly, entry was taken in the station diary and the information was passed on to Superintendent of Police, Osmanabad and Sub Divisional Police Officer, Tuljapur and permission was sought to conduct raid. Thereafter, Police Constables Kazi and Gautam Shinde were directed to call Panch Witnesses, Constable Chitre was directed to collect weighing machine and balance whereas constable Sawant was directed to collect one big size carpet. The Superintendent of {3} Police, Osmanabad and Sub Divisional Police Officer, Tuljapur gave permission to conduct the raid, on telephone and entry to that effect was taken in the station diary. Thereafter the Pancha witnesses were informed about the proposed raid and they were offered search of the raiding party and their search was also conducted. Thereafter, at about 12.40 noon the police party left the police station to conduct the raid. During the raid / trap, surveillance was kept near the spot known as Gunjoti “T” point situated at National Highway No.9. The said tempo was coming from Hyderabad side in a high speed and inspite of directing to stop, the tempo did not stop and proceeded further, which was chased and was intercepted at about 1.30 p.m. The driver was questioned to which he replied that he was carrying pineapples thereafter he was informed about the secret information and that the police wanted to search the tempo. Before conducting search of the said tempo the driver-present appellant was told whether he would like his search to be conducted in presence of Executive Magistrate or Excise Officer, however he denied to do so. Thereafter the tempo was searched and it was noticed that below the pineapples, 28 bags containing some green leaves were concealed. The said leaves were smelling obnoxiously. The contents were weighed, which weighted 840 kg of ganja. Thereafter, in presence of the Pancha witnesses the contents of all the bags were mixed and 3 packets samples weighing 24 gm each were prepared, which were sealed with the signature of Pancha as well as Police Inspector. Accordingly Panchanama (Exhibit-44) was drawn and one copy of {4} the same was furnished to the appellant, who had signed the same in token of acknowledgment. Thereafter the appellant was brought to Omerga police station along with the seized contrabands and samples. Accordingly, report was lodged by PW-1 PSI Parihar on the basis of which offence at Crime No.5/2006 was recorded for an offence punishable u/s 20 (B) of the NDPS Act. The accused- appellant was put under arrested. b) During the interrogation, it revealed that the appellant was resident of Rajolu, Tq-Mehebubabad, Dost-Warangal, Andhra Pradesh and one Rama Veera Reddy R/o Rajolu was the owner of the said tempo while the contrabands were loaded in the said tempo at the instance of one Harish, resident of Khamam. Pursuant to the registration of the offence, the investigation was handed over to PW-6 Police Inspector Kutate. Thereafter report in respect of seizure of the contrabands was sent to Superintendent of Police, Osmanabad and Sub Divisional Police Officer, Tuljapur and the samples were sent to Chemical Analyzer, Aurangabad along with forwarding letter with PW-4 Khalil. c) Thereafter, after receipt of the report from CA, charge sheet was filed against the appellant, but against the owner of the tempo and said Harish u/s 299 of the Criminal Procedure Code before the Special Judge Omerga. It appears that by the order of this Court, the trial was expedited, however, as the post of Special Judge, to conduct NDPS trials, was vacant, the trial {5} was transferred to Sessions Court, Osmanabad. d) It also appears that after the trial of the appellant was separated, charge (Exhibit-20) was framed against him for an offence punishable u/s 20 (b) of the NDPS Act on 28.02.2007 by Additional Session Judge, Omerga, before the trial was transferred to Sessions Court, Osmanabad, to which the accused had pleaded not guilty and had claimed to be tried. e) It appears that the prosecution examined in all 6 witnesses i.e. PW-1 Gulabsing Parihad, PSI, Omerga Police Station, PW-2 Mehboob Kazi, Panch witness to the seizure of contrabands, PW-3 Washim Bhagwan, Pancha witness to the auction sale, PW-4 Khalil, carrier of the samples of contrabands to CA, PW-5 Nitin Hole, Pancha witness to seizure of Ganga and the vehicle and PW-6 Gundappa Kukate, Investigating Officer. f) The defence of the appellant was that he was not driving the said tempo. He has contended that as the tempo was found in abandoned condition the contrabands allegedly recovered from the same were foist on him. He has contended that he was proceeding towards Tuljapur and was picked up from Omerga ST stand and falsely implicated in this offence. In the defense, he examined Defense Witness No.1, Vinod Chavan, ARTO, Omerga on the point that the tempo in question, when entered within the State of Maharashtra, was checked at the check post and at that {6} time one N.Ramesh was driving the same and he was also issued a permit to enter and ply the said vehicle within the State of Maharashtra for a period of one week. g) It appears that the evidence lead by the prosecution was accepted by the learned Special Judge / Ad Hoc Additional Sessions Judge, Osmanabad and rejected the defense taken by the appellant and came to the conclusion that the accused-appellant is guilty of the offence and convicted and sentenced him accordingly. 4. Before considering the rival submissions, it is necessary to consider the evidence lead before the trial court. i) Prosecution Witness No.1, Gulabsing Parihar, was attached to Omerga police station on 02.02.2006. It transpired from his evidence that PW-6, Kukate, Police Inspector, had received information that a tempo bearing Registration No. AP-36/W-2919, proceeding from Hyderabad to Bombay, was carrying contrabands- Ganja. This information was passed on to superior officers and certain constables were directed to call Panch Witness and necessary instruments to arrange the trap. The Pancha witnesses were made aware about the trap and the role they were required to play during the trap. After making necessary entry in the station diary, at about 12.40 P.M. the police team reached on National Highway No.9 at Gunjoti “T” point and sometime before 1.30 p.m. they noticed the said Tempo coming in a high speed from {7} Hyderabad side and did not stop though signaled to stop and, therefore, it was chased and intercepted at about 1.30 p.m. The appellant was found driving the said tempo. He was offered that he can be searched in presence of Executive Magistrate or Excise Officer, however he denied. On inquiry, the appellant gave his name and informed that he was carrying pineapples, however, during the search of the tempo, ganja in 28 bags weighing 28 to 31 kg each and smelling obnoxious and totally weighing 840 kg valuing Rs.8,40,000/- was found. Thereafter the contents in all the 28 bags were mixed and 3 samples of 24 gm each were drawn and packed, labeled and sealed. Accordingly, seizure Panchanama was prepared and they returned to the police station where on the report lodged by PW-1 (Exhibit-43) an offence was registered at Crime No.5/2006 for an offence punishable u/s 20 (b) of the NDPS Act against the appellant and others. a) In his cross examination this witness has admitted that the police station is situated on Hyderabad-Bombay road. He further admitted that there is a Reliance Petrol Pump on the way from Omerga to Bombay and ahead of the said petrol pump at the distance of 1 ½ km there is one square. He has further admitted that the check post of ARTO is at situated at the said square on Highway No.9 where vehicles coming from outside state are required to stay. He has also admitted that entries of the vehicles coming from out of states are required to take in the ARTO register. According to him, it required 3 and ½ hours to complete the {8} necessary formalities. He denied the suggestion that the accused was proceeding to Tuljapur and was not driving the said tempo at the relevant time. He also denied that the accused had no knowledge of Marathi language and is falsely implicated in this case. b) It is to be noted that though this witness has stated that after preparation of the seizure Panchanama, copy of the same was furnished to the appellant and his signature was obtained in token of acknowledgment of the same, yet the same was not proved in his evidence. ii) It transpired from the evidence of PW-2 Mehboob Kazi that on 02.02.2006, he was attached to Omerga police station as Police Head Constable. He has reproduced the evidence given by PW-1 about receipt of information, its transmission to superior officers and providing the same to Pancha witnesses. He was also party to the alleged trap. a) In his cross examination, this witness has also admitted that the police station is situated on Bombay-Hyderabad road and the Reliance Petrol Pump is at a distance of about 1 and ½ km from the police station and the square is at a distance of about 1 ½ km from the Reliance Petrol Pump and that there is a check post of the ARTO at the square. He has also denied the suggestion that the appellant was not driving the vehicle in {9} question. Like PW-1, he was also not confronted with the signature of the appellant on the seizure memo. iii) Prosecution witness No.4, Khalil Abdul, was attached to Omerga Police Station, at the relevant time and on 03.02.2006 he had carried the samples of the contrabands in connection with Crime No.5/2006 along with forwarding letter (Exhibit-50). iv) Prosecution witness No.5, Nitin Hole, is the Pancha witness to the seizure dated 02.02.2006. He supported the evidence given by PW-1 about the procedure adopted by the raiding party and about the events which took place during the seizure and he has also supported the fact that on search of the said Tempo 28 bags containing Ganja, totally weighing 840 kg were recovered. He has supported the evidence PW-1 on the point of drawing of sample, sealing of sample and seizure of balance contrabands and preparation of seizure memo. It is brought on record in his cross examination that his shop is situated at the distance of half km from the said police station, they reached at the spot at about 1.20 p.m, the work of seizure was going on till 6 p.m. and they returned to the police station at about 6.20 p.m. He admitted that he was working as an informer of the police in anti corruption cases, however denied the suggestion that he is acting as regular panch witness for Omerga police station. He also denied the suggestion that at the relevant time the appellant was not driving the tempo in question and that the tempo was not searched {10} in his presence. He has also denied the suggestion that at the instance of Police Inspector Kutate, he had simply put his signature on the pre-prepared Panchanama. It is to be noted that in his evidence, though the Panchanama is proved, yet the alleged signature of the appellant was not proved and was not independently exhibited. v) Last witness of prosecution is PW-6, Police inspector Kutate, Investigating Officer of the case. In his evidence, he has narrated all the incidents since receipt of secret information till completion of raid, as deposed by PW-1 Parihar and about seizure, as narrated by PW-5 Pancha witness. According to him, pursuant to the registration of offence against the appellant and others, the appellant was put under arrest, the said report was forwarded to the superior officers and entry was taken in the station diary, which was proved by him. He has stated that the custody of the seized contrabands was given to one Shaikh, however, was not produced before the Court. He has deposed about handing over the samples to PW-4 and that after completion of investigation he has filed the charge sheet. a) In his cross examination, he has also admitted that the National Highway No.9 passes through Omerga city in front of Omerga police station and Gunjoti “T” point is at a distance of half km from ST stand and that the Reliance Petrol Pump is at a distance of half km from Gunjoti “T” point. He denied that the {11} entry of the tempo in question was taken in ARTO check post on NH No.9, check post is ahead of the Reliance Petrol Pump towards Bombay side at a distance of 1 km. According to him, it did not reveal in his investigation that the tempo in question had taken permit for 7 days to ply the same in Maharashtra. In the year 2006, there was only on check post for the vehicles entering in Maharashtra from other states. This check post is situated near the square from where he was picked up as the tempo was found in abandoned condition. He has denied the suggestion that the appellant is falsely implicated in this offence. This witness has also not identified the signature of the appellant on the seizure memo. 5. In this background, heard learned counsel for the appellant followed by the submissions of learned APP for the state. We have also perused the Record and Proceedings and the impugned judgment. 6. Learned counsel for appellant emphasized on four points viz, i) Mandatory provisions of section 42, 50 and 52-A of the NDPS Act are not complied with. However, from the record and proceedings it is clear that secret information was received by PW-6 and the same was recorded in Station Diary (Exhibit-62), thereafter it was passed on to the superior officers and this was also proved by producing station diary entry in the evidence of PW-6 and hence we are of the view that compliance of section 42 of the NDPS was done. Likewise, search of the vehicle in question was {12} taken and no personal search of the appellant was taken and hence in our opinion, provisions of section 50 of the NDPC will not be applicable to the present case. So far as compliance to section 52-A is concerned, it need not be complied with at the time of seizure of contra bands, however compliance to section 52-A of the NDPS Act is required to be done at the time of disposal of the property. Therefore, we are not in agreement with the submission advanced by learned counsel for the appellant in this behalf. ii) Next point emphasized is that no independent witness is examined on behalf of the prosecution though the alleged seizure was taken place in a broad day light. We are not in agreement with this submission also, for, the prosecution has examined independent witness, however only question requires consideration is as to whether the evidence given by the Pancha witness is to be relied upon or not. iii) the third point emphasized by learned counsel for the appellant is that the defence evidence lead on behalf of the appellant of DW-Vinod Chavan and the documents produced by him (Exhibit-68) along with the receipts and photocopies of the register are not properly appreciated by the trial court in the light of the admissions given by the prosecution witnesses. It is specifically came on record that after the vehicle from out of state enters within the state of Maharashtra the same requires permission to ply within the state of Maharashtra and accordingly entry of the vehicle in question was taken at the check post of which the document is at Exhibit-68. PW-1, PW-5 and PW-6 have categorically admitted that the said check post is situated at the {13} distance of about 1 and ½ km from the spot where the vehicle in question is allegedly intercepted and it was noticed that the same was being driven by the appellant. As the check post is ahead of the spot, then there is no possibility that the entry of the vehicle might have been taken with the ARTO. As the entry was effected by the ARTO and in the said entry name of the driver is mentioned, however, no investigation is carried out to that effect. As against this, learned APP has asserted that possibility that earlier permit was obtained and thereafter the appellant has taken charge of the said vehicle from the said driver cannot be ruled out. iv) Lastly, it is contended that in Exhibit-68 license Number of the said driver is also given whereas no driving license is recovered from the custody of the appellant. 7. It is also contended on behalf of the appellant that the seized contra bands were neither produced before the Court nor they were entered into the Muddemal register. In this respect, reliance is placed by the learned counsel for the appellant on the observations of the Apex Court in the matter of “Jitendra & Another V/s State of M.P.” reported in (2004) 10 SCC 562. The Apex Court has observed that “The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of Panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is {14} punishable with a stringent sentence as under the NDPS Act.” 8. In this connection, papers received from the trial court disclose that twice permission was sought for the disposal of the contra bands, by following procedure u/s 52-A of the NDPS Act. On careful perusal of these applications, it appears that these applications relate to special case No.2/2006 and are not in respect of the present case. Record further shows that on two occasions, the trial was postponed on the ground of production of the seized Muddemal, however till the trial was over, and the judgment was pronounced, the said property was not produced before the trial court. 9. Considering the rival submissions and on perusal of the record and proceedings, to our utter surprise, though we found passing reference in the evidence of PW-5 that the seized contra bands were deposited with the concerned clerk, yet no entry is coming before the Court showing that in fact the seized contra bands were deposited with the Muddemal clerk. Apart from it, in the NDPS cases, when the seized property is not destroyed by following the procedure u/s 52-A of the NDPS Act, it is the responsibility of the prosecution to account for the seized contra bands and their movements. In this case, no account of the seized contra bands was furnished before the Trial Court, as it is not the case of the prosecution that after following due procedure u/s 52-A of the NDPS Act, the seized contra bands were destroyed. {15} Admittedly, in this case, it is not the contention of the prosecution that the seized contra bands were destroyed / disposed of with the permission of the Court. In the premise, non production and non furnishing of the account of the seized contra bands is fatal to the case of the prosecution coupled with the documents at Exhibit-68 which show that entry of the vehicle was made in the ARTO register at the check post indicating that the vehicle in question was driven by N.Ramesh, who had also signed on the application for issuance of permit to enter and ply the vehicle within the State of Maharashtra and no enquiry is made as to what happened to said N.Ramesh. In the premise, there is doubt in our mind that when the vehicle was intercepted after it crossed the check post then where the driver was and the entire submissions of the prosecution are silent on this point. Observations of the trial court to this effect are based on surmises and assumptions. In the premise, we are of the view that the prosecution failed to establish that at the material time, the appellant was driving the vehicle in question. Merely seizure of huge quantity of contra bands does not saddle liability of possession of the said contrabands nor can it be held that the appellant was transporting the said contrabands. Therefore, there is doubt in our minds as to whether really the appellant was driving the tempo in question containing huge quantity of contra bands or not. Hence, we accept the submissions advanced by the learned counsel for the appellant that the prosecution failed to establish that the appellant was driving the tempo in question at the relevant time and, therefore, we accept {16} the defence evidence and discard the prosecution evidence. In the premise, the appeal ought to succeed. 10. Accordingly, the appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. Fees payable to the learned counsel appointed on behalf of the appellant are quantified at Rs.5000/-. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel745-08