( 1 ) crap175.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 175 OF 1998 Shekh Sultan s/o. Shekh Abdula .. Appellant Age. 40 years, Occ. Farmer, R/o. Mukhed, Tal. & Dist. Nanded. Versus The State of Maharashtra .. Respondent Mr. P.V. Mandlik, Sr. Counsel for the appellant. Mr. B.J. Sonawane, A.P.P. for the respondent. CORAM : V.R. KINGAONKAR,J. DATED : 14.12.2010 ORAL JUDGMENT :- 1. This appeal is directed against the judgment rendered by the learned Special Judge in Special N.D.P.S. Case No. 19 of 1997, whereby the appellant came to be convicted for offence punishable under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to suffer rigorous imprisonment for two years and ( 2 ) crap175.98 to pay a fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for two months. 2. The appellant came to be convicted along with original accused No.2 - Ramdas Giri and both of them were sentenced as stated earlier. It is not clear whether accused No.2 – Ramdas Giri preferred any appeal against the said judgment of conviction and sentence. 3. Briefly stated, the prosecution case is that original accused No.2 – Ramdas Giri was arrested in connection with Crime No. 150 of 1996 for alleged offence of committing house trespass and theft by breaking the house. He was interrogated whilst in the police custody. He allegedly gave information to the effect that the stolen articles were kept in the house of the appellant, which was being commonly used by him and the appellant. At his instance, the police party members visited house of the appellant. Besides the recovery of stolen articles, the police party members came across a fertilizer bag stored in the middle room of that house. When the fertilizer bag was ( 3 ) crap175.98 opened, it was noticed that there was a nylon bag kept inside. That nylon bag contained 2 kgs. of Ganja. The police separated the small part of the Ganja by way of sample. The small quantity of Ganja was separately kept in a packet which was sealed. The remaining quantity of Ganja was re-filled in the nylon bag. The bag was seized. A seizure panchanama was drawn in the premises of the house itself. Thereafter, the F.I.R. was lodged. The sample packet was forwarded to the Dy. Director, Regional Forensic Laboratory, Aurangabad, for the purpose of analysis and opinion. It was found that the sample contained pieces of greenish flowering tops and seeds mixed with pieces of greenish leaves were that of Ganja. Consequently, the appellant and co-accused were charge-sheeted for the offence punishable under section 20 (b) of the N.D.P.S. Act. 4. The appellant pleaded not guilty of the charge (Exh.11). His defence before the Trial Court was that of total denial. He denied that he was owner or possessor of the house property which was searched by the appellants. He denied that the Ganja bag was in his possession at the ( 4 ) crap175.98 relevant time. The prosecution examined in all three witnesses in support of its case and further relied on recitals of seizure panchanama (Exh.29). 5. The learned Special Judge held that the Ganja was recovered from the possession of the appellant and that he is guilty of the charge. Accordingly, the impugned judgment of conviction and sentence was rendered. 6. Heard learned Sr. Counsel Mr. Mandlik and learned A.P.P. Mr. B.J. Sonawane. With their assistance, I have perused the record and proceedings. 7. At the threshold, let it be noted that the main question involved in this appeal is whether the 2 Kgs. Ganja was found in conscious possession of the appellant. The house property was search in the context of another crime of house breaking and theft. The co-accused is said to have pointed out the house, which was searched in the noon of 1st April, 1997. The co-accused (Ramdas Giri) narrated to the police that he was residing in the house of the appellant. ( 5 ) crap175.98 One cannot be oblivious of the fact that the appellant is a Mohammedan and was allegedly residing with his wife and children. The co-accused (Ramdas Giri) is Hindu and though he might have narrated that they are residing in the house of the appellant, it is very probable that he was residing separately in that house. Secondly, the joint residence of the appellant and said Ramdas Giri is not duly corroborated by any other tangible material. The house property was searched on basis of the statement of said Ramdas Giri. The F.I.R. (Exh.26) shows that on conducting search of the house used by Ramdas Giri for his residence, the stolen property articles and the Ganja of 2 Kg. was recovered. There is no tangible evidence to show that the appellant was having domain over the nylon bag containing Ganja. The seizure panchanama (Exh.29) purports to show that there was no municipal number on the entrance door of the house property. The description of the house property to show that on Eastern side of the house, there was a room occupied by polio afflicted boy of ten years. The house property was found to be roofed by means of corrugated zinc sheets. ( 6 ) crap175.98 8. The seizure panchanama does not make it clear whether the nylon bag was recovered from the room which was occupied by Ramdas Giri or by the appellant. 9. Coming to the version of P.W.3-Manoj, who acted as panch for the seizure panchanama, it may be gathered that the co-accused – Ramdas Giri had taken the police and panchas to the house. He states that one gunny bag was found inside the house. That gunny bag was in the middle room and contained some stock of fertilizer along with plastic bag containing Ganja. He deposed that the house property did not bear any municipal number. He states that wife and son of the appellant were present in the house. He further states that the house consists of 3 or 4 rooms. His version reveals that co-accused Ramdas Giri was residing in the house of the appellant as his friend. The versions of P.W.1-Subhash Swami (P.H.C.B.No.79) and P.W.2-P.S.I. Vaijnath Paralikar go to show that co-accused Ramdas Giri informed the police that he was residing in the appellant’s house. Their versions do not show that the nylon bag was found in possession of the appellant to the exclusion of anyone else. It is pertinent ( 7 ) crap175.98 to note that copy of the panchanama was delivered only to co- accused - Ramdas. Obviously, there is no reliable material to infer that the appellant was present at the house when the search was carried out. What appears from record is that one of the rooms was in occupation of original accused No. 2 – Ramdas Giri. The stolen articles and the fertilizer bag was found in that room. There is no reliable material on record to infer that the house was exclusively owned by the appellant. The neighbours of the house were not put in the witness box. It cannot be assumed that the appellant and the co-accused – Ramdas Giri were jointly found in possession of the nylon bag containing Ganja. For the purpose of the offence punishable under Section 20 (b) of the N.D.P.S. Act, it is necessary to prove conscious possession of the contraband substance. 10. Considering the nature of evidence adduced by the prosecution, it will have to be said that the prosecution failed to establish the fact that nylon bag containing Ganja was in exclusive possession of the appellant. Needless to say, the charge is not proved against him. ( 8 ) crap175.98 11. In the result, the appeal is allowed. The appellant is acquitted of the charges for the offence punishable under section 20 (b) of the N.D.P.S. Act, 1985. The fine amount, if deposited by him, be refunded to him. The remaining part of the final order rendered by the Special Court is confirmed. [V.R. KINGAONKAR,J.] snk/2010/DEC10/crap175.98