1 CRIMINAL APPEAL No.839 OF 2003. Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.839 OF 2003. 1. Raju Vyankayya Mateti, age 26 years, residing at Regoda, Taluka Parkala, District Warnagal, Andhra Pradesh, at present residing at Sonar Pada, Padmanagar, Bhiwandi, District Thane. ] ] ] ] ] ] ] ] ] ] 2. Sabayya Surgayya Kodepaka age 41 years, residing at Andhra Pradesh and now at Bhiwandi, District Thane at present in Kolhapur Central Prison. ] ] ] ] ] ] ] ..Appellants Original Accused Nos. 1 and 2. Versus The State of Maharashtra ] ] ..Respondent. 2 CRIMINAL APPEAL No.839 OF 2003. Shri R.D. Suryawanshi , Advocate for the Appellants. Mrs, M. H. Mhatre, A.P.P., for the State. CORAM: A.R.JOSHI,J. DATE : 23RD JUNE,2009. ORAL JUDGMENT. 1. This is the appeal preferred by the appellants  both the original accused against the conviction for the offence punishable under Section 20 (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the N.D.P.S.Act for short). The said impugned judgment and order was passed by the Special Judge under the N.D.P.S.Act and the Additional Sessions Judge, at Thane. The said order was passed on 28th April, 2003 in Special Sessions Case No. 318 of 2002. 2. Today, the present appeal is taken before this Court for final hearing. The learned Advocate Shri Suryawanshi initially submitted that about two years prior he had already given no objection to another Advocate as it was the desire of the appellants to engage another lawyer. However, he specifically mentioned that he had not withdrawn his 3 CRIMINAL APPEAL No.839 OF 2003. appearance. It is factual position also that apart from the appearance of the learned Advocate Shri Suryawanshi there is no appearance of any other Advocate representing the appellants. On this factual position, today, Advocate Suryawanshi argued in the matter. Also heard learned A.P.P., Mrs M.H. Mhatre for the State. 3. The case, as unfolded before the Special Court, can be narrated, in short, as under:- 4. The secret information was received by Crime Branch Office of Bhivandi giving the details and description of both the present appellants as to they had stored narcotic contraband Ganja at their house premises and were coming in the afternoon of 17th July, 2002 at Shantinagar area of Bhivandi for the sale of narcotic contraband Ganja contained in two gunny bags and two suitcases. The said information was received in the morning of 17th July, 2002 by A.S.I., Shri Thakarji Sabale (P.W.No.2). He recorded the same vide Exh.15 and forwarded it to P.I. Shri Pawar. P.I. Pawar apprised him with the information and made an endorsement on the same vide Exh.16 giving directions to another P.S.I. Shri Jagtap (P.W.No.4)to conduct a raid and do the needful in the matter as per the 4 CRIMINAL APPEAL No.839 OF 2003. provisions of the N.D.P.S.Act. 5. According to the case of the prosecution, after calling panch witnesses including Pancha P.W.No. 1 Mushtak Ahmed Malik, a trap was led at Shantinagar area, Bhivandi and in the afternoon after about 1.00 p.m., both the appellants were found along with two gunny bags and two suitcases. Identifying the said persons as the persons mentioned in the information, they were accosted and were apprised as to their rights including the right of search before a Magistrate or a Gazetted officer as per the provisions of Section 50 of the N.D.P.S.Act. During personal search of both the appellants, nothing incriminating was found. Two gunny bags and two suitcases were searched and total contents were weighed and found to be 49 kilograms and 100 grams of norcotic contraband Ganja. Requisite samples of 50 grams each were taken out from each baggage. Panchnama procedure was carried out and both the appellants were put under arrest and brought to Bhivandi Police Station along with bulk contraband and samples. At the Police Station P.W.No.2 Bharat Sable lodged his complaint at Exh.14. The sample packets were carried to the office of the Chemical Analyser (C.A.)by Shri P.G. Salunkhe 5 CRIMINAL APPEAL No.839 OF 2003. (P.W.No.3). Subsequently, the C.A.,report was obtained confirming the presence of Ganja, as found in the raid. After sending the requisite reports to the A.C.P., and on completion of investigation charge sheet was filed and matter was tried before the Special Court in N.D.P.S. at Thane. The said matter i.e., Special Sessions Case No. 318 of 2002 ended in conviction, as mentioned above. Both the appellants were convicted and sentenced to suffer R.I.,for ten years and fine of Rs.1,00,000/- and in default of payment of fine further R.I.,for two years each. 6. It is this judgment and order has been challenged in the present matter. 7. Admittedly, there are four witnesses examined, i.e. P.W.No.1 panch Mustaq Malik, P.W.No.2 complainant Shri Bharat Sabale who received the secret information and also took part in the raid and lodged his complaint and also wrote down the secret information (Exh.16) and placed it before the Superior P.I. Shri Pawar whose endorsement is obtained at Exh. 16. P.W.No.3 is carrier of the sample packets to the C.A.office. P.W.No.4 is the last witness P.S.I. Shri. Jagtap who monitored the entire operation and conducted the trap procedure. In fact, it is the 6 CRIMINAL APPEAL No.839 OF 2003. factual position that no any independent witness, except the panch, was examined by the prosecution. But, admittedly said panch was the auto rickshaw driver from the said locality where the trap was conducted. 8. During the arguments, initially, it is submitted that the search and seizure is vitiated for non compliance of the provisions of Section 42 (1) 42 (2) and also for non-compliance of Section 50 of the N.D.P.S. Act, 1985. However, there was no much force in the argument. So far as non-compliance of Section 50 is concerned on the premise that the factual position as to it was not the personal search of the appellants-accused but it was the search of the gunny bags and suitcases. Apparently, such defence as to non compliance of Section 50 of the Act is not pressed and only reliance was placed on non-compliance of the provisions of Section 42 (1) and 42 (2) of the N.D.P.S.Act. To substantiate this argument, the learned Advocate Shri Suryawanshi for the appellants brought attention of this Court towards the contents of Exh.15 and also Exh.16 and it is submitted that for want of examination of P.I.Shri Pawar who alleged to have made endorsement on Exh.16, there cannot be a 7 CRIMINAL APPEAL No.839 OF 2003. compliance of Section 42 (2) of the Act. Again, in order to verify this submission, it is brought to the notice of the Court that there is over writing in the date which now appears as 17.7.2002 below the signature of Shri Pawar P.I., appearing under the endorsement Exh.16. By pointing out this, it is submitted that there is reasonable doubt whether such endorsement Exh.16 came in existence on the writing of the secret information Exh.15. On this aspect, the reasoning given by the Special Court is carefully examined and in the opinion of this Court it is rightly held by the Special Sessions Court as to the substantial compliance of the provisions of Section 42 (1) and 42 (2) of the Act. This is, mainly so in the opinion of this Court, in view of the substantive evidence of P.W.No.2 Bharat Sable and P.W.No.4 P.S.I. Jagtap. Moreover, it is a factual position that during the cross-examinations of the said P.W.No.2 and P.W.No.4 such over-writing on the date of the endorsement Exh.16 is not brought to their notice in order to have their explanation. In the opinion of this Court, without there being any opportunity to the said witnesses to explain such over-writing, now, shelter of such position cannot be taken in favour of 8 CRIMINAL APPEAL No.839 OF 2003. the accused in order to doubt the authenticity of the said Exhibit 16. 9. At the end of the arguments, it is submitted by the learned counsel for the appellants that in case the Court hold both the appellants guilty of the offence charged, then the imprisonment in default of payment of fine may be suitably reduced. In order to substantiate this argument, it is submitted that both the appellants are coming from the poor families and in fact there are no means for their families to raise the fine amount of Rs.1,00,000/- and as such there is no alternative for them to undergo in default sentence. It is further submitted that till this time both the appellants have undergone total substantive sentence of about seven years. Considering such circumstances, appropriate order can be passed reducing the quantum of sentence in default of payment of fine. 10. In view of above and considering the substantive evidence of P.W.Nos. 2 and 4 and considering the documents Exhs. 15 and 16, in the opinion of this Court, the reasoning given by the Special Court in arriving at the conclusion of compliance of Section 42(1) and 42(2) of the 9 CRIMINAL APPEAL No.839 OF 2003. N.D.P.S.Act is required to be accepted. There is nothing to interfere with the impugned judgment and order and to come to the different view than that taken by the Special Sessions Court so far as compliance of Section 42 (1) and 42 (2) of the Act is concerned. 11. So far as the substantive sentence is concerned, as mentioned above `in default sentence can be suitably reduced. In the result, it must be said that the present appeal is partly allowed. Hence, the following order. ORDER. (1) Criminal Appeal No. 839 of 2003 is partly allowed. The `in default sentence of two years in default of payment of fine of Rs. 1,00,000/-each is reduced to six months each. (2) Registry to communicate this order to the appellants through the concerned Jail authority. Accordingly, the Appeal is disposed of. (A.R.JOSHI,J.) 10 CRIMINAL APPEAL No.839 OF 2003.