1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.87 OF 1991 State of Maharashtra .. Appellant. Vs. Matiulla Amajatalli Ansari .. Respondent. Mrs.U.V.Kejariwal APP for the appellant. Mr.B.G.Tangsali for the respondent. CORAM : D.B.BHOSALE & RAJESH.G.KETKAR, JJ. DATED : 31ST AUGUST, 2010. ORAL JUDGMENT (Per D.B.BHOSALE, J.) This appeal is directed against the judgment and order dated 22.10.1990 passed by the Sessions Judge, Thane in Sessions Case nO. 241 OF 1990 by which the respondent, who was charged and tried for the offence punishable under section 20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”), has been acquitted. 2. The prosecution case as culled out from the evidence of the complainant – H.C.Pawar (P.W.2), in brief, is that on 25.2.1990 when the complainant alongwith PSI Thorat (P.W.5), PSI Mali and other S 2 members of the staff were present in the Crime Branch Unit, Bhiwandi, at Bhiwandi, they received an information through their regular informant that a slim person of fair complexion wearing red colour shirt with design and blue colour pant was to come near Asik compound from Khandu-pada for selling 1 kilo charas. On receiving the information, two persons, one of whom was Parekh (P.W.1), were called in their office to act as panch witnesses. The panch witnesses were told about the secret information received by them and after taking entry in the station diary of the Shanti Nagar police station, and after the superior police officers were informed on phone, the police party alongwith the panchas proceeded towards Asik compound at about 2.15 am on 26.2.1990. A person of the description given by the informant was seen coming from Khandu- pada towards Asik compound and he was holding a plastic satchel. The said person was apprehended on the road in front of Baba hospital. Thereafter, preliminary enquiry about the name and place of residence was made, and he was informed that they would like to take search of the plastic satchel in his possession. The accused was offered search of police and panchas which he declined. Thereafter, the plastic satchel was searched in which 11 sticks of charas weighing about 1 kilo were found. The Charas was, accordingly, seized and sealed by Thorat (P.W.5) in presence of the panchas, and while doing so small quantity from each stick was collected separately by way of sample. The samples were divided into two portions, each weighing about 10 grams. Then, the seized 3 contraband articles were sealed and labelled. Signatures of the panchas were also obtained on the labels. 3. H.C.Pawar (P.W.2) thereafter lodged complaint, on the basis of which a crime came to be registered being C.R.No.II 15/1990, at about 3.45 am, on 25.2.1990 by PSI Hande (P.W.6). The crime was registered at Shantinagar police station. After the offence was registered, PSI Hande sent a wireless message to other superior officers. He then recorded statements of the members of raiding party and also sent the samples of contraband article to chemical analyser. In the examination, it was found that the article seized was Charas. 4. After completing the investigation, charge-sheet was filed on 21.5.1990 before the 2nd Joint Civil Judge,(J.D.) and J.M.F.C., Bhiwandi. The learned Magistrate committed the case to Sessions Court on 22.5.1990, the offence being exclusively triable by the Sessions Court. The charge under section 20(b)(ii) of the NDPS Act was, thereafter framed and explained to the accused. The accused pleaded not guilty to the charge. His defence was of total denial. Further, he has stated that he was only labourer, earning his bread by doing labour work and that he never indulged in drug trafflicking. 5. We have heard learned counsel for the parties for quite sometime and with their assistance gone through the entire evidence 4 on record. The prosecution in order to bring home the guilt of the respondent-accused, examined six witnesses. Out of this, Parekh (P.W.1), Pawar (P.W.2) and PSI Thorat (P.W.5) are main witnesses on whose evidence the prosecution placed heavy reliance upon to prove the charge against the accused. Insofar as remaining three witnesses are concerned, they are Vatkar (P.W.3) and Wargade (P.W.4), who carried muddemal articles to C.A’s office, and PSI Hande (P.W.6), who carried out the investigation and registered crime against the accused. Over and above the evidence of these witnesses, the prosecution also placed reliance upon the panchnama (Exhibit-7), FIR (Exhibit-9), forwarding letter to C.A. office (Exhibit-11), requisition to the C.A. office for sending back the property (Exhibit-14) and report of PSI (Exhibit-16). 6. The learned counsel for defence, at the outset, submitted that the provisions of section 41 and 42 of the Act were not complied with by the raiding party and on this count alone the trial vitiates. On the other hand learned APP submitted that compliance of section 41 and 42 in the present case was not necessary since the accused was apprehended on the road and hence the provisions of section 43 were attracted. Instead of entering into this controversy, by consent of learned counsel for the parties, we examined the case on merits to find out whether the evidence led by the prosecution and more particularly evidence of P.W.1, 2 and 5 is sufficient to connect the accused with the crime, with clear understanding that the 5 submissions on the questions of law will be considered only if we find the evidence on record is otherwise cogent, sufficient and satisfactory to hold the accused guilty. 7. The evidence of the complainant – Pawar (PW.2) and PSI Thorat (P.W.5) show that on receipt of the information at about 12.30 am the panch witnesses were called in the Crime Branch office and they were briefed about the information received by them. They got station diary entry made at Shanti Nagar police station and then left with the panch witnesses for the place in private vehicle where the accused was to come with Charas. Then, they have stated as to how they apprehended the accused and panchnama (Exhibit-7) was drawn. The raid was conducted as per the information received in the Crime Branch office at midnight on 25.2.1990. PSI Thorat has stated that the information received was not reduced into writing. However, station diary entry was made on the basis of report at Exhibit-16, which has been proved by PSI Thorat. It is pertinent to note that no station diary entry was, however, produced nor any such entry appeared to have been looked into by the investigating officer nor a copy of the same was relied upon by the prosecution in the documents submitted under section 173 of the Code of Criminal Procedure. In view thereof the Sessions Court has rightly held that it would not be possible to accept that the station diary entry had been proved by the prosecution. PSI Hande (P.W.6) has proved only the report at Exhibit-16 and since it was not seriously challenged we are 6 accepting that the station diary entry was also made and it was made on the basis of the report at Exhibit-16. But in any case the contents of station diary entry cannot be held to be proved. 8. Next, we would like to consider the evidence of Parekh (P.W.1), Pawar (P.W.2), and Thorat (P.W.5). We find several discrepancies in their evidence. Both, PSI Thorat (P.W.5) and H.C.Pawar (P.W.2) have stated that after the information was given by the informant, the panch witnesses were called in the Crime Branch office at Bhiwandi and there they were told about the information received and their consent was obtained for acting as panchas. When we tested their evidence with the evidence of Parekh (P.W.1) we found that it is not only inconsistent with the evidence of Thorat and Pawar but he has completely destroyed the case of the prosecution. Parekh (P.W.1) did not refer to the police officers or PSI in his evidence. He has stated that at 12.30 am he left his powerloom factory and while he was at rickshaw stand one person approached him disclosing him to be the police officer from C.I.D. and requested him to accompany him. The police officer also told Parekh that they have received information from the informant that one person was to come at particular place with contraband article. He has further stated that he went to “police station” where some entry was made and phone call was also made and then they left for Khandu-pada. In the cross examination, he has admitted that from rickshaw stand he was not taken to Crime Branch office at Bhiwandi, as claimed by Pawar (P.W.2) and Thorat (P.W.5). As 7 a matter of fact he denied that he was taken to Crime Branch office and there he was briefed about the secret information received regarding the accused. It is the case of the prosecution that one B.K.Patil, the police constable, was sent for calling P.W.1 – panch. The prosecution, however, for the reasons known to them chose not to examine B.K.Patil as witness in the present case. P.W.1 has also stated that from rickshaw stand he was taken to police station by B.K.Patil, who had disclosed him that he was from the CID office, Thus, the evidence of P.W.1 is not consistent with the evidence of P.W.2 and P.W.5. 9. Further, the evidence of PSI Thorat shows that the informant after giving information in the office of Crime Branch went away and then two persons were called as panch witnesses. Pawar (P.W.2) in the cross examination has, however, not so stated. He has stated that B.K.Patil had gone to call panch witnesses and that the informant was in the office when B.K.Patil came back with the panchas in their office. So there is clear variance in the evidence of Thorat and Pawar insofar as presence of the informant in their office is concerned. 10. Next, we would like to consider the manner in which raid was conducted and contraband articles were seized by the raiding party. It would be relevant to notice that names of the panchas were not entered into the police station diary on the basis of the report at 8 Exhibit-16. After the accused was apprehended, the plastic satchel in his possession was searched and contraband articles found therein were seized on the spot after collecting samples. This all happened in the presence of P.W.1, 2 and 5. According to the prosecution, the articles were wrapped, sealed and labeled on the spot. The seals were, as admitted by PSI Thorat in the cross examination, were not legible. What is more important is the evidence of Parekh in respect of sealing. This witness has completely destroyed case of the prosecution, in his cross examination. In cross, he has stated that the seals of wrapper “C” and “D” were not affixed by the police in his presence. He has further stated that even on wrapper “B”, the seal was not affixed in his presence. What is further important to note is that the satchel, which the accused was carrying at the relevant time and from which the contraband articles were seized, was not taken in custody by the police. It was not even referred to in the panchnama or the complaint. The prosecution has not explained as to why they did not seize or attach the satchel and produced before the court as incriminating article. In the circumstances, in our opinion, the trial Court has rightly held that the evidence of P.W.1, P.W.2 and P.W.5 in respect of the seizure panchnama does not inspire confidence and in any case is not sufficient to connect the accused with the crime. Thus, we are satisfied on facts that the prosecution cannot be stated to have proved the offence against the accused beyond reasonable doubt. Since on merits we are taking this view of the matter, we are not entering into the controversy whether compliance of section 41 9 and 42 was made or whether provisions of section 43 only are attracted and similarly, compliance of section 55 and 57 of the Act was made by the prosecution. On facts, we are satisfied that the evidence led by the prosecution on record is not sufficient to prove beyond reasonable doubt the involvement of the accused. 11. The Apex Court in catena of decisions has laid emphasis on the general principles of criminal jurisprudence that the presumption of innocence in favour of the accused further stands strengthened by the acquittal. It is further clear that if two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court is not expected to interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on appreciation of the evidence is erroneous. In other words, unless there is absolute assurance of guilt, the appellate Court is not expected to interfere with the order of acquittal. In the present case, we have gone through the entire evidence and also the impugned judgment. In our opinion, it cannot be characterised as perverse and it does not suffer from manifest illegality. 12. We have re-appreciated the entire evidence on record which, in our opinion, is definitely not sufficient to hold that the prosecution has proved beyond reasonable doubt the involvement of the accused. In any case, it cannot be stated that the conclusion recorded by the 10 Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously. That apart, the learned APP, in the present case, could not and did not point out either manifest illegality or perversity in the conclusion drawn by the trial Court. In the result we confirm the order of acquittal. The appeal, accordingly, fails and dismissed as such. The bail bonds, if any, stand cancelled. (RAJESH.G.KETKAR,J.) (D.B.BHOSALE,J.)