(1) CRI.WP. 777.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 777 OF 2010 Datta Vishwanath Gadhave, Age : 55 years, Occu.: Agri., R/o Gadhavewadi, Tq. Mukhed, Dist. Nanded .. Petitioner VERSUS The State of Maharashtra and anr. .. Respondents ... Mr. V.D. Gunale, Advocate for the Petitioner Mr. V.D. Godbharle, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 28TH OCTOBER, 2010 ORAL ORDER:- 1. This Petition is filed under section 482 of the Code of Criminal Procedure. The Petition is being disposed of finally at the stage of admission. 2. Heard learned Advocate for the petitioner and learned APP for the respondent. 3. The FIR lodged against the petitioner prima facie purports to show that 16 small packets of ganja were recovered from a cattle-shed situated at new locality of village Gadhavewadi. The Police (2) CRI.WP. 777.2010 and panchas visited the cattle-shed on 14.5.2010 in pursuant to a secret information at about 17.15 hours. They noticed that cloth bag was hanging to a wooden rafter of the cattle-shed. There was one person in the cattle-shed. When the cotton bag was removed and the contents were examined, the Police noticed 16 small packets containing ganja stored in the cotton bag. There was also a sample of poll chit of a panel of the local village co-operative society for the election. That chit bore name of the petitioner. No other evidence was adduced to connect the petitioner with the stock of ganja found in the cotton bag. 4. Heard learned Advocate and the learned APP and on perusal of the investigation papers, the following fact situation is explicit:- (I) At the relevant time of search of the cattle-shed, no-one was found at that place. The search was not conducted in pursuance to any prior warrant issued by the learned Magistrate under section 100 of the Code of Criminal Procedure. (3) CRI.WP. 777.2010 (II) The village property record, of which copy is collected by the Investigating Officer, and appears to have been included in the investigation papers, indicates that the cattle-shed is owned by one Shriram Mahadu Mundhe. There is absolutely no record to show that the cattle-shed is owned by the petitioner. It further appears from recitals of the panchanama drawn during course of first hand seizure that it was a thatched wall cattle-shed like a hut. That was not a close place as such. It was partly open and accessible to members of public. It is also manifest that no tangible evidence could be collected to show that the petitioner had gone to the said cattle-shed prior to the alleged search and seizure, for the purpose of placing the cotton bags inside that shed. I mean to say there is no scintilla of evidence to show that the petitioner had hung the cotton bags to the rafter of the cattle-shed. (III) It appears from the investigation papers that the Police recorded statement of the (4) CRI.WP. 777.2010 petitioner. However, such a statement cannot be read in evidence in view of the protection available to the petitioner under Article 20 of the Constitution of India and that section 161/162 of the Code of Criminal Procedure permits the Police to record statements of the witnesses and not the accused. 5. Considering the above referred circumstances and the nature of investigation, it is most unlikely that the petitioner could be attributed possession of the cotton bags containing the small packets of ganja. The recovery of 400 gm. of ganja packed in 16 packet (pudis) from a partly open space like cattle-shed in question, of which the petitioner is not the owner or possessor, is totally insufficient to proceed against him for the alleged offences under section 20 or 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In other words, there is no foundation to the prosecution against him. Needless to say such a prosecution would amount to abuse of the process of law. (5) CRI.WP. 777.2010 6. In the result, the Petition is allowed and the FIR as well as the consequent investigation or filing of the charge pursuant to such FIR stands quashed. Sd/- [V. R. KINGAONKAR, J.] arp