* 1 * Cri.Appeal-515/1991 14.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 515 OF 1991 [ By STATE AGAINST ACQUITTAL] The State of Maharashtra ... Appellant/Orig.Complainant : V E R S U S : Ramprasad Rajitram Mishra r/o. JayHind Nagar, Pipeline, Samat Alli Chawl, Khar (E), Bombay ... Respondent/Orig.Accused ******* Mrs. P.P. Bhosale, APP for the appellant-State. Respondent absent. CORAM : SMT. R.P. SONDURBALDOTA, J. SEPTEMBER 14, 2010. JUDGMENT :- 1. This appeal is preferred by the State to challenge acquittal of the respondent by the Sessions Court, Mumbai by its judgment and order dated 4th/6th February, 1991. By the impugned judgment and * 2 * Cri.Appeal-515/1991 14.9.2010 order, the respondent has been acquitted of the charge under Sections 20(b)(ii) read with Section 8(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘ N.D.P.S. Act’). 2. The brief case of the prosecution is as follows : . On 27th January, 1990 P.W. 3 S.I. Dubey received a telephone call at about 1.15 p.m. that the respondent was moving around near the junction of S.V. road and 5th road, Khar carrying charas, selling the same to persons known to him. The information was reduced to writing. After completing the formalities, P.W.3 headed the raiding party to S.V. road. The vehicle of the raiding party was stopped near the paan shop at the junction of a road near S.V. Road. They noticed a person wearing light brown shirt and a white pant loitering on the footpath in front of Adhrekar Flour Mills. After observing him for about five minutes, the raiding party apprehended him. On his personal search, P.W.3 found seven balls of blackish colour damp charas from two side pockets of his pant and three strips of damp charas from the left shirt pocket. The charas found on his person together weighed about 700 grams. The * 3 * Cri.Appeal-515/1991 14.9.2010 police registered an offence vide C.R. No.1 of 1990 at Khar Police Station under Sections 20(b)(ii) read with Section 8(c) of N.D.P.S. Act, 1985 against him and arrested him. The prosecution examined in all three witnesses in order to bring home the charge against the respondent. They are P.W.1-Senior Inspector N.C. Singh, P.W.2- R.N. Gupta-panch witness and P.W.3-Senior Inspector Dubey. The defence of the respondent was that he had been falsely implicated in the narcotics case and his signature about having received panchanama was obtained by him in the month of February after he was remanded to police custody. He denied that he was in possession of charas or that he was apprehended in front of Adhrekar Flour Mills on 27th January, 1990 at about 4.15 a.m. According to the respondent, he was picked up by the police at the instance of one Somnath Kale on 26th January, 1990 near the vicinity of Ceasar Palace Hotel and taken to police station where he was detained until the next date. 3. On appreciation of the evidence made before him, the learned Sessions Judge found that the prosecution had failed to prove that the respondent was found in possession of narcotics and acquitted * 4 * Cri.Appeal-515/1991 14.9.2010 the respondent. The learned Sessions Judge found serious infirmities in the evidence led by the prosecution and discrepancies in the deposition of the witnesses examined. It has been case of the prosecution and its evidence that the information as regards the respondent was received over telephone by P.W.3 at 1.15 p.m. in the charge room. However, the raiding party left the police station only at 2.30 p.m. and reached the place of offence at about 4.30 p.m. The learned Judge found that the manner in which Exhibit-5, i.e. information received by him over telephone was recorded casts doubt on the investigation. The information was scribed not from the top of the page but had commenced in the middle of the page. There was spacing left between the first two lines and the third line which spacing is different from the third line and the lines scribed below. There was also change in the ink used. This manner of recording the information received has not been explained by the Investigation Officer. The other infirmity noticed by the learned Sessions Judge was that the information did not contain the description of the person about whom the information was given. Instead of description of the person, the name of the person was * 5 * Cri.Appeal-515/1991 14.9.2010 given by the informant. Since it is not the prosecution’s case that the respondent was a person known to the police in some way or the other, the omission of stating description of the person is a material omission, which would cast doubt on every step taken pursuant to the information. The next infirmity in the information received over telephone is about the topography of the area. The place at which the respondent was informed to be carrying on illegal activities was the junction of 5th road Khar and S.V. road. P.W.2 and P.W.3, both admitted in their evidence that 5th road Khar and S.V. road do not meet at any place and as such no junction as informed is in existence. They also admit that they know the topography of the area. If that was so, P.W.3 ought to have questioned the informer for further particulars of the place of the offence as the junction stated by him was not in existence. Due to these two glaring lacunae, the learned Sessions Judge doubted the recording of information at Exhibit-5 by P.W.3, which set the prosecution action in motion. 4. As regards the panch witness, the Sessions Court found that he was a regular panch witness known to the police who was under * 6 * Cri.Appeal-515/1991 14.9.2010 the obligations of the police as his occupation was of selling vegetables on the footpath, for which he had no license. The learned Sessions Judge also found it strange that instead looking for a panch witness from the vicinity, P.W.3 had sent a constable to the house of P.W.2 which was at a distance of 10 minutes walk and called him while he was resting with his family. Lastly, it has been observed by the learned Sessions Judge that the quantity of charas of 700 grams allegedly found by the police on the person of the respondent was unbelievable. As per the panchanama, the balls of charas alleged to have been recovered from the respondent, weighed 20 gms, 60 gms, 68 gms, 55 gms, 57 gms, 61 gms and 55 gms. The strips found weighed 37 gms, 27 gms and 18 gms together weighing 458 gms. The learned Judge opined that this quantity of charas being carried in pockets would definitely have caused the pockets to bulge and the same would have been noticed by anybody. Further, undisputedly damp charas balls and strips were without any packaging material. Therefore, the same in all probability would have left some stains or odour on the clothes of the respondent. However, the clothes had not been taken in possession * 7 * Cri.Appeal-515/1991 14.9.2010 by the police. The learned Judge further observed that if the goods in such a form were to be surreptitiously delivered to an unknown person on a footpath, the same would have been packed in some material which to a casual onlooker would not indicate of anything unusual or special. The varying weights and the condition in which charas was found would be against the probability of he being in possession with an intention to sell them to the customers on a foothpath within the sight of large number of persons. For these serious infirmities in the prosecution evidence, there is no explanation whatsoever offered. Therefore, the learned Sessions Judge gave benefit of doubt to the respondent and acquitted him of the same. Perusal of the record of the case shows that the observations of the learned Judge are fully borne out by the same. The acquittal of the respondent cannot be disturbed. Hence, the appeal is dismissed. [SMT. R.P. SONDURBALDOTA, J]