1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.1378 OF 2003 1. Maruti G. Gund, age 70 years, resident at Tungat, District Solapur. 2. Chandrakant Babu Bitkar @ Chandrakant Dattatraya Godke, age 52 years, residing at Tungat, District Solapur. 3. Shahaji Trimbak Bhadakwad, age 55 years, residing at Bhimnagar, Angaar, Taluka Mohol, District Sholapur. Appellants/Ori.Accused Nos. 1 to 3. Versus 1. The Inspector of Customs Preventive Narcotic Cell, 41-A, ICE House, Sasoon Road,Pune. 2. The State of Maharashtra. Respondents. Shri Prakash Naik, Advocate with Ganesh Bhujbal,Advocate for the Appellants. Mr, H. V. Mehta, for the Respondent No.1. Mr A.S. Shitole, A.P.P.for the Respondent No.2-State. 2 CORAM: A.R.JOSHI,J. DATE : 11TH JUNE,2009. ORAL JUDGMENT. 1. Present appeal is preferred by all three original accused against their conviction in Sessions Case No. 245 of 2002 in the matter of offences punishable under Sections 8 (c), 20 (b)(ii) (c) and also for the offence punishable under Section 29 r.w.s. 8 (c) and also 27 (A) r.w.s. 8 (c) of the N.D.P.S.Act, 1985 on which count accused were sentenced for ten years imprisonment and fine of Rs. 1 lac each and in default of payment of fine further imprisonment for one year each. The said impugned judgment and order came to be passed on 24.9.2003 by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, (N.D.P.S.Act for short) at Sholapur. 2. Being aggrieved by the impugned judgment and order, the present appeal came to be filed before this Court and yesterday rival arguments were heard at length. Prior to appreciating such arguments, certain factual position and the materials produced before the Special Court as to the case of the prosecution i.e. Customs 3 Department, can be narrated, as under:- 3. The Customs Department on 17.7.2002 received information regarding one Chandrakant Dattatraya Ghodke ( i.e. Accused no.2) resident of post Tungat, taluka Pandharpur, District Sholapur had stored eight gunny bags of Ganja weighing about 200.5 kgs in the residence of one Shahaji Trimbak Bhadakwad, accused no.3 at and post Angar village, Taluka Mohol, District Sholapur. In the said information it was mentioned that if the said premises is raided on 17.7.2002 during night time, the Customs Preventive Narcotic Cell can recover the Ganja. The said information was recorded in writing in the form DRI-I; and was placed before the Superiors and requisite permission was obtained for conducting the raid at the given premises. As such on the next date i.e., on 18.7.2002 at the said given premises at Post Angar, Taluka Mohol, District Sholapur, purported to be the premises belonging to accused no.3, raid was conducted and contraband Ganja, totally weighing 200 kilograms and 500 grams, kept in seven gunny bags and one polythene bag, was found. Requisite samples were taken out in the presence of panch witnesses including P.W.1 panch. Said search was conducted at the early hours of 18.7.2002 just after midnight. Usual procedure was adopted as per the requirements of the conducting the trap 4 under N.D.P.S.Act. At the time of such search and seizure, accused no.1 was found in the premises. He was apprehended and subsequently his statements were recorded u/s 67 of N.D.P.S.Act At this juncture, it must be mentioned that contents of such statements are significant and also relevant so far as the establishment of case against the accused persons is concerned. as through such statements names of accused nos. 2 and 3 were revealed including their roles inasmuch as accused no.2 was the employer of accused no.1 and accused no.1 was working as a servant and selling the Ganja on retail basis from the said premises for and on behalf of accused no.2. It was also revealed through such statements and also through the statements of accused no.2 who was subsequently put under arrest as to the involvement of accused no.3 as the person who had engaged accused no.2 to deal with the bulk Ganja. 4. After the first search and seizure as mentioned above and after revealing the address of the premises belonging to accused no.2 at Pandharpur, said house was also searched on 31.7.2002 and narcotic contraband Ganja weighing 2 kgs was recovered in presence of panch witnesses under a panchnama. During the said house search panchnama, one old woman was found and her statement was 5 also recorded. Requisite samples were taken and samples and contraband were taken charge of and during the investigation the samples were sent for chemical analysis through carrier P.W.no.5, an employee from the office of the Customs Department. C.A.,report was obtained which show the samples show positive for the presence of Ganja being a narcotic contraband. 5. It is admitted position that during the first raid conducted on 18.7.2002 only accused no.1 was present and was apprehended. However, certain documents connecting accused no.3 with the said premises were recovered such as the Ration Card in his name. During the said search and seizure one receipt was found showing the name of accused no.1 Maruti Gund issued by some sugar mill of Muldhar village, Taluka Mohol,District Sholapur. The said documents were seized by the raiding party members. 6. It is also the factual position during the search and seizure of the house of one Mangal alias Suwarna Raju Chavan at Akulj, Tq. Pandharpur which was conducted on 31.7.2002 though accused no.2 was not present when 2 kgs Ganja was seized, the statement of a woman, Mangal alias Suwarna Raju, who was found in a room, connects the accused no.2 with the room. So also during investigation it was found out that the owner of that room had rented the 6 same to accused no.2 and said owner Shri Shelke has been examined as P.W.3. Again it may be mentioned that so far as whereabouts and residence of accused no.2 is concerned at Tungat, Taluka Pandharpur, District Sholapur, there is substantive evidence of P.W.4, one Gram Sevak of the said village who identified and connects accused no.2 with the premises at Tungat. At this juncture, it must be mentioned that the secret information received by the Customs contains the name of said accused no.2 Chandrakant Ghodke, resident of post Tungat, Taluka Pandharpur, District Sholapur. 7. Next prosecution witness is P.W.5 carrier of the samples to the office of the Chemical Analyser (C.A.). P.W.no.6 is Rural Development Officer and who identified accused no.3 as the resident of the house at Solapur and which was raided in the first search and seizure of 18.7.2002 by customs. P.W.7 is also the another witness Nursing Mhatre examined in order to connect accused no.3 with the said house at Solapur and which bear No. 628 and the said number appearing on the said house which was searched at early hours of 18.7.2002. P.W.8 is the godown incharge in whose custody the bulk contraband was given and the material was stored. P.Ws. 9, 10 and 11 are the officers from the Customs Department and virtually they 7 narrated the same story as to the seizure at both the premises and connection of all three accused with the said search and seizure of 200 kgs and 500 grams Ganja and connection of accused no.2 with the seizure of 2 kgs Ganja on 31.7.2002. 8. Finding the substantive evidence of these prosecution witnesses and mainly placing reliance on the statements of the witnesses recorded under section 67 of N.D.P.S. Act and also the statements of the accused persons so recorded under the said Act and being relevant in the matter, learned Special Court came to the conclusion as to the involvement of three accused in the offences charged and accordingly convicted them. At this juncture, it must be mentioned that the charge was framed against all three accused vide Exh.3 on 27.2.2003. 9. During the arguments learned Advocate for the appellant-accused raised the main objection and exception to the substantive evidence of both the panch witnesses. It is pointed out by referring to the answers given by these witnesses through their cross-examinations, as to the pancha P.W.1 was relative of the raiding party member, P.W. 10 Officer Ram Tonpe. So also, P.W.2 in the cross- examination admitted that Inspector Tonpe had seized 2 kgs Ganja from the house of accused no.2 and as such said panch 8 had acted on the directions of said Tonpe. By pointing out such evidence of panch witnesses P.W.Nos. 1 and 2, it is strongly submitted that their evidence cannot be accepted as trustworthy and as such the search and seizure on both the relevant dates is required to be discarded. It is also further argued that in fact for want of absence of accused Nos. 2 and 3 during both the said searches and seizures, said accused Nos. 2 and 3 cannot be held responsible and cannot be linked with such seizures of Ganja. It is also argued on behalf of the appellants that nowhere it is brought on record in the substantive evidence of P.W.2 panch that for what purpose he had been to the place of the raid at village Angar at the house of accused No.3 Shahaji after mid-night on 18.7.2002 i.e.,at early hours and as such the presence of said panch during such search and seizure can be termed as concocted, further argued. 10. Counter to the aforesaid arguments, learned A.P.P.,for the Customs Department placed reliance on the ratio propounded by the following authority. 2009 Cr.LJ 1752 Mahipati and Ors vs. State of M.P. 11. It is submitted that if at all there is any relationship between the Officer and the panch the same in itself cannot be treated as a ground for disbelieving the 9 panch witness. In other words, without there being any foundation led for affecting the credibility of the witness and such foundation must be by way of appropriate materials brought on record by the accused, the testimony of such panch witness cannot be discarded. 12. In the opinion of this Court, mere admission of a panch witness as to having relation with one of the raiding party members may not per se affect the credibility of the said witness and when there is another corroborative evidence by way of statements recorded under Section 67 of the N.D.P.S.,Act connecting the accused persons with the offence of storing and possessing narcotic contraband Ganja. 13. On going through the reasonings given by the Special Court after assessing the substantive evidence of the prosecution witnesses, it can be said that the Trial Court had rightly reached to the conclusion as to the involvement of the accused persons for the offences charged. Needless to mention that in order to establish the guilt of the accused there need not be hundred percent proof required to be established but what is required to be proved is the proof which is beyond reasonable doubt so as to connect the accused persons with offences charged. Considering the cumulative effect of the substantive 10 evidence brought before the Trial Sessions Court it must be said that the prosecution has gathered the evidence which has reached to that standard of proof, which is beyond reasonable doubt to link the accused-appellants with the offences charged. Under these circumstances, there is nothing to view the impugned order differently or to alter the same in any manner and consequently the present appeal must fail and accordingly disposed of. 14. In the result, the following order is passed. ORDER: Criminal Appeal No. 1378 stands dismissed. (A.R.JOSHI,J)