1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1075 OF 2002 Ramlal Jaylal Yadav } Age  30 years, } Occupation - }.. Appellant R/at.Janta Zopadpatti, } (Original Bhimnagar, Near Ganesh Kirana } Accused No.1) Stores, Kashimira, Thane. } V/s. The State of Maharashtra }.. Respondents Mr.Ganesh Gole for the Applicant. Mrs.M.H.Mhatre, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : JUNE 22nd ,2009. ORAL JUDGMENT :- It is the appeal filed by appellant original accused against his conviction in the matter of offence punishable under section 20(ii)(C) of N.D.P.S. Act, 1985. By the said impugned judgment and order dated 29th June, 2002 passed by Special 2 Judge under N.D.P.S.Act, Thane appellant accused was sentenced to suffer R/I.for 10 years and to pay fine of Rs.1,00,000/- in default to suffer further R/I for 2 years. Reportedly, from the date of incident i.e. from 18th July, 2000 appellant accused is in jail and by this time he had almost completed the imprisonment for 9 years less one month. Reportedly, the fine amount is not paid. 2. Heard rival arguments at length. The case as narrated before the Special Judge can be mentioned as under : Raid was conducted near Kalyan railway station and near Kalyan S.T. stop on 18th July, 2000 at about 11.30 a.m. Said raid was conducted by the officers of local Mahatma Gandhi Police Station, Kalyan on the prior intimation received by P.W.No.5 P.I.Bhangale that the person with certain description, wearing certain cloths, was to come to Mumbai by a train, from platform No.1 Kalyan railway station and was in possession of Narcotic contraband Charas in gunny bag. Such secret information was reduced into writing vide Exh.20 and necessary station diary entry Exh.21 was made. Thereafter, panch witnesses were called including panch witness No.7 and also the photographer P.W.No.6 was called 3 and watch was kept near Kalyan railway station. Informant was also present. When the present appellant accused came to the spot with one yellow coloured polythene gunny bag with him, he was identified by the informant and thereafter he was accosted by the raiding party members. He was apprised as to his rights under section 50 of N.D.P.S.Act and thereafter in presence of panch witnesses his search was taken. In the personal search of the appellant accused nothing incriminating was found. However, in the gunny bag Narcotics contraband-Charas totally weighing 8 kilos and 300 grams was found. Requisite samples of 50 gram each were taken out. Detailed trap panchanama Exh.25 was drawn and accused was put under arrest and brought to the police station. Necessary entries in the station diary were made. Subsequently, samples were sent to C.A. and C.A. report Exh.27 positive for Charas, was obtained. On completion of investigation charge sheet was filed before the special Court and the matter was tried after framing the charge Exh.7. Total 7 witnesses were examined, out of which P.W.No.1 PSI Shirsagar, P.W.No.3 constable Kadam and P.W.No. 5 P.I.Bhangale- an investigating Officer and who was also complainant, are police party members who took part in the raid. P. W. No.2 police person Shri 4 Jadhav is the carrier of the samples to the C.A. P.W.No.4 is one panch witness Shri Patil regarding taking of the photographs from photographer P.W.No.6 under the panchanama Exh.17. P.W.6 is the Photographer Bhatia. At this juncture, it must be mentioned that it is in fact a special circumstance in which such photographer was brought on the spot during the trap panchanama and photographs were taken regarding the seizure and preparation of the packets of the bulk contraband and also the sample packets on the spot. P.W.No.7 is the panch witness regarding search and seizure. Said panch Muktar Isaq Khan has partly supported the case of the prosecution in as much as he identified the accused before the Court as the person who was searched during the trap panchanama and finding of narcotic contraband Charas from him on the spot, however, further submitted that he signed on the panchanma Exh.25 at the police station. At this juncture, it must be mentioned that this answer given by the panch is emphasized on behalf of the appellant accused mentioning that the panch had not supported the case of the prosecution. On this aspect, again it must be mentioned that a reasoning is given by the trial Court while coming out of such defence on behalf of the accused. 5 4. During the arguments the main defence put forth on behalf of the appellant accused is that of non compliance of section 42 and 50 which are mandatory provisions. Admittedly, regarding mandatory nature of these provisions there cannot be a dispute, however, whether such provisions have been complied in the present case or whether there was not any requirement for the compliance of the provisions, is the question to be dealt with. In fact, such question has also been referred and answered by the trial court mentioning that there was substantial compliance of section 42(i)42(2) whereas there was non requirement for compliance of provisions of section 50 of N.D.P.S. Act, considering that it is a case of finding narcotic contraband charas from the gunny bag and not during the personal search of the appellant accused. Though, it is vehemently argued on behalf of the appellant regarding alleged non compliance of provisions of section 42 of the N.D.P.S. Act, there was not much force in the argument so far as the alleged non compliance of section 50 of N.D.P.S. Act, probably for the factual position that during the personal search of the accused no narcotics contraband was found, however, what was found was 8 kilograms and 300 grams of Charas from the gunny bag. Again on this aspect, reasoning given by the 6 special Court is seen and in the opinion of this Court, there is nothing to come to the different view then that taken by the trial Court as to non requirement for compliance of provision of section 50 of N.D.P.S.Act. 5. Now coming to the compliance or otherwise of provisions of section 42 of N.D.P.S.Act, attention of this Court is drawn towards the specific answer given by P.W.5 P.I.Bhangale as admittedly he had not sent copy of Exh.20 i.e. the information reduced into writing by him, to his superior and what he had sent is admittedly Exh.22 i.e. the intimation given to the superior by way of different letter. Again it must be mentioned that a reasoning has been given by the special Court on this aspect. On bare reading of Exh.20 and Exh.22, it is a factual position that all the contentions of Exh.20 are appearing in Exh.22 and as such arguments that for want of certain copy of Exh.20 to the immediate official superior, the case of the prosecution should vitiate, cannot be accepted. In fact all the details as mentioned in Exh.20 are finding placed in Exh.22 and which has been sent to ACP who is then immediate superior of P.W.No.5 P.I.Bhangale as senior P.I.Chavan was absent on the relevant date on account of leave. Considering the substantive 7 evidence of P.W.No.5 P.I. Bhangale and considering the reasoning given by the Special Court, in the opinion of this Court, it must be held that there was a compliance of section 42 of N.D.P.S. Act and that the defence raised on that count on behalf of the appellant accused cannot sustain. 6. Lastly, certain other arguments advanced on behalf of the appellant accused can be considered. It is submitted that there is no independent witness examined by the prosecution and the trap panch P.W.No.7 has not fully supported and in that event the story given by the police witness cannot be accepted to hold the accused guilty of the offence charged, further argued. 7. On this submission, it is to be ascertain as to whether evidence of the prosecution witnesses has reached to that standard of proof which requires the establishment of guilt of the accused beyond reasonable doubt. Needless to mention that in any criminal matters 100 percent proof of the guilt of the accused is not contemplated and what is contemplated is that proof which is beyond reasonable doubt. Of course, whether a particular evidence has reached that standard of proof, depend on the facts of individual case and also the 8 substantive evidence appearing in such case. Considering the substantive evidence in the present matter and considering that all P.W.Nos.1,3,5 and also that of panch witnesses P.W.No.4 and 7 and also the substantive evidence of the photographer P.W.No. 6, in the opinion of this Court, there is sufficient evidence so as to attract the penal provisions of sections charged against the accused and the Special Court has rightly came to the conclusion regarding guilt of the accused for such offences. 8. In view of the above, it must be said that here it is a matter in appeal when there is nothing to view the said matter differently and come to the conclusion as to setting aside the conviction of the appellant accused for the offences charged and for which he has been convicted. The last argument advanced on behalf of the appellant is that in the event of holding the accused guilty of the offence, then, in default sentence may be reduced from 2 years to any laser quantum. On this aspect, it is submitted on behalf of the appellant that an amount of Rs.1 lakh is a huge amount considering the financial status of the accused and still considering that for about 9 years he has already undergone the sentence. Considering such circumstances in cumulative, in the opinion of this 9 Court, alteration of the sentence in default of payment of fine would meet the ends of justice, still maintaining the conviction and substantive sentence. Hence, the present appeal is disposed of with following order : :: O R D E R :: i. Criminal Appeal No.1075 of 2002 is partly allowed. ii. Conviction of the appellant accused Ranalal Jaylal Yadav for the offence punishable under section 20(ii)(C) is maintained, so also the substantive sentence of 10 years for such offence is also maintained. However, the imprisonment in default of payment of fine of Rs.1 lakh is reduced to the period of six months. (A.R. JOSHI, J.)