1 Cri-Appeal-269-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 269 OF 1993 The State of Maharashtra ... Appellant Versus Allbaksha Dastgir Shikalgar ) age 34 years, r/o. Sadarbazar ) Zopadpatti Kolhapur, ) District Kolhapur. ).. Respondent (Orig. accused) Smt. P.P.Bhosale, APP, for the Appellant - State. CORAM: J.H.BHATIA,J. DATE : 15th December, 2010. JUDGMENT : 1. This Appeal is preferred by the State against the acquittal of the accused for the offence punishable under Section 20(b) and Section 66(1)(b) f the Bombay Prohibition Act, 1949 in Sessions Case No.216 of 1992 by the learned Sessions Judge, Kolhapur. 2. Prosecution case, in brief, is that on 7.5.1992, at about 5 p.m., Police Inspector Amarnath Ingale PW-2 got information that a person would be coming to Central Bus Stand, Kolhapur with Ganja. He made entries in the Station Diary and informed the Sub-Divisiional Police Officer. Then he called two panch 2 Cri-Appeal-269-93.sxw witnesses and informed them about the information received by him. Along with two panch witnesses and other staff, he went near the S.T. stand. As soon as the informant gave signal about arrival of the suspect out of the Bus Stand, he was caught by the police party with a handbag containing 900 grams of Ganja. Out of the same, 100 grams Ganja was taken as a sample and was separately wrapped and sealed in a packet. The seizure panchnama Exhibit 10 was prepared at the spot. The Sub-Divisional Police Officer was also present on the spot. After the seizure, the accused was taken to Shahupuri Police Station along with muddemal bag and Ganja. Police Inspector Ingle lodged the report Ex.12 and registered Crime No. 158/1992 at 6.35 p.m. He himself took up investigation and recorded the statement of witnesses and sent the sample to C.A. After receipt of the C.A. report, charge-sheet was filed. 3. The accused pleaded not guilty. According to him, he was falsely implicated in this case. After hearing the prosecution witnesses and the arguments, the trial Court acquitted the accused holding that the prosecution evidence is not reliable and certain mandatory provisions of N.D.P.S. Act were not complied. 4. Heard the learned APP. None for the accused-respondent. Perused 3 Cri-Appeal-269-93.sxw the record and proceedings of the trial Court. 5. On behalf of prosecution, in all four witnesses were examined. Out of them PW-2 Police Inspector Amarnath Ingle is the main witness. PW-1 Suresh Jadhav was a panch witness and PW-4 Vishwanath Pandav was the Police Constable, who was the member of the raiding party Evidence of PW-2 Inspector Ingle reveals that he himself along with two panch witnesses and some police staff members went to the Central Bus Stand by private jeep. PW-1 Suresh Jadhav was also in the raiding party. PW-1 Suresh Jadhav and PW-4 Vishwanath Pandav tried to support the evidence of Inspector Ingle. However, it appears that there are several discrepancies and self-contradictions in their evidence. According to PW-1 Suresh Jadhav, the accused was caught hold of by the concerned police and then PW-1 himself took out contents of the bag in the hands of the accused. According to him, the bag contained two packages whch smelt Ganja. On the other hand, evidence of PW-2 Inspector Ingle shows that he personally searched the bag in the hands of the accused and it contained Ganja in loose condition. He does not speak about two packages in the said bag. PW-4 Vishwanath Pandav did not disclose as to who had taken search of the said bag in the hands of the accused. According to him, however, two big packages containing loose material smelling Ganja were found in the bag of the accused. 4 Cri-Appeal-269-93.sxw 6. According to the prosecution, Ganja found in the bag weighed 900 grams. However, the evidence of weighing of Ganja as well as taking of sample is not consistent. PW-1 Suresh Jadhav, the panch witness deposed that the Ganja was weighed with the help of balance and weights and it was 900 grams. However, in the cross-examination, he admitted that in his presence Ganja was not weighed and the weight was written only out of guess. He also admitted that sample was also not weighed in his presence. On the other hand, Inspector Ingle deposed that in the presence of panchas, Ganja was weighed. Thus, panch witness does not support the Inspector Ingle in respect of weighing of Ganja. According to PW-4 Vishwanath Pandav approximately 100 grams Ganja was taken as a sample. If approximately 100 grams Ganja was taken as a sample, it clearly means that the sample was not weighed specifically and it provides corroboration to the admission of PW-1 Suresh Jadhav that Ganja was not actually weighed. While as per the panchnama, 100 grams Ganja was taken as a sample, PW-3 Dashrath Jadhav who had taken the sample with a covering letter Exhibit 13 to C.A. deposed that on overleaf of Ex.13, there was a writing that weight of the sample was 60 grams and according to him, it was 60 grams when the sample was weighed in the office of C.A. in his presence. Surprisingly, in the C.A. report, Ex.14, the quantity is shown as 40 grams. Thus,as per the panchnama, 100 grams 5 Cri-Appeal-269-93.sxw Ganja was taken as a sample, while as per the evidence of the carrier constable, 60 grams ganja was sent and C.A. found the quantity to be 40 grams only. There was no plausible explanation for these differences. 7. Besides the above discrepancies in the evidence, the trial Court also noted non-compliance of certain mandatory provisions of law . No evidence was led by the prosecution that Inspector Ingle had reduced to writing the information received by him and he had sent copy of the same to his superior as required under Section 42(2) of the NDPS Act. Section 50 sub-section (1) requires that the person who is to be searched, if he so desires, shall be searched in presence of a Gazetted officer or a Magistrate. It is well settled position of law that it is the responsibility of the concerned police officer to inform the person to be searched about his right to be searched in presence of a Magistrate or a Gazetted officer and unless such information is given to him, he may not be aware about the right and therefore cannot exercise that right under the law. It has been held that the requirement of Sections 42(2) and 50(1) is mandatory and non-compliance of the same shall be fatal to the prosecution. Thus, these two mandatory provisions of law were not followed. 8. In view of the discrepancies in the oral evidence as well as the 6 Cri-Appeal-269-93.sxw documentary evidence and also in view of the non-compliance of the mandatory provisions of Sections 42 and 50 of the NDPS Act, no fault can be found in the impugned order of acquittal. 9. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.) 7 Cri-Appeal-269-93.sxw