1 Cri-Appeal-389-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 389 OF 1993 The State of Maharashtra ... Appellant vs. 1. Vijaykumar Keshavrao Birajdar ) age 24 years. ) 2. Vijaykumar Ramrao Kulkarni ) age 41 years ) Both R/o Basavkalyna, ) Tal. Bidar Distric (Karnatak State) ).. Respondents (Orig. Accused) Mrs. G.P.Mulekar, APP, for the appellant - State. CORAM: J.H.BHATIA,J. DATE : 13th January, 2011. JUDGMENT : 1. The State has preferred this Appeal challenging the Judgment and Order dated 5.8.1992 passed by the III Additional Sessions Judge, Solapur, in Sessions Case No.82 of 1992, whereby he acquitted the accused/respondents of the charge under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") and under Section 66(1)(b) of the Bombay Prohibition Act. 2 Cri-Appeal-389-93.sxw 2. The prosecution case, in brief, is that on 27.2.1992 at about 7.35 p.m. PW-5 Police Inspector Mallikarjun Umbarje of Barsi Town Police Station, got information that an Ambassador Car bearing No. MRX-6177 of white colour was carrying Ganja from Paranda to Barsi. He took entry of the same at Sr. No.33 in the station diary. He directed the Police Head Constable Ramchandra Bansode to call two panch witnesses and to bring scale and weights. Accordingly, Head Constable Bansode called PW-1 Ashok Bokefode, Special Executive Magistrate of Barsi and one Shivling Manmath Ganchari to act as panch witnesses. He also brought scale and weights from Prakash Bansilal Kankariya, a merchant in the area. Thereafter, Police Inspector Umbarje, accompanied by PSI Rane, Head Constable Bansde and other staff and two panch witnesses, went to Paranda Barsi Road, near Vaidu Vasti, by Police Jeep. At about 9.30 p.m., the above referred Ambassador Car of white colour came at the site. It was halted by police. Accused No.1 - Vijaykumar Birajdar was sitting on the driver's seat, while accused No.2 Vijaykumar Kulkarni, who was owner of the Car, was sitting on the front seat by the side of the driver. After informing them about the purpose of search, search of the car was taken. Two bags containing packets of ganja were found on the backside seat. One gunny bag containing loose ganja was found in the gap between back seat and front seat. Two gunny bags containing loose ganja were found in the backside dicky. Total weight of the ganja in 5 bags was 230 kg. 3 Cri-Appeal-389-93.sxw A small quantity of Ganja was taken from each of the bags as sample. It was mixed and then the sample was kept in two separate packets containing 125 grams each. Labels with the signatures of panchas were affixed on the gunny bags and were tied. Similarly labels with the signatures of panchas were affixed on both the sample packets and they were sealed with sealing wax and the seal of the police station. About all these proceedings, a panchnama was prepared on the spot. Muddemal property, samples, car and both the accused were taken to the Police Station. Muddemal property was deposited with In-charge of the Muddemal property at the Police Station. PW-6 PSI Bharatkumar Rane lodged report Ex.30 and on that basis Crime No.44/92 came to be registered. Investigation was handed over to PW-6 PSI Rane, who recorded statements of some witnesses. The sample packets were sent to C.A. through PW-2 Constable Dilip Mane along with a covering letter Ex.21. The C.A. report confirmed that the samples contained ganja. After investigation, charge-sheet was filed. 3. The accused pleaded not guilty. According to them, they have been falsely implicated. The property in question was already seized by police from one Waman Thavare. In support of the contention that no ganja was seized from the car of the accused No.2, defence witness Unmesh Deshpande was examined by the accused persons. The learned trial Court, after hearing the parties, 4 Cri-Appeal-389-93.sxw acquitted the accused. 4. Heard the learned APP for the State and the learned Counsel for the accused. Perused the record and proceedings of the trial Court. 5. PW-5 Police Inspector Mallikarjun Umbarje has deposed about the prosecution case at length and is supported by PW-1 Ashok Bokefode, who was one of the panch witnesses. PW-6 PSI Rane was also in the raiding party along with PI Umbarje. He also supported the prosecution case. The evidence of the witnesses shows that PI Umbarje had received the information that ganja was being carried by Ambassador Car of white colour bearing MRX-6177 and, therefore, he took entry in the Station Diary and then asked Head Constable Bansode to call panch witnesses and to collect scale and weights which PW-4 Head Constable did. Thereafter, P.I. Umbarje along with PSI Rane, Head Constable Bansode, both panch witnesses and other staff proceeded to Paranda Road near Vaidu Vasti and stopped. They took position and waited for the aforesaid Ambassador Car. When the Ambassador Car of white colour came on that road with head lights on, it was stopped. It was found that accused No.1 was on the driver seat and accused No.2 was sitting by the side of the driver. After informing them about the purpose of search, the search was taken and, as stated 5 Cri-Appeal-389-93.sxw earlier, two bags containing ganja were found on the back seat, one gunny bag containing loose ganja was found lying between the back seat and front seat and two more gunny bags containing loose ganja were found in the dicky of the car. The total ganja in the five gunny bags weighed 230 kgs. From each of these five bags, small quantity of ganja was collected. It was mixed and then it was divided into two parts. Each part containing sample of ganja was separately wrapped. Each sample was 125 grams. Labels bearing signatures of the panchas were affixed on all five gunny bags and the sample packets. The samples were also sealed on the spot and, according to PI Umbarje, the property was deposited in the muddemal property of which PW-3 Head Constable Suryakant Fadatare was in charge. Entry of the same was taken at Sr. No.29. Exhibit 30 is copy of the said entry. The sample packets were sent to C.A. through PW-2 Constable Dilip Mane. According to him, there was lakh seal on the sample packet and he handed over the samples in the same sealed condition to the Chemical Analyser along with the covering letter Exhibit 21. C.A. Report Ex.33 reveals that the two sealed parcels were received with seals intact as per copy sent and each sealed parcel contains ganja. 6. The learned trial Court found fault with the prosecution on several grounds. However, the main ground, on which the accused were acquitted, was 6 Cri-Appeal-389-93.sxw about the sealing of the samples. As per the evidence, each sample was 125 grams, while as per the C.A. report, the quantity was 115 grams each and due to this difference in weight, the trial Court suspected that samples must have been tampered with. I am unable to subscribe to this view because the samples were collected on 7.3.1992 and same were analyzed on 26.3.1992. The weight of the sample was taken with the help of scale and weights brought from a local merchant. There may be some difference in weights for several reasons and therefore there could be slight difference in the weight taken with the weight from the private merchant and the weight taken in the office of the C.A. If there is some moisture in the ganja, the moisture may be lost with the lapse of time and the weight may be reduced. In the present case, at the time of seizure, the leaves of ganja were green. Therefore, with the lapse of time, there was possibility of leaves getting dry and weight getting reduced. Therefore, the difference of 10 grams in the sample at the time of taking the sample and at the time of analyses in the C.A. office does not appear to be fatal to the prosecution. 7. The learned trial Court also observed that when PI Umbarje Senior Police Inspector of the Police Station had conducted the raid and seized the property, the investigation should have been handed over to some senior officer and for that purpose, the Superintendent of Police should have been requested. I 7 Cri-Appeal-389-93.sxw do not find any legal support for such observation. It is settled position that the raiding officer may be interested in success of the case and therefore further investigation should be conducted by some other police officer so that the investigation could be independent and impartial. It is not necessary that the investigation should be given to some senior and superior officer not connected with the police station. In the present case, further investigation was handed over to PSI Rane, who was incidentally present at the time of raid by PI Umbarje. I am unable to subscribe to the view of the trial Court that the prosecution case had become doubtful because the investigation was not handed over to som e other police officer senior to PI Umbarje. 8. As per the evidence of PI Umbarje and PW-4 Head Constable Bansode, PI Umbarje had directed PW-4 Head Constable Bansode to call two panch witnesses and to bring scale and weights which he did. PI Umbarje never asked Head constable Bansode to bring the seal of the police station or any other material. PI Umbarje also never deposed that he had taken the seal of the police station with him while going to the spot for the purpose of raiding. However, as per the evidence, the samples were sealed at the spot. The contents of the panchnama Ex.18 reveal that on the sample packets, the labels with the signatures of the panchas were affixed and they were sealed with sealing wax 8 Cri-Appeal-389-93.sxw with the seal of the police station. As per the oral evidence, 5 gunny bags and two sealed sample packets were deposited in the muddemal property room. PW-3 Head Constable Fadatare received the packets and took entry of the same at Sr. No.29 in the muddemal register. In the cross-examination, he admitted that Sr.No. 7 in the said entry refers to the sample packets. The entry at Sr.No.7 in the muddemal register does not show that when the samples were received in the Muddemal Property Room, they were in sealed condition and that they were sealed with the seal of the police station. He admitted that he did not affix the seal of the police station on the said samples. 9. PW-2 Constable Dilip Mane, who was a carrier, admitted that no separate paper having specimen impression of seal was given to him along with the muddemal property which he carried to Chemical Analyser. According to him, he handed over the muddemal property along with the covering letter Ex.21. Exhibit 21 bears the specimen impression of the seal having the emblem with three lion heads and around the same words "Government of Maharashtra" are to be found. The said specimen does not show that it was the seal of the police station Barshi from which the sample was sent. C.A. report only shows that the seals were intact as per the copy sent. On the samples, there was seal purporting to be of Government of Maharashtra. 9 Cri-Appeal-389-93.sxw 10. Learned APP contended that if no prejudice is caused to the accused by using any other seal, the prosecution will not fail for using any seal other than the official seal and she placed reliance upon State of Punjab vs. Leela (2009) 12 SCC 300. The Supreme Court observed thus in para 13 :- "13. It is not in dispute that provisions of Section 55 are directory in nature. In the instant case, the DSP who was examined as PW 1 is an officer and was higher in rank or of the same rank as the SHO in the instant case. There is no reason indicated as to how the accused has been prejudiced by PW 1 putting his seal instead of the SHO. The provisions are directory and as there is no doubt about the authenticity of the official act, the High Court ought not to have held that there was non- compliance with the requirement of Section 50." In that case, DSP, who was higher in rank or of the same rank as Station Officer, had used his own seal for sealing the sample and not the seal of the Station Officer and nothing was shown as to how the accused was prejudiced. Therefore, it was not treated as non- compliance of the requirement of law. 10 Cri-Appeal-389-93.sxw 11. By no stretch of imagination, the police officer could use the seal with inscription "Government of Maharashtra" only because officer of the police station cannot claim to be Government of Maharashtra and sufficient time was taken by the learned APP to take instructions about the inscription on the seal of the police station and after taking instructions from the headquarter and after referring to the rules issued for the guidance of the police by the Office of the Director General of Police,she concedes that the samples have to be sealed with the official seal of the concerned police station. Naturally, the seal must indicate that it is of the particular police station and this can be possible only if the name of the police station is inscribed on the seal. Otherwise, misuse of the general seal with words "Govt. of Maharashtra" only could not be ruled out. Learned APP has also taken some samples of the seal from the police station, Colaba which appear to be as prescribed. The seal has the emblem of the three lion heads with words "Satyameva Jayate" (in Devnagari script) at the bottom and words "Government of Maharashtra" around that emblem and then there is circular line and beyond that name of the police station is inscribed. The seal of the police station has to be in this form only. as noted above, the panchnama shows that the samples were sealed with the seal of the police station. If it is so, the specimen of the seal should also indicate that it was the seal of the police station Barshi. However, the specimen of the seal on the covering letter EX.21 does not show that it was a seal 11 Cri-Appeal-389-93.sxw of Barshi Police Station. It only shows that it was the seal of the Government of Maharashtra with emblem of three lion heads and words "Satyameve Jayate" (in Devnagari script). Such seal can be used only by the Government of Maharashtra and not by any other officer. No other officer and certainly not the police officer of a police station can claim to be the Government of Maharashtra. In the present case, specimen of seal on the covering letters sent to C.A. does not show the name of the police station and, therefore, it can be held that the samples sent to C.A. were not sealed with the seal of Barshi Police Station. Thus the covering letter Ex.21 shows that the specimen of the seal of the officer-in-charge of the police station was not sent to C.A. and naturally, the seal on the samples confirm to the specimen which was sent along with the covering letter Ex.21 and not with the seal of the officer in charge of the police station. It has to be noted that in the cross-examination, the concerned witness admitted that on the samples, when showed to them during trial there was no seal of the police station. As per the contents of the panchnama samples were sealed with the seal of the police station but samples sent to C.A. did not have the seal of the police station. Seals on the samples conformed to the specimen of seal, which was certainly different from the seal of police station. Therefore, possibility of misuse of any other seal or a general seal as the trial Court called it could not be ruled out. Therefore, it must be held that the prosecution has failed to prove beyond reasonable doubt that the 12 Cri-Appeal-389-93.sxw samples which were sent to C.A. were in fact the samples of the same property which were allegedly seized from the said car. Therefore, benefit of doubt will have to go to the accused. In view of this, it is difficult to interfere with the impugned judgment and order of acquittal. 12. In the result, the Appeal stands dismissed. (J.H.BHATIA,J.) 13 Cri-Appeal-389-93.sxw