( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 392 OF 2009 Rajaram s/o. Tulshiram Mane .. Appellant Age. 68 years, Occ. Labour, [original Resident of Kashti (Bk.) accused] Tq. Lohara, Dist. Osmanabad. Versus The State of Maharashtra .. Respondent Mrs. S.S. Jadhav, Advocate for the appellant. Shri K.M. Suryawanshi, A.P.P. for the respondent. CORAM : P.R. BORKAR,J. DATED : 03.03.2010 ORAL JUDGMENT :- 1. This is an appeal filed by the accused person being aggrieved by the order of conviction and sentence passed by the Special Judge, Omerga, in Special Case (NDPS) No. 03 of 2008, decided on 29.07.2009, whereby the appellant/accused was convicted of offence punishable under section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for ( 2 ) short “N.D.P.S. Act”) and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for six months. 2. Briefly stated it is case of the prosecution that P.W.1-P.I. Wadaje of Lohara Police Station got information on 20.08.2008 at about 01.00 p.m. that the accused/appellant, who was resident of village Kasti, Tal. Lohara, was illegally selling ganja at his residence. Accordingly, he gave information to the Superintendent of Police on telephone, made entry thereof in the station diary and thereafter called two persons as panch witnesses. Third person was called to act as punter and fourth person with weights and scales. After telling the information to those persons, Ameerlal Fakir agreed to act as punter. Hujur Shaikh had brought weights and scales. Bhagwan and Sarwade were panch witnesses. The P.I. prepared panchanama in which number of the currency note of Rs. 20/- denomination was mentioned and said currency note of Rs. 20/- was handed over to punter. Thereafter, along with said panch, the punter went to village Kasti. At some distance vehicle was stopped. punter – Ameerlal Fakir (P.W.4) and Police Constable – Suryawanshi ( 3 ) (P.W.3) went to the house of the accused. P.W.4-Ameerlal Fakir purchased two packets of ganja from the appellant and paid him Rs. 20/-. Thereafter, signal was given to other members of raiding party. All went into the house of the appellant to arrest him. There was one steel cupboard and in that cupboard ganja was found kept in a bag. It was found to be 9.5 kg. Out of it 100 grams sample was taken. Said sample of 100 grams, so also the two packets, which were purchased by punter Ameerlal Fakir (P.W.4) were separately packed, labelled and sealed. Remaining quantity of ganja was also, labelled and sealed. During search of the accused, currency note of Rs. 20/-, which was given to him by P.W.4-Ameerlal Fakir was found. In the custody of the appellant, his voter’s identity card, ration card and two pipes were also found. All these articles were attached under a panchanama. 3. P.I. Wadaje, thereafter, lodged complaint (Exh.60). He produced the accused along with muddemal articles before P.S.O. Phule (P.W.5). P.S.I. Phule visited the spot of incident. He recorded statements of material witnesses. The muddemal was sent to the Chemical Analyzer. After C.A. Report was received, the charge-sheet was sent against the ( 4 ) appellant. 4. The prosecution examined in all six witnesses, they are P.W.1-P.I. Laxman Wadaje, P.W.2-panch-Bhagwan Maktedar, P.W.3 - P.C. Gangadhar Suryawanshi, P.W.4-punter Ameerlal Fakir, P.W.5-P.S.I. Phule and P.W.6-Sajay Khilare, Assistant Chemical Analyzer. 5. Except P.W.4-Ameerlal Fakir, all other witnesses supported the prosecution case. It is argued before this Court that conscious possession is not proved, in as much as the house raided as per evidence of P.W.1-P.I. Wadaje was house No.M-460/C-257, whereas the Assessment Extract of Village Form No. 8 produced by I.O. P.S.I. Phule was in respect of house No. 99, which was in the name of Vijaykumar Yashwantrao Chavan. The learned A.P.P. Shri K.M. Suryawanshi pointed out that though the number of house given by the I.O. and as shown in the Assessment Extract are different, but abuttals are same. It is also argued by the learned advocate for the appellant Mrs. Jadhav that in this case as admitted by P.W.2-Bhagwan Maktedar, besides the appellant, there was one lady present. He did not ask name of the lady, nor he ( 5 ) was aware if that lady was related to the accused. He did not remember if P.I. Wadaje asked her name. 6. The learned advocate for the appellant relied upon case of Premnarayan Prabhulal Mina & Anr., V/s. State of Maharashtra, 2008 ALL MR (Cri) 599. In that case it is held that it must be proved that the accused was in conscious possession of bundles of ganja. In the facts of that case, the bundles were found in the truck and the accused was travelling in the truck. It is held that merely because the accused was found in same truck, that would not be sufficient to hold that the accused was in actual possession of those bundles. 7. In Om Prakash @ Baba V/s. State of Rajasthan, 2009 AIR SCW 6385, there were large number of persons living in the house searched. The ownership and possession of premises by the accused was not proved. As observed in para 7 of the said case, five brothers of the appellant, their children and parents of the appellant were living together. So, in the facts of the case, it was held that exclusive possession of the accused was not proved. ( 6 ) 8. In this case though the house does not belong to the appellant, as can be seen from the Assessment Register produced on record, still two facts are relevant, which are duly proved by the prosecution. Firstly, the information was that it was accused who was selling ganja and accordingly punter was sent and though the punter had turned hostile, the currency note which was handed over to punter under panchanama Exh. 17 was found in the custody of the accused and the punter has produced two packets of ganja. So, in absence of any explanation by the accused, it will have to be held that it was accused who sold ganja to the punter. So, the accused was not only in conscious possession but had also control over ganja to sell part of it to punter. Secondly, bag of ganja was found in the steel cupboard and as per evidence of P.I. Wadaje the its was with the accused. So, the accused was in the custody of ganja. So, even assuming for a moment that the accused was not in possession of house, he was definitely selling ganja and was in possession of ganja. 9. In this case the learned advocate Mrs. Jadhav has ( 7 ) argued that the link between C.A. Report and the article attached is not established. There is no evidence of carrier who had taken the muddemal articles to the C.A. There is also no evidence of any witness who said that after raid he was given custody of the articles and the articles were in same condition until they were sent to C.A. Adv. Mrs. Jadhav also rightly pointed out that in this case the letters sent to the C.A. are not duly proved. It is not established that specimen seals were sent to the C.A. along with samples. 10. In this case the evidence of P.I. Wadaje at Exh. 16 stops at lodging of the complaint. All that he said is that after raid he lodged complaint Exh. 19 and handed over muddemal articles to P.S.O. under intimation to the Superintendent of Police. So, he did not say that he himself had sent muddemal sample articles to C.A. Whereas P.S.I. Phule who is examined on oath at Exh.25 has stated that he recorded statements of material witnesses as per their say. The muddemal articles were sent to the C.A. by P.I. in this crime and C.A. report is received. So, P.S.I. Phule, who had investigated the matter who was also P.S.O. when the crime was registered, did not state that along with complaint, the ( 8 ) muddemal articles were handed over to him; they were in sealed condition; he kept them in Malkhana and thereafter he sent the muddemal sample articles to C.A. in same condition. Either there should have been such evidence of P.S.I. Phule or of P.I. Wadaje. It is true that P.S.O. does change. In- fact, various persons act as P.S.O. by rotation, but somebody should have come forward to say that the muddemal sample articles were handed over by him to some one else in sealed condition for taking to C.A. and accordingly articles were sent to the C.A. in same condition. Generally persons who take samples from police station and hand over them to C.A. are examined. Thus, there is vital missing link in this case. 11. The learned A.P.P. pointed out the evidence of P.W. 6-Sanjay Khilare, Assistant Chemical Analyzer. He stated that he received sample in C.R. No. 23 of 2008 from Lohara Police Station for examination. He received two sealed parcels. One of them contained two paper packets and there was also other sample. He proved his report at Exh. 21. He did not identify muddemal articles from this case as those received and examined by him. ( 9 ) 12. In the case of State of Rajasthan V/s. Gurmail Singh, 2005 AIR SCW 1333, in para 3 following observations are made :- “3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.” . In this case there is no evidence to show that someone from police station had sent specimen seals along with samples to C.A. No letter forwarded to C.A. is produced on record. In this case, no doubt, there is evidence to show that the samples were sealed on the spot and for that purpose from the police station the seal was carried by P.I. Wadaje to the spot before raid. He spoke about packing, laballing ( 10 ) and sealing of samples. 13. In the case of State of Rajasthan V/s. Gopal, (1998) 8 S.C.C.449, the seal of sample sent to the Analyst was not produced in the Court for verification. In this case also the specimen seal sent to Chemical Analyser and its covering letter were not produced in the Court. 14. In the case of Ramakant Ganpat Vaiti V/s. State of Maharashtra, 1980 Bom.C.R.488, it is observed that when a criminal liability is sought to be spelt out, it must be conclusively established that contraband article was found with accused and that same article was ultimately analysed by Chemical Analyzer and for that purpose it was necessary that the person who had sent the samples for analysis should be examined and state that he had sent the samples of articles seized from the accused to C.A. or the person who carried the samples from police station to office of C.A., should depose that the samples from same crime were taken by him to the office of C.A. and the samples were in same condition. On this point, I may refer to the observations made in the case ( 11 ) of Ramkrishna Narayan Patekar V/s. The State of Maharashtra, 1983 (1) Bom.C.R.280. In that case, it is observed that the person who carries the article to the C.A. has to be examined. In that case the muddemal article was not produced eventhough asked for. There was overwriting on C.R. number and therefore it was observed that the prosecution has to prove the nexus between C.A. report and article attached during raid and any benefit of doubt or infirmity should go to the accused. 15. When suspected article is seized at the time of search, it becomes necessary for the prosecution to establish beyond doubt that seized article is same, which was analyzed and found to be narcotic drug by analysis. When identity is not established the benefit will go to the accused. P.W.6- Sanjay Khilare, Assistant Chemical Analyzer did not identify the muddemal articles from the Court as the same articles which were analyzed by him. He also admitted in cross- examination that he has not mentioned in respect of tests done by him. In any case the Chemical Analyzer should have been asked to identify if the sample articles produced in the ( 12 ) Court were the same which he had analyzed so that on the basis of evidence of P.W.1-P.I. Wadaje and P.W.6-Khilare, it could have been said that the articles analyzed were one and same. The muddemal articles were not shown or were identified by P.W.2-Panch-Bhagwan Muktedar. In his deposition, he simply proved the panchanama without identifying the muddemal articles. 16. In the case of Mainuddin Kasim Mulla V/s. State of Maharashtra, 1991 (3) Bom.C.R.626, in para 9 following observations are made :- “9. .................... This clearly means that the sample packets or the covers in which the samples were collected were never returned to the Court for facilitating the identification of the sample packages at the hands of witnesses like P.S.I. Abhyankar and panch Sarode. In order to establish a clearcut link between the seized articles and the report of the chemical analyser stating that the analysed articles were contraband articles, it was absolutely necessary to have identified before the Court, as a substantive piece of evidence, the packets in which the samples were collected and were sent to the chemical analyser. But for that, the sealing of the samples on the “scene of offence under the wax seals as well as the labels signed by the panchas had become totally redundant. The labels signed by the panchas are affixed on to the sample articles usually to enable the panchas to identify those articles before the ( 13 ) Court with reference to their own signatures. In some case, we have also noticed that the officer in whose presence the seals were made also had countersigned such seals to assure the Court that the articles identified by the panchas were the same articles which were sealed on the scene of offence itself. In the present case, as the packets containing the samples were never brought before the Court and as they were never got identified before the Court, it was not established beyond reasonable doubt that the articles which were analysed by the chemical analyser were, indeed, the samples collected from the articles which were allegedly seized from the appellant on the scene of offence. ........................” 17. In this case, it is argued that there is no compliance of Section 50 of the N.D.P.S. Act. In-fact, no personal search of the accused was taken for attachment of contraband article. It is prosecution case that the accused was selling ganja at his house. So, section 50 of the N.D.P.S. Act would not be applicable in the present case even though personal search of the accused was taken. The search was taken to find out if the currency note given to punter was with the accused. Similarly, the evidence of P.I. Wadaje shows that there was compliance of Section 57 of the N.D.P.S. Act, in this case. In this case, section 52-A of the said Act is not applicable, because it is not case of anyone that the articles were disposed of. ( 14 ) 18. In this case already samples were sealed with seal of the police station on the spot itself, therefore, there was no necessity of further compliance under section 55 by P.S.O. In this case, the vital link is missing and it is not established by the prosecution that after the samples were taken on 20.08.2008, they remained in same condition without tampering until they were received by the C.A. 19. After having considered all the circumstances, in my opinion the appeal must succeed. Hence, the following order is passed :- (i) The Criminal Appeal is allowed. (ii) The order of conviction and sentence dated 29.07.2009, passed by the Special Judge, Omerga, in Special Case (NDPS) No. 03 of 2008, is hereby quashed and set aside. The appellant – Rajaram s/o. Tulshiram Mane, is acquitted of offence punishable under section 20 (b) of the N.D.P.S. Act. ( 15 ) (iii) The appellant be set at liberty, if not required in any other crime. (iv) Fine, if deposited, be returned to the appellant. (v) Muddemal property i.e. Ganja be sent to the State Excise Department, Osmanabad, for its disposal according to law. (vi) The Criminal Appeal accordingly stands disposed of. [P.R. BORKAR,J.] snk/2010/MAR10/crap392.09