1 Cri Appeals No.69 & 89 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 69 OF 1999 Sajjanbai w/o Subhashchandra Pokarna, Aged 47 years, Occupation Household, Resident of Solapur Galli, Latur Appellant V E R S U S The State of Maharashtra Respondent WITH CRIMINAL APPEAL NO. 89 OF 1999 Subhashchandra Mishrilalji Pokarna, Aged 51 years, Occupation Business, Resident of Solapur Galli, Latur Appellant V E R S U S The State of Maharashtra Respondent Smt. S.S. Jadhav, Advocate for the appellants Mr. S.G.Nandedkar, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 15th December, 2010 ORAL JUDGMENT 1. Both these appeals are challenging the Judgment and order passed by the learned Special Judge, Latur, in Special Case No. 15 of 1993, convicting the appellants for the offence punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentencing them to suffer rigorous imprisonment for five years and to pay fine of Rs.15,000/- each with a default clause. 2. The prosecution case, in short, was that on 2nd March, 1993, Omprakash, a person, who was in custody of the police of Gandhi Chowk Police Station, Latur, informed the police that he would show 2 Cri Appeals No.69 & 89 of 1999 a house where they would find and seize contraband narcotics. Accordingly, the police raided the house of the appellants and seized narcotics. The samples of the substance found were sent to chemical analyzer, who certified that they were Ganja and Bhang. 3. The case of the prosecution is sought to be proved through seven witnesses. The prosecution witness No. 7 Dattatraya Bedre, prosecution witness No. 4 Chandrashekhar and prosecution witness No. 6 Dilip are important. 4. The prosecution witness No. 7 stated that on 2nd March, 1993, he was attached to Gandhi Chowk Police Station, Latur, as Police Inspector. He said, on that day, he interrogated one Omprakash regarding possession of contraband articles found with him. He said, Omprakash agreed to show the place where from he had purchased narcotics. He said, thereafter, he called two panchas and recorded Omprakash’s version in their presence. Such statement, he said, was in respect of another crime registered against Omprakash. He said, as per the oral statement of Omprakash that he would point out the place where from he had purchased the narcotic drugs, he said, he called panchas and proceeded with Omprakash, panchas and other police personnel to such place. He said, Omprakash then pointed out a house at Solapur Galli of Latur. He said, he, Omprakash and others on reaching the house pointed out by Omprakash called out name Subhashchandra. Hearing such calls, he said, the appellants came out of the house. He said, he informed them his intention to take search of their house. He said, he offered personal searches of the members of the raiding party including the panchas. He said, thereafter, he and the raiding party entered the house. He said, in the house they found packets containing Bhang and Ganja. He said, he got the articles weighed and then, he said, he took out samples from the articles and got the sample packets sealed. The articles were also packed and sealed. He said, after 3 Cri Appeals No.69 & 89 of 1999 packing the articles and samples, he affixed signatures of panchas on such packets. He said, thereafter, a panchnama was prepared. 5. Prosecution witness No. 4 stated that he was called by the police of Gandhi Chowk Police Station on 2nd March, 1993 along with one Dilip for acting as panch. He said, one Omprakash was there in the police station. He said, the prosecution witness No. 7 told him that some articles were to be recovered from the house which Omprakash would point out. He said, thereafter, he, the other panchas and the police party took Omprakash with them and they reached a house at about 10.30 to 11.00 am. He said, the house was pointed out by Omprakash saying that it was the house of Pokarna. He said, the police officer called out name of Pokarna. He said, hearing the calls, 5-6 women came out of the house. He said, no male person came out. He said, the police officer asked the women as to whether that house belonged to Subhash Pokarna and that the house would be searched. He said, one of the women was a relative of Subhash Pokarna and other women were tenants residing in the same house. He said, the women then went outside and police officers went inside the house for search. He said, he did not see the faces of the women, because they were hiding their faces with Ghungat. He even did not identify the appellant No. 2, who was present in the Court as one of such women. He said, the police then took search and found several articles. He said, police took small quantities of certain substances found in the house and kept them in separate packets. He said, the remaining articles and substances were kept in gunny bags. 6. The prosecution witness No. 6 Dilip, the other panch, stated that on 2nd March, 1993, he too was called at Gandhi Chowk Police Station to act as a panch. He said, he noticed one Omprakash in the police station. He said, he was told that Omprakash was to give some confessional statement. He said, in his presence, Omprakash 4 Cri Appeals No.69 & 89 of 1999 agreed to show the house from which he had purchased the contraband articles. He said, thereafter, the police, the panchas and Omprakash proceeded to the locality shown by Omprakash. He said, Omprakash then took them to a house in Solapur Galli of Latur. He said, Omprakash told them that the house belonged to one Pokarna. He said, the police then called out the name of the house owner. He said, the accused present before the Court then came out of the house and told them their names. He then said that the police informed them that their house would be subjected to search. He said, thereafter, the police took search and found several contraband substances, from which samples were taken in small quantities. He said that the samples of the substances were separately kept in packets and sealed. 7. The prosecution witness No. 5 Girdhar is a police constable, who stated that on 4th March, 1993, he was asked to carry the samples of this case to the office of Chemical Analyzer, Aurangabad. He said, he was given 12 sealed packets with forwarding letter. He said, he deposited the articles with seals intact to the office of Chemical Analyzer on 5th March, 1993 and obtained acknowledgment. I need not give particulars of depositions of the remaining witnesses, as they are formal in nature. 8. The learned Advocate appearing for the appellants pointed out several lacunae in the prosecution case and I would deal with her submissions, one by one. 9. It is submitted that there is no convincing evidence on record that the appellant Subhashchandra in Criminal Appeal No. 89 of 1999 was present when the raiding party visited the house pointed out by Omprakash. She placed reliance on the deposition of prosecution witness No. 4 for making this submission. Indeed, this so called independent panch witness did not support the prosecution case in 5 Cri Appeals No.69 & 89 of 1999 this regard. The gist of his testimony is already mentioned above and he has specifically stated that when the raiding party visited the house, only 5-6 women came out of the house. However, the other witnesses, such as prosecution witnesses No. 6 and 7 tried to fill up the gap, when they stated that the appellant Subhashchandra was also present when the police party raided the house. The prosecution, however, did not cross-examine the prosecution witness No. 4 on this point, and therefore, whatever he stated on this point, is also part of the prosecution case. This witness thus makes the prosecution case weaker on this aspect. 10. The learned Advocate appearing for the appellants asserted further that the appellant Sajjanbai (the appellant in Criminal Appeal No. 69 of 1999) was not identified in the Court as the person who came out of the house when the raiding party visited her house. Indeed, the most important prosecution witness, the prosecution witness No. 7, the leader of the raiding party, did not state in his substantive evidence that the woman he met at the house at the relevant time was present in the Court and was none else but the appellant Sajjanbai. Neither prosecution witness No. 4 identified her as the person to whom he saw at the time of the raid. The only person who identified her as the person who had seen at the time of party is the prosecution witness No. 6. But, his deposition alone would not convince the Court that it was the appellant Sajjanbai who was found at the time of raid in the house which was raided because the women were wearing ghungat at the time of the raid. On this count also, the prosecution case gets weakened as far as the appellant Sajjanbai is concerned. 11. The learned Advocate appearing for the appellants further pointed out that the panch witnesses, viz; prosecution witnesses No. 4 and 6 were really not independent witnesses. Both of them admitted in their cross-examination that they worked as Clerks in the 6 Cri Appeals No.69 & 89 of 1999 office of Superintendent of Police, Latur, and when they were called by the police of Gandhi Chowk Police Station, they rather obediently went there without seeking leave of absence. This admission on their part clearly indicates that they were directly under the thumb of the prosecution witness No. 7 and were not really independent witnesses. Thus, the Investigation Officer has failed to comply with the mandatory requirement of Section 100 of Code of Criminal Procedure. The relevant provision of sub-section 4 of Section 100 reads as under : Sub-Section 4 of Section 100 : “Before Making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.” On the face of it, there is a clear violation of the above mentioned provision. Due to this lapse on the part of the prosecution, their case gets further weakened. 12. The learned Advocate for the appellants further pointed out that there is nothing on record to show that the articles that were seized from the house of the appellants were in their conscious possession. It is not the case of the prosecution that the appellants or anyone of them pointed out that the contraband articles were concealed etc. The prosecution case, as said above, is that the police entered the house of the appellants, and on taking search, articles were found. The prosecution thus has not connected the appellants to the storing of the articles. It has come on record that the appellants were not the only residents of the house. It has also come in the evidence that the house which was searched was of several rooms and yet a map was 7 Cri Appeals No.69 & 89 of 1999 not prepared to show the exclusive possession of the appellants of such rooms. It has also come on record that the part of the house was also occupied by the several tenants. But, the prosecution witnesses did not state that they excluded the tenanted portions of the house and concentrated only on the portion which was in exclusive possession of the appellants. In this regard, a useful reference can be made on the Judgment of Supreme Court in the case of Om Prakash @ Baba v. State of Rajasthan (2009 AIR SCW 6385). In this case, the Supreme Court placing reliance on its own Judgment in the case of Mohd. Alam Khan v. Narcotic Control Bureau and another (AIR 1996 SC 3033), held that the finding on the question of possession and ownership was a sine qua non before an accused could be convicted in the case of a recovery made from a house which was occupied by several persons other than the accused. Besides this it is further pointed out that not a single prosecution witness stated that the house which was subjected to search belonged to the appellants and they alone stayed there exclusively. As said above, there are admissions of the prosecution witnesses when it is indicated that the appellants were staying in this house with members of their joint family. 13. The last submission of the learned Advocate appearing for the appellants is that the prosecution failed to comply with mandatory provisions of Sections 42, 52-A and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 42 of the Act, reads as under : “42. Power of entry, search, seizure and arrest without warrant or authorization.- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in 8 Cri Appeals No.69 & 89 of 1999 this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may 9 Cri Appeals No.69 & 89 of 1999 enter and search such building,conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior. ” Section 42 of the Act has clearly enjoined the prosecution witness No. 7 to not only reduce into writing the information which he had received from Omprakash, but he was also under obligation to send it to his superior officer. Admittedly, the prosecution believes that the information which the police officer received from Omprakash, led them to believe that the narcotic drug or substance was kept or concealed in the house of the appellants. The prosecution witness No. 7 was asked about this mandatory requirement and he admitted that he did not record the information which he received from Omprakash in writing and he said that since his superior officer was with him, he did not think it necessary to communicate this information to his superior officer. It is thus clear that there is a clear violation of the mandate of Section 42 of the Act in this case. Section 55 of the Act, reads as under : “55. Police to take charge of articles seized and delivered – An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of an from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 10 Cri Appeals No.69 & 89 of 1999 It seems, the prosecution witness No. 7 was not at all aware of this provision when he raided the house of the appellants and carried out the investigation of the case. He was admittedly not the officer-in- charge of the police station at the relevant time. He stated that he sent the contraband articles to the police station, but he did not say that the police station officer allowed him or any other police officer to affix the seal of the police station officer on the articles and samples etc taken from the appellants’ house. No prosecution witness in this case stated that any seal was affixed on the packaged articles and the sample packets. All that is stated is that the packaged articles or sealed sample packets were affixed with a slips signed by the panch witnesses. Probably they were not aware of the provision of Section 55 of the Act, which requires affixing of the seal of the Station Officer on all the articles and samples. Section 55 thus had enjoined the prosecution witness No. 7 that after the raid, he should have gone to the Police Station, he should have informed to the Station House Officer about the seizure of the packaged articles and taking of the samples which were separately sealed in packets, he should have then requested the Station House Officer to affix his seal on these articles before the Station House officer could keep those articles and samples in the safe custody. It is thus clear that the mandatory provisions of Section 55 of the Act were not complied with. In this regard, a useful reference can be made to the Judgment of the Supreme Court in the case of State of Rajasthan v. Gurmail Singh (2005 AIR SCW 1333). When the Supreme Court held that since the samples which were sent to Excise Laboratory not the same seals as were put on the contraband immediately after the seizure, would fail the prosecution case. Section 52-A of the Act reads as under : 52A. Disposal of seized narcotic drugs and psychotropic substances. 11 Cri Appeals No.69 & 89 of 1999 52A. Disposal of seized narcotic drugs and psychotropic substances. (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time, determine after following the procedure herein- after specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub- section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the 12 Cri Appeals No.69 & 89 of 1999 application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972), or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub- section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” This provision makes it mandatory that the narcotic drugs or substance seized and forwarded to the Station House Officer should be inventarized giving the details. It is further made compulsory that such inventory should be shown to the Magistrate for certification etc. The prosecution case is completely silent on this aspect and that there is clear violation of this provision. In view of this, the appeals should succeed. ORDER 1. Both the appeals are allowed. 2. The Judgment and order passed by the learned Special Judge, Latur in Special Case No. 15 of 1993, dated 5th February, 1999 stands set aside. 3. The appellants are acquitted of the offence punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 4. The fine amount, if any, deposited by the appellants, shall be refunded to them. 5. Their bail bonds stand cancelled. ( A.V. NIRGUDE, J. ) SRM/criapl/69/99/15/12/10/ok 13 Cri Appeals No.69 & 89 of 1999