1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.462/2010 1. Vasant Janku Mane age 63 years, Occ. Agriculture. 2. Balaji s/o Vasant Mane. age 32 years, Occ. Agriculture. Both r/o Tugaon, Tq. Omerga. District Osmanabad. ..Appellants... [Orig. accused 1 and 2 ] VERSUS The State of Maharashtra, [Copy to be served on G.P. of High Court Bench at Aurangabad] ..Respondent.. ------------------------------------------------------------------ Smt. Sadhana S. Jadhav advocate for the appellants. Smt. Y.M.Kshirsagar, APP for respondent. ------------------------------------------------------------------ CORAM : SHRIHARI P. DAVARE, J. .... ................................................................................................. DATE OF RESERVING JUDGMENT :15.11.2011 DATE OF PRONOUNCING JUDGMENT :21.11.2011 ................................................................................................. .... JUDGMENT : 1. Heard learned respective counsel for the parties. 2 2. This is an appeal preferred by the appellant nos. 1 and 2 i.e. original accused nos. 1 and 2, challenging the convictions and sentences imposed upon them by the judgment and order dated 29.10.2010, rendered by Special Judge, Omerga, District Osmanabad in Special Case (NDPS) No.1/2010, thereby convicting them for the offences punishable under sections 20(b) and 20(a) of Narcotic Drugs and Psychotropic Substances Act [herein after referred to as ‘NDPS Act’ for short] and sentencing them to suffer R.I. for ten years and to pay fine of Rs.1,00,000/- each, in default of payment of fine to under go further R.I. for two years, as well as convicting them for the offence punishable under sections 20 (b) of Narcotic Drugs and Psychotropic Substances Act and sentenced them to suffer R.I. for ten years and to pay a fine of Rs.1,00,000/- each, in default of payment of fine to undergo further R.I. for two years and directing that the aforesaid substantive sentences to run concurrently. 3. The factual conspectus and shorn of the details of the prosecution case are as follows :- According to the prosecution, the accused No.1 Vasant Janku Mane is the owner of field bearing Gat No.196/1 of village 3 Tugaon, Tq. Omerga, District Osmanabad and accused No.2 Balaji Vasant Mane is his son and both were cultivating the said land jointly. PW 6 A.P.I Balkrishna Hanpude Patil was attached to Murum Police Station and was working as API at the relevant time i.e. on 2.12.2009. It is the case of the prosecution that PW 6 API Hanpude Patil received an information at about 9.00 a.m. on that day i.e. on 2.12.2009 that the accused were cultivating Ganja plants in their field at village Tugaon. Accordingly, he recorded said information in the station diary and informed the same to S.D.P.O. Omerga, in-Charge, Tuljapur by phone message as well as by writing and office copy of the said information with the acknowledgment is produced at Exh.33. Accordingly, he called PW 5 Bharat Suryawanshi i.e. Naib Tahsildar, Tuljapur Dist. Osmanabad by sending letter Exh.35, since he was Gazetted Officer to remain present at the time of raid. He also issued a letter Exh.36 to Chief Officer, Murum Municipal Council and, requested to send two public servants as panchas, and accordingly, PW 2 Laxman Bhagat and P.W.3 Subhash Valdure were sent to act as panchas and, also PW 6 API Hanpude Patil called photographer namely Dayanand Wadekar by deputing Police Constable therefor and weighing scale through 4 Mallikarjun. Moreover, he also arranged for the wax seal and sealing material through P.H.C. Kadam. 4. It is also the case of the prosecution that PW 6 API Hanpude Patil appraised the aforesaid personnel about the raid to be conducted and thereafter the said members of raiding party proceeded towards village Tugaon and arrived at the field of accused and found that accused No.2 was present there and there was Tur crop in the field. PW 6 API Hanpude Patil made inquiry with the accused No.2 and he gave his name as Balaji Vasant Mane and stated that said field belonged to his father namely Vasant Mane and, he himself and his father were cultivating the said land jointly. Thereafter, PW 6 API Hanpude Patil introduced himself to accused No.2, and, informed the purpose of their arrival that they intended to verify the crops in the field. Thereafter, PW 6 API Hanpude Patil and PW 5 Suryawanshi Naib Tahsildar inspected the crops in the field with the help of panchas and they found Ganja plants in the field. Accordingly, all the Ganja plants were uprooted with the help of police staff and collected near the bandh. Said plants were weighed with the help of Mallikarjun and weight was 170 5 Kilograms. Out of the said plants, two plants were separated for sample purpose in cloth bags and said bags were sealed and labelled with the signatures of panchas, signature of the accused No.2 and signature of PW 5 Naib Tahsildar Suryawanshi. Moreover, the ordinary earth as well as earth attached to the root of the ganja plants were also collected and packed and the said packet was also labelled with the signatures of panchas as well as signature of accused No.2 and PW 5 Naib Tahsildar, Suryawanshi thereon. Accordingly, detailed seizure panchnama was prepared and signatures of panchas as well as signatures of PW 5 Suryawanshi Naib Tahsildar and accused were obtained thereon. Moreover, the photographs of said Ganja Plants were taken along with the accused No.2 namely Balaji. However, father of the accused No.2 was not present at the said time. Thereafter, accused No.2 was taken into custody and police personnel returned to the police station along with Muddemal property and accused No.2. PSI Ningdale lodged First Information Report against the accused Exh.24. 5. It is further case of the prosecution that muddemal property was deposited in the police station on the same day i.e. 6 2.12.2009 and accused No.2 was arrested on 2.12.2009 and accused no.1 was arrested on 3.12.2009. Moreover, PW 6 API Hanpude Patil made station diary entries in respect of the aforesaid events which is produced at Exh.37. On 6.12.2009 sample packets were removed from the muddemal store room and same were sent to C.A. Office, Aurangabad for examination purpose along with forwarding letter Exh.28 through PW 4 Mahadev Thombare attached to Murum Police Station i.e. carrier. Accordingly, CA report Exh.42 dated 11.1.2010 was received which was positive for Ganja. 6. Moreover, the prosecution case further recites that during the course of investigation, PW 6 API Hanpude Patil collected 7/12 extracts of the land of the accused which are produced at Exh.40 and 41. Moreover, map of the field of the accused was also prepared which is produced at Exh.39. Moreover, PW 6 API Hanpude Patil recorded statements of witnesses and also filed the report of investigation to his superior and it was transpired during the investigation that accused no.1 and 2 cultivated the ganja plants in their field. Accordingly, after completion of investigation, he filed charge sheet against the accused in the court. 7 7. Learned Special Judge, Omerga District Osmanabad framed charge against the accused nos. 1 and 2 under section 20 (b) of NDPS Act at Exh.11 on 12.2.2010. Moreover, learned Special Judge, Omerga also framed additional charge against accused nos. 1 and 2 under section 20 (a) of NDPS Act on 12.10.2010. Accused nos. 1 and 2 pleaded not guilty to the charges levelled against them and claimed to be tried. 8. To substantiate the charges levelled against them, prosecution has examined as many as six witnesses as mentioned below :- 1. PW 1 PSI Anandrao Apparao Ningdale i.e. complainant who lodged FIR Exh.24 against the accused on 2.12.2009. 2. PW 2 Laxman Hanmantrao Bhagat panch witness – turned hostile. 3. PW 3 Subhash Bhimasha Valdure second panch witness - turned hostile. 4. PW 4 Mahadev Shivajirao Thombare – Carrier. 5. PW 5 Bharat Shrimantrao Suryawanshi Naib Tahsildar, spot panchnama was prepared in his presence Exh.30. 6. PW 6 API Balkrishna Janardhan Hanpude Patil I.O. 8 9. The defence of the accused nos. 1 and 2 is of total denial and it is submitted by them that they have been implicated in this case falsely due to political rivalry and at the instance of police personnel. Accordingly, they claimed to be innocent. However, accused neither examined themselves on oath, nor examined any defence witness to substantiate the said defence. 10. After considering the oral and documentary evidence adduced and produced by the prosecution and also after considering the rival submissions advanced by the parties, learned Special Judge, Omerga District Osmanabad, convicted and sentenced both the accused for the offences punishable under sections 20(a) and 20(b) of NDPS Act by judgment and order dated 29.10.2010 as mentioned herein above. 11. Being aggrieved and dis-satisfied by the said judgment and order of convictions and sentences, the appellants herein i.e. original accused nos. 1 and 2 have filed the present appeal, assailing the same and prayed for quashment thereof. 9 12. To deal with the submissions advanced by the learned counsel for the parties effectively, it is necessary to advert to the material evidence adduced/produced by the prosecution and in the said context PW 1 PSI Anandrao Ningdale i.e. complainant deposed in his deposition that on 2.12.2009 his superior PW 6 API Hanpude Patil informed that he had received secret information that accused have plated ganja plants in Tur Crop at village Tugaon. Accordingly, PW 6 API Hanpude Patil called Naib Tahsildar Suryawanshi, two panchas, photographer and person having weighing scale at the police station. Thereafter, said members of raiding party proceeded towards village Tugaon at about 11.00 am and reached at Tugaon in the field of accused at about 11.45 a.m. and found one person in the said field and made inquiry with him, who gave his name as Balaji Vasant Mane i.e. accused No.2 who stated name of his father as Vasant Janku Mane and further stated that said field belonged to his father and he himself and his father were cultivating said land jointly. Moreover, police personnel disclosed their identity and conveyed their intention to arrive there that they wanted to search ganja plants in Tur crop. Accordingly, they inspected the plants and found ganja plants in tur crop and there after the said ganja plants 10 were removed with the help of police staff and all plants were collected at one place. Then sample of earth and root of ganja plants were taken for sample purpose for sending the same to CA office for examination and two plants were sealed in cloth bag. Thereafter all plants were weighed and weight of said plants were 170 Kilograms. Accordingly, panchnama was prepared in presence of Naib Tahsildar PW 5 by PW 6 API Hanpude Patil and Muddemal property was brought to police station and PW 1 lodged complaint against accused Exh.24. Moreover, sample of earth as well as sample of ganja plants were collected, sealed and labelled with the signatures of panchas and signature of Naib Tahsildar PW5 and accused. 13. In the cross examination he stated that his duty started on that day at about 8.00 am and PW 6 API Hanpude Patil informed him about the said raid at about 9.30 a.m. He stated that he does not know when information was received by PW 6 API Hanpude Patil. Naib Tahsildar Suryawanshi was residing at Omerga. He also stated that as he was not knowing the spot before raid. As regards station diary entry, he admitted that there is no reference in the First Information Report. So also there is no reference of intimation to 11 superior officer in the FIR. He also admitted that he has not called Talathi on the spot. 14. As regards the field, he stated that he made inquiry about sharers of the land but, he had not verified the sharers of land on the basis of document. He also admitted that he has not verified the owner as well as ownership document thereof. He stated that members of raiding party came to police station during 7.00 am to 8.00 am. He also admitted that he has not called Sarpanch or police patil of village Tugaon. He also admitted that he does not remember the boundaries of the said field however, he has not seen any agriculturist near the said field. As regards panchas, he stated that he has not called adjacent land owners to act as panchas. As regards compliance of Section 42(2) of NDPS Act, he admitted that there is no reference in the First Information Report about intimation to superior about raid, amounting to non-compliance of mandatory provision of Section 42 (2) of N.D.P.S. Act. 15. As regards, Muddemal Property, he stated that there are three rooms in the police station for depositing Muddemal and 12 Muddemal property of various crimes are being deposited in those three rooms. Moreover, there is separate muddemal clerk. He also admitted that it is not mentioned in the F.I.R. that muddemal property is deposited with the Muddemal clerk. He further admitted that till 3.00 p.m on the said day, crime was not registered against the accused. He also admitted that slip which is affixed to cloth bag bore crime number. Few suggestions were given to the said witness putting the case of the accused to him, but same were denied by him. read portion. 16. Considering the testimony of PW 1 - complainant PSI Anandrao Ningdale, it is apparent that there is no compliance of Section 42 (2) of N.D.P.S. Act, since he admitted that there is no reference in the FIR about taking entry in the station diary and no reference of sending information to the Superior Officer in the FIR. Moreover, admittedly, there are co-sharers in the land Gat No.196/1 but, the complainant neither verified the documents of their shares nor verified the documents of co-sharers. Moreover, he does not remember the boundaries of the field. Accordingly, it appears that specific portion of land belonging to accused nos. 1 and 2 out of land 13 gat No.196/1 has not been ascertained and identified to fasten the liability of the cultivation and possession of ganja upon the accused. Moreover, it also appears that entire muddemal property of different crimes were being deposited in three rooms at the police station and although, there is separate Muddemal Clerk, it has no where come in the evidence that Muddemal Properties of N.D.P.S. crimes were deposited separately. Moreover, it has come in the evidence that in the present case, labels fixed on the sample packet and packet containing Muddemal property bore Crime number but there is no evidence on record how the crime number was procured on the spot. Therefore, suspicion is created in respect of seizure, packing, labeling and sealing of the Muddemal property on the spot. 17. Coming to the deposition of PW 2 Panch witness Laxman Bhagat. Admittedly he turned hostile and did not support the prosecution case, but admitted in the cross examination conducted by learned APP that one accused was present in the field and PW 6 API Hanpude Patil and PW 5 Naib Tahsildar made inquiry with him and thereupon he gave his name as Balaji Vasant Mane and further stated that Vasant Mane was his father and said field belonged to his 14 father and he himself and his father used to cultivate said field jointly. He also stated that Naib Tahsildar asked accused no.2 about inspection of Tur crop and on inspection, they found ganja plants in Tur crops. Accordingly, ganja plants were removed with the help of police staff and two plants were taken as sample. However, he has not given weight of the said ganja plants as well as has not stated about the seizure of muddemal property under signatures of panchas on the spot. Hence, said testimony of PW 2 cannot be of any aid and assistance to the case of the prosecution. 18. That takes me to the testimony of PW 3 Subhash Valdure i.e. second panch, who also turned hostile and did not support the case of the prosecution. Said witness was cross examined by the learned APP wherein he stated that panchnama was prepared in his presence and he further stated that said panchnama bears his signature but the said signature was scribed by him in the police station, hence said very statement of PW 3 Subhash apparently makes it clear that panchnama was prepared at the police station and signatures of panchas were obtained at the police station and not at the spot which itself creates doubt about the credibility of 15 the said seizure panchnama. 19. Further coming to the deposition of PW 4 Mahadev Thombare - carrier, who stated that on 6.12.2009 he was attached to Murum Police Station and PW 6 API Hanpude Patil handed over a sealed cloth bag containing ganja and two sealed cloth bags containing earth and letter pertaining to crime No.60/2009 along with forwarding letter Exh.28 to him and asked him to hand it over to CA Office, Aurangabad. Accordingly, he went to Aurangabad on 6.12.2009 and deposited said packets on 7.12.2009 to CA office, Aurangabad, as well as handed over o/c of the letter to PW 6 API Hanpude Patil on 8.12.2009. In the cross examination, he admitted that muddemal property was brought to police station on 2.12.2009. However, he could not state whether muddemal property of all crimes registered is deposited in one room. He also could not state in which room, muddemal property was deposited. He has not received receipt from concerned police officer for receiving muddemal property. He stated that muddemal property was given to him in the office of P.S.O. He has not asked the weight of muddemal property to concerned police personnel. He further stated 16 that covering letter was not given in sealed packed. He does not know whether there was one flab of two flabs. He further stated that he does not know who had deposited muddemal property before the court. He also stated that he cannot state name of the police personnel who deposited the muddemal property in the police station. 20. It is apparent from the said deposition that muddemal property was brought to police station on 2.12.2009 and was removed from muddemal room on 6.12.2009 and was handed over to him on the said date, but he deposited the said muddemal property to CA office on 7.12.2009, which apparently, creates suspicion in respect of the custody of the muddemal property during the said two periods i.e. from 2.12.2009 to 6.12.2009 and from 6.12.2009 to 7.12.2009. 21. Turning to the deposition of PW 5 Bharat Suryawanshi Naib Tahsildar, who acted as panch for the spot panchnama, who stated that accused No.2 informed that land was standing in the name of his father and he himself and his father were cultivating said land. 17 He further stated the he introduced himself to the accused stating that he was Gazetted Officer then he inspected the land of the accused and found ganja plants in Tur crop. He also found that accused had cultivated ganja plants. All the plants were uprooted with the help of police staff and two plants were preserved for examination by CA and one for police station. The remaining ganja plants were attached under panchnama and signatures of the pancha witnesses were obtained on labels and labels were affixed on muddemal property. It also bears his signature and signature of panch witnesses. Panchnama was prepared which bears signatures of panchas which is produced at Exh.30. He identified the accused No.2 before the Court. 22. In the cross examination, he stated that, he was working as Naib Tahsildar at Omerga and his office is situated at Omerga. He also stated that, he came to know at Murum that there were ganja plants in the field of accused No.2 Vasant. His statement was not recorded by Investigating Officer. He has not seen 7/12 extract of land on that day. Talathi of Tugaon was not present on that day. He also stated that there are more than 10 sharers of gat No.196/1 of 18 village Tugaon. The entry of crop and cultivation was taken in the month of August. He further stated that, he did not feel it necessary to verify on the basis of revenue record who is the owner of the land. He also stated that, he does not know whether copy of the panchnama was handed over to the accused by police. 23. It appears from the testimony of PW 5 Suryawanshi Naib Tahsildar that, he being gazetted officer was present at the time of drawing spot panchnama. However, his testimony is silent that said ganja plants were weighed in his presence and there is no whisper in his testimony in respect of weight of said ganja plants. It is also apparent from his testimony that there are more than 10 sharers in gat No.196/1 of village Tugaon and he did not ascertain the ownership of the said land on the basis of revenue record. Hence, the very identification of the land belonging to accused nos. 1 and 2 out of gat no.196/1 of village Tugaon and possession of respective portion ownership thereof with the accused is under suspicion. 24. That takes me to the deposition of PW 6 API Hanpude 19 Patil, wherein he stated that he was attached to Murum Police Station and working as API on 2.12.2009 and on that day at about 9.00 a.m. he received information that Vasant Mane and his son Balaji were cultivating ganja plants in their field at village Tugaon. Accordingly, he recorded said information in the station diary and informed said fact to S.D.P.O. Omerga, in charge Tuljapur by phone message as well as by writing. Office copy of the information which was sent to SDPO is produced at Exh.33. He also stated that he called PW 5 Naib Tahsildar Suryawanshi as Gazetted Officer and produced copy of the said letter at Exh.35. He also issued letter to Chief Officer, Murum Municipal Council and called two public servants as panch and copy of the said letter is produced at Exh.36. Thereafter, weighing scale and photographer were called through P.C. 597 as well as sealing material was collected through P.H.C Kadam. Accordingly, two panchas namely Laxman Bhagat and Subhash Valdure arrived from Nagar Parishad, Murum and PW 6 API Hanpude Patil disclosed the intention about raid to panchas. PW 5 Suryawanshi Naib Tahsildar also arrived at the police station. Thereafter, the members of raiding party proceeded to Tugaon alongwith panchas, weighing scale and sealing material and reached 20 to the field of the accused and found that accused no.2 was present there. On inquiry, he gave his name as Balaji Vasant Mane and stated that said field belonged to his father Vasant and he himself and his father were cultivating the said land jointly. They also found Tur crop in the said field. PW 6 API Hanpude Patil also stated that he informed accused No.2 about the purpose of their arrival that they intended to inspect the field. Accordingly, they inspected the field of the accused and found ganja plants in the field. All the ganja plants were uprooted with the help of police staff and collected near the bandh and were weighed and total weight of the ganja was 170 kilograms. Out of the said plants, two plants were separated for sample purpose in cloth bags and which was labeled with the signature of panchas and same were seized, crime number was reserved while proceeding for raid and crime number was mentioned on muddemal property. He also collected sample of earth from that field as well as earth which was attached to ganja plants in cloth bags which was sealed. Accordingly, detailed panchnama was prepared and aforesaid muddemal property was seized thereunder and obtained signatures of panchas and signature of Naib Tahsildar and signature of accused no.2 thereon which is produced at Exh.30. PW 21 6 API Hanpude Patil stated that he took photographs of ganja plants, accused no.2 and his field. Thereafter, members of raiding party returned to the police station alongwith seized articles and accused no.2 was taken into custody. PW 1 PSI Ningdale lodged FIR