1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CCRIMINAL APPEAL NO.209 OF 1997 Balu Laxman Kokate, age: 26 years, R/o Chinchodipatil, Tal.: Nagar, District Ahmednagar. Appellant Versus The State of Maharashtra Respondent Mr.R.N.Dhorde, advocate holding for Mr.B.T.Bodkhe, advocate for the appellant. Mr.Dilip Bankar Patil, A. P. P. for Respondent. CORAM: R.M.BORDE, J. DATE : 19 th June, 2009. JUDGMENT: 1 Appellant – original accused no.3, along with two other accused, were prosecuted for commission of offence punishable under Section 20(b)(i) read with Section 29 as well as under Section 25 of the Narcotic Drugs and Psychotropic Substances Act (for short, `N.D.P.S. Act’) Accused Nos.1 and 2 alleged to have transported `ganja’ in truck bearing Registration No.AP-16-V-7794 from the State of Andhra Pradesh to the place of incident i.e. `dhaba’ belonging to accused no.3. Accused no.3 alleged to have permitted other accused to store `ganja’ in the premises belonging to him and all the accused, in furtherance of criminal conspiracy, are alleged to have transported, possessed and stored `ganja’ in contravention of the 2 provisions of Section 8 of the N.D.P.S. Act, thereby committed offences as alleged against them. 2 One Anumolu Puranachandrarao Koteshwar is resident of Vijaywada and is owner of truck. Accused no.1 Shaikh Burhanuddin was serving with him as driver, whereas, accused no.2 Krushna was serving as cleaner on the truck. Accused no.3 Balu Kokate is resident of village Chichondi Patil, Taluka Nagar, District Ahmednagar and runs hotel under the name “Driver’s Dhaba” in the agricultural land situate at village Chichondi Patil. According to the prosecution, on 28.07.1995, the truck in question was loaded with goods at Ambajipeth in Andhra Pradesh and thereafter was brought to Vijaywada. The truck was loaded with coconut bags, which were transported in the said truck from Vijaywada in Andhra Pradesh. It is the case of prosecution that when the said truck reached near village Chichondi Patil, the truck was stopped in front of dhaba owned by accused no.3. P.W.2 – Mr.M.G.Suryawanshi, police officer from local crime branch, received information that some bags containing ganja are being unloaded from the truck at the dhaba owned and possessed by accused no.3. Mr.Suryawanshi thereafter transmitted the information to his superiors, so also made arrangement to take entry in the station diary maintained at Taluka Police Station Ahmednagar. One Shaikh Jamal is said to have carried the letter issued by Mr.Suryawanshi and handed over the same to one Ambadas Misal, Head Constable, who had taken entry in the station diary on 02.08.1995. Mr.Suryawanshi thereafter called two pancha witnesses and along with messenger and other members proceeded to the spot, which was at a distance of about 1 Km from village Chichondi Patil. The raiding party, at the relevant time, found the truck in question parked in front of the dhaba and accused persons were carrying and storing bags at dhaba belonging to 3 accused no.3. Mr.Suryawanshi and other members of the raiding party inspected the bags in presence of panchas and found that those contained ganja. After conducting panchanama, police officials took samples from each of the bags and each packet containing 200 gms of contraband was sealed in presence of panchas. The raiding party thereafter searched cabin of the driver where they found a bag containing papers and documents of the truck. Those were attached along with ganja, truck and other articles. Police Officer Mr.Suryawanshi thereafter lodged information on behalf of the State at Police Station, which was reduced into writing and an offence bearing Crime No.100/1995 was registered. After completing investigation, police submitted charge sheet against accused in the Court. 3 Charge was framed against accused, who have pleaded not guilty and claimed to be tried. After recording evidence of the prosecution and statements of the accused under Section 313 Cr.P.C., the trial Court, on recording finding as regards guilt of the accused, convicted them for offence punishable under Section 20 (b) (i) read with Section 29 of the N.D.P.S. Act and sentenced them to suffer rigorous imprisonment for the period of five years and to pay fine of Rs.50,000/-. In default of payment of fine, accused were further directed to suffer rigorous imprisonment for a period of one year. Appellant-accused no.3 is further convicted for offence punishable under Section 25 of the N.D.P.S. Act and is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.One lac. In default of payment of fine, he is further directed to suffer rigorous imprisonment for one year. The substantive sentences of imprisonment are directed to run concurrently. 4 The prosecution, in order to bring home guilt of the accused, 4 has examined as many as 12 witnesses. Defence of the accused is of total denial. According to accused no.3, the contraband articles, in question, were not stored at the dhaba belonging to him. According to accused no.1, he is owner of dhaba run under the name and style as “Amritsar Driver Dhaba”, which is situate in land G.No.543/3/B. According to him, he is member of village panchayat Chichondi Patil. There were certain allegations against investigating officer Mr.Suryawanshi to the effect that he harasses the villagers and accused no.3 was instrumental in bringing complaints of villagers to the notice of superior police officers. According to accused no.3, police officer Mr.Suryawanshi with malicious intention, has implicated him in the crime. 5 It is consistent case of the prosecution, as appearing from the complaint as well as statements of witnesses that ganja, in question, was being stored in “Driver’s Dhaba”, situate in land G.No.543. P.W.7 Machindra Rangnath Bhalsing, Police Constable B.No.1583, P.W.8 Ashok Jaiwant Sasane, Police Constable B.No.1271, investigating officer Mr.Suryawanshi as well as both pancha witnesses Bansi Pathare and Syed Salim Bademiya, have deposed that bags containing ganja were being stored at “Driver’s Dhaba” situate in land G.No.543. The information received by the police officials is specific that the bags containing contraband are being stored at “Driver’s Dhaba”, so also, police officials, during conduct of raid, found the contraband articles being carried and stored at the said dhaba. 6 In this background, the testimony of pancha witnesses P.W.9 and P.W.10 assumes importance. P.W.9 pancha witness is declared hostile by the prosecution. He has stated in his cross examination that there is another dhaba near the dhaba wherein raid was conducted under the name and 5 style as “Amritsar Driver’s Dhaba”. He further states that Dhaba, wherein raid was conducted, is situate in land G.No.543, whereas dhaba, belonging to accused no.3 i.e. “Amritsar Driver’s Dhaba” is situate in field G.No.543/3/B. He further deposed that the room, in which 16 bags of ganja were found, was at about 50 feet from the place where customers were sitting. The bags containing ganja were stored in a room wherein there was no kitchen platform raised. There was only one window to the said room. Name of “Pandurang Tulshiram Jatale” was written on the board of “Driver Dhaba”. Another pancha witness P.W.10 – Sayyed Salim Bademiya has also stated as regards location of “Amritsar Driver Dhaba” belonging to accused in land G.No.543/3/B. He has also stated that the dhaba, where raid was conducted, is situate in land G.No.543 which belongs to one Pandurang Tulshiram Jatale. The statements made by the pancha witnesses also find support from the testimony of P.W.1, who is serving as Revenue Circle Officer at village Chichondi Patil. He was directed by the police officers to prepare map of place of incident. The witness has stated something inconsistent with the stand taken by the prosecution and has stated that the place of incident shown is in land G.No.543/3/B, which is owned and possessed by Balasaheb Laxman Kokate i.e. accused no.3. He has stated that accused no.3 is not owner of land G.No.543. So far as location of dhaba is concerned, he has stated that there is only one constructed room in the dhaba, which has five windows. The size of the room is 15 feet x 12 feet and there was a kitchen platform and furnace in the said room. He has further stated that the dhaba, in respect of which he has prepared map, is named as “Amritsar Driver’s Dhaba”. He has categorically stated that he did not find any dhaba under the name and style as “Driver’s dhaba’ in field G.No.543/3/B. Thus, the sum total of the testimony of this witness is that the map, which is placed on record by the prosecution, showing the place of occurrence, is the map of 6 the land belonging to accused no.3. However land belonging to accused no.3 bears different Gut Number as well as the dhaba being run by accused no.3 is also different than the dhaba wherein contraband goods were alleged to have been stored. The description of the room, wherein gunny bags containing ganja were alleged to have been stored, as given by P.W.1 – Revenue Circle Officer, differs from the description of the room given by other prosecution witnesses. Thus, the prosecution has failed to establish that the contraband articles i.e. bags containing ganja were stored in the dhaba run by accused no.3. 7 Another aspect of the matter is as regards inconsistencies in the evidence of the prosecution in respect of steps taken prior to conduct of raid. P.W.2 is Shaikh Jamal, Police Constable, who has deposed that on 02.08.1995 at noon time Mr.Suryawanshi called him and told him that he has received information that at village Chichondi Patil, at the dhaba known as “Driver’s dhaba” belonging to one Balu Kokate, some offence in respect of unloading of ganja is being committed. He asked Police Constable Savant to call two pancha witnesses. Accordingly, pancha witnesses were called. The information was disclosed to the pancha witnesses and the witness was handed over memo prepared by Mr.Suryawanshi for presenting same to Taluka Police Station, Ahmednagar for recording entry in the station diary. Accordingly, the witness went to Taluka Police Station and handed over the memo to Mr.Misal, Head Constable, whereupon station diary entry was recorded. In the cross examination, this witness states that he reached Nagar Taluka Police Station at about 1.45 p.m. He states in the cross examination that panchas had not come to the office when he had left the office for going to Nagar Taluka Police Station. Mr.Suryawanshi has neither prepared panchanama nor written anything in his presence when he returned back to 7 office. He further states that Mr.Suryawanshi left the office within 10 minutes after he returned back. 8 Another witness is Mr.Misal, Head Constable (P.W.3), who has recorded the station diary entry in pursuant to the memo handed over by P.W.2. The extract of station diary bears time 14.10 and page no.214 of 1995. Number “214” is indicative of day of the year. Considering the date of recording of entry to be 02.08.1995, the day number comes to 213. He has also admitted that many pages of the station diary do not bear serial numbers and there are over writings at number of places. P.W.8 is another member of raiding party who has stated about raid conducted at “Driver’s dhaba”. In the cross examination, he states that he reached the place of occurrence at about 1.45 p.m. He has further stated that they saw persons carrying the bags from the distance of 5 to 6 feet. The bags, which were being carried by those persons, were stored in open space and the said situation was in existence at the time of preparing seizure panchanama. He has also admitted that there is another dhaba near the dhaba in question where raid was conducted. The statement of P.W.3 is inconsistent with the story told by other witnesses and also does not match the prosecution version as recorded in the station diary. If the case of prosecution that station diary entry was recorded at 2.10 p.m. and thereafter Shaikh Jamal, P.W.2, returned back to the police station and thereafter police party proceeded to conduct raid, in any eventuality, the raid was not possible at 1.45 p.m. Apart from this aspect, the witness has specifically stated that the bags were being stored in open space as well as the witness has further stated about the existence of another dhaba near the dhaba where raid was conducted. The version stated by this witness P.W.8 Ashok supports the defence version to the effect that raid was conducted at Driver’s dhaba which is different and distinct than 8 the dhaba owned and possessed by accused no.3, which is situate in different Gut Number. 9 Learned Counsel appearing for the appellant has also invited my attention to certain inconsistencies in respect of notings affixed on the sample packets alleged to have been prepared at the time of raid conducted by police. However, it is not necessary to go into these details as the prosecution has failed to establish any link between the dhaba owned by appellant – accused no.3 and the place where raid in question was conducted. For all these reasons recorded above, I am of the opinion that the prosecution has failed to establish involvement of appellant - accused no.3 in the alleged crime beyond reasonable doubt. 10 The appeal presented by appellant – accused no.3, therefore, needs to be allowed and same is accordingly allowed. The judgment and order of conviction and sentence recorded by III Additional Sessions Judge, Ahmednagar on 19.06.1997 in Sessions Case No.324/1995, so far as it relates to appellant – accused no.3 – Balu Laxman Kokate, stands quashed and set aside. Appellant – original accused no.3 Balu Laxman Kokate is acquitted of the charge alleged against him. Bail bonds executed by accused – appellant stands cancelled. Fine amount, if deposited, shall be refunded to the accused-appellant. (R.M.BORDE) JUDGE ******* adb/criappeal21997