1 crapeal67-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.67 OF 1991 The State of Maharashtra ..Appellant Vs. Khurshida Abdul Rehman ..Respondent ......... Ms.Usha V. Kejriwal, APP for appellant State. None for respondent. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 30st AUGUST, 2010. JUDGMENT (PER R.G.KETKAR, J.) : This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 13 th September, 1990 passed by the learned Assistant Sessions Judge, Pune in Sessions Case No.55 of 1990. By that judgment, the learned Sessions Judge acquitted the respondent-accused of the offences punishable under Sections 17, 21 and 22 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short `the Act’). 2] The facts giving rise to the filing of appeal preferred by the State are that PW 1 PSI Sawant received information that the accused deals with 2 crapeal67-91.sxw Gard power in front of her house. PW 1 PSI Sawant reported the matter to her superior and obtained direction for effecting raid. She called two panchas namely PW 2 Archana Deshpande and one Ganesh Dhumal. The searches of the panch witnesses and staff were carried out. PSI Sawant took weighing and sealing material for raid. She along with police staff and panch witnesses proceeded in a police jeep giving report of effecting raid to Khadak Police Station for taking an entry in the station diary about the raid. 3] The jeep was halted in Kasewadi Zopadpatti. PSI Sawant and others got down from the jeep. PSI Sawant went to spot and ascertained the accused standing in front of her house and, thereafter, she along with the staff and panch witnesses went to the spot and caught the accused. The accused was asked to carry out search of raiding party which was declined by the accused. The accused was asked whether she wants to give search before lady Magistrate or before lady P.I. Ms.Kshirsagar who is a Gazetted Officer. The accused agreed for search by P.I. Ms.Kshirsagar. It is the case of the prosecution that PW 1 PSI Sawant took the accused in her house with lady panch Archana Deshpande and lady PI Kshirsagar. PW 1 PSI Sawant carried out personal search of the accused. One packet containing 10 packets of butter paper of brown sugar were found at the left side of wearing blouse of the accused. The same was weighed and thereafter was labelled and sealed with the signature of the panchas. Accordingly, panchnama dated 25 th August, 1988 at exhibit 8 was drawn. The accused and the property were taken to the Vigilance Office and PSI Sawant forwarded her complaint to Khadak Police Station along with accused and panchnama. On the next day, she had sent the property to the police 3 crapeal67-91.sxw station. The property was thereafter sent to Chemical Analyser and after completion of investigation, accused was charge sheeted under Section 22 of the Act. 4] The learned Judicial Magistrate F.C., Court No.3, Pune committed the case to the court of the Sessions by its order dated 12 th January, 1990. After perusal of the papers, learned Sessions Judge framed charge under Sections 17, 21 and 22 of the Act against the accused. The particulars of the charge were read over and explained to the accused. Accused pleaded not guilty to the charge. The defence of the accused was of total denial. In support of case, the prosecution examined in all four witnesses. Apart from examining PW 1 PSI Sawant and PW 2 Archana Deshpande, the prosecution examined PW 3 ASI Nanajkar who was the Muddemal Clerk and who received the property on 26 th August, 1988 and took the same to the office of the Chemical Analyser. He produced the xerox copy of the entry in the Muddemal Register at exhibit 13. The office copy of covering letter is at exhibit 14. PW 4 is PSI Ghayal is the Investigating Officer. The prosecution also produced Chemical Analyser’s report at exhibit 16 which discloses that Heroin, Phenobarbitone, Methaqualone and diphenylhydramine were detected in the property. 5] Considering the evidence on record, learned Sessions Judge came to the conclusion that the prosecution failed to prove that the accused was found in possession of Gard powder. By the impugned judgment and order dated 13 th September, 1990, the learned Sessions Judge acquitted the accused of the offences punishable under Sections 17, 21 and 22 of the Act. 4 crapeal67-91.sxw It is against this judgment and order, the State has preferred this appeal. 6] We have heard Ms.Usha V. Kejariwal, learned APP for the appellant State. She invited our attention to the oral evidence of the prosecution witnesses as also panchnama of seizer of property exhibit 8, complaint dated 25 th August, 1988 exhibit 9, report of raid exhibit 10, entry in Muddemal register exhibit 13, office copy of covering letter exhibit 14 and report of the Chemical Analyser exhibit 16. She submitted that the prosecution has led cogent and satisfactory evidence and has established the guilt of the accused. She, therefore, prayed that the appeal may be allowed and the accused may be convicted and sentenced in accordance with law. 7] With the assistance of the learned APP we have gone through the material on record. It is the defence of the accused that she was required to attend the vigilance office in connection with some other cases. She had been involved falsely when she had come to mark her attendance in the vigilance office. In order to establish that the accused was found in possession of Gard power, the prosecution relied upon the evidence of PW 1 PSI Sawant and PW 2 Archana Deshpande, panch witness. Careful scrutiny of these two witnesses indicates that there is no corroboration on material count in the evidence of these witnesses. PW 1 PSI Sawant deposed that she along with panch witness went to Kasewadi Zopadpatti in a police jeep for effecting raid. She ascertained that accused was standing on the road and, thereafter, she along with police staff caught the accused. Thereafter they took the accused in her house and carried out search. On 5 crapeal67-91.sxw the other hand, PW 2 Archana Desphande, panch witness, deposed that they had gone to Kasewadi Zopadpatti in a police jeep and found the accused in her house. She did not depose to the effect that the accused was found on the road and thereafter they went in the house of accused for taking her search. She deposed that they directly went to the house of the accused for carrying out her search. Thus, the evidence of PW 1 PSI Sawant and Archana Deshpande, panch witness is inconsistent on the point where the actually raid was effected. 8] Before the learned Sessions Judge it was submitted on behalf of the accused that the provisions of Section 41, 42, 43, 52 and 55 are mandatory and those are not followed by the prosecution, which itself vitiates the investigation and the trial. After considering the evidence on record, learned Sessions recorded that it was necessary on the part of the Police Officer who received the information, to reduce it into writing and to give his reasons for the belief of information. Consequently, there was no compliance of section 41 and 42 of the Act. It was also submitted before the learned Sessions Judge that the provisions of Sections 52 and 55 of the Act were not complied with. After considering the evidence on record, the learned Sessions Judge in paragraph 11 of the judgment, held that the provisions of Section 55 of the Act were not complied with by the prosecution. It has also come on record that the raid was effected on 25 th August, 1988 and PW 3 ASI Nanajkar, who was the Muddemal Clerk, deposed that he received the property on 26 th August, 1988 and carried the same to the office of Chemical Analyser on 31 st August, 1988. He, however, nowhere deposed that while taking the property to the Chemical Analyser, 6 crapeal67-91.sxw whether seal was affixed on the property and property was kept in a sealed packed. Though the raid was effected on 25 th August, 1988, there is no evidence on record to show where the property was kept after the raid till the same were sent to the Police Station on the next day i.e. on 26 th August, 1988. The prosecution has not taken care to exclude the possibility of tampering the samples. 9] One more aspect that needs to be taken into account is that though it is the case of prosecution that 10 packets of butter paper brown sugar were found in possession of the accused, the total quantity as per the case of the prosecution is 2 gms. The perusal of Chemical Analyser’s report also shows that apart from Heroine, Phenobarbitone, Methaqualone and diphenylhydramine were detected in the samples. The prosecution has alleged that the accused was in possession of Gard powder and not the other psychotropic substances. 10] Considering the cumulative effect of the circumstances on record, we find that the learned Sessions Judge has not committed any error in acquitting the accused. We do not find that the findings and the conclusions drawn by the learned Sessions Judge are perverse. The appeal is devoid of substance and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]