((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.530 OF 2003 Mahamood Anwar Poonawala Appellant versus The State of Maharashtra Respondent Mr.K.M.Sangani for appellant. Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 24th March 2009 JUDGEMENT : 1. Heard submissions of learned counsel appearing for the parties. The appellant-accused has taken an exception to the judgement and order dated 18th February 2003 passed by the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the said Act"). The appellant has been convicted for the offence punishable under section 8(c) read with section 21(c) of the said Act. He has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1.00 lakh. He has been also convicted for the offence punishable under section 66(1)(b) of ((-2-)) the Bombay Prohibition Act. However, no separate punishment has been inflicted by the learned Judge for the said offence. 2. It will be necessary to refer to the case of the prosecution in brief. The case of the prosecution is that PSI Satish Govekar of vigilance branch received an information from an informer that one person by name Mohamood Anwar Poonawala residing at Flat No.12, Shah Residency, Mithanagar, Kondhawa Khurd, Pune is dealing in large scale in Gard Power and in the morning he had brought large quantity of Gard Powder from Madhya Pradesh. The information received was that he had stored the same in his residential house. The description of said Mahamood Poonawala was also given by the said informer. After reducing the said information into writing, PSI Govekar submitted a report to his superior officer Chougule. His superior officer Mr.Chougule ordered that raid shall be carried out. Two respectable persons were brought as panch witness. The panch witnesses were informed about the information received. The raiding party thereafter proceeded to the residence of the appellant. The raiding party carried necessary articles with them such as ((-3-)) electronic balance etc.. Search of the government jeep and driver was taken in presence of panch witnesses. The raiding party proceeded to Vanawadi Police Station. A detailed report was handed over to the reporting officer of the said police station. Thereafter the raiding party proceeded to the residence of the appellant. The raiding party reached the flat of the appellant. After the door was knocked it was opened by one person having white complexion wearing shirt and pant. He was the same person whose name was informed by the informer. Necessary procedure was followed by the informing person about the information. The members of raiding party and panch witnesses offered their search to the appellant but he refused to accept the same. He was offered that personal search and search of his house could be taken before a gazetted officer or a magistrate, however, he declined the said offer and agreed for the search by the police. Consent in writing was given by the appellant. Thereafter the search was made. In the bed room there was one cupboard. On making enquiry about the contents kept in the said cupboard, the appellant disclosed that Gard Powder was kept in the cupboard. He took out ((-4-)) the key from the pocket of his trouser and opened the lock of the said cupboard. One suit case was found in the cupboard. On opening the suitcase they found seven plastic packets containing gard powder. Gard powder was weighed on the electric balance. From the seven packets of gard powder, samples of 25 gms. each were taken and the same were sealed and labelled. All the packets of gard powder found were seized, sealed and labelled. On personal search of the appellant a cash of Rs.200/- was found. The seized articles were taken in custody and were brought to Vanawadi Police Station where complaint was lodged. The seized articles were deposited with Muddemal Clerk of the said police station. Arrest panchanama was drawn. Thereafter statements of the witnesses were recorded. The Muddemal articles were sent to the chemical analyser. The chemical analyser submitted a report dated 12th November 1999 recording an opinion that heroin was detected in the Muddemal sent for analysis. 3. The learned counsel appearing for the appellant-accused has taken me through the notes of evidence and documents on record. He ((-5-)) submitted that seven packets allegedly containing gard powder which were seized from the house of the appellant were not shown to any of the prosecution witnesses. His submission is that the sample packets sent to the chemical analyser were not produced and, therefore, not proved. He submitted that the link between the samples collected at the time of search and the chemical analyser’s report is not at all established and therefore, the learned Trial Judge could not have passed an order of conviction. He submitted that the witnesses deposed that there were seven samples collected and sent for the analysis to the chemical analyser but the report of the chemical analyser shows that there were eight samples. He submitted that the case of the prosecution is that the cupboard in which the bag containing contraband articles were kept, was opened by the appellant-accused by taking out key from his pocket from his trouser. He submitted that the said key has not been seized by the police. He submitted that the entire prosecution case is suspicious and benefit of doubt ought to have been given to the appellant-accused. He submitted that the requirements of section 55 of the said Act were ((-6-)) not followed. 4. The learned APP submitted that the fact that the raid was conducted and contraband was seized has been duly proved by the prosecution witnesses. She submitted that the packets of contraband seized from the house of the appellant were produced before the Trial Court and the investigating officer has identified the same. She submitted that the report of the chemical analyser is on record which proves that the samples contained heroin (diacetyl morphine) falling under section 2(xvi) of the said Act. She submitted that possession of the contraband by the appellant has been clearly proved and therefore the Court was justified in passing the order of conviction. 5. I have carefully considered the submissions. I have perused the notes of evidence and relevant material on record. PW-1 Ramesh is a panch witness. He deposed as under:- "... ... One person came to whom the police informed that they wanted to take search of that room, in respect of storage of gard. Then the police asked him whether he wanted to take search of members of raiding party to which he ((-7-)) refused. Then we went inside that room along with police and accused. On making inquiry with accused about gard powder, he opened the lock of the cupboard by the key with him and took out one suitcase from that cupboard. Said suitcase was opened by him. He took out seven packets of powder and one cotton bag from that suitcase. About 7 to 8 samples were taken of small quantity from the said powder. Then they were sealed. Each of those packets were weighed on balance. Thereafter our signatures were obtained on samples. According to me weighment was done by police. Thereafter those packets were seized by the police. Besides that nothing was done there. Thereafter by taking those articles the police went back to their duties, and I went home. The suitcase was of faint green colour. The muddemal article no.1 suitcase, and muddemal articles no.2 to 11 before the court are the same. ... ..." In the cross examination he stated that muddemal article no.1 suitcase does not bear any seal or label. He stated that before the lock of the cupboard was opened, in the search nothing incriminating was found. It will be necessary to refer to further part of the cross examination which reads thus :- "... ... The sealed muddemal article no.8 before the court is opened before the court today. It contents gard powder in transparent packet and there is no cotton bag in it. In the muddemal property before the court today, the sample packets sent to C.A. are not there." What is material is that he stated that after ((-8-)) the cupboard was opened by the appellant-accused by taking key from his trouser, the suitcase was taken out from the cupboard. From the suitcase seven packets of gard powder and one cotton bag was taken out. He stated that about seven to eight samples were taken in small quantity of the gard powder and his signatures as well as signatures of other panch witnesses were obtained on the samples. In the cross examination in the portion which is quoted above, he referred to the muddemal article no.8 which contained Gard Powder in transparent packets but there was no cotton bag. He specifically stated that in the muddemal property before the Court the sample packets sent to the Chemical Analyser were not present. 6. It will be necessary to refer to the evidence of PW-2 Satish Govekar. He has described as to how the residential premises of the appellant was raided. In the examination-in-chief the witness has stated thus:- "... ... He took out one suitcase from that cupboard and kept it on floor and opened it. There were packets of different size in said suitcase. He told ((-9-)) us that there is gard powder in those packets. There were in all seven packets in that suitcase. Each packet was weighed on the balance. They were of different weights. The total weight was 3 kg.210 grams. Sample of 25 grams each from each of those seven packet was taken out. Those sample packets were separately sealed and labelled and the remaining gard was separately packed, sealed and labelled. The cut portion of each packet was separately kept in one envelope and same was sealed and labelled. In the suitcase, there was one tin box and in that tin box we found one balance and brass weights and some empty plastic packets. They were seized along with suitcase and all the articles were taken into custody. Out of those seven packets one packet was having faint blue colour cotton cover, and the weight of that packet was 1120 grams. That cover was separately seized and labelled. ... ..." Thus, he has also stated that there were seven packets in the suitcase containing the contraband and the total weight of the contraband was 3.10 kgs.. He stated that the samples of 25 gms. each were taken out from those seven packets and the sample packets were sealed separately. Thus, the version of the said witness is that there were seven sample packets prepared. He stated that after the raid and search was completed, along with the accused, the raiding party along with the muddemal came to the Wanwadi Police Station. The muddemal articles were deposited in the police station. He stated that as per his ((-10-)) directions Constable Gawade took the samples to the chemical analyser. The said witness was shown 11 muddemal articles. In this behalf he stated thus :- "... ... After completion of the investigation, I sent charge sheet Exh.1 in this Court on 28.1.2000. The accused before the court is the same. The muddemal property at Art.no.1 to 11 before the court is the same." A perusal of the list of muddemal articles shows that the same contains six plastic bags containing Gard powder of different quantity such as 604, 640, 358, 262, 100 and 96 gms.. There is one more cotton bag containing a plastic bag which contained 1120 gms. Gard Powder. The other item is a bag and the tenth item mentioned is three to four plastic bags having size of 6.5"x5". The last i.e. 11th item of the muddemal articles is a sealed parcel containing 25 gms. of gard powder which had come from the office of the chemical analyser. PW-1 admitted that he had not seized the key by which the lock of the cupboard was allegedly opened by the accused. 7. It will be necessary to refer to the evidence of PW-3 Kailas Chimaji Gawade. At the ((-11-)) relevant time he was working in the Crime Branch, Pune. He has deposed about the information received by PSI Govekar. He has stated that in the raid seven packets containing gard powder was found. He again stated that out of seven packets 25 gms. each gard powder was taken as sample. He stated that seven packets and the cut parcels of the packets were seized separately. He stated that on the next day at 10.am he collected the samples from Wanwadi Police Station and sent them to the chemical analyser. Surprisingly he stated that the muddemal article nos.2 to 8 before the court are the sample packets. As stated earlier, the muddemal articles nos.2 to 8 contained gard powder of different quantity and going by the description of the said articles nos.2 to 8 probably the same were the seven parcels seized at the residence of the appellant in which gard powder was found. As stated earlier, the description of muddemal article no.11 is that the same was a sealed parcel received from the office of chemical analyser containing samples of 25 gms., each drawn from muddemal article nos.2 to 8. Thus, what is identified by PW-3 are muddemal article nos.2 to 8 which are not the samples which were ((-12-)) sent to the chemical analyser. 8. PW-4 is one Baban Dhomase who was working as muddemal clerk with Vanawadi Police Station at the relevant time. He stated that PSI Govekar handed over to him at about 8 to 8.30 a.m. seven small packets of gard power, one suitcase, one tin box and empty plastic pouches. He stated that he deposited ten articles of which entry was made in the muddemal register. He proved the said entry in the evidence which is at Exhibit-63. It will be necessary to refer to his cross examination. He has stated in his deposition as follows :- "... ... Except the muddemal articles no.1 to 10 mentioned in the muddemal register, I have not received any other property or article from P.S.I.Govekar. In the muddemal register, brought today, there is no mention about seven small plastic packets containing gard. In the muddemal register, there is no specific entry that I had handed over those seven small packets containing gard of the muddemal register was produced by me for the first time in this case on the last date of hearing. ... ..." Thus, he admitted that there is no reference to seven small packets containing gard in the muddemal register. He also admitted that there was no specific entry that he handed over those seven small packets containing gard which were ((-13-)) produced by him in the Court on the last date of hearing. Thus, his evidence shows that in the muddemal register there is no specific entry of seven gard packets and there is no specific entry that PW-4 handed over the said gard packets. 9. Though the record shows that the sample packets received from the chemical analyser were produced on record, the same were not shown to any of the witnesses. As pointed out earlier, there is a vague reference in the deposition of PW-1 that the muddemal article nos.2 to 11 before the Court are the same. According to the prosecution case, on each samples there was signature of PW-1. The description of item no.11 of the muddemal articles shows that the sample packets were allegedly kept in the parcel which was under a seal. There is no reference in the deposition of the PW-1 that the seal was opened and the said sample packet was shown to the witnesses. That is the reason why in the further cross examination the witness stated that in the muddemal property before the Court the sample packets sent to the chemical analyser were not there. The said admission clearly shows that ((-14-)) the witness has not identified the sample packets. A perusal of evidence of PW-2 shows that there is a vague reference that the muddemal article nos.1 to 11 before the Court are the same. He has not specifically referred to the samples. 10. PW-3 is the person who carried the sample packets to the chemical analyser. He states in the examination in chief that PSI Govekar had directed him to take the muddemal articles to the chemical analyser. He stated that the muddemal articles nos.2 to 8 before the Court are the sample packets. As pointed out earlier, the muddemal article nos.2 to 8 obviously are not the sample packets as the weight of the contraband contained in the said packets muddemal article nos.2 to 8 is in the range of 96 gms. to 1120 gms.. As stated earlier, from the description of the muddemal article nos.11 it appears that the sample packets were the forming part of article no.11, but PW-3 deposed that the muddemal articles nos.2 to 8 were taken by him to the chemical analyser. This statement in the deposition gives a blow to the case of the prosecution. PW-4 who is the muddemal clerk attached to ((-15-)) Wanwadi Police Station stated that the sample packets containing Gard Powder were produced by him before the Court on the last date of hearing but in the muddemal register there is no entry of the sample packets. 11. The case of the prosecution is that out of seven larger packets containing Gard Powder, seven sample packets were prepared which were sent for chemical analysis. PW-2 and PW-3 are very consistent that seven samples were drawn from the seven large packets. Surprisingly, the report of the chemical analyser refers to eight packets containing the heroin. 12. What is not established by the prosecution is that the seven sample packets which were prepared by drawing the gard powder contained in seven large packets were sent for chemical analysis. The identify could have been established by showing the said sample packets to the prosecution witnesses but that is not done. Thus, the prosecution has not established the link between the seized articles and the report of the chemical analyser. ((-16-)) 13. The learned counsel appearing for the appellant has relied upon the decision of a Division Bench of this Court in the case of Mainuddin Kasim Mulla Vs. The State of Maharashtra (1991-Cri.L.J.-1699). In paragraph 9 the Division Bench has held thus:- "9. ... ... It appears that the sample articles which were sent to the chemical analyser were never secured back by the concerned officials and were never produced before the Court. The list of the Muddemal articles, which was before the trial Court, is at Exhibit 4 and it showed only the two packets as Muddemal articles no.1 and 2. 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 Court with reference to their own signatures. In some cases, 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. ((-17-)) In In In the present case, as the packets the present case, as the packets the present case, as the packets containing containing containing the samples were never brought the samples were never brought the samples were never brought before before before the Court and as they were never the Court and as they were never the Court and as they were never got got got identified before the Court, it was identified before the Court, it was identified before the Court, it was not not not established beyond reasonable doubt established beyond reasonable doubt established beyond reasonable doubt that that that the articles which were analysed by the articles which were analysed by the articles which were analysed by the the the chemical analyser were, indeed, the chemical analyser were, indeed, the chemical analyser were, indeed, the samples samples samples collected from the articles which collected from the articles which collected from the articles which were were were allegedly seized from the appellant allegedly seized from the appellant allegedly seized from the appellant on on on the scene of offence the scene of offence the scene of offence." (Emphasis added) 14. Thus, what has not been established by the prosecution is the link between the contraband seized from the residence of the appellant with the samples which were sent for chemical analysis. The failure to establish and prove this link is fatal to the prosecution case. 15. All these crucial aspects have been completely overlooked by the learned Trial Judge. 16. In the circumstances, the benefit must go to the appellant and his appeal must succeed. 17. Hence, I pass following order :- (a) The conviction and sentence of the appellant is quashed and set aside and the appellant is acquitted of the offence alleged against him; ((-18-)) (b) The appellant shall be set at liberty if he is not required in connection with any other offence; (c) However, the order passed by the learned Judge regarding Muddemal Articles is confirmed. (A.S.OKA, J.) ((-19-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.530 OF 2003 Mahamood Anwar Poonawala Appellant versus The State of Maharashtra Respondent Mr.K.M.Sangani for appellant. Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 24th March 2009 JUDGEMENT : For the reasons separately recorded, following order is passed :- (a) The conviction and sentence of the appellant is quashed and set aside and the appellant is acquitted of the offence alleged against him; (b) The appellant shall be set at liberty if he is not required in connection with any other offence; (c) However, the order passed by the learned Judge regarding Muddemal Articles is confirmed. (A.S.OKA, J.)