drp {1} Cri. Appeal No.108/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.108 OF 2010 1. Asruba @ Ashruba Rama Gaikwad APPELLANTS Age-44 years, Occ-Labour 2. Rahul Shrirang Makasare Age-26 years, Occ-Labour Both R/o Near Fly Over, Zopadpatti, Bhimnagar, Parbhani, Dist-Parbhani VERSUS The State of Maharashtra RESPONDENT ....... Mr.A.N.Ansari, Advocate for appellants (Appointed) Mr.V.D.Godbharle, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 8 th June 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants, who stand convicted for an offence punishable u/s 20 (b) (ii) (c) of the Narcotic Drugs and drp {2} Cri. Appeal No.108/2010 Psychotropic Substance Act, and sentenced to suffer RI for twelve years and to pay a fine of Rs.25,000/- each with default stipulation of undergoing further RI for one year, by the Special Judge, Jalgaon, vide judgment and order dated 16.01.2008, rendered in Special Case NO.17/2006, have questioned their conviction and sentence by preferring the present appeal. 2. The prosecution case, as unfolded during the trial, may briefly be summarized thus - (a) PW-6 API Indrajit Raul, who was attached to Varangaon Police station, while on patrolling duty at about 5.00 a.m. on 14.06.2008, had received secret information that two persons were transporting huge quantity of Ganja. The description of clothes and physic of both the said persons was also provided to him. After making entry of the said information at serial No.8 (Exhibit-34) in the Station Diary, he informed his superior on telephone and as per directions of his superior, Pancha were summoned in the police station. One police constable was deputed to collect weighing equipments. The Panchas were appraised about the secret information and the role to be played by them. Thereafter, after making necessary entry in the station diary, all of them proceeded to ST stand. During surveillance at Varangaon S.T. Stand, drp {3} Cri. Appeal No.108/2010 Bhusawal-Bodwad ST bus bearing registration No.MH-10/3666, arrived at 6.20 a.m. Two passengers, of the given description, alighted from the bus. The said two passengers were apprehended when they were to hire an auto rickshaw. PW-4 Dy.S.P. Introduced himself to the said two passengers that he was a gazetted officer and intended to take search of their luggage. They gave their names as Ashruba and Rahul. During the search of the luggage with appellant Ashruba 20 kg of Ganja was found in two bags carried by him so also 21 kilo ganja was found from the luggage carried by appellant Rahul. Thereafter, in the presence of Pancha witnesses, samples of 300 gms each was taken from each of the bag and the samples were labeled, packed and sealed and the remaining quantity of ganja was separately packed and sealed under the signatures of Pancha and concerned officers. Accordingly, Panchanama (Exhibit-11) was prepared. Thereafter all the seized contrabands along with the sample packets and the accused were brought in Varangaon police station and station diary entry was taken to that effect. b) Thereafter, Head Constable Shaikh Farid (PW-2) lodged a complaint against the appellants. On the basis of the said complaint an offence at Crime No. drp {4} Cri. Appeal No.108/2010 21/2006 came to be registered. Following to the registration of the offence, further investigation was carried out by PW-6 API Raul. During the investigation, necessary formalities were carried out by PW-6. Thereafter, samples of the seized property were sent to Chemical Analyzer through PW-3 constable Pravin Patil. In due course CA report (Exhibit-30) was received. The CA report (Exhibit-30), indicates that the samples contained Ganja (Tetra Hydro Cannibals), which is defined as contrabands under the NDPS act. After completion of the investigation, charge sheet came to be filed against the appellants before the Special Judge, Jalgaon. c) The Special Judge, framed charge (Exhibit-2) against both the appellants for an offence punishable u/s 20 (b) (ii) of the NDPS Act. Prosecution, to substantiate the charge levelled against the appellants, examined in all 6 witnesses, including Pancha, complainant, member of the raiding party, carrier of sample packets to the office of CA, Assistant Chemical Analyzer, and the investigating officer. The defence of the appellants was of total denial and that they are falsely implicated in the said offence. 3) In order to effectively deal with the rival submissions drp {5} Cri. Appeal No.108/2010 advanced before us, it would be imperative to advert to the evidence of material prosecution witnesses. 4. Receipt of secret information by PW-6, its entry at Exhibit-34 and passing on the information to PW-4, is proved by the prosecution through PW-6, which is supported by the evidence of PW-6 and PW-4. So also apprehension of the appellants at Varangaon ST stand is proved by the prosecution through PW-1, PW-2, PW-4 and PW-6. These witnesses have not only proved the seizure of contrabands from the luggage carried by the appellants but also proved the weight of the said contrabands i.e. 20 kg from appellant Ashruba and 21 kg from appellant Rahul. Through these witnesses the prosecution has got proved and established drawl of samples from the seized contrabands (Articles 1 to 4), which is supported by the documentary evidence i.e. seizure memorandum (Exhibit-11). Curiously, evidence of PW-1, PW-2, PW-4 and PW-6 is not at all shaken even in their respective cross examination. 5. It transpired from evidence of PW-6 that 4 sealed packets containing samples (Articles 1 to 4) were handed over to PW-3, who in turn handed over the same to the Chemical Analyzer for examination. PW-5 B.P.More has stated that the samples reached in the office of CA in properly sealed condition. PW-5 further states that he carried out test of the said samples (Articles 1 to 4) and found 0.33%, 0.39 %, 0.34% and 0.27 % of Tetra Hydro Cannibals in all the four packets respectively. Thus, according to drp {6} Cri. Appeal No.108/2010 him, the test conducted by him was positive and the samples contained excessive percentage of tetra hydro cannibals, which is a contraband as defined in the NDPS Act. Accordingly, he prepared report (Exhibit-30). Evidence of PW-5 is not shaken even in his cross examination. 6. Thus, from the evidence of prosecution witnesses, the prosecution has proved and established that appellant Ashruba was found in possession of 20 kg ganja whereas appellant Rahul was found in possession of 21 kg Ganja, which is tested positive in the chemical laboratory and a contraband, as defined in the NDPS Act. 7. In the light of the evidence of these witnesses, we have considered the rival submissions advanced by learned counsel for the appellants and learned APP. As per the NDPS Act, 1 kg of Ganja is held to be a commercial quantity. In view of the evidence brought on record, it can safely be concluded that the appellants were in possession of commercial quantity of Ganja i.e. contrabands as defined in the NDPS Act. 8. During the course of submissions, learned counsel for the appellants vehemently urged that the mandatory provisions, as contemplated under the NDPS Ac, were not followed by the prosecution agency and that there is non compliance of section 50 of the said Act and evidence of PW-1, 2, 4 and 6 is silent on this drp {7} Cri. Appeal No.108/2010 aspect as well as the contemporaneous document (Exhibit-18) is also conspicuously silent on this aspect, which is fatal to the prosecution case and hence urged for quashing of the conviction and sentence of the appellants. 9. In the light of these submissions, it may be useful to refer the observations of the Apex Court in the matter of “State of Haryana V/s Suresh” 2007 ALL MR (Cri) 2020 (S.C.) of which reference is given by the learned Special Judge in the impugned judgment. The Apex Court, in the said judgment, has observed thus - “A bag, briefcase or any such article or container, etc. can under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. or varying size, dimension or weight. However, while carrying or moving along with them some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, like hand, shoulder, back or head etc. Therefore, it is not possible to include these articles within the ambit of the word, “person” occurring in section 50 of the Act”. 10. In view of these observations of the Apex Court, it can drp {8} Cri. Appeal No.108/2010 safely be said that the learned Special Judge has rightly held that section 50 of the said Act would not be applicable to the seizure of contrabands from the appellants in the present case. 11. After appreciating the evidence of PW-4 and PW-6, coupled with the information recorded by PW-6 in the station diary at entry No.8 (Exhibit-34), it can safely be inferred that the prosecution agency has complied with the provisions of section 42 (2) of the said Act. The seizure of contrabands took place at ST bus stand, which is a public place and hence squarely covered u/s 43 of the said Act. Evidence of PW-1, PW-2, PW-4 and PW-6 is sufficient to prove that the police have also made compliance of the provisions of section 43 of the said Act. 12. In the premise, submissions advanced by learned counsel for the appellants that there was no compliance of the mandatory provisions, as contemplated under the NDPS Act, cannot be accepted. The reasoning recorded by the learned Special Judge while arriving at the conclusion that the appellants are guilty for an offence punishable u/s 20 (b) (ii) (c) of the NDPS Act cannot be faulted with. We do not found any fault with the finding arrived at by the learned Special Judge on facts as well as on law also. In substance, the appeal, being devoid of merit, is liable to be dismissed. 13. Consequently, the appeal, which is sans merits, stands drp {9} Cri. Appeal No.108/2010 dismissed by confirming the conviction and sentence awarded to the appellants by the learned Special Judge. 14. Before parting with the judgment, we appreciate the able assistance provided to the Court by Mrs.Ansari, learned counsel appointed on behalf of the appellants. Fees, payable to learned counsel for the appellants, quantified at Rs.5000/-. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel108-10