Full Judgment Text
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD BENCH BENCH AT AURANGABAD AT AURANGABAD
CRIMINAL APPEAL NO.496 OF 2006 CRIMINAL CRIMINAL APPEAL NO.496 OF 2006 APPEAL NO.496 OF 2006
Mohan S/o Shamrao Mohite
Age 55 years, Occu.Labour
R/o Nagziri, Tq.Khamgaon,
District Buldana
(At present in jail) ...Appellant
(Orig.Accused)
Versus
The State of Maharashtra
through Muktainagar Police
Station, Jalgaon. ...Respondent
.....
Mr.J.V.Deshpande, Advocate for the appellant
(appointed).
Mr.D.R.Adhav, A.P.P. for respondent - State
.....
CORAM : V.R. KINGAONKAR, J. CORAM CORAM : V.R. KINGAONKAR, J. : V.R. KINGAONKAR, J.
DATE : 22.1.2008 DATE DATE : 22.1.2008 : 22.1.2008
ORAL JUDGMENT ORAL ORAL JUDGMENT JUDGMENT
1. This appeal arises out of Judgment rendered by
Special Judge, Jalgaon, in Special Case No.5 of 2005.
By the impugned Judgment, appellant - Mohan has been
convicted for offence punishable under Section 8 read
with Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (For short "the
N.D.P.S.Act") and sentenced to suffer rigorous
imprisonment for 10 (ten) years and to pay fine of
Rs.1,00,000/- (Rs.One Lac) in default to suffer
rigorous imprisonment for two and half years.
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2. The prosecution case is that on 6th July 2005,
Police Inspector - Dnyandeo Gaware, who was then
attached to Muktainagar Police Station, received a
secret information to the effect that one person was
waiting for arrival of someone by side of road at
village Kurha and there were six bags of ganja by his
side. P.I. Mr.Gaware instructed Head Constable
Mr.Pachpande, attached to Kurha outpost, to keep
vigil on the activities of said person. He gave
information to the Dy.Superintendent of Police,
Bhusawal about the proposed raid. He thereafter
called for panchas, a Photographer and arranged for
proper illumination at place of the raid. He also
called for P.S.I.Mr.Pawar and other staff members.
He narrated to them about gist of the secret
information received by him. They all proceeded to
village Kurha in a Police jeep vehicle. When they
reached at the spot near the Kurha-Dhupeshwar road,
at about 7:30 p.m., they found the appellant standing
by side of six bundles (Gathode). The members of
Police party immediately encircled him. They nabbed
him. He was asked as to whether he wanted to take
search of the members of the Police party and
panchas. He was also asked whether his search need
to be taken by anyone else. He declined to exercise
the option. The six bundles were opened in presence
of panchas. The bundles contained "ganja" of
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different quantity in the range of 19 kgs to 34 kgs.
The ganja was weighed at the same place. The weight
of ganja was 155 kgs. Two sample packets were
prepared of 100 gms each by collecting ganja from the
stock. The remaining ganja was filled in the same
bundles, which were closed after stitching them by a
bodkin and string. The two sample packets were
pasted with paper labels signed by panchas and
P.I.Mr.Gaware. They were sealed. A seizure
panchnama was drawn. The appellant was produced
before the station house Officer of Muktainagar
Police Station alongwith the seized ganja.
P.I.Mr.Gaware lodged F.I.R. Thereupon, P.S.I.Pawar
registered crime against the appellant. The
information of search and seizure was forwarded to
the higher Officer. One of the sample packet was
forwarded to the office of Assistant Chemical
Analyzer, Aurangabad. The Assistant Chemical
Analyzer, Aurangabad gave report that the sample
contained greenish flowering tops, pieces of greenish
leaves, seeds and stalks. He reported that it was
"ganja" as described under Section 2(iii) (b) of the
N.D.P.S. Act. The appellant was charge-sheeted for
the offence punishable under Section 20(b) of the
N.D.P.S. Act.
3. At the trial, charge was framed at Exh.No.3,
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which the appellant denied. His defence is of simple
denial. He denied truth into the accusations. He
asserted that he has been falsely implicated in the
criminal case. He denied his conscious possession of
the six bundles, which were allegedly seized in the
relevant evening.
4. The prosecution examined in all 7 (seven)
witnesses in support of its case. The learned
Special Judge accepted the prosecution case on basis
of material placed before him. He, therefore,
convicted and sentenced the appellant as stated at
the outset.
5. Mr.Deshpande, learned Advocate for the
appellant would submit that the appellant was not
found in conscious possession of the six bundles of
ganja. He would submit that the prosecution case
suffers from ring of truth in view of the alleged
story, particularly, to the effect that the appellant
was awaiting for someone to arrive at the place for a
considerable time. It is argued that the search and
seizure is vitiated due to illegality committed by
PW-P.I.Mr.Gaware in conducting the same. It is
argued that non-compliance of provisions of Section
52 (3) and Section 57 of the N.D.P.S. Act would
vitiate the trial. It is contended that mere
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forwarding of report to the higher authority, viz.,
Deputy Director of Narcotic Control Bureau, New Delhi
cannot be regarded as compliance of Section 57 of the
N.D.P.S. Act. He argued, therefore, that the
appellant deserves benefit of reasonable doubt and
should be acquitted of the charge. Mr.Adhav, learned
A.P.P. supports the impugned Judgment.
6. Before I proceed to scrutinise the prosecution
evidence, it is important to note that
PW-P.I.Mr.Gaware had received secret information that
the six bundles lying by side of the appellant were
containing ganja. The distance between Muktainagar
and village Kurha is approximately 35 kms. The
secret information was received by PW-P.I. Mr.Gaware
at about 18:10 Hrs. in the evening of 6th July 2005.
The prosecution case is that panchas were called,
Police party members were called, Photographer was
called and Head Constable Mr.Pachpande was instructed
to arrange for battery lights at the spot. He was
asked to keep vigil at the spot. Thus, PW-P.I.
Mr.Gaware made all the arrangements before proceeding
to the spot. The Police party left the Police
Station at 18:50 Hrs. and reached the spot at 19:30
Hrs. Throughout the said period, the appellant is
said to have remained at the spot in the proximity of
the six bundles containing ganja. He made no attempt
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to flee during the relevant period nor even when the
Police party arrived at the spot.
7. Coming to the prosecution evidence, it may be
mentioned that PW-1 - Subhash is the panch witness.
He is inhabitant of village Pimpri-Akarut. He was
called at Police Station, Muktainagar, in the
relevant evening. His version purports to show that
he was called by the Police at Kurha Outpost in the
relevant evening. He states that the Police enquired
with him as to whether he would act as panch witness
for the intended raid for seizure of ganja. He
states that they together went in Police jeep vehicle
at village Kurha. According to him, the appellant
was sitting at the place with six bundles. The
appellant was asked whether he desired to search
persons of the members of Police party but he
declined. He states that the Photographer took
photographs of the six bundles. Thereafter, the
ganja was taken out of the bundles, which were
opened. His version shows that one sample packet of
ganja was prepared. He corroborates recitals of the
spot-cum-recovery panchnama (Exh.8). His
cross-examination shows that he had been to village
Muktainagar for purchases of vegetables. His village
is situated at distance of about 6 (six) kms.from
Muktainagar. He admits that he accompanied Police
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Constable Bhosale on his motorcycle and went to
Muktainagar Police Station. He further admits that
on the relevant day, there was weekly Bazar at
village Kurha. He does not say that two sample
packets of 100 gms each were prepared at the spot.
8. At this juncture, I shall examine testimony of
PW-6 - Head Constable Mr.Pachpande. His version
purports to show that P.I. Mr.Gaware instructed him
that one person was standing on Dhupeshwar road with
six bundles and he shall keep vigil over the said
person. His version purports to show that because it
was rainy season, arrangements for illumination with
help of batteries were made at the spot. He made the
arrangements for proper illumination of the spot.
After sometime, he reached the spot when P.I.
Mr.Gaware had arrived alongwith others. He states
that samples were collected from the six bundles and
thereafter the ganja was weighed. He admits,
unequivocally, that P.I. Mr.Gaware informed him to
take Police Constable Surdas with him to the spot.
His version reveals that Police Constable Thakur was
instructed to make arrangement of light. He made
arrangement of rechargeable torches. Police
Constable Thakur required about half an hour to make
such arrangement. The testimony of PW-Head Constable
Mr.Pachpande shows that the Kurha Police Station is
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at a distance of half km. from the spot. His
version does not show, however, that he personally
kept vigil at the spot till arrival of the Police
party headed by P.I.Mr.Gaware. He only states that
he had received such instructions. Thus, there
appears no evidence on record to show that the
appellant was kept under surveillance of Police till
arrival of the Police party headed by
PW-P.I.Mr.Gaware.
9. This takes me to consider version of PW5-P.I.
Mr.Gaware. He states that he received the secret
information at about 18:10 Hrs. on 6th July 2005
while he was at Muktainagar Police Station. He
orally informed the Superintendent of Police, Jalgaon
about the information and obtained permission to
carry out the raid. He also informed Deputy
Superintendent of Police, Bhusawal, about the
proposed raid. He took entry (Entry No.53) at the
station diary. His version reveals that Constable
Bhosale was deputed to call panch witnesses. As a
matter of fact, there is no reason as to why
independent panchas were not called at Kurha when it
was a Bazar day and Head Constable Mr.Pachpande could
make necessary arrangement for panchas. The version
of PW-P.I.Mr.Gaware shows that he called for kit
containing sealing material, weights, needle, thread
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etc. He also arranged for illumination at the spot.
He called for Photographer. Needless to say, he was
sure that the culprit would not flee till the Police
party would reach the place of incident.
10. The testimony of PW-P.I. Mr.Gaware reveals
that he informed the appellant that he is a gazetted
Officer. He further states that he informed the
appellant that he was authorised to search and effect
seizure. He further deposed that he informed the
appellant that if the latter intended to have the
search or seizure in presence of any other gazetted
Officer, then the option may be exercised. The
recitals of the seizure panchnama do not show giving
of such option to the appellant by PW-P.I.Mr.Gaware.
It appears from version of PW-2 Shaikh Firoz that he
had carried the camera alongwith the Police party and
took photographs. The photographs (Exh.10) are
corroborated by him. The versions of
PW-P.I.Mr.Gaware and the Photographer would show that
the photographs were taken right from the first step.
I mean to say, even before the bundles were opened,
the first thing done was to have photographs of the
appellant and the six bundles. The entire episode
narrated by PW-P.I. Mr.Gaware appears to be somewhat
dramatised, overblown and unnatural. It does not
stand to reason that a person having contraband
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narcotic substance would stand at the same place
notwithstanding probability of raid by the Police.
It does not stand to reason that he was immobilised
for a considerable time since at least from 6:00 p.m.
to 7:30 p.m. at the same place. The prosecution
evidence gives a feeling that the pre-arranged trap
was laid with certainty about the success. There is
exaggeration made by PW-P.I.Mr.Gaware regarding
option given to the appellant for having search in
presence of another gazetted Officer. Indeed,
provision of Section 50 of the N.D.P.S. Act is not
attracted when personal search of accused is not
carried out. Obviously, it was not necessary to give
such option to the appellant. Still, however, an
attempt is made to show that such option was made
available to him. The panch witness did not say that
such option was made available to the appellant.
Secondly, according to panch witness - PW-Subhash,
only one sample packet was prepared whereas, the
version of PW-P.I.Mr.Gaware shows that two sample
packets of 100 gms. each were prepared after
collecting small quantity from each of the six
bundles. The arrangement for emergency lights, the
arrangement for taking photographs, the arrangement
to ensure that the appellant would not go away from
the place and such kind of acts give a tinge of
inherent unnatural episode of seizure of ganja
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bundles from the appellant.
11. Clinching question is whether the appellant
was found in conscious possession of the bundles
containing ganja. He was standing at a public place.
It is stated that he was in the proximity of the
bundles of ganja. That would not be sufficient to
indicate his control over the six bundles of ganja.
The expression "conscious possession" would imply
authority, control and the power to hold the
article/substance etc. As per version of PW-Subhash,
the appellant was sitting near the bundles whereas,
the recitals of the panchanma (Exh.8) and version of
PW-P.I.Mr.Gaware purport to show that he was standing
near those bundles. One cannot be oblivious of the
fact that it was weekly Bazar day. Many persons were
available to act as panchas. Still, however,
PW-P.I.Mr.Gaware procured the panchas at Muktainagar
Police Station before he proceeded to the spot,
situated at a distance of about 35 kms. It is in
this background that the question of factual
possession of the narcotic substance will have to be
examined. The Apex Court in "State of Punjab vs. "State of Punjab vs. "State of Punjab vs.
Balkar Singh and another" (2004) 3 Supreme Court Balkar Balkar Singh and another" (2004) 3 Supreme Court Singh and another" (2004) 3 Supreme Court
582 held that act of an accused, who was
Cases 582 Cases Cases 582
allegedly sitting on the bags of poppy husk, by
itself cannot be regarded as the act of "conscious
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possession". It is held that the Police could have
conducted further investigation to prove that the
incriminating document was found with the appellant.
It is difficult to say that he was really the
possessor of the said six bundles, which were found
at the spot. So also, in "Avtar Singh and others "Avtar Singh and others "Avtar Singh and others
v.State of Punjab" (AIR 2002 SUPREME COURT 3343) v.State v.State of Punjab" (AIR 2002 SUPREME COURT 3343), the of Punjab" (AIR 2002 SUPREME COURT 3343)
Apex Court had an occasion to consider the question
of "conscious possession" in respect of narcotic
drug. In the given case, bags containing poppy husk
were seized from a vehicle, in which the accused were
travelling. One of the accused was found driving the
vehicle whereas, other two were found sitting on the
bags. The Apex Court held :
" The word ‘possession’ no doubt has
different shades of meaning and it is quite
elastic in its connection. Possession and
ownership need not always go together but
the minimum requisite element which has to
be satisfied is custody or control over the
goods. Can it be said, on the basis of the
evidence available on record, that the three
appellants - one of whom was driving the
vehicle and other two sitting on the bags,
were having such custody or control? It is
difficult to reach such conclusion beyond
reasonable doubt."
. By applying the ratio of aforesaid two
authorities, it will have to be said that the
appellant was not found in conscious possession of
the six bundles, which were found lying at the spot.
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No further investigation was carried out in order to
clinch the issue regarding actual possession and
ownership of the six bundles in question. The
version of PW-3-A.S.I. Choudhari is formal. So also
version of PW-4 - Police Constable Ahire is formal.
He carried the sample packets to office of the
Chemical Analyzer on 8th July 2005. The version of
PW-7 - P.S.I. Pawar corroborates the case of
prosecution as regards the alleged search and
seizure. His version is similar to that of PW-P.I.
Mr.Gaware. The sample packet was forwarded to office
of the Chemical Analyzer alongwith forwarding letter
(Exh.14). The report (Exh.36) was received from
office of the Assistant Chemical Analyzer and
thereafter the charge-sheet was filed. It is
admitted by PW-P.S.I. Pawar that he did not record
statements of the villagers or any other person in
the proximity of the spot wherefrom the bundles were
searched. He did not enquire as to wherefrom the
bundles were brought to the spot. He is an
Investigating Officer. It is his duty to locate
wherefrom those bundles were brought to the spot. No
enquiry was made about ownership of the said bundles.
It cannot be overlooked that for weekly Bazar, the
mini trucks, carriers etc. are used in order to
reach load of vegetables and other articles at the
place of Bazar. An enquiry could have perhaps shown
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the identity of the transporter of the said bundles.
That was not done. In this view of the matter, I
have no hesitation in holding that the prosecution
failed to prove conscious possession of the bundles
of ganja with the appellant.
12. So far as compliance of Section 57 of the
N.D.P.S. Act is concerned, it appears that PW-P.I.-
Mr.Gaware gave report about the search and seizure to
the Director, Narcotic Drugs Control, Delhi on 7th
July 2005. His version lends corroboration to the
recitals of the report (Exh.29). A copy thereof was
sent to the immediate superior Officer. Hence, it
cannot be said that there is total non-complaince of
provisions of Section 57 of the N.D.P.S. Act.
Moreover, Section 57 of the N.D.P.S. Act is
directory in nature and the non-compliance thereof
per se is not fatal to the case of prosecution.
13. Considering totality of the circumstances and
the evidence on record, I am of the opinion that the
impugned order of conviction and sentence is
unsustainable for the reason that the appellant was
not found in conscious possession of the six bundles
containing ganja. The prosecution evidence appears
to be somewhat unnatural and rather of preconceived
confirmation of the possible result regarding the
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alleged recovery. This being so, the impugned
Judgment is unsustainable.
14. In this view of the matter, the appeal is
allowed. The impugned order of conviction and
sentence rendered by Special Judge, Jalgaon on
21.2.2006, in Special Case No.5 of 2005 is set aside.
The appellant is acquitted of the charge levelled
against him. He shall be set free, if not required
in any other case.
( V.R.KINGAONKAR ) V.R.KINGAONKAR ) V.R.KINGAONKAR )
JUDGE
JUDGE JUDGE
(vvr/criapeal496.06)
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BENCH AT AURANGABAD BENCH BENCH AT AURANGABAD AT AURANGABAD
CRIMINAL APPEAL NO.496 OF 2006 CRIMINAL CRIMINAL APPEAL NO.496 OF 2006 APPEAL NO.496 OF 2006
Mohan S/o Shamrao Mohite
Age 55 years, Occu.Labour
R/o Nagziri, Tq.Khamgaon,
District Buldana
(At present in jail) ...Appellant
(Orig.Accused)
Versus
The State of Maharashtra
through Muktainagar Police
Station, Jalgaon. ...Respondent
.....
Mr.J.V.Deshpande, Advocate for the appellant
(appointed).
Mr.D.R.Adhav, A.P.P. for respondent - State
.....
CORAM : V.R. KINGAONKAR, J. CORAM CORAM : V.R. KINGAONKAR, J. : V.R. KINGAONKAR, J.
DATE : 22.1.2008 DATE DATE : 22.1.2008 : 22.1.2008
ORAL JUDGMENT ORAL ORAL JUDGMENT JUDGMENT
1. This appeal arises out of Judgment rendered by
Special Judge, Jalgaon, in Special Case No.5 of 2005.
By the impugned Judgment, appellant - Mohan has been
convicted for offence punishable under Section 8 read
with Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (For short "the
N.D.P.S.Act") and sentenced to suffer rigorous
imprisonment for 10 (ten) years and to pay fine of
Rs.1,00,000/- (Rs.One Lac) in default to suffer
rigorous imprisonment for two and half years.
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2. The prosecution case is that on 6th July 2005,
Police Inspector - Dnyandeo Gaware, who was then
attached to Muktainagar Police Station, received a
secret information to the effect that one person was
waiting for arrival of someone by side of road at
village Kurha and there were six bags of ganja by his
side. P.I. Mr.Gaware instructed Head Constable
Mr.Pachpande, attached to Kurha outpost, to keep
vigil on the activities of said person. He gave
information to the Dy.Superintendent of Police,
Bhusawal about the proposed raid. He thereafter
called for panchas, a Photographer and arranged for
proper illumination at place of the raid. He also
called for P.S.I.Mr.Pawar and other staff members.
He narrated to them about gist of the secret
information received by him. They all proceeded to
village Kurha in a Police jeep vehicle. When they
reached at the spot near the Kurha-Dhupeshwar road,
at about 7:30 p.m., they found the appellant standing
by side of six bundles (Gathode). The members of
Police party immediately encircled him. They nabbed
him. He was asked as to whether he wanted to take
search of the members of the Police party and
panchas. He was also asked whether his search need
to be taken by anyone else. He declined to exercise
the option. The six bundles were opened in presence
of panchas. The bundles contained "ganja" of
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different quantity in the range of 19 kgs to 34 kgs.
The ganja was weighed at the same place. The weight
of ganja was 155 kgs. Two sample packets were
prepared of 100 gms each by collecting ganja from the
stock. The remaining ganja was filled in the same
bundles, which were closed after stitching them by a
bodkin and string. The two sample packets were
pasted with paper labels signed by panchas and
P.I.Mr.Gaware. They were sealed. A seizure
panchnama was drawn. The appellant was produced
before the station house Officer of Muktainagar
Police Station alongwith the seized ganja.
P.I.Mr.Gaware lodged F.I.R. Thereupon, P.S.I.Pawar
registered crime against the appellant. The
information of search and seizure was forwarded to
the higher Officer. One of the sample packet was
forwarded to the office of Assistant Chemical
Analyzer, Aurangabad. The Assistant Chemical
Analyzer, Aurangabad gave report that the sample
contained greenish flowering tops, pieces of greenish
leaves, seeds and stalks. He reported that it was
"ganja" as described under Section 2(iii) (b) of the
N.D.P.S. Act. The appellant was charge-sheeted for
the offence punishable under Section 20(b) of the
N.D.P.S. Act.
3. At the trial, charge was framed at Exh.No.3,
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which the appellant denied. His defence is of simple
denial. He denied truth into the accusations. He
asserted that he has been falsely implicated in the
criminal case. He denied his conscious possession of
the six bundles, which were allegedly seized in the
relevant evening.
4. The prosecution examined in all 7 (seven)
witnesses in support of its case. The learned
Special Judge accepted the prosecution case on basis
of material placed before him. He, therefore,
convicted and sentenced the appellant as stated at
the outset.
5. Mr.Deshpande, learned Advocate for the
appellant would submit that the appellant was not
found in conscious possession of the six bundles of
ganja. He would submit that the prosecution case
suffers from ring of truth in view of the alleged
story, particularly, to the effect that the appellant
was awaiting for someone to arrive at the place for a
considerable time. It is argued that the search and
seizure is vitiated due to illegality committed by
PW-P.I.Mr.Gaware in conducting the same. It is
argued that non-compliance of provisions of Section
52 (3) and Section 57 of the N.D.P.S. Act would
vitiate the trial. It is contended that mere
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forwarding of report to the higher authority, viz.,
Deputy Director of Narcotic Control Bureau, New Delhi
cannot be regarded as compliance of Section 57 of the
N.D.P.S. Act. He argued, therefore, that the
appellant deserves benefit of reasonable doubt and
should be acquitted of the charge. Mr.Adhav, learned
A.P.P. supports the impugned Judgment.
6. Before I proceed to scrutinise the prosecution
evidence, it is important to note that
PW-P.I.Mr.Gaware had received secret information that
the six bundles lying by side of the appellant were
containing ganja. The distance between Muktainagar
and village Kurha is approximately 35 kms. The
secret information was received by PW-P.I. Mr.Gaware
at about 18:10 Hrs. in the evening of 6th July 2005.
The prosecution case is that panchas were called,
Police party members were called, Photographer was
called and Head Constable Mr.Pachpande was instructed
to arrange for battery lights at the spot. He was
asked to keep vigil at the spot. Thus, PW-P.I.
Mr.Gaware made all the arrangements before proceeding
to the spot. The Police party left the Police
Station at 18:50 Hrs. and reached the spot at 19:30
Hrs. Throughout the said period, the appellant is
said to have remained at the spot in the proximity of
the six bundles containing ganja. He made no attempt
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to flee during the relevant period nor even when the
Police party arrived at the spot.
7. Coming to the prosecution evidence, it may be
mentioned that PW-1 - Subhash is the panch witness.
He is inhabitant of village Pimpri-Akarut. He was
called at Police Station, Muktainagar, in the
relevant evening. His version purports to show that
he was called by the Police at Kurha Outpost in the
relevant evening. He states that the Police enquired
with him as to whether he would act as panch witness
for the intended raid for seizure of ganja. He
states that they together went in Police jeep vehicle
at village Kurha. According to him, the appellant
was sitting at the place with six bundles. The
appellant was asked whether he desired to search
persons of the members of Police party but he
declined. He states that the Photographer took
photographs of the six bundles. Thereafter, the
ganja was taken out of the bundles, which were
opened. His version shows that one sample packet of
ganja was prepared. He corroborates recitals of the
spot-cum-recovery panchnama (Exh.8). His
cross-examination shows that he had been to village
Muktainagar for purchases of vegetables. His village
is situated at distance of about 6 (six) kms.from
Muktainagar. He admits that he accompanied Police
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Constable Bhosale on his motorcycle and went to
Muktainagar Police Station. He further admits that
on the relevant day, there was weekly Bazar at
village Kurha. He does not say that two sample
packets of 100 gms each were prepared at the spot.
8. At this juncture, I shall examine testimony of
PW-6 - Head Constable Mr.Pachpande. His version
purports to show that P.I. Mr.Gaware instructed him
that one person was standing on Dhupeshwar road with
six bundles and he shall keep vigil over the said
person. His version purports to show that because it
was rainy season, arrangements for illumination with
help of batteries were made at the spot. He made the
arrangements for proper illumination of the spot.
After sometime, he reached the spot when P.I.
Mr.Gaware had arrived alongwith others. He states
that samples were collected from the six bundles and
thereafter the ganja was weighed. He admits,
unequivocally, that P.I. Mr.Gaware informed him to
take Police Constable Surdas with him to the spot.
His version reveals that Police Constable Thakur was
instructed to make arrangement of light. He made
arrangement of rechargeable torches. Police
Constable Thakur required about half an hour to make
such arrangement. The testimony of PW-Head Constable
Mr.Pachpande shows that the Kurha Police Station is
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at a distance of half km. from the spot. His
version does not show, however, that he personally
kept vigil at the spot till arrival of the Police
party headed by P.I.Mr.Gaware. He only states that
he had received such instructions. Thus, there
appears no evidence on record to show that the
appellant was kept under surveillance of Police till
arrival of the Police party headed by
PW-P.I.Mr.Gaware.
9. This takes me to consider version of PW5-P.I.
Mr.Gaware. He states that he received the secret
information at about 18:10 Hrs. on 6th July 2005
while he was at Muktainagar Police Station. He
orally informed the Superintendent of Police, Jalgaon
about the information and obtained permission to
carry out the raid. He also informed Deputy
Superintendent of Police, Bhusawal, about the
proposed raid. He took entry (Entry No.53) at the
station diary. His version reveals that Constable
Bhosale was deputed to call panch witnesses. As a
matter of fact, there is no reason as to why
independent panchas were not called at Kurha when it
was a Bazar day and Head Constable Mr.Pachpande could
make necessary arrangement for panchas. The version
of PW-P.I.Mr.Gaware shows that he called for kit
containing sealing material, weights, needle, thread
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etc. He also arranged for illumination at the spot.
He called for Photographer. Needless to say, he was
sure that the culprit would not flee till the Police
party would reach the place of incident.
10. The testimony of PW-P.I. Mr.Gaware reveals
that he informed the appellant that he is a gazetted
Officer. He further states that he informed the
appellant that he was authorised to search and effect
seizure. He further deposed that he informed the
appellant that if the latter intended to have the
search or seizure in presence of any other gazetted
Officer, then the option may be exercised. The
recitals of the seizure panchnama do not show giving
of such option to the appellant by PW-P.I.Mr.Gaware.
It appears from version of PW-2 Shaikh Firoz that he
had carried the camera alongwith the Police party and
took photographs. The photographs (Exh.10) are
corroborated by him. The versions of
PW-P.I.Mr.Gaware and the Photographer would show that
the photographs were taken right from the first step.
I mean to say, even before the bundles were opened,
the first thing done was to have photographs of the
appellant and the six bundles. The entire episode
narrated by PW-P.I. Mr.Gaware appears to be somewhat
dramatised, overblown and unnatural. It does not
stand to reason that a person having contraband
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narcotic substance would stand at the same place
notwithstanding probability of raid by the Police.
It does not stand to reason that he was immobilised
for a considerable time since at least from 6:00 p.m.
to 7:30 p.m. at the same place. The prosecution
evidence gives a feeling that the pre-arranged trap
was laid with certainty about the success. There is
exaggeration made by PW-P.I.Mr.Gaware regarding
option given to the appellant for having search in
presence of another gazetted Officer. Indeed,
provision of Section 50 of the N.D.P.S. Act is not
attracted when personal search of accused is not
carried out. Obviously, it was not necessary to give
such option to the appellant. Still, however, an
attempt is made to show that such option was made
available to him. The panch witness did not say that
such option was made available to the appellant.
Secondly, according to panch witness - PW-Subhash,
only one sample packet was prepared whereas, the
version of PW-P.I.Mr.Gaware shows that two sample
packets of 100 gms. each were prepared after
collecting small quantity from each of the six
bundles. The arrangement for emergency lights, the
arrangement for taking photographs, the arrangement
to ensure that the appellant would not go away from
the place and such kind of acts give a tinge of
inherent unnatural episode of seizure of ganja
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bundles from the appellant.
11. Clinching question is whether the appellant
was found in conscious possession of the bundles
containing ganja. He was standing at a public place.
It is stated that he was in the proximity of the
bundles of ganja. That would not be sufficient to
indicate his control over the six bundles of ganja.
The expression "conscious possession" would imply
authority, control and the power to hold the
article/substance etc. As per version of PW-Subhash,
the appellant was sitting near the bundles whereas,
the recitals of the panchanma (Exh.8) and version of
PW-P.I.Mr.Gaware purport to show that he was standing
near those bundles. One cannot be oblivious of the
fact that it was weekly Bazar day. Many persons were
available to act as panchas. Still, however,
PW-P.I.Mr.Gaware procured the panchas at Muktainagar
Police Station before he proceeded to the spot,
situated at a distance of about 35 kms. It is in
this background that the question of factual
possession of the narcotic substance will have to be
examined. The Apex Court in "State of Punjab vs. "State of Punjab vs. "State of Punjab vs.
Balkar Singh and another" (2004) 3 Supreme Court Balkar Balkar Singh and another" (2004) 3 Supreme Court Singh and another" (2004) 3 Supreme Court
582 held that act of an accused, who was
Cases 582 Cases Cases 582
allegedly sitting on the bags of poppy husk, by
itself cannot be regarded as the act of "conscious
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possession". It is held that the Police could have
conducted further investigation to prove that the
incriminating document was found with the appellant.
It is difficult to say that he was really the
possessor of the said six bundles, which were found
at the spot. So also, in "Avtar Singh and others "Avtar Singh and others "Avtar Singh and others
v.State of Punjab" (AIR 2002 SUPREME COURT 3343) v.State v.State of Punjab" (AIR 2002 SUPREME COURT 3343), the of Punjab" (AIR 2002 SUPREME COURT 3343)
Apex Court had an occasion to consider the question
of "conscious possession" in respect of narcotic
drug. In the given case, bags containing poppy husk
were seized from a vehicle, in which the accused were
travelling. One of the accused was found driving the
vehicle whereas, other two were found sitting on the
bags. The Apex Court held :
" The word ‘possession’ no doubt has
different shades of meaning and it is quite
elastic in its connection. Possession and
ownership need not always go together but
the minimum requisite element which has to
be satisfied is custody or control over the
goods. Can it be said, on the basis of the
evidence available on record, that the three
appellants - one of whom was driving the
vehicle and other two sitting on the bags,
were having such custody or control? It is
difficult to reach such conclusion beyond
reasonable doubt."
. By applying the ratio of aforesaid two
authorities, it will have to be said that the
appellant was not found in conscious possession of
the six bundles, which were found lying at the spot.
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No further investigation was carried out in order to
clinch the issue regarding actual possession and
ownership of the six bundles in question. The
version of PW-3-A.S.I. Choudhari is formal. So also
version of PW-4 - Police Constable Ahire is formal.
He carried the sample packets to office of the
Chemical Analyzer on 8th July 2005. The version of
PW-7 - P.S.I. Pawar corroborates the case of
prosecution as regards the alleged search and
seizure. His version is similar to that of PW-P.I.
Mr.Gaware. The sample packet was forwarded to office
of the Chemical Analyzer alongwith forwarding letter
(Exh.14). The report (Exh.36) was received from
office of the Assistant Chemical Analyzer and
thereafter the charge-sheet was filed. It is
admitted by PW-P.S.I. Pawar that he did not record
statements of the villagers or any other person in
the proximity of the spot wherefrom the bundles were
searched. He did not enquire as to wherefrom the
bundles were brought to the spot. He is an
Investigating Officer. It is his duty to locate
wherefrom those bundles were brought to the spot. No
enquiry was made about ownership of the said bundles.
It cannot be overlooked that for weekly Bazar, the
mini trucks, carriers etc. are used in order to
reach load of vegetables and other articles at the
place of Bazar. An enquiry could have perhaps shown
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the identity of the transporter of the said bundles.
That was not done. In this view of the matter, I
have no hesitation in holding that the prosecution
failed to prove conscious possession of the bundles
of ganja with the appellant.
12. So far as compliance of Section 57 of the
N.D.P.S. Act is concerned, it appears that PW-P.I.-
Mr.Gaware gave report about the search and seizure to
the Director, Narcotic Drugs Control, Delhi on 7th
July 2005. His version lends corroboration to the
recitals of the report (Exh.29). A copy thereof was
sent to the immediate superior Officer. Hence, it
cannot be said that there is total non-complaince of
provisions of Section 57 of the N.D.P.S. Act.
Moreover, Section 57 of the N.D.P.S. Act is
directory in nature and the non-compliance thereof
per se is not fatal to the case of prosecution.
13. Considering totality of the circumstances and
the evidence on record, I am of the opinion that the
impugned order of conviction and sentence is
unsustainable for the reason that the appellant was
not found in conscious possession of the six bundles
containing ganja. The prosecution evidence appears
to be somewhat unnatural and rather of preconceived
confirmation of the possible result regarding the
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alleged recovery. This being so, the impugned
Judgment is unsustainable.
14. In this view of the matter, the appeal is
allowed. The impugned order of conviction and
sentence rendered by Special Judge, Jalgaon on
21.2.2006, in Special Case No.5 of 2005 is set aside.
The appellant is acquitted of the charge levelled
against him. He shall be set free, if not required
in any other case.
( V.R.KINGAONKAR ) V.R.KINGAONKAR ) V.R.KINGAONKAR )
JUDGE
JUDGE JUDGE
(vvr/criapeal496.06)
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