Shrihari P. Davare, J.@mdashHeard learned respective Counsel for the parties.
2. Challenge in aforesaid both the appeals is to the conviction and sentence imposed upon the appellants (original accused nos.1 and 2, respectively), by way of judgment and order dated 10-12-2010, rendered by the learned Special Judge, Omerga, in Special (NDPS) Case No. 3/2010, thereby convicting both the appellants for the offence punishable u/s 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (For short, "NDPS Act"), and sentencing them to suffer rigorous imprisonment for ten years, each, and to pay fine of Rs. 1,00,000/-, each, and in default of payment of fine, to suffer rigorous imprisonment for two yeaRs.
3. The factual conspectus of the prosecuti0on case is as follows :
(a) It is the case of the prosecution that P.W.2 Police Inspector, Rajendra More, was attached to Omerga Police Station at the relevant time, and received an anonymous phone call at about 6.00 p.m. on 23-2-2010, informing him, that two persons were sitting near Dattaraj Hotel at Chaurasta, along with white and blue bags containing Ganja. Accordingly, he took entry in the station diary to that effect and sent letter Exhibit 12, through Police Constable Ghuge, to P.W.1 Bharat Suryawanshi, Naib Tahsildar, and called him to the Police Station, as well as, he deputed Police Constables, Shri Kale and Shri Sonawane to call two respectable persons as Panchas. He also informed the said information to Dy.S.P. Shri Thonge Patil on telephone. Accordingly, P.W.1 Bharat Suryawanshi, Naib Tahsildar, two Panchas including P.W.4 Ram Gaikwad, and Dy.S.P. Thonge Patil arrived at the Police Station, and P.W.2 P.I., Rajendra More, apprised them about the information and requested the Panchas to act as Panchas for the proposed raid, to which they consented. Moreover, said members of the raiding party collected lakh, seal and sealing material, and P.W.2 Rajendra More made entry in Station Diary (Exhibit 20) and thereafter said members of the raiding party proceeded to Dattaraj Hotel and reached there at about 6.15 p.m., and found accused nos.1 and 2 near the said hotel who were sitting on two bags at the said place, and one of the said bags was of blue colour and another was of white colour.
(b) Thereafter, P.W.2 P.I., Rajendra More, P.W.1 Naib Tahsildar, Bharat Suryawanshi, and Dy.S.P. Thonge Patil, as well as, Panchas introduced themselves to the said two persons i.e. accused nos.1 and 2, as well as, P.W.2 P.I. Rajendra More informed them that he desired to take their search in the presence of gazetted officer i.e. P.W.1 Bharat Suryawanshi, and accused nos.1 and 2 consented therefor in writing which is produced at Exhibit 13. Members of the raiding party offered their searches to accused nos.1 and 2, but they declined therefor. Moreover, P.W.2 P.I. Rajendra More made enquiry with them about their names and residence and thereupon accused no.1 gave his name as ''Sandeep'', resident of Pune, and accused no.2 gave his name as ''Suresh Tiwari'', resident of New Mumbai, Washi. So also, P.W.2 P.I. Rajendra More asked accused nos.1 and 2 about the contents in the said bags and thereupon they disclosed that both the bags contained Ganja and accused no.1 had a blue bag containing greenish colour Ganja, whereas accused no.2 had white colour bag containing Ganja therein. P.W.2 P.I. Rajendra More brought weighing scale through Police Constable Sonawane, and both the said bags belonging to accused nos.1 and 2 were weighed and the said bags weighed 9 Kgs. each. Moreover, three samples of 100 gms. Ganja were taken from each bag and the sample packets were labelled with the signatures of Panchas and signature of P.W.2 P.I. Rajendra More, and said sample packets were sealed, as well as, remaining quantity of Ganja was also attached. Moreover, spot panchanama was prepared at the said place in the presence of P.W.4 Ram Gaikwad and signatures of Panchas were obtained thereon, as well as, P.W.1 Naib Tahsildar, Bharat Suryawanshi, signed thereon, and also P.W.2 P.I. Rajendra More signed thereon, and aforesaid sample packets and remaining packets of Ganja were seized thereunder, and the said Panchanama is produced at Exhibit 14. Thereafter, members of the raiding party returned to the Police Station along with accused nos.1 and 2, and seized articles i.e. Muddemal property and sample packets were deposited in the Police Station, and P.W.2 P.I. Rajendra More informed the incident to the superior, as well as, he lodged complaint against accused nos.1 and 2, which is treated as F.I.R. Exhibit 21 and offence was registered against accused nos.1 and 2 under C.R. No. 20/2010 u/s 20(b) of NDPS Act, on 23-2-2010, at about 22.00 HouRs.
(c) During the investigation, enquiry was made with the accused about said Ganja and it was revealed that they brought said Ganja from Jahirabad for selling at Pune. Moreover, P.W.5 Dilip Jadhav was also attached to Omerga Police Station at the relevant time and he was handed over the investigation of the aforesaid C.R. Accordingly, he recorded statements of Police Head Constable Kale, Police Head Constable Shitre, Police Constable Kale, Police Constable Ohal, Police Constable Ghuge, and Naib Tahsildar P.W.1 Bharat Suryawanshi. Moreover, on 24-3-2010, he sent the sample packets along with covering letter dated 24-3-2010 (Exhibit 26) to Chemical Analyser''s office at Aurangabad, for examination purpose, through P.W.3 Police Nayak Kashinath Rathod and his statement was also recorded on 26-3-2010. Moreover, he drew map through Circle Officer. So also, Khas Vardi Ahval was sent to Sub-Divisional Police Officer by P.W.2 P.I. Rajendra More. Moreover, in pursuance of the above referred forwarding letter sent to Chemical Analyser''s office, Chemical Analyser''s report dated 1-4-2010 was received which is produced at Exhibit 36 and the same is positive for Ganja in respect of samples.
(d) Accordingly, after completion of investigation, P.W.5 P.S.I., Dilip Jadhav filed charge sheet against the accused and since said case was exclusively triable by the Special Judge, it was committed to the Special Court (NDPS Act). Accordingly, Special Judge (NDPS Act), Omerga, framed the charge against accused nos.1 and 2 on 8-7-2010, Exhibit 8, for the offence punishable u/s 20(b) of NDPS Act, but the accused pleaded not guilty to the said charge and claimed to be tried.
4. To substantiate the charge levelled against accused nos.1 and 2, the prosecution has examined as many as five witnesses as mentioned below :
P.W. 1 - Bharat s/o. Shrimantrao Suryawanshi, Naib Tahsildar.
P.W. 2 - Rajendra s/o. Mahadeorao More, who received the secret information.
P.W. 3 - Kashinath s/o. Bhika Rathod, Police Nayak - Carrier.
P.W. 4 - Ram s/o. Saida Gaikwad, Panch witness to seizure / spot Panchanama.
P.W. 5 - Dilip s/o. Prabhakar Jadhav, P.S.I. - Investigating Officer.
5. The defence of accused nos.1 and 2 is of total denial and they submitted that they have been implicated in the present case falsely, and accordingly, they claimed to be innocent. However, accused nos.1 and 2, neither examined themselves on oath, nor examined any defence witness to substantiate the defence.
6. After considering oral and documentary evidence, as well as, after considering rival submissions advanced by the learned Counsel for the parties, learned Special Judge (NDPS Act), Omerga, convicted the appellants i.e. original accused nos.1 and 2 for the offence punishable u/s 20(b) of NDPS Act, and sentenced them to suffer rigorous imprisonment for ten years, each, and to pay fine of Rs. 1,00,000/-, each, and in default of payment of fine, to suffer rigorous imprisonment for two years, as aforesaid.
7. Being aggrieved and dissatisfied by the said conviction and sentence, the appellants herein i.e. original accused nos.1 and 2 have preferred the present appeal and prayed for quashment thereof.
8. Before adverting to the submissions advanced by the learned Counsel for the parties, it is necessary to deal with the material evidence adduced / produced by the prosecution, and in the said context, coming to the deposition of P.W.2 P.I. Rajendra More i.e. complainant, who stated that on 23-2-2010, he received an anonymous phone call at about 6.00 p.m., informing that two persons were sitting near Dattaraj Hotel at Chaurasta along with white and blue bags containing Ganja, and he accordingly, informed said fact to Dy.S.P. Thonge Patil on phone, as well as, took entry into station diary in that respect. Moreover, by deputing Police Constable Ghuge, he called P.W.1 Bharat Suryawanshi, Naib Tahsildar and Gazetted Officer, and also called two respectable persons as Panchas and requested them to act as Panchas for the proposed raid to which they consented. Moreover, he made station diary entry (Exhibit 20) and collected sealing material and collected sealing material and members of the raiding party, including Panchas, proceeded for the raid and arrived at Dattaraj Hotel at Chaurasta at about 6.15 p.m., and Dy.S.P. Thonge Patil also accompanied with them and they raided two persons who were sitting on blue and white bags near Dattaraj Hotel. P.W.1 Bharat Suryawanshi, Naib Tahsildar, and Dy.S.P. Thonge Patil disclosed their identity to the said two persons. Moreover, P.W.2 P.I. Rajendra More also informed them that he was going to take their search in the presence of Gazetted Officer, namely, P.W.1 Bharat Suryawanshi, Naib Tahsildar, to which said two persons consented in writing (Exhibit 13). P.W.2 P.I. Rajendra More offered his search to the accused, to which they declined. Moreover, P.W.2 P.I. Rajendra More also made enquiry about their names and residence and thereupon accused no.1 gave his name as ''Sandeep'', resident of Pune, and accused no.2 gave his name as ''Suresh Tiwari'', resident of New Mumbai, Washi. Moreover, P.W.2 Rajendra More also asked about contents in the bags, and thereupon they disclosed that the said bags contained Ganja, and accused no.1 had blue colour bag containing greenish colour Ganja, whereas accused no.2 had white colour bag containing Ganja. Moreover, P.W.2 P.I. Rajendra More called weighing scale through Police Constable Sonwane, and both the said bags containing Ganja were weighed which weighed 9 Kgs. each. Moreover, three samples of 100 gms. Ganja from each of the said bags were taken and the same were packed and slips bearing signatures of Panchas, signature of P.W.1 Bharat Suryawanshi, Naib Tahsildar, and signature of P.W. 2 P.I. Rajendra More were affixed on the said packets and the said packets sealed. Moreover, remaining quantity of Ganja was also packed. Accordingly, the seizure Panchanama was prepared and aforesaid sample packets and remaining packets of Ganja were seized thereunder and signatures of Panchas, as well as, signature of P.W.2 P.I. Rajendra More and signature of P.W.1 Bharat Suryawanshi, Naib Tahsildar were obtained thereon (Exhibit 14). Thereafter, members of the raiding party returned to the Police Station along with accused nos.1 and 2, and seized articles, and P.W.2 P.I. Rajendra More lodged FIR (Exhibit 21) and the Muddemal property and the sample packets were deposited in the Police Station and P.W.2 P.I. Rajendra More informed the incident to the superior officer. The cross examination of P.W.2 P.I. Rajendra More reveals that the Superintendent of Police is his superior officer, but Dy.S.P. is next superior officer, and he has not informed his superior about secret information in writing. As regards consent letter given by the accused in respect of search, he wrote the contents of the said consent letter.
9. Coming to the deposition of P.W.1 Bharat Suryawanshi, Naib Tahsildar, who has deposed that pursuant to the receipt of letter Exhibit 12, from P.W.2 P.I. Rajendra More, through Police Constable Ghuge, on 23-2-2010, he went to Omerga Police Station for the raid in respect of seizure of Ganja, as a Gazetted Officer, and found that P.W.2 P.I. Rajendra More and Dy.S.P. Thonge Patil were present at the Police Station who gave him information about the raid. Thereafter, he proceeded along with the members of the raiding party to Chaurasta in Government jeep and reached there at about 6.50 p.m. and went to Dattaraj Hotel and found two persons sitting on bags in suspicious condition. Then P.W.1 Bharat Suryawanshi, Naib Tahsildar introduced himself and offered his personal search, as well as, Dy.S.P. Thonge Patil, and P.W.2 P.I. Rajendra More also introduced to the accused and offered their personal searches, and said two persons i.e. accused nos.1 and 2 declined therefor, and gave consent letter in writing (Exhibit 13) to their personal search. On enquiry, accused no.1 gave his name as ''Sandeep Rajeshwar Waghmare'', resident of Nigadi Naka, Pune, while accused no.2 gave his name as ''Suresh Amarnath Tiwari'', resident of New Mumbai. Two bags were found, out of which one was of blue colour with accused no.1 and Ganja weighing 9 Kg. was found therein, whereas another bag of white colour was in possession of accused no.2 wherein Ganja weighing 9 Kg. was found. The members of the raiding party had taken three samples of 100 gms. quantity from each of the both bags for sample purpose and the said sample packets were labelled with signature of Panchas and same were sealed, and one sample was kept for Chemical Analyser, and another sample was kept at the Police Station, and third sample was given to the accused. Moreover, remaining quantity of Ganja was kept in the custody of Police. Accordingly, seizure panchanama (Exhibit 14) was drawn and signature of Panchas were obtained thereon. The cross examination of the said witness discloses that there were many hotels, stalls and garages in the said Chowk, as well as, there was stop of private tourist buses in the said Chowk. He also stated that it was not written on the bag that it contained 9 Kg. Ganja. He further stated that receipt of sample was obtained from the accused.
10. The testimony of P.W.4 Ram Gaikwad i.e. Panch witness to the seizure Panchanama reflects that on 23-2-2010 at about 6.00 p.m., he had been to Sudarshan Hotel at Chaurasta and Police Constable Sonawane came to him and requested him to act as Panch, and another Panch was Datta Pawar, and P.W.2 P.I. Rajendra More; Dy.S.P. Thonge Patil, and P.W.1 Bharat Suryawanshi, Naib Tahsildar, and other staff members came to Jakekur Chaurasta, near Sudarshan Hotel, at about 6.30 p.m. Then P.W.4 Ram Gaikwad, another Panch, Dy.S.P. Thonge Patil, as well as, P.W.2 P.I. Rajendra More, P.W.1 Bharat Suryawanshi, Naib Tahsildar, and other Police staff proceeded to Dattaraj Hotel by walking and found two persons in front of Dattaraj Hotel, and one of them was sitting on blue bag, and another was sitting on white bag. Hence, P.W.2 P.I. Rajendra More made enquiry about their names and addresses, but initially they avoided to reply but subsequently they disclosed their names, and the person who sat on blue bag gave his name as ''Sandeep Waghmare'', resident of Pune, whereas other person who sat on white bag gave his name as Suresh Tiwari'', resident of Mumbai, i.e. accused no.2. Dy.S.P. Thonge Patil apprised them about their receipt of information that those persons were carrying Ganja. Dy.S.P. Thonge Patil also disclosed them that they intended to take their searches and he also offered his search to the accused, but the accused declined therefor, and the accused gave consent for their search. Accordingly, bags of the accused were opened in the presence of Panchas and green colour Ganja was found therein. Police Constable Sonawane brought weighing scale and weights of Ganja in blue colour bag and white colour bag were taken and both the bags contained 9 Kgs. Ganja each, and accordingly, total weight thereof was 18 Kgs. During enquiry, it was revealed that the said Ganja was intended to be carried on from Jahirabad to Pune for sale. Moreover, members of the raiding party took out three samples of 100 gms. Ganja from each of the bags for sample purpose and the same were packed in envelopes, as well as, labels having signatures of Panchas and accused were affixed thereon, and remaining quantity of Ganja was also packed. Police personnel prepared Panchanama (Exhibit 14) and the aforesaid sample packets and remaining quantity of Ganja were seized thereunder. He stated in the cross examination, that the distance between Dattaraj Hotel and Chaurasta is more than 500 feet, and there are hotels and shops from eastern and western side of Dattaraj Hotel, as well as, on other side of the road, there are shops and hotels. A suggestion was given to him, that there always used to be crowd on four sides of square of Chaurasta, but same was denied by him. A suggestion was also given to him that the accused had not stated that the bags were containing Ganja and they were not proceeding to Pune from Jahirabad for selling the same, but same was denied by him. It was also suggested to him that he deposed falsely that Ganja from those bags weighed to the extent of 9 Kgs. from each bag, but same was denied by him.
11. The evidence of P.W.3 Kashinath Rathod, Police Nayak i.e. carrier, discloses that P.W.2 P.I. Rajendra More handed over Muddemal property to him on 24-3-2010 for depositing the same in the office of Chemical Analyser at Aurangabad, and the said Muddemal property was relating to sample in C.R. No. 20/10, u/s 20(b) of NDPS Act., as well as, covering letter was given to him. Accordingly, on 25-3-2010, he handed over that property in the office of Chemical Analyser at Aurangabad and obtained acknowledgment therefrom on the office copy of the forwarding letter which is produced at Exhibit He also stated that in all two envelopes were given to him to hand over to Chemical Analyser''s office at Aurangabad. In the cross examination, he stated that he cannot tell whether Muddemal property is the same which was deposited by him with the office of Chemical Analyser at Aurangabad.
12. Coming to the evidence of P.W.5 Dilip Jadhav, Investigating Officer, who stated that the investigation of C.R. No.20/10 was handed over to him on 23-2-2010, and accordingly, he recorded statements of concerned Police personnel, and P.W.1 Bharat Suryawanshi, Naib Tahsildar. On 24-3-2010, the Muddemal property was sent to the office Chemical Analyser at Aurangabad, through P.W.3 Kashinath Rathod, Police Nayak, and his statement was recorded on 26-3-2010. He also made entry in the station diary and its extract is produced at Exhibit 20. He further stated that he produced Khas Vardi Ahval which was sent to S.D.P.O. by P.W.2 P.I. Rajendra More, and produced the same in the court. Accordingly, he carried the investigation and after completion of investigation, he filed charge sheet against the accused before the concerned court. In the cross examination, he stated that the envelopes of Muddemal property were attached, and one was sent to Chemical Analyser, another was given to the accused and remaining envelope was retained in Police Station. He also stated that Khas Vardi Ahval and consent letter were given to him along with the FIR. He also admitted that he sent sample to Chemical Analyser''s office after one month from the date of raid. He also admitted that only two samples were handed over to him. He further admitted that he has not handed over the samples to the accused personally.
13. On the background of the aforesaid material evidence adduced / produced by the prosecution, learned Counsel for the appellants submitted that there is blatant violation of Section 42(2) of NDPS Act, and P.W.2 P.I. Rajendra More has not forwarded copy of the secret information received, to his immediate superior officer within 72 hours, as contemplated u/s 42(2) of NDPS Act, and therefore, submitted that there is non-compliance of mandatory provision of Section 42(2) of NDPS Act, which resulted into vitiating the trial, and appellants deserve to be acquitted.
14. In the said context, learned Counsel for the appellants placed reliance on the following judicial pronouncements :
(a) Judgment of Division Bench of this Court, in the case of Ganesh Lingam Tewar Rajan Vs. State of Maharashtra, reported at 2001-ALLMR (CRI)-0-1611, wherein this Court has observed thus :
10. In the instant case, it is evident from a perusal of the evidence of P.I. Kachare P.W. 1, who had received the information that Section 42(1) has been complied with but 42(2) not. P.I. Kachare P.W.1 in his examination in chief, in para 1, stated that at about 8.20 a.m. on 13-12-1990 an informant came and informed him that some persons were going to indulge in narcotic activities at Matunga Mansion, Bhandarkar Road, Matunga, Mumbai 19, and also gave description of those persons. He further stated in the said paragraph that he reduced the said information in writing and passed it on to his superior officials, the A.C.P. and D.C.P. However, a perusal of his cross examination (para 5) makes it explicit that he did not send the copy of the said information forthwith to his superior official. In the said paragraph he admitted that the information which he had recorded in the information book was sent by him orally to his superior officials, A.C.P. and D.C.P. and he did not have any document to say that he had passed on the said information to his superior official.
11. In our view, since the mandate of Section 42(2) is that the officer who takes down the information in writing should send its copy forthwith to his immediate official superior and in the instant case copy of the information was not sent and only oral information was sent by P.I. Kachare to the immediate official superior, the provisions contained in Section 42(2), were not complied with.
12. The provisions contained in Section 42(2) of the N.D.P.S. Act are mandatory in nature, and this is clearly apparent from the language of the provision, which we have extracted earlier. We are fortified in our view by the judgment of the Constitution Bench reported in 2000(5) Bom.C.R. (S.C.) 236 (C.B.) : AIR 1999 S.C.W. 2494 (The State of Punjab v. Baldev Singh etc. etc.), wherein in paragraph 17 the Supreme Court has observed thus :
17(3) u/s 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith senda copy thereof to his immediate official superior. If there is a total non-compliance of this provision the same affects the prosecution case.To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case" (Emphasis supplied). Assurance is also lent tour view by the decision of the Supreme Court reported in
13. In our view, the said decisions of the Supreme Court make it explicit that Section 42(2) of the N.D.P.S. Act is mandatory. "
(b) Judgment of Hon. Apex Court in the case of Backload Abdul Rahiman Vs. State of Kerala, reported at AIR 2002 SCW 1780, wherein Hon. Apex Court has observed thus :
In this case, the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (P.W.1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of Section 50 is held to have been fulfilled on his (P.W.1) asking the accused "whether I should search him in the presence of senior officers or Gazetted Officer". The accused was required to be apprised of his right conferred u/s 50 giving him the option to search being made in presence of gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.
(c) Judgment of learned Single Judge of this Court in the case
of Firoz Gafur Shaikh & others Vs. State of Maharashtra,
reported at 2007 ALL MR (Cri.) 1003, wherein this Court hasobserved thus :
10. Evidence of P.W.4 Shrikant Jawle clearly reveals that he had not immediately taken down the information which he had received from his secret sources. According to P.W.4 Shrikant Jawle, after he had received the information he proceeded to the office of P.W.5 SDPO Kisan Pawar and informed SDPO Kisan Pawar about the receipt of the said information. Thereafter entry at Sr.No.18 in the station diary at Exh. 48 came to be made. Perusal of the said entry at Exh.48 clearly reveals that the station diary entry was not taken down immediately when the information was received by P.W.4 Shrikant Jawle. Thus, there is total non-compliance of Section 42(2) of the NDPS Act. A reference may usefully be made at this juncture to the judgment of the Supreme Court in
15. Moreover, learned Counsel for the appellants also argued that there is non-compliance of Section 52(1) and Section 52(3) of NDPS Act, and the evidence adduced / produced by the prosecution does not reflect that the grounds of arrest were informed to the appellants after their arrest as contemplated u/s 52(1) of NDPS Act, as well as, appellants were not forwarded without any unnecessary delay to officer incharge of the nearest Police Station after their arrest, as envisaged u/s 52(3) of NDPS Act.
16. According to learned Counsel for the appellants, prosecution has failed to comply with Section 55 of NDPS Act, and the officer incharge of the Police Station has not taken over charge and kept the Muddemal property and sample packets in safe custody pending orders of the Magistrate, as well as, copy of the specimen seal impression was not forwarded to the Chemical Analyser. Learned Counsel for the appellants also submitted that there is non-compliance of Section 57 of NDPS Act and P.W.2 P.I. Rajendra More or P.W.5 P.S.I. Dilip Jadhav did not send the full report of all particulars of the search, seizure and arrest of the accused to his immediate superior officer within 48 houRs. As regars, Khas Vardi Ahval, P.W.5 P.S.I. Dilip Jadhav has stated that he produced the Khas Vardi Ahval which was sent to SDPO by P.W.2 P.I. Rajendra More, but pertinently, testimony of P.W.2 P.I. Rajendra More is silent in that respect and even Khas Vardi Ahval has not been exhibited and its contents are not proved, and hence, it is submitted that the same cannot be construed as compliance of Section 57 of NDPS Act.
17. It was argued by the learned Counsel for the appellants, that although as per case of the prosecution, search and seizure was effected on 23rd February 2010, sample packets were sent to Chemical Analyser''s office for examination purpose, after lapse of more than one month i.e. on 25-3-2010 and no explanation has been given by the prosecution for the said delay. Moreover, it is also canvassed that the sample packets were handed over to P.W.3 Kashinath Rathod, Police Nayak, the carrier, on 24-3-2010, who stated that he handed over said sample packets to Chemical Analyser''s office on 25-3-2010 i.e. on the next day. Accordingly, it is canvassed that the custody of the sample packets from the date of seizure thereof i.e. 23-2-2010 to 24-3-2010, and from 24-3-2010 to 25-3-2010 is under suspicion since nothing has been produced on record that the said sample packets were deposited in Muddemal store room after seizure thereof i.e. 23-2-2010 and removed therefrom in sealed condition on 24-3-2010, and even P.W.3 Kashinath Rathod, Police Nayak, has not stated in his deposition that the sample packets were handed over to him on 24-3-2010 in sealed condition and there is nothing on record to prove and establish that the sample packets were handed over to Chemical Analyser''s office on 25-3-2010 in sealed condition along with the forwarding letter bearing seal of Omerga Police Station. Moreover, it is also argued that the prosecution has failed to examine the incharge of Muddemal store room and even Muddemal register is not produced on record to substantiate the proper custody of the sample packets from 23-2-2010 to 24-3-2010, and hence, it is canvassed that the suspicion is created whether same sample quantity which was seized at the time of seizure was transmitted to Chemical Analyser''s office for examination purpose since tampering thereof during the aforesaid period from 23-2-2010 to 24-3-2010 and from 24-3-2010 to 25-3-2010 cannot be ruled out, and hence, further suspicion is created whether Chemical Analyser''s report pertained to the same sample quantity which was seized at the time of alleged seizure, and hence, it is submitted that the Chemical Analyser''s report dated 1-4-2010, Exhibit 36, cannot be tacked with the sample quantity of Ganja which was seized at the time of seizure. In the said context, learned Counsel for the appellants relied upon judicial pronouncement rendered by this Court, in Criminal Appeal No. 462/2010, in the case of Vasant Janku Mane & another Vs. The State of Maharashtra, on 21-11-2011.
18. Accordingly, learned Counsel for the appellants submitted that there are vital infirmities and deformities in the prosecution case, and the prosecution case does not inspire confidence, and therefore, appellants cannot be connected with the alleged crime, and further submitted that the appellants deserve for benefit of doubt, and accordingly, urged that the present appeal be allowed and the conviction and sentence imposed upon the appellants be quashed and set aside and they be acquitted for the offences with which they are charged and convicted.
19. Mr. S.G. Nandedkar, learned Additional Public Prosecutor, appearing for the respondent / State, countered the said arguments and opposed the present appeal vehemently, and submitted that the offence committed by the appellants is an anti-social offence and huge quantity of 18 Kgs. Ganja was seized from the possession of the appellants (accused nos.1 and 2), which is not a small quantity, and also submitted that that the offence committed by the appellants would affect not only an individual, but also to the society at large. In the said context, it is canvassed by the learned APP that the appellants failed to give explanation for possession of 18 Kgs. Ganja and they cannot be absolved of the liability thereof. It is further submitted by the learned APP, that the Chemical Analyser''s report dated 24-3-2010 (Exhibit 36) is positive for Ganja in respect of the sample packets which connects the appellants with the crime. According to the learned APP, investigating agency has taken due and proper care at the time of effecting the raid and necessary provisions of NDPS Act were complied with, and consequently, aforesaid Ganja was seized from the appellants (accused nos.1 and 2), and Chemical Analyser''s report is positive in respect of Ganja, as aforesaid, and hence prosecution has proved the charges levelled against the appellants beyond reasonable doubt. Moreover, it is further submitted that the learned trial court has scrutinized and assessed the evidence and convicted and sentenced the appellants properly. Accordingly, learned APP supported the impugned judgment and order of conviction, and submitted that there is no glaring mistake therein, and hence, no interference is called for in the present appeals, and urged that the present appeals be dismissed.
20. I have perused the oral and documentary evidence, as well as, evidence of Forensic Science Laboratory (Chemical Analyser''s office), and heard the submissions advanced by the learned Counsel for the parties, anxiously, as well as, perused the judicial pronouncements cited by the learned Counsel for the appellants, and at the outset, I am in agreement with the learned Counsel for the appellants, that there is blatant violation of Section 42(2) of NDPS Act, and in the said context, P.W.2 P.I. Rajendra More has stated in his deposition that after receipt of information by anonymous telephone call, he informed the said fact to Dy.S.P. Thonge Patil by phone message, who is his immediate official superior, as stated by him in the cross examination, and he nowhere stated in his deposition that he forwarded copy of the said secret information received by him, to his immediate official superior within 72 hours, as contemplated u/s 42(2) of NDPS Act, and accordingly, mere giving phone message to immediate official superior, as done by P.W.2 P.I. Rajendra More, will not amount to compliance of Section 42(2) of NDPS Act.
21. By incorporating the said provision of Section 42(2) in NDPS Act, the legislature has enacted and provided said safeguard since the said Act prescribes severe punishment on proof of possession of illicit article, and therefore, the said safeguard, which is provided under the Act, is required to be followed scrupulously. The harsh and stringent provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards. Hence, the compliance of Sections 42(1) and 42(2) are mandatory, and the Hon. Apex Court has time and again observed that non-compliance of Sections 42(1) and 42(2) would render the investigation illegal and affects the prosecution case. Accordingly, upon perusal of evidence of P.W.2 P.I. Rajendra More, non-compliance of Section 42(2) is writ large. In view of that matter, the appeals deserve to be succeeded on the said ground alone, and useful reliance can be placed on the aforesaid judicial pronouncements (supra) cited by the learned Counsel for the appellants.
22. Moreover, the evidence adduced / produced by the prosecution nowhere reveals that the grounds of arrest were informed to the appellants after their arrest, as contemplated u/s 52(1) of NDPS Act, as well as, it has not come in evidence of the prosecution that the appellants were forwarded to officer incharge of nearest Police Station after their arrest, as contemplated u/s 52(3) of NDPS Act, and hence, it is amply clear that there is non-compliance of Sections 52(1) and 52(3) of NDPS Act. Moreover, although the said provision of Sections 52(1) and 52(3) are directory, non-compliance thereof diminishes the credibility of the prosecution case.
23. Perusal of the evidence of the Police Officers also indicates that copy of the specimen seal impression was not forwarded to the Chemical Analyser. P.W.2 P.I. Rajendra More has stated in his deposition that the Muddemal property and sample packets were deposited in the Police Station. However, except said bare words of P.W.2 P.I. Rajendra More, the prosecution neither produced the Muddemal register on record nor examined incharge of Muddemal store room to substantiate the said contention, and hence, said bald bare words stated by P.W.2 P.I. Rajendra More, in his deposition, in that respect, cannot be believed without cogent proof therefor.
24. In view of the said fact, non-sending of specimen seal impression to the Chemical Analyser assumes importance. The Chemical Analyser had no specimen seal before him to compare seal on the sample packets which were received by him. Moreover, it is also pertinent to note that as per version of P.W.2 P.I. Rajendra More, sample packets and Muddemal property were deposited in Muddemal store room on 23-2-2010. The sample packets were allegedly handed over to P.W.3 Kashinath Rathod, Police Nayak, the carrier, after a lapse of one month and one day i.e. on 24-3-2010 and safe and proper custody of the sample packets during the said substantial period is under doldrums, more particularly, in view of non-production of Muddemal register, and non-examination of incharge of Muddemal store room. Moreover, it is also significant to note that P.W.3 Kashinath Rathod, the carrier, has not stated in his deposition that P.W.2 P.I. Rajendra More handed over sample packets to him on 24-3-2010 in sealed condition (emphasis supplied). Moreover, P.W.3 Kashinath Rathod, the carrier, also stated in his deposition that although he received sample packets and Muddemal property from P.W.2 P.I. Rajendra More on 24-3-2010, he delivered the same to Chemical Analyser''s office at Aurangabad on 25-3-2010, and therefore, it is apparently clear that the said sample packets were in personal custody of P.W.3 Kashinath Rathod, the carrier, from 24-3-2010 to 25-3-2010. Hence, the possibility of tampering of the said sample packets from 23-2-2010 to 24-3-2010 and from 24-3-2010 to 25-3-2010 cannot be ruled out, and therefore, suspicion is created whether the same sample quantity of Ganja which was collected as sample at the time of seizure on 23-2-2010 was really sent to Chemical Analyser''s office for examination purpose and whether Chemical Analyser''s office examined the same sample quantity of Ganja which was seized on 23-2-2010 from the accused and whether Chemical Analyser''s report (Exhibit 36) pertains to the same quantity of Ganja which was seized at the time of seizure and Chemical Analyser''s report Exhibit 36 cannot be tacked therewith. Accordingly, reliance can be placed on the judicial pronouncement in Criminal Appeal No. 462/2010, in the case of Vasant Janku Mane & another Vs. The State of Maharashtra, decided on 21-11-2011 (supra), cited by the learned Counsel for the appellants in that respect. Hence, consequently, accused cannot be connected with the alleged crime, and accordingly, there is substance in the submission canvassed by the learned Counsel for the appellants, and accordingly, transmission of samples from the Police Station to the office of Chemical Analyser in untampered condition comes under the cloud of suspicion which entails the benefit of doubt to the appellants.
25. Having survey of the evidence, there is substance in the submission canvassed by the learned Counsel for the appellants, that the prosecution failed to comply with provision of Section 55 of NDPS Act, as well as, it is evident from the evidence adduced by the prosecution through P.W.2 P.I. Rajendra More and P.W.5 P.S.I. Dilip Jadhav, that they did not send full report of search, seizure and arrest of the accused to their immedicate superior officer within 48 hours and it is amply clear that there is non-compliance of Section 57 of NDPS Act also. As regards Khas Vardi Avhal, P.W.5 P.S.I. Dilip Jadhav has stated that he produced Khas Vardi Avhal which was sent to SDPO by P.W.2 P.I. Rajendra More, but pertinently, testimony of P.W.2 P.I. Rajendra More is silent in that respect and even Khas Vardi Avhal has not been exhibited and its contents are not proved, and hence, submission made by the learned Counsel for the appellants, that the said Khas Vardi Avhal cannot be construed as compliance of Section 57 of NDPS Act, also bears substance.
26. In the light of the aforesaid discrepancies, deformities and lacunae in the prosecution case, I am inclined to accept the submissions advanced by the learned Counsel for the appellants, and accordingly, appellants are entitled for the benefit of doubt, and hence, conviction and sentence recorded against the appellants shall not sustain, and hence consequently, present both the appeals deserve to succeed.
27. In the result, Criminal Appeal No.475/2011 and Criminal Appeal No. 476/2011 are allowed, and conviction and sentence recorded against the appellants i.e. original accused nos. 1 and 2, by way of judgment and order dated 10-12-2010, rendered by the learned Special Judge, Omerga, in Special (NDPS) Case No. 3/2010, stands quashed and set aside and they are acquitted of the offences with which they were charged and convicted. Fine amount, if any, paid by them, be refunded to the appellants. Since the appellants are in jail, they be released forthwith, if not required in any other case. Both the appeals stand disposed of accordingly.
28. Mr. S.J. Salgare, was appointed as Advocate through Legal Aid, for the appellants. He be paid his renumeration through Legal Aid Committee, which is quantified at Rs. 2,500/[Rupees two thousand five hundred] for each of the appeals.
