The State of Maharashtra Vs Gafoor Yusuf Shaikh and Others.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE
 CRIMINAL APPEAL NO.1003 OF 1988

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 The State of Maharashtra .... Appellant
 Vs.

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 1. Gafoor Yusuf Shaikh,
 Age 22 years

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 2. Razak Yusuf Shaikh,
 Age 25 years

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 3. Salim Yusuf Shaikh,
 Age 27 years

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 4. Chand Yusuf Shaikh,
 Age 20 years

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 All r/o Akluj, Taluka Malshiras,
 District: Solapur. .... Respondents

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 Shri B.H. Mehta, Addl. Public Prosecutor,
 for the Appellant.

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 None present for the Respondents.

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CORAM: R.M.S. KHANDEPARKAR &
 P.V. KAKADE, JJ.

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DATED: MARCH 04, 2005

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ORAL JUDGMENT (Per P.V.Kakade, J.):

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 1. The State has preferred this appeal against the
 judgment and order dated 23-8-1988 passed by the Addl.
 Sessions Judge, Solapur, acquitting all the respondents
 of the offences punishable under Section 20(b) r/w
 Section 29 of the Narcotic Drugs and Psychotropic
 Substances Act, 1985 (hereinafter called as "the NDPS
 Act").

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[2]

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 2. The facts in brief giving rise to the present case
 are thus:

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 Complainant PSI Ghode was the junior PSI at
 Akluj police station. Accused Nos.1 to 4 are the
 residents of village Akluj. On 9-5-1986, at about 8:30
 p.m., when PSI Ghode was in the police station, he
 received an information from the informant that accused
 Nos.1 to 4 had kept a stock of ganja in the bungalow
 situated at Akluj-Indapur road. On receipt of the said
 information, PSI Ghode consulted PSI Shinde. They
 called three panch witnesses and along with these panch
 witnesses and two constables, PSI Ghode proceeded
 towards the Akluj-Indapur road and when the jeep was
 stopped near the gate of the bungalow of the accused,
 they saw accused Nos.1 to 4 in front of the bungalow in
 the tube-light. When the accused saw the police jeep
 approaching towards them, they ran behind the bungalow.
 They were chased but could not be apprehended. PSI
 Ghode then returned to the bungalow which consisted of
 five rooms. A search was conducted of the said
 bungalow. In one of the rooms 135 gunny bags were found
 containing ganja. In another room he found one spring
 weighing machine hanging from the roof. It was also
 attached by them. In the other room they found some
 household utensils and a note book containing a 7 x 12

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[3]

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 extract of gat No.798. There was also telephone in the
 house. The police prepared a detailed panchnama of the
 seized articles, including the contraband, in the
 presence of those panchas. From each of the ganja bags
 a sample of 10 grams was taken and the same was labelled
 under the signature of the panchas and thereafter after
 taking orders from the J.M.F.C., the police deposited
 the ganja bags with the Excise Office at Malshiras and
 PSI Ghode lodged a complaint against the accused persons
 vide Exhibit-30. It was registered as Crime No.164/86
 under Section 66(1)(b) r/w Section 83 of the Bombay
 Prohibition Act.

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 PSI Ghode carried out the investigation after
 registration of the crime. In the course of the
 investigation, he recorded the statements of various
 witnesses and obtained various documents including the 7
 x 12 extract of gat No.798 showing the house as
 belonging to the accused persons. He also obtained the
 house extract from the Gramsevak bearing House
 No.3730/3A and his statement came to be recorded. In
 the meantime, the seized article was sent to the
 chemical analyser for examination, whose report was
 received in due course and which is part of the record.
 On the basis of the C.A. report and the other
 investigation, charge-sheet was sent to the Court of the
 J.M.F.C., Malshiras alleging that the accused were

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[4]

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 arrested for commission of the offences punishable under
 Section 20(b) r/w Section 29 r/w Section 8 of the NDPS
 Act. The learned J.M.F.C. committed the case to the
 Court of Sessions. The learned Sessions Judge framed
 the charge against the accused persons for commission of
 the offences under the NDPS Act to which the accused
 pleaded not guilty and the defence of the accused was
 that of total denial of any criminal liability sought to
 be imposed upon them. The prosecution led its evidence,
 including that of the investigating officer PSI Ghode
 and the other constables of the raiding party along with
 the three panch witnesses. On the basis of this
 evidence, the learned trial Judge came to the conclusion
 that it was not sufficient to being home the guilt of
 the accused as such and they came to be acquitted by the
 above order. Hence the present appeal.

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 3. We have heard the learned A.P.P. for the appellant.
 None present for the respondents.

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 We have also perused the entire evidence on
 record with the assistance of the learned A.P.P.

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 At the outset, it may be noted that from the
 available evidence on record the prosecution appears to
 have failed to bring the factum of possession of the
 contraband at the relevant time and placed with the

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 accused and therefore the entire prosecution case
 collapsed on that basis.

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 The evidence of PSI Ghode as well as Constable
 Pandhare shows that when they reached the bungalow in a
 police jeep along with the panchas, the accused who were
 standing in front of the bungalow started running away.
 They also have stated that they saw the accused persons
 going behind the bungalow and they were chased, but in
 vain. It is also stated that thereafter PSI Ghode
 entered the premises consisting of five rooms and a
 search was conducted in which course huge incriminating
 articles, including contraband i.e. ganja, were found
 in the said bungalow. Thereafter panchnama was made in
 the presence of the panchas and sample was taken and
 complaint came to be lodged at the Akluj police station
 against the accused persons. It is to be noted that
 even though PSI Ghode has stated in his

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 examination-in-chief that the sample was taken from the
 seized contraband article at the time of the raid and
 same was labelled with the signatures of the panchas,
 but he has admitted in his cross-examination that the
 same was not sealed and was merely affixed with labels
 with signatures of the panch witnesses. This aspect, in
 our view, assumes importance especially when none of the
 panchas has supported the prosecution story on any
 aspect. Therefore, the fact remains doubtful whether

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 the packet of sample of ganja was sealed or not, and if
 it was not sealed then there was every possibility of
 tampering with the packets of sample when it was kept in
 the custody of either the police station or the Excise
 Department before it was transmitted to the chemical
 analyser for examination. This aspect by itself has
 weakened the prosecution case to a great extent.

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 4. As noted above, none of the panch witnesses has
 supported the prosecution and therefore the prosecution
 theory that the accused persons were seen standing in
 front of the said bungalow and they ran away behind the
 bungalow when they saw the police jeep is the statement
 which has remained uncorroborated and therefore has to
 be discarded. Be as it may, the other evidence which is
 sought to be brought on record is also sufficient to
 show that the bungalow in question was at the relevant
 time rented to one Reddy which fact is also admitted by
 the prosecution witness who was examined for the purpose
 of ascertainment of ownership of the house in question.

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 There is another intriguing angle which has
 surfaced on record in the course of the evidence. It is
 evident that the I.O. did make two raids on that day
 and in both the raids ganja was seized. In another raid
 the accused in this case was also involved for
 possession of ganja and was separately prosecuted.

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 Simultaneously, this raid was also made wherein the same

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 accused was shown to be possessing ganja at his
 residence i.e. the bungalow which was evidently let out
 to one Reddy and who was neither examined nor brought as
 witness before this Court to ensure that he was not in
 possession but the accused persons were in possession of
 the bungalow. Be it as it may, fact remains that at the
 relevant time and place none of the accused persons were
 found to be in actual possession of the contraband
 article and therefore the learned trial Judge has
 rightly come to the conclusion that the prosecution has
 failed to bring home the guilt on the question of
 possession of the contraband at the relevant time.

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 5. In view of this position, we need not go into the
 other aspects of the evidence except recording our
 finding that the reasonings adopted and the findings
 recorded by the learned trial Judge appear to be just,
 legal and proper and therefore would warrant no
 interference.

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 6. In the result, the appeal fails and stands
 dismissed. The bail bonds of the accused persons
 consequent to action under Section 390 of the Cr.P.C.
 stand cancelled.

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(R.M.S.Khandeparkar, J.)

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[8]

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(P.V.Kakade, J.)

The State of Maharashtra v. Gafoor Yusuf Shaikh and Others.

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The State of Maharashtra v. Gafoor Yusuf Shaikh and Others.

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