The High Court dismissed the State's appeal against an acquittal. The court held that evidence failed to conclusively link the seized narcotics to the accused, as the packet was found in front of her rather than on her person, justifying the trial court's benefit of doubt.
The appeal was dismissed; the acquittal of the accused was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
- 1 -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 652 OF 1987
The State of Maharashtra. ).. Appellant
Vs.
Tahira Suleman Sayyed, )
age about 40 years, Occupation - Nil,)
residing at 54, G.P.81, )
Lohiyanagar Zopadpatti, Pune. ).. Respondent
--
Shri D.S.Mhaispurkar, APP for the appellant.
None for the respondent.
--
CORAM : R.M.S.KHANDEPARKAR &
P.V.KAKADE, JJ.
DATED : 17th February, 2005.
ORAL JUDGMENT : ( Per P.V.Kakade, J )
1. The State has preferred this appeal against
the judgment and order passed by the learned
Additional Sessions Judge, Pune, dated 7th May, 1987
acquitting the accused person, who was involved in
committing the offence punishable under Section
20(b)(i) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ( hereinafter referred to as
"NDPS Act"), and under Section 66(1)(b) of the Bombay
Prohibition Act.
- 2 -
2. The prosecution case in brief is as under:
. On 6th September, 1986, when P.W.1 Duryodhan
Konde and the other police officers were present at
Khadak Police Station, the information was received
that in Lohiyanagar Zopadpatti, one lady by name
Tahira was dealing in Ganja and therefore, two persons
were called to act as panchas. The Police Inspector
Kulkarni from the said Police Station was informed
about the said information and as per his direction,
P.W.1- PSI Konde along with the two panchas and the
other members of the raiding party went to Lohiyanagar
Zopadpatti at about 12.30 noon. Near about Darwesh
Provisional Stores, they noticed that the accused was
sitting in front of the said Darwesh Provisional
Stores. There was one plastic bag kept in her front.
She was accosted. The search of the plastic bag was
taken and it was noticed that there were 25 packets of
Ganja. The Ganja from all the packets was wrapped in
one paper and its weight was taken. The packet was
sealed and the lable of the signatures of the pachas
was affixed thereto. Upon search, an amount of Rs.5/-
was found on her person, which was also seized under
the said panchanama.
- 3 -
. Thereafter, the raiding police party including
PSI Konde (P.W.1) and the panchas returned to the
police station with the accused and the muddemal
packets which were seized from the spot and the
accused person was put under arrest under the
panchanama. The complaint was filed by P.W.1 -PSI
Konde, which was duly registered and the investigation
was commenced in which course, the statements of the
witnesses were recorded and the attached muddemal
property was sent to the Chemical Analyser for
examination, whose report was received in due course,
which is on record and on completion of the
investigation, charge-sheet was lodged in the Court of
law.
3. The learned Judge framed the charge against
the accused for commission of the offence to which the
accused pleaded not guilty. The defence of the
accused was totally that of denial of any criminal
liability. The prosecution led its evidence on which
basis, the trial Judge came to the conclusion that the
evidence of the prosecution is not sufficient to show
that the accused, who is a lady, was in possession of
narcotic contrabands at the relevant time and place,
and therefore, she was given benefit of doubt and was
acquitted of the offence registered against her.
- 4 -
Hence the appeal.
4. We have heard the learned APP. None present
for the respondent.
. At the outset, it may be noted that though the
prosecution case rested on the evidence of the two
panchas, the panch witness turned hostile, and
therefore, his evidence was discarded from
consideration. We have perused the evidence of P.W.2
and have satisfied that no substantial material
evidence could be extracted from his testimony and his
very presence seems to be doubtful at the relevant
time and place, and therefore, we hold that the trial
Judge has rightly discarded the evidence of P.W.2-
panch witness.
. This takes us to the testimony of PSI Konde
(P.W.1), who was heading the raiding party. On
perusal of his evidence, it is clear that, on the
information, he went to the spot and saw that the
accused was sitting in front of the said place where
one plastic bag containing Ganja was found.
Therefore, the entire evidence of P.W.1 PSI Konde
shows that the packet which was found was not on the
- 5 -
person of the accused but it was found in front of
her, and therefore, in the circumstances, even
assuming that the muddemal packet was found in front
of the accused person, she cannot be held liable for
possession of Ganja. In other words, the contrabands
attached from the place cannot be linked with the
accused for want of cogent and conclusive evidence,
and therefore, under such circumstances, it would not
be safe to rely on the evidence of P.W.1 PSI Konde.
5. The learned trial Judge has rightly discarded
the evidence of P.W.1 PSI Konde from consideration for
want of sufficient and corroborative evidence as well
as substantial link between the appellant and the
contrabands seized while coming to the conclusion of
acquittal of the appellant-accused.
6. For the reasons recorded above, we find no
merit in the Appeal, and therefore, the same stands
dismissed.
(R.M.S.KHANDEPARKAR, J )
(P.V.KAKADE, J )
3 issues framed by the court
Whether maintaining possession of ganja in a seealed packet found in front of the accused near a store rather than on her person establishes sufficient link for conviction.
Whether the trial court's acquittal of the accused due to insufficient evidence and absence of conclusive link to the seized contrabands was correct.
Whether the State's appeal against the acquittal has merit.
2 provisions across 2 enactments
The State of Maharashtra
Tahira Suleman Sayyed
R.M.S.KHANDEPARKAR
P.V.KAKADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court