Allowed

Vasant Janku Mane and Anr. v. the State of Maharashtra

Bombay HC21 Nov 2011APEAL/462/2010

Case brief

AI extract

What is this about?

In an appeal challenging convictions for cultivating ganja, the High Court quashed the judgment due to significant lacunae. The court held that the prosecution failed to establish exclusive possession by the appellants amidst multiple co-sharers, did not verify land records, and the Investigating Officer violated mandatory procedural provisions under the NDPS Act regarding intimation to superiors,

What did the court decide?

Convictions and sentences quashed; appellants acquitted and set at liberty; fine amounts refunded.

Vasant Janku Mane and Anr. Vs the State of Maharashtra — Narcotics (NDPS) | Bombay HC (2011)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

¶3

CRIMINAL APPEAL NO.462/2010

¶4

Vasant Janku Mane age 63 years, Occ. Agriculture.

¶5

Balaji s/o Vasant Mane. age 32 years, Occ. Agriculture. Both r/o Tugaon, Tq. Omerga. District Osmanabad.

¶6

..Appellants... [Orig. accused 1 and 2 ]

¶7

VERSUS

¶8

The State of Maharashtra, [Copy to be served on G.P. of High Court Bench at Aurangabad] ..Respondent..

¶9

-----------------------------------------------------------------Smt. Sadhana S. Jadhav advocate for the appellants. Smt. Y.M.Kshirsagar, APP for respondent.

¶10

CORAM : SHRIHARI P. DAVARE, J.

¶11

................................................................................................. DATE OF RESERVING JUDGMENT :15.11.2011 DATE OF PRONOUNCING JUDGMENT :21.11.2011

¶12

.................................................................................................

¶13

JUDGMENT :

¶14

Heard learned respective counsel for the parties.

¶15

¶16

This is an appeal preferred by the appellant nos. 1 and 2 i.e. original accused nos. 1 and 2, challenging the convictions and sentences imposed upon them by the judgment and order dated 29.10.2010, rendered by Special Judge, Omerga, District Osmanabad in Special Case (NDPS) No.1/2010, thereby convicting them for the offences punishable under sections 20(b) and 20(a) of Narcotic Drugs and Psychotropic Substances Act [herein after referred to as ‘NDPS Act’ for short] and sentencing them to suffer R.I. for ten years and to pay fine of Rs.1,00,000/- each, in default of payment of fine to under go further R.I. for two years, as well as convicting them for the offence punishable under sections 20 (b) of Narcotic Drugs and Psychotropic Substances Act and sentenced them to suffer R.I. for ten years and to pay a fine of Rs.1,00,000/- each, in default of payment of fine to undergo further R.I. for two years and directing that the aforesaid substantive sentences to run concurrently.

¶17

The factual conspectus and shorn of the details of the prosecution case are as follows :-

¶18

According to the prosecution, the accused No.1 Vasant Janku Mane is the owner of field bearing Gat No.196/1 of village

¶19

¶20

Tugaon, Tq. Omerga, District Osmanabad and accused No.2 Balaji Vasant Mane is his son and both were cultivating the said land jointly. PW 6 A.P.I Balkrishna Hanpude Patil was attached to Murum Police Station and was working as API at the relevant time i.e. on 2.12.2009. It is the case of the prosecution that PW 6 API Hanpude Patil received an information at about 9.00 a.m. on that day i.e. on 2.12.2009 that the accused were cultivating Ganja plants in their field at village Tugaon. Accordingly, he recorded said information in the station diary and informed the same to S.D.P.O. Omerga, in-Charge, Tuljapur by phone message as well as by writing and office copy of the said information with the acknowledgment is produced at Exh.33. Accordingly, he called PW 5 Bharat Suryawanshi i.e. Naib Tahsildar, Tuljapur Dist. Osmanabad by sending letter Exh.35, since he was Gazetted Officer to remain present at the time of raid. He also issued a letter Exh.36 to Chief Officer, Murum Municipal Council and, requested to send two public servants as panchas, and accordingly, PW 2 Laxman Bhagat and P.W.3 Subhash Valdure were sent to act as panchas and, also PW 6 API Hanpude Patil called photographer namely Dayanand Wadekar by deputing Police Constable therefor and weighing scale through

¶21

¶22

Mallikarjun. Moreover, he also arranged for the wax seal and sealing material through P.H.C. Kadam.

¶23

It is also the case of the prosecution that PW 6 API Hanpude Patil appraised the aforesaid personnel about the raid to be conducted and thereafter the said members of raiding party proceeded towards village Tugaon and arrived at the field of accused and found that accused No.2 was present there and there was Tur crop in the field. PW 6 API Hanpude Patil made inquiry with the accused No.2 and he gave his name as Balaji Vasant Mane and stated that said field belonged to his father namely Vasant Mane and, he himself and his father were cultivating the said land jointly. Thereafter, PW 6 API Hanpude Patil introduced himself to accused No.2, and, informed the purpose of their arrival that they intended to verify the crops in the field. Thereafter, PW 6 API Hanpude Patil and PW 5 Suryawanshi Naib Tahsildar inspected the crops in the field with the help of panchas and they found Ganja plants in the field. Accordingly, all the Ganja plants were uprooted with the help of police staff and collected near the bandh. Said plants were weighed with the help of Mallikarjun and weight was 170

¶24

¶25

Kilograms. Out of the said plants, two plants were separated for sample purpose in cloth bags and said bags were sealed and labelled with the signatures of panchas, signature of the accused No.2 and signature of PW 5 Naib Tahsildar Suryawanshi. Moreover, the ordinary earth as well as earth attached to the root of the ganja plants were also collected and packed and the said packet was also labelled with the signatures of panchas as well as signature of accused No.2 and PW 5 Naib Tahsildar, Suryawanshi thereon. Accordingly, detailed seizure panchnama was prepared and signatures of panchas as well as signatures of PW 5 Suryawanshi Naib Tahsildar and accused were obtained thereon. Moreover, the photographs of said Ganja Plants were taken along with the accused No.2 namely Balaji. However, father of the accused No.2 was not present at the said time. Thereafter, accused No.2 was taken into custody and police personnel returned to the police station along with Muddemal property and accused No.2. PSI Ningdale lodged First Information Report against the accused Exh.24.

¶26

It is further case of the prosecution that muddemal property was deposited in the police station on the same day i.e.

¶27

¶28

2.12.2009 and accused No.2 was arrested on 2.12.2009 and accused no.1 was arrested on 3.12.2009. Moreover, PW 6 API Hanpude Patil made station diary entries in respect of the aforesaid events which is produced at Exh.37. On 6.12.2009 sample packets were removed from the muddemal store room and same were sent to C.A. Office, Aurangabad for examination purpose along with forwarding letter Exh.28 through PW 4 Mahadev Thombare attached to Murum Police Station i.e. carrier. Accordingly, CA report Exh.42 dated 11.1.2010 was received which was positive for Ganja.

¶29

Moreover, the prosecution case further recites that

¶30

during the course of investigation, PW 6 API Hanpude Patil collected 7/12 extracts of the land of the accused which are produced at Exh.40 and 41. Moreover, map of the field of the accused was also prepared which is produced at Exh.39. Moreover, PW 6 API Hanpude Patil recorded statements of witnesses and also filed the report of investigation to his superior and it was transpired during the investigation that accused no.1 and 2 cultivated the ganja plants in their field. Accordingly, after completion of investigation, he filed charge sheet against the accused in the court.

¶31

¶32

Learned Special Judge, Omerga District Osmanabad

¶33

framed charge against the accused nos. 1 and 2 under section 20 (b) of NDPS Act at Exh.11 on 12.2.2010. Moreover, learned Special Judge, Omerga also framed additional charge against accused nos. 1 and 2 under section 20 (a) of NDPS Act on 12.10.2010. Accused nos. 1 and 2 pleaded not guilty to the charges levelled against them and claimed to be tried.

¶34

To substantiate the charges levelled against them,

¶35

prosecution has examined as many as six witnesses as mentioned below :-

¶36

PW 1 PSI Anandrao Apparao Ningdale i.e. complainant who lodged FIR Exh.24 against the accused on 2.12.2009.

¶37

2. PW 2 Laxman Hanmantrao Bhagat panch witness – turned hostile.

¶38

3. PW 3 Subhash Bhimasha Valdure second panch witness - turned hostile.

¶39

4. PW 4 Mahadev Shivajirao Thombare – Carrier.

¶40

5. PW 5 Bharat Shrimantrao Suryawanshi Naib Tahsildar, spot panchnama was prepared in his presence Exh.30.

¶41

6. PW 6 API Balkrishna Janardhan Hanpude Patil I.O.

¶42

¶43

The defence of the accused nos. 1 and 2 is of total denial

¶44

and it is submitted by them that they have been implicated in this

¶45

case falsely due to political rivalry and at the instance of police personnel. Accordingly, they claimed to be innocent. However, accused neither examined themselves on oath, nor examined any defence witness to substantiate the said defence.

¶46

After considering the oral and documentary evidence adduced and produced by the prosecution and also after considering the rival submissions advanced by the parties, learned Special Judge, Omerga District Osmanabad, convicted and sentenced both the accused for the offences punishable under sections 20(a) and 20(b) of NDPS Act by judgment and order dated 29.10.2010 as mentioned herein above.

¶47

Being aggrieved and dis-satisfied by the said judgment and order of convictions and sentences, the appellants herein i.e. original accused nos. 1 and 2 have filed the present appeal, assailing the same and prayed for quashment thereof.

¶48

¶49

To deal with the submissions advanced by the learned counsel for the parties effectively, it is necessary to advert to the material evidence adduced/produced by the prosecution and in the said context PW 1 PSI Anandrao Ningdale i.e. complainant deposed in his deposition that on 2.12.2009 his superior PW 6 API Hanpude Patil informed that he had received secret information that accused have plated ganja plants in Tur Crop at village Tugaon. Accordingly, PW 6 API Hanpude Patil called Naib Tahsildar Suryawanshi, two panchas, photographer and person having weighing scale at the police station. Thereafter, said members of raiding party proceeded towards village Tugaon at about 11.00 am and reached at Tugaon in the field of accused at about 11.45 a.m. and found one person in the said field and made inquiry with him, who gave his name as Balaji Vasant Mane i.e. accused No.2 who stated name of his father as Vasant Janku Mane and further stated that said field belonged to his father and he himself and his father were cultivating said land jointly. Moreover, police personnel disclosed their identity and conveyed their intention to arrive there that they wanted to search ganja plants in Tur crop. Accordingly, they inspected the plants and found ganja plants in tur crop and there after the said ganja plants

¶50

¶51

were removed with the help of police staff and all plants were collected at one place. Then sample of earth and root of ganja plants were taken for sample purpose for sending the same to CA office for examination and two plants were sealed in cloth bag. Thereafter all plants were weighed and weight of said plants were 170 Kilograms. Accordingly, panchnama was prepared in presence of Naib Tahsildar PW 5 by PW 6 API Hanpude Patil and Muddemal property was brought to police station and PW 1 lodged complaint against accused Exh.24. Moreover, sample of earth as well as sample of ganja plants were collected, sealed and labelled with the signatures of panchas and signature of Naib Tahsildar PW5 and accused.

¶52

In the cross examination he stated that his duty started on that day at about 8.00 am and PW 6 API Hanpude Patil informed him about the said raid at about 9.30 a.m. He stated that he does not know when information was received by PW 6 API Hanpude Patil. Naib Tahsildar Suryawanshi was residing at Omerga. He also stated that as he was not knowing the spot before raid. As regards station diary entry, he admitted that there is no reference in the First Information Report. So also there is no reference of intimation to

¶53

¶54

superior officer in the FIR. He also admitted that he has not called Talathi on the spot.

¶55

As regards the field, he stated that he made inquiry about sharers of the land but, he had not verified the sharers of land on the basis of document. He also admitted that he has not verified the owner as well as ownership document thereof. He stated that members of raiding party came to police station during 7.00 am to 8.00 am. He also admitted that he has not called Sarpanch or police patil of village Tugaon. He also admitted that he does not remember the boundaries of the said field however, he has not seen any agriculturist near the said field. As regards panchas, he stated that he has not called adjacent land owners to act as panchas. As regards compliance of Section 42(2) of NDPS Act, he admitted that there is no reference in the First Information Report about intimation to superior about raid, amounting to non-compliance of mandatory provision of Section 42 (2) of N.D.P.S. Act.

¶56

As regards, Muddemal Property, he stated that there are three rooms in the police station for depositing Muddemal and

¶57

¶58

Muddemal property of various crimes are being deposited in those three rooms. Moreover, there is separate muddemal clerk. He also admitted that it is not mentioned in the F.I.R. that muddemal property is deposited with the Muddemal clerk. He further admitted that till 3.00 p.m on the said day, crime was not registered against the accused. He also admitted that slip which is affixed to cloth bag bore crime number. Few suggestions were given to the said witness putting the case of the accused to him, but same were denied by him. read portion.

¶59

Considering the testimony of PW 1 - complainant PSI Anandrao Ningdale, it is apparent that there is no compliance of Section 42 (2) of N.D.P.S. Act, since he admitted that there is no reference in the FIR about taking entry in the station diary and no reference of sending information to the Superior Officer in the FIR. Moreover, admittedly, there are co-sharers in the land Gat No.196/1 but, the complainant neither verified the documents of their shares nor verified the documents of co-sharers. Moreover, he does not remember the boundaries of the field. Accordingly, it appears that specific portion of land belonging to accused nos. 1 and 2 out of land

¶60

¶61

gat No.196/1 has not been ascertained and identified to fasten the liability of the cultivation and possession of ganja upon the accused. Moreover, it also appears that entire muddemal property of different crimes were being deposited in three rooms at the police station and although, there is separate Muddemal Clerk, it has no where come in the evidence that Muddemal Properties of N.D.P.S. crimes were deposited separately. Moreover, it has come in the evidence that in the present case, labels fixed on the sample packet and packet containing Muddemal property bore Crime number but there is no evidence on record how the crime number was procured on the spot. Therefore, suspicion is created in respect of seizure, packing, labeling and sealing of the Muddemal property on the spot.

¶62

Coming to the deposition of PW 2 Panch witness Laxman Bhagat. Admittedly he turned hostile and did not support the prosecution case, but admitted in the cross examination conducted by learned APP that one accused was present in the field and PW 6 API Hanpude Patil and PW 5 Naib Tahsildar made inquiry with him and thereupon he gave his name as Balaji Vasant Mane and further stated that Vasant Mane was his father and said field belonged to his

¶63

¶64

father and he himself and his father used to cultivate said field jointly. He also stated that Naib Tahsildar asked accused no.2 about inspection of Tur crop and on inspection, they found ganja plants in Tur crops. Accordingly, ganja plants were removed with the help of police staff and two plants were taken as sample. However, he has not given weight of the said ganja plants as well as has not stated about the seizure of muddemal property under signatures of panchas on the spot. Hence, said testimony of PW 2 cannot be of any aid and assistance to the case of the prosecution.

¶65

That takes me to the testimony of PW 3 Subhash Valdure i.e. second panch, who also turned hostile and did not support the case of the prosecution. Said witness was cross examined by the learned APP wherein he stated that panchnama was prepared in his presence and he further stated that said panchnama bears his signature but the said signature was scribed by him in the police station, hence said very statement of PW 3 Subhash apparently makes it clear that panchnama was prepared at the police station and signatures of panchas were obtained at the police station and not at the spot which itself creates doubt about the credibility of

¶66

¶67

the said seizure panchnama.

¶68

Further coming to the deposition of PW 4 Mahadev Thombare - carrier, who stated that on 6.12.2009 he was attached to Murum Police Station and PW 6 API Hanpude Patil handed over a sealed cloth bag containing ganja and two sealed cloth bags containing earth and letter pertaining to crime No.60/2009 along with forwarding letter Exh.28 to him and asked him to hand it over to CA Office, Aurangabad. Accordingly, he went to Aurangabad on 6.12.2009 and deposited said packets on 7.12.2009 to CA office, Aurangabad, as well as handed over o/c of the letter to PW 6 API Hanpude Patil on 8.12.2009. In the cross examination, he admitted that muddemal property was brought to police station on 2.12.2009. However, he could not state whether muddemal property of all crimes registered is deposited in one room. He also could not state in which room, muddemal property was deposited. He has not received receipt from concerned police officer for receiving muddemal property. He stated that muddemal property was given to him in the office of P.S.O. He has not asked the weight of muddemal property to concerned police personnel. He further stated

¶69

¶70

that covering letter was not given in sealed packed. He does not know whether there was one flab of two flabs. He further stated that he does not know who had deposited muddemal property before the court. He also stated that he cannot state name of the police personnel who deposited the muddemal property in the police station.

¶71

It is apparent from the said deposition that muddemal property was brought to police station on 2.12.2009 and was removed from muddemal room on 6.12.2009 and was handed over to him on the said date, but he deposited the said muddemal property to

¶72

CA office on 7.12.2009, which apparently, creates suspicion in respect of the custody of the muddemal property during the said two periods i.e. from 2.12.2009 to 6.12.2009 and from 6.12.2009 to 7.12.2009.

¶73

Turning to the deposition of PW 5 Bharat Suryawanshi Naib Tahsildar, who acted as panch for the spot panchnama, who stated that accused No.2 informed that land was standing in the name of his father and he himself and his father were cultivating said land.

¶74

¶75

He further stated the he introduced himself to the accused stating that

¶76

he was Gazetted Officer then he inspected the land of the accused and found ganja plants in Tur crop. He also found that accused had cultivated ganja plants. All the plants were uprooted with the help of police staff and two plants were preserved for examination by CA and one for police station. The remaining ganja plants were attached

¶77

under panchnama and signatures of the pancha witnesses were obtained on labels and labels were affixed on muddemal property. It also bears his signature and signature of panch witnesses. Panchnama was prepared which bears signatures of panchas which is produced at Exh.30. He identified the accused No.2 before the Court.

¶78

In the cross examination, he stated that, he was working as Naib Tahsildar at Omerga and his office is situated at Omerga. He also stated that, he came to know at Murum that there were ganja plants in the field of accused No.2 Vasant. His statement was not recorded by Investigating Officer. He has not seen 7/12 extract of land on that day. Talathi of Tugaon was not present on that day. He also stated that there are more than 10 sharers of gat No.196/1 of

¶79

¶80

village Tugaon. The entry of crop and cultivation was taken in the month of August. He further stated that, he did not feel it necessary to verify on the basis of revenue record who is the owner of the land. He also stated that, he does not know whether copy of the panchnama was handed over to the accused by police.

¶81

It appears from the testimony of PW 5 Suryawanshi Naib Tahsildar that, he being gazetted officer was present at the time of drawing spot panchnama. However, his testimony is silent that said ganja plants were weighed in his presence and there is no whisper in his testimony in respect of weight of said ganja plants. It is also apparent from his testimony that there are more than 10 sharers in gat No.196/1 of village Tugaon and he did not ascertain the ownership of the said land on the basis of revenue record. Hence, the very identification of the land belonging to accused nos. 1 and 2 out of gat no.196/1 of village Tugaon and possession of respective portion ownership thereof with the accused is under suspicion.

¶82

That takes me to the deposition of PW 6 API Hanpude

¶83

¶84

Patil, wherein he stated that he was attached to Murum Police Station and working as API on 2.12.2009 and on that day at about 9.00 a.m. he received information that Vasant Mane and his son Balaji were cultivating ganja plants in their field at village Tugaon. Accordingly, he recorded said information in the station diary and informed said fact to S.D.P.O. Omerga, in charge Tuljapur by phone message as well as by writing. Office copy of the information which was sent to SDPO is produced at Exh.33. He also stated that he called PW 5 Naib Tahsildar Suryawanshi as Gazetted Officer and produced copy of the said letter at Exh.35. He also issued letter to Chief Officer, Murum Municipal Council and called two public servants as panch and copy of the said letter is produced at Exh.36. Thereafter, weighing scale and photographer were called through P.C. 597 as well as sealing material was collected through P.H.C Kadam. Accordingly, two panchas namely Laxman Bhagat and Subhash Valdure arrived from Nagar Parishad, Murum and PW 6 API Hanpude Patil disclosed the intention about raid to panchas. PW 5 Suryawanshi Naib Tahsildar also arrived at the police station. Thereafter, the members of raiding party proceeded to Tugaon alongwith panchas, weighing scale and sealing material and reached

¶85

¶86

to the field of the accused and found that accused no.2 was present

¶87

there. On inquiry, he gave his name as Balaji Vasant Mane and stated that said field belonged to his father Vasant and he himself and his father were cultivating the said land jointly. They also found Tur crop in the said field. PW 6 API Hanpude Patil also stated that he informed accused No.2 about the purpose of their arrival that they intended to inspect the field. Accordingly, they inspected the field of the accused and found ganja plants in the field. All the ganja plants were uprooted with the help of police staff and collected near the bandh and were weighed and total weight of the ganja was 170 kilograms. Out of the said plants, two plants were separated for sample purpose in cloth bags and which was labeled with the signature of panchas and same were seized, crime number was reserved while proceeding for raid and crime number was mentioned on muddemal property. He also collected sample of earth from that field as well as earth which was attached to ganja plants in cloth bags which was sealed. Accordingly, detailed panchnama was prepared and aforesaid muddemal property was seized thereunder and obtained signatures of panchas and signature of Naib Tahsildar and signature of accused no.2 thereon which is produced at Exh.30. PW

¶88

¶89

6 API Hanpude Patil stated that he took photographs of ganja plants, accused no.2 and his field. Thereafter, members of raiding party returned to the police station alongwith seized articles and accused no.2 was taken into custody. PW 1 PSI Ningdale lodged FIR against the accused.

¶90

PW 6 API Hanpude Patil further stated that muddemal property was deposited in the police station and he took the entries in station diary right from receipt of the information till the arrest of the accused and same is produced at Exh.37. Thereafter, muddemal property was sent to C.A. Office, Aurangabad for examination purpose alongwith covering letter Exh.28. Moreover, he sent letter to Tahsildar and map of the spot was drawn with the help of Circle Officer, the said letter is produced at Exh.38 and map is produced at Exh.39. He further stated that he collected 7/12 extract of the land of the accused which are produced at Exh.40 and 41. Accused No.1 was arrested on the next day. Meanwhile, C.A. report was received which is positive for ganja. PW 6 API Hanpude Patil also recorded statements of witnesses during the course of investigation and after completion thereof filed charge sheet against the accused.

¶91

¶92

In the cross examination, he stated that he received information at about 9.00 am and he informed PW 5 Suryawanshi Naib Tahsildar at about 9.45 am. He also stated that he has not produced any document to show that PW 5 Suryawanshi was gazetted officer at that time. He also admitted that he has not verified from Talathi about the owner and possessor of the said land. Pertinently, he stated that informant was accompanied with him. He further stated that, he was not knowing the information about the owner and possessor of land which is situated at village Tugaon. He categorically stated that, there are about 10-12 sharers in the said land gat No.196/1. He verified about the possession of the sharers after registration of the crime. He also produced map drawn by Circle Inspector alongwith charge sheet, but admitted that said map does not pertain to entire gat number 196/1. He also stated that he did not record statement of Circle Inspector. He also admitted that he has not collected other document except 7/12 extract of the said land.

¶93

As regards, crime number, he stated that crime number

¶94

is not mentioned on the spot panchnama, but, it is mentioned on the

¶95

¶96

packet. He also stated that even though there is no provision to reserve crime number while proceeding on raid, there is practice to reserve such crime number. He recorded statements of co-sharers of land gat no.196/1. Panchnama does not disclose that copy of the panchnama was handed over to accused. As regards, the weight he stated that weight of the entire ganja plant was taken. He also admitted that it is not mentioned in the First Information Report that copy of the panchnama was given to the accused. He did not record statement of Talathi. As regards, storage of muddemal property, there are 2-3 rooms in the police station and muddemal of this case was kept in one of the three rooms, where only ganja was kept. He admitted that ganja of other crimes were also kept in that rooms.

¶97

On the aforesaid background, the learned counsel for the appellants canvassed that although PW 6 API Hanpude Patil stated in his deposition that he received secret information at about 9.00 am on 2.12.2009, PW 1 PSI Nindgale stated that members of raiding party came to the police station during 7.00 am to 8.00 am. i.e prior to the receipt of the information and accordingly, there is no coordination in the timings of receipt of information between the

¶98

¶99

testimony of PW 6 API Hanpude Patil and PW 1 PSI Nindgale and presence of the members of raiding party. Learned counsel for the appellants also submitted that the 7/12 extracts of gat No.196/1 produced at Exh.40 and 41 disclosed that there are 8 owners of the said land and therefore, the appellants are not exclusive owners of the said land. Moreover, PW 6 API Hanpude Patil admitted in his cross examination that, he has not verified from Talathi about the ownership and possession of the said land although, there are 10-12 sharers in the said land gat no.196/1. Hence, it is canvassed that specific ownership and possession of the appellants in respect of their portion of land out of said land 196/1 has not been ascertained and identified and even map Exh.39 also does not specify the land owned/possessed by the appellants and alleged cultivation of plants of ganja by the appellants therein. To substantiate the said proposition, learned counsel for the appellants relied upon the case of 1]- Omprakash @ Baba V/s State of Rajasthan reported at 2009

¶100

AIR SCW 6385 in which it is observed that :-

¶101

. “A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is uncertain. As a matter of fact P.W. 3 has categorically stated that the house from where the recovery had been made belonged to

¶102

¶103

one Durga Bhanji and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show that the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein. Admittedly, there is no evidence as to the appellant’s exclusive possession.”

¶104

2] In the case of Alakh Ram V/s State of U.P. reported at

¶105

AIR 2004 Supreme Court 2907 in which it has been observed in paragraph Nos.4 and 5 that :-

¶106

4. “We heard the appellant’s counsel and the counsel for the respondent. Under S.8(b) of the NDPS Act, cultivation of opium poppy or any cannabis plant is prohibited and under S. 20 of the NDPS Act, such cultivation of cannabis plant is made punishable with imprisonment and fine. In oder to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happened to be embedded in earth due to natural process. If plants are sprouted by natural growth it cannot be said that it amounts to cultivation.”

¶107

It is further canvassed that 7/12 extract Exh.40 and 41 discloses that, many crops such as Tur, Udid and Mug are being

¶108

¶109

cultivated in the said land bearing gat No.196/1 and allegations are made that appellants cultivated ganja plant in Tur and hence, it was incumbent upon the prosecution to prove that Tur was cultivated in the land owned and possessed by the appellant specifically, but prosecution failed to prove and establish the same and therefore, liability of said alleged plants of ganja cannot be fastened with the appellants. It is further canvassed that, it was incumbent upon the prosecution to prove that plants of ganja were being cultivated in the land belonged to appellants, but no such cogent evidence has been adduced/produced by the prosecution in that respect.

¶110

It is further canvassed that, prosecution witnesses have stated that weight of all the plants of ganja was made which was 170 kilograms. Accordingly, it is submitted that, said weight was including the stems, roots and mud of the trees and was not only of leaves/flowers of ganja and no segregation of plants on one part and flowers/leaves on other part was made while weighing the same and hence, said weight of 170 kilograms included the weight of stems as well as plants and therefore, there is no exclusive weight of ganja leaves/flowers and it cannot be construed as said weight of 170

¶111

¶112

kilograms pertained to ganja flowers/leaves since the weight of actual quantity of the ganja carries the importance. Moreover, it is also submitted that description of the said plants kept in the police station was not given in the F.I.R. So also, it is further submitted that prosecution evidence no where discloses number of plants of ganja which were allegedly found in the field of the appellants and no description of the length of plants was also given therein.

¶113

It is further canvassed that nothing is produced on record regarding deposit of muddemal property in muddemal store room on 2.12.2009 and there is no record produced by the prosecution regarding removal of sample packets from Muddemal Store room on 6.12.2009 while, handing over to the carrier and therefore, it is submitted that, suspicion is created in respect of the custody of the sample packets between 2.12.2009 to 6.12.2009. Moreover, it is also argued that sample packets were handed over to carrier PW 4 Thombare on 6.12.2009 and he delivered said sample packets to CA Office Aurangabad on 7.12.2009 and therefore, it is apparent that said sample packets were lying in the custody of the said carrier from 6.12.2009 to 7.12.2009. Therefore, suspicion is

¶114

¶115

created in respect of the custody of the said sample packets during said period more particularly, when the carrier admitted that he received forwarding letter without seal and hence, it is submitted that suspicion is created whether same quantity of ganja which was seized at the time of seizure was sent to CA office for examination purpose, and, whether same quantity of ganja which was seized at the time of seizure was examined by the CA office and whether CA report Exh.42 pertains to same quantity of Ganja which was seized at the time of seizure and accordingly, it is submitted that CA report Exh.42 cannot be tacked with the quantity of ganja which was seized at the time of seizure and hence, the appellants cannot be connected with the same and consequently, cannot be connected with the alleged crime.

¶116

To substantiate said contention, learned counsel for the appellants relied upon the case 1]- State of Rajasthan V/s Gurmaail Singh reported at 2005 AIR SCW 1333 in which it has been observed in paragraph No.3 that :-

¶117

“Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are

¶118

¶119

said to have been kept in the malkhana on 20^th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband.”

¶120

2- In the case of Rajaram s/o Tuulshiram Mane Vs. State

¶121

of Maharashtra reported at 2010 ALL MR (Cri) 1492 in which it has

¶122

been observed at paragraph No.15 that :-

¶123

“When suspected article is seized at the time of search, it becomes necessary for the prosecution to establish beyond doubt that seized article is same, which was analyzed and found to be narcotic drug by analysis. When identity is not established the benefit will go to the accused. P.W.6-Sanjay Khilare, Assistant Chemical Analyzer did not identify the muddemal articles from the Court as the same articles which were analyzed by him. He also admitted in cross-examination that he has not mentioned in respect of tests done by him. In any case the Chemical Analyzer should have been asked to identify if the sample articles produced in the Court were the same which he had analyzed so that on the basis of evidence of P.W.1-P.I. Wadaje and P.W.6-Khilare, it could have been said that the articles analyzed were one and same. The muddemal articles were not shown or were identified by P.W.2-Panch-Bhagwan Muktedar. In his deposition, he simply proved the panchanama without identifying the muddemal articles.”

¶124

¶125

It is further argued by the learned counsel for the appellants that, it is evident from the evidence adduced/produced by the prosecution that investigating Agency has not complied with the provisions of Section 52 (2 and 3) , 55 and 57 of the NDPS Act and therefore, search of the appellants, seizure of ganja and arrest comes under the suspicion. In the said context, it is submitted that, testimony of PW 6 API Hanpude Patil is silent in respect of making full report of all the particulars of seizure to its Superior Officer as contemplated under section 57 of the NDPS Act. Accordingly, it is submitted that non compliance of the said provisions of Section 52, 55 and 57 of NDPS Act will have no bearing regarding the arrest of the applicants or seizure of the articles. To substantiate the said proposition, learned counsel for the appellants relied upon the case of Gurbax Singh V/s State of Haryana reported at 2001 AIR SCW 670 in which it has been observed in paragraph No.9 that :-

¶126

9. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed

¶127

¶128

on the muddemal article was handed over to the witness PW-1 and was kept with him for 10 days. He has also admitted that the muddemal parcels were not sealed by the Officer-incharge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O. particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police.”

¶129

Accordingly, learned counsel for the appellants urged that prosecution evidence does not bring the guilt at home against the accused and there are vital lacunae therein and therefore, the prosecution evidence does not inspire confidence, to connect the appellants with the alleged crime, and hence, prayed that appeal be allowed quashing the conviction and sentence imposed upon them.

¶130

Learned APP countered the said argument and opposed

¶131

¶132

present appeal vehemently and submitted that testimony of PW 1 PSI Ningdale complainant, PW 5 Naib Tahsildar Suryawanshi, PW 6 API Hanpude Patil Investigating Officer corroborated with each other and search of the appellants, seizure of ganja cultivated in their field and their arrest was effected in presence of PW 5 Suryawanshi Naib Tahsildar, who was Gazetted Officer. It is also submitted that said search, seizure and arrest of the accused was effected after adopting due and necessary procedure and there is no lacunae therein as alleged. It is further submitted that although PW 2 Laxman and PW 3 Subhash panch witnesses turned hostile, their evidences in the cross examination conducted by learned APP is acceptable, which have shaken the case of the prosecution. It is further submitted that prosecution has produced 7/12 extracts of land gat no.196/1 at Exh. 40 and Exh.41 and also produced map which was drawn by Talathi at Exh.39, which specifically earmarks the portion of the land possessed/owned by the appellants wherein ganja was being cultivated and accordingly, submitted that oral evidence and documentary evidence adduced/produced by the prosecution connects the appellants with the crime. Hence, learned APP submitted that the appellants have been convicted and sentenced by

¶133

¶134

the learned trial court rightly and, learned APP supported the impugned judgment and order and submitted that no interference therein is called for in the Appellate jurisdiction and accordingly, prayed that present appeal be dismissed.

¶135

As regards, sample packets and sealing thereof, learned APP submitted that CA report Exh.42 categorically discloses that CA office received three sealed cloth parcels, seals intact and as per copy sent, and therefore, it is submitted that there is no substance in the argument canvassed by learned counsel for the appellants in respect of sealing, and relied upon therefor, and submitted that said argument bears no substance and further submitted that same deserves to be discarded.

¶136

I have considered the oral and documentary evidence adduced/produced by the prosecution, as well as perused the contents of exhibited documents and also considered the submissions advanced by the learned counsel for the parties anxiously, as well as perused the observations made in the above referred judicial pronouncements carefully and, more particularly considered the

¶137

¶138

impugned judgment under challenge and I am inclined to accept the submissions advanced by the learned counsel for the appellants supported by the above referred judgments.

¶139

As regards the receipt of secret information PW 6 API Hanpude Patil stated in his deposition that he received secret information at about 9.00 a.m. on 2.12.2009, but, PSI Ningdale stated in his testimony that members of raiding party came to the police station between 7.00 a.m. to 8.00 a.m. i.e. prior to the receipt of the information and therefore, question arises whether really PW 6 API Hanpude Patil received secret information at about 9.00 a.m. on 2.12.2009. PW 6 API Hanpude Patil stated in his deposition that he recorded said information in station diary and informed this fact to SDPO, Omerga in charge Tuljapur by phone message as well as by writing and office copy of the information which was sent to SDPO is produced at Exh.33. However, on perusal of contents of Exh.33 i.e. Khas Vardi Ahaval, it is seen that it is the report submitted to Police Superior / SDPO, Tuljapur, District Osmanabad after search, seizure and arrest of the appellants, and after recording the crime against the appellants to that effect and khas vardi ahaval Exh.33

¶140

¶141

cannot be construed as copy of the information sent to immediate official superior as contemplated under section 42 (2) of NDPS, Act. The said proposition is strengthened by station diary entry Exh.37, which discloses that at about 9.00 a.m. on 2.12.2009 the secret information was noted down in the station diary and at about 9.30 am the said information was informed to SDPO, Tuljapur on telephone, but, said station diary entry is totally silent that copy of the said information was sent to SDPO, Tuljapur i.e. immediate official superior. Moreover, PW1 PSI Ningdale admitted in his cross examination that there is no reference in the First Information Report about sending intimation to superior officer about raid as well as there is no cogent evidence to prove and establish that PW 6 API Hanpude Patil complied with the mandatory provisions of Section 42 (2) of NDPS Act and hence, there cannot be two opinions that Investigating Agency failed to comply with the mandatory provisions of Section 42 (2) of NDPS Act.

¶142

Moreover, the 7/12 extracts produced at Exh.40 and 41 disclose that there are about eight owners of land gat no.196/1, Tugaon and PW 1 PSI Ningdale admitted in the cross examination

¶143

¶144

that he has not called Talathi on the spot and he has not made inquiry about the sharers of the land as well as he has not verified on the basis of the documents about the sharers of the land as well as he has not verified the ownership of the well on the basis of the documents. He has further stated that he does not remember the boundaries of that field. He also admitted that he has not called the adjacent land owners for acting as panch. Moreover, PW 6 API Hanpude Patil also admitted in his cross examination that he has not verified from Talathi about the ownership and possession of the said land although there are 10-12 sharers in the said land gat no.196/1. Hence, there is substance in the argument canvassed by the learned counsel for the appellants that the specific ownership/possession of the appellants in respect of their distinct portion of the land out of land gat no.196/1 has not been ascertained and identified and even map exh.39 also does not specify the very land owned and possessed by the appellants and alleged cultivation of plants of ganja by the appellants therein, and hence, it is ambiguous that in which very portion of land out of land gat no.196/1 the plants of ganja were being cultivated and it is further ambiguous which of the eight owners owned/possessed the said land in which plants of ganja were being cultivated at the

¶145

¶146

relevant time and consequently, the alleged cultivation of Ganja in land gat No.196/1 cannot tacked with the appellants exclusively.

¶147

Besides the 7/12 extract Exh.40 and 41 of land gat no. 196/1 disclose that many crops such as Tur, Udid and Mug were being cultivated in the said land and allegations were made that appellants cultivated ganja plants in tur crop and hence it was incumbent upon the prosecution that tur crop was cultivated in the said very land owned/possessed by the appellants specifically, but the prosecution has failed to prove and establish the same categorically and hence the submission made by the learned counsel for the appellants that liability of the said alleged ganja plants cannot be fastened with the appellants bears substance since it was incumbent upon the prosecution to prove and establish beyond reasonable doubt that plants of ganja were being cultivated in the very land owned and possessed by the appellants exclusively but no such concrete evidence has been brought on record by the prosecution in that respect. Map Exh.39 also no where specifies and identifies the very portion of land owned/possessed by the appellants with the cultivation of ganja plants therein, exclusively.

¶148

¶149

Moreover, it is also material to note that it has come in

¶150

the evidence that weight of all plants of ganja was made which was 170 kilograms and admittedly said weight was including the stems, roots and mud of the trees and was not only of the leaves/flowers of ganja and no segregation of plants on one part and flowers/leaves on other part was made while weighing the same and hence, it is amply clear that no exclusive weight of ganja leaves/flowers was made at the time of seizure and weight of 170 kgs included weight of stems, plants, trees and mud and therefore, it cannot be construed that weight of 170 kilograms pertained to ganja flowers/leaves only. Hence, actual weight of ganja flowers/leaves has not come on record. Moreover, description of the plants kept in the police station was not given in the FIR , so also prosecution evidence is silent in respect of the actual number of plants of ganja which was allegedly found in the field and no description of the length of said plants was given. Hence, submission canvassed by the learned counsel for the appellants that, the actual weight of ganja flowers/leaves has not come on record and 170 kilograms weight cannot be construed as actual weight of ganja flowers/leaves and hence, exact quantity of ganja allegedly seized at the time of seizure is also under suspicion.

¶151

¶152

Moreover, PW 1 PSI Ningdale stated in his deposition

¶153

that muddemal property was brought to the police station after search, seizure and arrest of the appellants and FIR was lodged against the appellants Exh.24 as well as PW 6 API Hanpude Patil stated in his deposition that muddemal property was deposited in the police station. However, both the said prosecution witnesses are silent regarding the date on which said muddemal property was deposited and there is no whisper in their depositions at which place the said muddemal property was deposited in the police station. PW 6 API Hanpude Patil stated that he took entry in Thane Dainandini regarding receipt of information till arrest of the accused and same is produced at Exh.37 but, said Thane Dainandini Exh.37 is to the extent of leaving the members of raiding party to the raid and not beyond that as stated by PW 6 API Hanpude Patil as aforesaid and said Thane Dainandini no where spells out about the deposit of muddemal property / sample packets at the police station. Pertinently, none of the prosecution witnesses stated that muddemal property and sample packets were deposited in the muddemal store room at the police station and register of said muddemal property deposited in the store room has not been produced by the

¶154

¶155

prosecution. Hence, there is substance in the submission advanced by learned counsel for the appellants that nothing is produced on record regarding deposit of muddemal property in muddemal store room on 2.12.2009 and there is no record produced by the prosecution regarding removal of said muddemal property from muddemal store room on 6.12.2009 while handing over the same to PW 4 Thombare i.e. carrier, and hence, suspicion is created in respect of the custody of muddemal property between 2.12.2009 to 6.12.2009. Besides it has come in the evidence of PW 4 Mahadev i.e. carrier that sample packets were handed over to him on 6.12.2009 alongwith forwarding letter and accordingly, he went to Aurangabad on 6.12.2009, deposited muddemal with CA office, Aurangabad on 7.12.2009 alongwith covering letter and after acknowledgment thereon and handed over the same to PW 6 API Hanpude Patil on 8.12.2009. During cross examination, he stated that muddemal property was given to him in the office of PSO and he has not asked weight of muddemal property to concerned police official. Pertinently, covering letter was not given in sealed packet. Thus, from the aforesaid evidence, it is amply clear that, sample packets were susceptible for tampering during the period from

¶156

¶157

2.12.2009 to 6.12.2009 since nothing has come on record that said sample packets were in proper custody during the said period as well as sample packets were also susceptible for tampering between the period from 6.12.2009 to 7.12.2009 when it was in the custody of PW 4 Thombare i.e. carrier without any lock and key and hence, suspicion is created about the tampering of said sample packets during the aforesaid period more particularly when the carrier admitted that he received forwarding letter without any seal and therefore, consequently, suspicion is further created whether same quantity of ganja which was seized at the time of seizure was sent to CA office, Aurangabad for examination purpose and whether same quantity of ganja which was seized at the time of seizure was examined by the CA office and whether CA report Exh.42 pertains to same quantity of ganja which was seized at the time of seizure and accordingly, there is substance in the submissions advanced by the learned counsel for the appellants that CA report Exh.42 cannot be tacked with the quantity of ganja which was seized at the time of seizure and hence, further consequently, appellants cannot be connected with the same and consequently, they cannot be connected with the alleged crime.

¶158

¶159

True it is that CA report Exh.42 dated 11.1.2010 discloses that CA office received three sealed cloth parcels, seals intact, as per copy sent, but the very admission of PW 4 carrier Mahadev in his cross examination that covering letter was not given in sealed packet and he does not know whether there was one flab or two flabs shatters the same. Besides, the prosecution evidence is silent in respect of compliance of section 52 and 55 of NDPS Act and therefore, also, said sample packets come under doldrums and consequently, CA report Exh.42 cannot be tacked therewith and further consequently, the appellants cannot be connected with the alleged crime.

¶160

Moreover, it can be gathered from the evidence that, even Investigating Agency has not complied with the provisions of Section 57 of NDPS Act Exh.33 is a report made to Superior Officer but it cannot be construed as full report of all the particulars of such alleged seizure and therefore, fact remains that there is non compliance of Section 57 of NDPS Act. It is true that provisions of Section 52 and 57 of NDPS Act are directory and violation of these provisions would not ipso facto violate the trial or conviction.

¶161

¶162

However, Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article as observed by the Honourable Apex Court in the Case of Gurbax Singh Vs. State of Haryana reported at A.I.R. 2001 S.C. 1002 : 2001 Cr.L.J. 1116 (supra)

¶163

In the circumstances, there are infirmities, discrepancies and lacunae in the prosecution case which suffers from non compliance of mandatory provisions of Section 42 (2) of N.D.P.S. Act and hence, the conviction and sentence inflicted upon the appellants for the offences with which they were charged, shall not sustain and therefore, the impugned judgment and order dated 29.10.2010 deserves to be quashed and set aside and appellants/accused 1 and 2 herein deserve to be acquitted from the charges levelled against them, allowing the present appeal.

¶164

In the result, present appeal is allowed and convictions and sentences imposed upon the appellant nos.1 and 2 for the offence punishable under section 20 (b) and 20 (a) of N.D.P.S. Act

¶165

¶166

by way of impugned judgment and order dated 29.10.2010, rendered by learned Special Judge, Omerga District Osmanabad stands quashed and set aside and the appellant nos. 1 and 2 are acquitted thereof and they be set at liberty forthwith, if not required in any other case. Fine amount, if any, deposited by them be refunded to them and present appeal is disposed of accordingly.

¶167

( SHRIHARI P. DAVARE ) JUDGE

¶168

¶169

aaa/16.11.2011/462.10

¶170

Authenticated copy

¶171

[Mrs.A.A.Ankush] PA to Hon’ble Judge.

Vasant Janku Mane and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vasant Janku Mane and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Mah Thr. Pp Vs Kundan Desraj Agrawal

Aasef Mansab Pathan Vs the State of Mah and Anr.

The Aurangabad Peoples Co. Op Bank Ltd. Aurangabad through Authorised Officer Vs Ramkumar Kisanlal Dongre

Anil Chhabildas Chaudhari and Anr. Vs the State of Mah

The State of Mah Thr Pp Vs Santosh Magan Jadhav and Ors.

The State of Mah Vs Ramesh Rangnathrao Sonwane