Allowed

Manda Dattatraya Jagtap v. the State of Maharashtra

Bombay HC24 Jul 2013APEAL/346/2010

Case brief

AI extract

What is this about?

The High Court allowed appeals against convictions under the NDPS Act due to mandatory procedural violations, including failure to record information under Section 42 and non-compliance with Section 50 during personal search, creating reasonable doubt.

What did the court decide?

The conviction and sentence were set aside; appellants acquitted and set at liberty; fine refunded; car confiscated to Vinod Ithape.

Manda Dattatraya Jagtap Vs the State of Maharashtra — Narcotics (NDPS) | Bombay HC (2013)

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Tilak 1/17 APPEALS IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1164 OF 2009 Vinod S/o Shamrao Ithape ..APPELLANT -VersusThe State of Maharashtra ..RESPONDENT WITH CRIMINAL APPEAL NO.342 OF 2010 Anil Dattatraya Jagtap ..APPELLANT -VersusThe State of Maharashtra ..RESPONDENT WITH CRIMINAL APPEAL NO.346 OF 2010 Mrs. Manda Dattatraya Jagtap ..APPELLANT -VersusThe State of Maharashtra ..RESPONDENT ... Mr. Daulat G. Khamkar, Advocate for the appellants. Mrs. V.S. Mhaispurkar, APP for the State.

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CORAM : ABHAY M. THIPSAY, J. DATED : 24^th July, 2013

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Tilak 2/17 APPEALS

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ORAL ORDER :-

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1 These three appeals can be conveniently disposed of by

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this common order as all the appellants were accused in one and the same case i.e. Sessions case No.250 of 2006, and as the consideration of all the three appeals would be on the basis of the same evidence and the same judgment. The appellant Vinod Ithaye (Appeal No.1164 of 2009) is the original accused no.4. The appellant Smt. Manda (Appeal No. 346/2010) is the original accused no.1, and the appellant Anil Jagtap (Appeal No. 342/2010) is the original accused no.3. Apart from these three accused/appellants, one Dattatraya Nivrutti Jagtap, husband of appellant Manda, and father of appellant Anil was also an accused in the case - i.e. Accused no.2, - but he died during the trial and as such, the case against him stood abated.

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2 The allegation against the appellants and the said original accused no.2 was in respect of an offence punishable under section 20(b) and C of the Narcotics Drugs and Psychotropic Substances Act, 1985. After holding a trial, the learned Addl. Sessions Judge held that all the appellants were guilty of the said offences. He therefore, convicted them of the aforesaid offence,

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Tilak 3/17 APPEALS

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and sentenced each of them to suffer RI for 10 years, and to pay a fine of Rs.1,00,000/- (Rupees One Lakh) in default to suffer RI for one year. Being aggrieved by the order of conviction and sentences imposed upon them, the appellants have approached this Court by filing the aforesaid three separate appeals.

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The prosecution case before the trial court was as

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follows:-

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3 On 19 October 2006, Kailash Shamrao Jadhav (PW 3)

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an Inspector of Police attached to Traffic Branch, Solapur City, received an information to the effect that in a black colour Ambassador car bearing Registration No.MH-11-H-192 proceeding from Hyderabad towards Solapur City, ganja was being transported. He prepared a report accordingly and sent it to the Jail Road Police Station. Vilas Narnawar (PW 9), Inspector of Police attached to Jail Road Police Station, received the same, and after making an entry in the station house diary, he, along with the staff, proceeded towards Market Yard Square of Solapur, where Kailash Jadhav, along with his staff, was already present. After some time, a black Ambassador car having the aforesaid registration number, came

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Tilak 4/17 APPEALS

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from National Highway No.9 and was proceeding in the direction towards Pune. The said car was signalled to stop, but as it did not stop, the police chased the same and made it stop. It was noticed that a pungent smell was coming from the car. Thereafter, information was given to ACP Pawar, and a Special Executive Magistrate. Two panchas were called. Measurement scale, photographer and in-charge of the malkhana of the Jail Road Police Station, were also called for. All the appellants and the said original accused no.2 were found to be sitting in the car. On the arrival of the panchas, and after the articles such as measurement scale, sealing material etc., were brought, the search of the said car was taken. Nine gunny bags containing ganja was found in the said car. The net weight of the ganja was found to be 127 kgs and 550 gms. Two samples of the ganja, in two separate plastic packets, were taken, wrapped in a brown paper separately, and were labelled and sealed. In the personal search of the appellant Manda (accused no.1), cash of Rs.6,100/- was found. In the personal search of appellant Anil (Accused no.3) and the appellant Vinod (Accused no.4) one mobile handset of 'Nokia' make, was found with each of them. These articles were also taken charge of and seized. The ambassador car, its registration book and driving licence were also

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Tilak 5/17 APPEALS

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seized. Photographs were taken. Panchnama was drawn. Kalidas Jadhav (PW 3), Inspector of Police lodged a report which was treated as the First Information Report, and all the appellants, as also the accused no.2, were placed under arrest. In due course, the samples of the ganja were taken to the office of the Chemical Analyser, and in due course, a report in respect of the analysis thereof was received, indicating that ganja was detected in the samples. After completion of investigation, charge-sheet came to be filed against all the accused.

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The prosecution examined nine witnesses during the trial. Ramesh Jamdar and Kalyani Kasture, P.W. Nos. 1 and 2 respectively, are both panchas in respect of the seizure of the ganja. None of them has supported the prosecution case and both were declared hostile. The third witness, it may be recalled, is Kalidas Jadhav, the Inspector of Police, who has lodged the first information report in this case. The fourth witness Tanaji Waghmare is a police constable, who had, on 19/10/2006, carried the samples of the seized articles in a sealed packet and with a forwarding letter, to the chemical analyser, Pune. The fifth witness Prakash Kambale is a person, who had drawn a map of the spot where the incident of

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Tilak 6/17 APPEALS

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seizure of ganja had taken place. This map was drawn on 7/3/2007. The sixth witness Babulal Shaikh is a photographer, who had taken the photographs after the said ambassador car had been stopped and ganja had been seized. The seventh witness Shivaji Patil is also a policeman i.e. Police Head Constable, who had made an entry in respect of the seized property in the muddemal register. The eighth witness Atul Nakat is an Inspector (Weights and Measurements). He had weighed the ganja after its seizure. The ninth witness, it may be recalled, is Vilas Naranwar, Inspector of Police attached to Jail Road Police Station - the investigating officer in the matter.

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The trial court, mainly by placing reliance on the evidence of PW 3 Kalidas Jadhav and PW 9 Vilas Naranwar, held that the charge against the accused persons, had been proved by the prosecution.

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As the appellants had filed the appeals through jail, Mr. D. G. Khamkar, Advocate, was appointed to prosecute the appeals under the Free Legal Aid Scheme. I have heard him, as also Smt. V.

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S. Mhaispurkar, Addl. Public Prosecutor for the State. With their

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Tilak 7/17 APPEALS

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assistance, I have gone through the entire evidence adduced during the trial. I have carefully considered the judgment delivered by the trial court and the reasoning reflected therein.

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Mr. Khamkar contended that, in this case, search had

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been taken in violation of the provisions of Section 42 of the N.D.P.S. Act. According to him, the officer who had received the information was Kailas Jadhav, Inspector of Police (Traffic), who had not taken down the information. He also submitted that he had not forwarded a copy of the record of the information to his immediate superior. According to him, therefore, the provisions of Section 42 of the N.D.P.S. Act had been contravened in this case and that due to such contravention, the entire evidence of the seizure was suspect, and could not have been relied upon. He placed reliance on a number of authoritative pronouncements of the Supreme Court of India, wherein it has been held that failure to comply with the provisions of Section 42 of the N.D.P.S. Act would be fatal to the prosecution case. Apart from this, he also submitted that even the provisions of Section 50 of the Act had been violated and though the personal search of all the appellants was taken, none of them was informed of his right to have the search taken

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Tilak 8/17 APPEALS

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before a Gazetted Officer or a Magistrate. According to him the prosecution case, therefore, could not be relied upon.

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Before proceeding further, it may be observed that the case of the appellant Vinod Ithape (Appeal No. 1164 of 2009) the original accused No. 4 is on a different footing from that of the other appellants and the original accused No. 2. The case of the appellant Vinod Ithape is that he was not concerned with the contraband that was recovered from the car. It is not in dispute that though the appellant Vinod Ithape was the owner of the said Ambassador Car, he had given the same to the original accused No. 2 – Dattatray Jagtap, on hire. The record shows that appellant Vinod Ithape, from the very inception, had put forth a case that the other accused had hired his car and the contents of the car had been brought by them, and that he was not aware that the gunny bags brought by the original accused No. 2 contained ganja. In fact, the trial court noted the specific defence taken by applicant Vinod Ithape in the judgment, but held that it was not 'solid' and, therefore, could not be entertained.

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I have examined the defence case put forth by the

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Tilak 9/17 APPEALS

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appellant Vinod Ithape. It is evident that he had come out with a categorical case which was to the effect that his car was hired by the original accused No. 2 Dattatray. That, the said accused No. 2 Dattatray had approached him in his house at Wai and requested to give the car on hire basis, as Dattatray wanted to purchase Ayurvedic medicines from Nilanga for his son. That, the car hire charges were settled at Rs.5000/- in addition to the cost of the fuel

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which was to be borne by the accused No. 2 Dattatray. The appellant Vinod Ithape was given an advance of Rs.1000/- and thereafter the car left from Wai. The son of Dattatray - one Sunil Jagtap - was an indoor patient in a hospital at Panchagani, who was got discharged from the hospital and then all of them reached the village of the accused No. 2 Dattatray – Dahiwadi. That, on the next day, i.e. on 18/10/2006, Vinod Ithape and the other three accused proceeded to Nilanga to purchase medicines for Dattatray's son Sunil. They took a halt at village Asti. That, on the next day i.e. on 19/10/2006 they proceeded to Nilanga and purchased Ayurvedic medicines. That the accused No. 1,2 and 3 took some articles in gunny bags and kept them in the car.

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It may be observed that, that the appellant Vinod

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Tilak 10/17 APPEALS

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Ithape had given his car on hire being not in dispute, the investigating agency was expected to verify the story put forth by

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him. Even accepting that ganja was indeed found in the ambassador vehicle, the question that would arise is ‘whether it was belonging to, or was in possession of, the passengers i.e. the accused No. 2 Dattatray and accused Nos. 1 and 3 Manda and Anil respectively, or whether it was belonging to or was in possession of appellant Vinod Ithape’.

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The concept of possession is a legal concept and only a person who had the power and authority to deal with an article can be said to be in possession of such an article. In a taxi that has been hired by passengers, the belongings of the passengers carried by such passengers in the taxi, cannot be said to be ‘in possession of’ the taxi driver as he would have no control or authority over such belongings. Therefore, the possession in such cases ought to be held as that of the passenger only and not of the taxi driver or taxi owner. On the other hand, when the passengers board a taxi, if some articles are already in the taxi, then the passengers would not be liable for the ‘possession’ of such articles though they travel by the said taxi. The possession of such articles (if the taxi driver

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Tilak 11/17 APPEALS

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would be aware of their existence in the taxi), would only be of the taxi driver, in such a case. In this case, no collusion between the passengers, accused and the car driver accused i.e. the appellant Vinod Ithape, is alleged and at any rate, there is no evidence to show the same. It was, therefore, necessary on the part of the investigating agency to have ascertained as to from where and under what circumstances, the ganja came; at which place, it was kept in the said Ambassador car; and as to who had paid for the same. The categorical version giving all the relevant details put forth by the appellant Vinod Ithape was not at all verified by the investigating agency.

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In the instant case, since the claims made by the appellant Vinod Ithape were not got verified by the investigating agency and since admittedly, the vehicle was taken on hire by the other accused, the possession of ganja found in the vehicle should have been attributed to the passengers i.e. the other accused and not to Vinod Ithape.

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Any way, for the purpose of ascertaining whether the case against the appellants had been satisfactorily established, the

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Tilak 12/17 APPEALS

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evidence adduced during trial may be examined. The crucial evidence in that regard is only of Kalidas Jadhav (PW 3) who had lodged the first information report and of Vilas Naranwar (PW 9) - the investigating Officer. As aforesaid, the panch witnesses did not support the prosecution case, which rests solely on the testimony of these police officers.

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It is clear from the evidence of Kalidas Jadhav that he did not reduce the information received by him in writing and forward it to his immediate superior. He claims to have forwarded a report to the Inspector in-charge of Jail Road Police Station, but, interestingly, the information communicated by him to the Inspector of Police Jail Road Police Station, does not show as to at what time , the vehicle was to come in Solapur. It is difficult to easily accept that the information of this nature - when no time of the vehicle likely to be coming to Solapur - would be acted upon. The person receiving the information in such a case, is bound to ask the informer as to the approximate time when such vehicle was likely to arrive and without having any information as to the approximate time, it is difficult to imagine that the officer receiving information would lay a trap. A responsible police officer without knowing even

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Tilak 13/17 APPEALS

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the approximate time as to when the vehicle was likely to arrive, would at once proceed to the spot is difficult to accept.

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It is in this background the contravention of the provisions of Section 42, in that, Kalidas Jadhav did not reduce the information into writing, needs to be viewed. It is settled legal position that failure of the officer receiving the information to record the same and forward it to his immediate superior would be fatal and the prosecution evidence of the seizure becomes suspect on account of the breach of the provisions of Section 42(2) of the NDPS Act which are held to be of a mandatory nature.

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In this case, there has been a violation of the mandatory provisions of Section 42 of the N.D.P.S. Act. This makes the prosecution evidence about the seizure suspect. The possibility that the version of the prosecution as to what information was received and how the vehicle came to be stopped , being not true, exists. Though from the huge quantity of ganja seized, the possibility of the same having been planted has to be ruled out, still the circumstances in which it came to be seized, as are projected in the prosecution version, may not be accurate and the possibility that

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Tilak 14/17 APPEALS

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the happenings might have taken place in some other and different manner, reasonably exists. The doubt felt about the prosecution case increases, when, that the version of appellant Vinod Ithape was not attempted to be got verified, and that, no efforts were made to see from where the ganja had been brought and when did it enter the vehicle, is taken into consideration.

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There has been a non-compliance with the provisions of Section 50 of the N.D.P.S. Act also. True, that in this case, the ganja was not recovered from the personal search of the accused persons and, that therefore, on that ground the recovery of the ganja cannot be said to be vitiated; but the fact remains that the personal search of the accused persons was also taken and that when the mandatory provisions of Section 50 were not followed in respect of the personal search of the accused persons, then a doubt about the claims made by the prosecution indeed arises.

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In my opinion, the following circumstances;

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i)That Kalidas Jadhav did not take

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down the information received by him in

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Tilak 15/17 APPEALS

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writing and did not forward it to his
immediate superior;

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ii)That the information, in the absence
of any time of the vehicle arriving with
contraband ganja was difficult to act
upon, but still it is claimed to have been
acted upon;

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iii)That no efforts were made to see

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whether the possession of ganja could be
attributed to the owner / driver of the
vehicle or to the passengers;'

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iv)The personal search of the
accused persons was carried out in
violation of the provisions of Section
50 of the N.D.P.S. Act;
v)That the provisions of Section 42
of the N.D.P.S. Act, were violated;
vi)That the panch witnesses have not
supported the seizure and consequently
there is no independent evidence to
support the prosecution case;

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APPEALS

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Tilak 16/17

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are sufficient to create a reasonable doubt about the truth of

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the prosecution case. When such is the position, the appellants were entitled to have the benefit of such doubt and ought to have been acquitted.

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The judgment and order of conviction as recorded by the trial court is not in accordance with law. The same is, therefore, required to be inferred with.

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19. The Appeals are allowed.

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The conviction of the appellants as recorded by the trial court

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and the sentences imposed upon them are set aside.

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The appellants are acquitted.

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They – each of them – be set at liberty forthwith, unless required to be detained in connection with some other case.

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Fine if paid, be refunded to them respectively.

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Tilak 17/17 APPEALS

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The order in respect of the confiscation of the Ambassador car and its sale by public auction is set aside. The same be returned to the appellant – Vinod Ithape.

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The appeals are disposed of in the aforesaid terms.

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( ABHAY M.THIPSAY,J )

Manda Dattatraya Jagtap v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Manda Dattatraya Jagtap 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

Statutes considered

Parties & counsel

Coram

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