KAMRUDDIN JAMALUDDIN PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant-accused, who has been convicted for the offence punishable u/s. 21 read with S. 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is sentenced to rigorous imprisonment for ten years and a fine of Rs. one lakh and in default further rigorous imprisonment for three years in Sessions Case No. 340 of 1986 had preferred this appeal.

(2.) BRIEFLY stated the facts giving rise to this appeal are as follows : Deputy Commissioner of Police, Zone II, organized a Gard Raid Squad, consisting of S. I. Mistry of Tardeo Police Station, S. I. Rane, P. W. 3, from D. B. Marg Police Station and six constables from different Police Stations including Police Constable Pandharinath of Dadasahib Bhadkamkar Marg Police Station on 5/12/1985. The Squad left Nagpada Police Station at about 7 p. m. for Gard raids in the specified area within the jurisdiction of Nagpada Police Station and in the said raid they noticed the accused moving in a suspicious manner and that he was feeling his pockets of the pant and seeing them the accused started running away. The Squad then apprehended the accused and after calling two panch witnesses including Fakira (P. W. 2), personal search of the accused was taken. In the search from the right side pocket of the pant a bundle wrapped in a handkerchief was found. The said bundle on opening was found to be containing 31 small plastic bottles having red plastic caps and they were filled with ash coloured powder with brownish tinge. The said powder smelt sourly and they suspected that it was the Gard powder which is prohibited under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as "the Act" ). Out of 31 bottles two bottles were separated as sample bottles and they were wrapped in a paper on which wax seals were placed and a label with the signatures of the panch witness and the Police Officer was put on them. The remaining 29 bottles were also similarly packed in a paper packet and the packet was sealed with sealing wax and the label with the signatures of the panch witness was also affixed on the same. A panchanama in this respect was drawn up. The packet containing two sample bottles which were taken was sent to Forensic Science Laboratory for analysis. The accused after the seizure of the said articles from him, was taken to Nagpada Police Station and was handed over to the Duty Officer, S. I. Zendekar. The contraband articles which were also found were also handed over to the said S. I. Zendekar. The offence under C. R. No. 229 of 1985 u/ S. 8 (c) of the Act was registered and the accused was arrested. P. W. No. 1 Police Constable Udwant Lodged his First Information Report before the registration of the offence and after completing the necessary investigation, the accused was charge sheeted in the Court of the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, and as the offence u/ S. 8 (c) of the Act is triable by the Sessions Court, the case of the accused was committed to the Court of Session. On the strength of the evidence which was led before the Additional Sessions Judge, Greater Bombay, the accused was found guilty of the offence punishable u/ S. 21 read with S. 8 (c) of the Act and was sentenced as stated earlier. Being aggrieved by the said order of conviction and sentence, the appellant-accused has come in appeal to this Court.

(3.) A very short question arises for determination in this matter. Shri Shetty, who appears on behalf of the appellant-accused contended that the accused is charged with a very serious offence which is very heavily punishable and, therefore, the evidence led by the prosecution necessarily must be considered very cautiously and strictly. He pointed out that according to the evidence of Police Constable Udwant (P. W. 1) as well as the FIR Lodged by him which is at Exhibit 5, two bottles were taken as sample bottles. He also pointed out that panchanama which was prepared at the spot of the incident which is at Exhibit 7 also shows that out of the 31 bottles which were found, two bottles were taken out by the Police as sample and they were sealed with the signatures of the panch and the police. He further pointed out that though the said evidence clearly shows that two sample bottles were sealed in a packet for being sent to Chemical Analyser for analysis, the packet which ultimately reached the Chemical Analyser was found to be containing only one bottle of sample. He conceded that as far as the Chemical Analyser's report is concerned, it is clear that the contraband article was found in the said bottle. But he very strenuously contended that one cannot understand as to how the packet which was sent to the Chemical Analyser was found to be containing only one bottle of sample when the other evidence which is relied upon by the prosecution clearly shows that two sample bottles were actually packed and sealed in the packet which was sent to the Chemical Analyser. Shri Shetty, therefore rightly contended that this at least raises a doubt about the identity of the bottle which was actually sent to Chemical Analyser and which was found with the accused. He contended that prosecution must establish that the bottle or bottles which were seized from the accused as a sample bottles were actually sent for analysis to the Chemical Analyser. He also invited our attention to the deposition of S. 1. Rajaram Mahadeo Rane (P. W. 3) and pointed out that he stated in his deposition that under the panchanama 29 bottles were packed in a paper packet. That paper packet was sealed with wax seal and a label was affixed and signatures of the panchas were taken on the label and similarly the two sample bottles were put in an envelope and it was sealed with wax seal and the label was affixed and the signatures of the panchas were taken on the label. Now, it appears that in the panchanama there is no mention of sealing of the packet except that one containing two sample bottles. However, it appears that before the Court, one packet which was sealed was opened and it was found to be containing 30 bottles. One cannot understand as to how 30 bottles were found in the said packet when Rane deposes that 29 bottles were packed in a paper packet and they were sealed with sealing wax. S. I. Mistry, who was a member of the raiding party was not examined. Prosecution did not try to give any explanation about the said discrepancy in respect of the above discussed evidence. On the other hand, an attempt was made to lead evidence through the mouth of panch-witness Fakira (P. W. 2) that only one bottle was separated and it was placed in a paper packet and the other 30 bottles were packed in a different packet. Fakira when confronted with the contents of the panchanama to which he is a party could not explain as to how then in the panchanama it was stated that two sample bottles were actually packed in paper packet. Under these circumstances, Mr. Shetty is right in inviting us to hold that the evidence in respect of the seizure of the sample bottles and packing of the same for being sent to the Chemical Analyser is not free from doubt. He is further right in inviting us to hold that on the strength of this evidence it is not possible to conclude that the bottle which reached the Chemical Analyser's office for analysis, was definitely the one which was actually seized from the accused. In that event, it cannot be held that accused was found in possession of the Heroin as claimed by the prosecution. On behalf of the State, the learned Addl. Government Pleader tried to contend that there is evidence to show that the other bottles also contained Gard as the Police Officers have stated that they were smelling of Brown Sugar. The said evidence definitely cannot be relied upon to hold that the other bottles which are alleged to have been found with the accused were definitely containing the brown sugar as claimed by the prosecution. Merely on the basis of the evidence of the Police Officers that on the basis of smell the said powder was of Gard cannot be accepted as sufficient to hold that the said powder which is alleged to have been found with the accused was brown sugar.