MOHAMMAD HANIF MANSOORI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants are hereby assailing the correctness, propriety and legality of the judgment and order passed by the Special Judge for Greater Bombay in NDPS Special Case No. 95 of 2000 whereby the appellant Firoz Abdul Gafar Khan and appellant Mohammad Hanif Ismail Mansoori have been convicted for the offence punishable under Section21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ). THEy are sentenced to undergo R. I. for 10 years and to pay fine of Rs. 1 lac each, in default, to undergo S. I. for 6 months. THEy have been convicted for offence punishable under Section29 of the NDPS Act also. But no sentence has been inflicted on them on that count. Substantive sentence has been directed to run concurrently.

(2.) THE prosecution case in brief is that on3/5/2000 PW PSI Tendulkar received an information to the effect that one person by name Firoz Abdul Gafar Khan and another person named Mohd. Hanif Ismail Mansoori have stored huge quantity of Mandrex Tablets in Room No. 10, Abdul Lala Chawl, Aksa Masjid Road, Jogeshwari (W), Mumbai and they were likely to shift the said stock to some other place between 4. 00 p. m. and 6. 00 p. m. on that date. PSI Tendulkar, as per the prosecution case, recorded the said information in station diary at Entry No. 33/2000. THE copies of said information were prepared and despatched to superiors. He called some officers from the Anti Extortion Squad as well as called the panch witnesses. At 3. 25 p. m. the said information was disclosed to PSI Surendra Morya and pancha witnesses. THE raiding party went to the site for effecting the raid after giving the search of their persons and vehicles to panch witnesses. When the raiding party reached the said room, they saw the present appellants in the process of putting some paper packets in some gunny bags. THEre were 8 gunny bags. THE purpose of the raid was informed to them, they were apprehended. THE narcotic drug was seized after drawing a panchanama. THE members of the raiding party left the said room. PSI Tendulkar lodged his FIR in the Oshiwara Police Station and handed over the said stock of narcotic drugs along with the samples which were taken on the spot for chemical analysis. On 4.5.2000 those samples were sent to FSL for chemical analysis. THE FSL Laboratory sent a report after June 2000 which disclosed that the samples were containing mathequalone powder of narcotic drug. THE appellants were chargesheeted and they were put to trial. THE trial ended in the order of conviction and sentence which has been assailed by these appeals.

(3.) THIS Court would be dealing with the important point which has been urged by Shri. Keshwani relating to the burden which happens to be on prosecution for proving that the appellants were found in possession of narcotic drug or psychotropic substance which has been prohibited by provisions of NDPS Act. In this context, evidence of Mrs. Swati Ambulkar needs to be considered as it is. It is the evidence of Mrs. Swati Ambulkar, Assistant Chemical Analyser that Mrs. R. Krishnamurthy, her senior, received the samples pertaining to present case between 4.5.2000 and 20.6.2000 and she performed the chemical analysis on20.6.2000. According to her, she performed four tests (1) colour test, (2) Thin layer crometography, (3) Ultra Violet spectrophotometry and (4) Liquid Promatography. After performing those four tests, the result was positive and, therefore, she concluded that it was methaqualone and she thereafter gave a report. She tendered the data sheets also in her evidence. But her evidence in examination-in-chief has been totally destroyed by the answers given by her in her cross-examination. She stated when question was specifically asked to her asking her to quote the ingredients which make methaqualone. She answered this question by stating that it was a pharmaceutical question and, therefore, she was unable to answer it. Though she denied the suggestion which was made on behalf of the appellants to her telling her that she was not qualified, she was unable to give the ingredients of Methaqualone and she advised the counsel for the defence to find out from Clerk's book of identification of drugs. When the further question was asked to her, she stated that what she recollected was that one of the ingredients of the said narcotic drug or psychotropic substances was a Benzene. In this context, the schedule which has been given as annexure to NDPS Act will have to be seen. It has been appended to NDPS Act by virtue of a notification which was published in exercise of the powers conferred by clause (viia) and (xxiiia) of section2 of the Narcotic Drugs and Psychotropic Substances Act, (61 of 1985) and in supercession of the notifications of the Government of India, in the Ministry of Finance, Department of Revenue, Notification No. S. O. 527 (E), dated July 16,1996, except as respects things done or omitted to be done before such supercession, the Central Government specified the quantity mentioned in column (5) and (6) of the table given in relation to narcotic drug and psychotropic substance mentioned by corresponding entry in column nos. (2) to (4) of the said table as the small quantity and commercial quantity respectively for the purposes of the said clauses of that section. The said table gives the names of various narcotic drugs and psychotropic substances (international, proprietory name (INN ). In that table, Methaqualone has been mentioned as 2-Methyl-30-tolyl-4 (3h)-quinazolinone. It nowhere mentions that it contains Benzene as stated by Mrs. Swati Ambulkar. In fact it was the duty of the prosecution to bring it on record as a substantive evidence that whatever was found with the appellants was methaqualone with the above mentioned formula as ingredients of the said substance.