TULASHIDAS NEMANDAS DENGARA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE order dated 14th January 1992 passed by the Sessions Judge, Thane in Sessions Case No. 145 of 1989 holding the appellant accused guilty of the offence punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentencing him to suffer R.I. for 10 years and a fine of Rs. 1,00,000/ - in default to suffer R.I. for one year, is being challenged in the present appeal by the appellant -accused.

(2.) THE facts giving rise to this trial and appeal are stated thus:

(3.) COMING to the facts of the present case, it may be reiterated that the prosecution chose not to lead the evidence of a panch witness who was available and who cannot be held to be not traceable and as such the defence has been denied the right to cross examine the alleged independent witness. In view of this, we are, therefore, of the view that it would be most improper to hold the alleged offence as duly proved against the appellant -accused in the absence of the evidence of an independent panch witness. It has been observed by the Sessions Judge that the efforts to secure the presence of the panch in Court were futile but there is nothing on record or in evidence to indicate likewise. As stated above, the reports of the prosecuting agency (Ex.5 and Ex.16) themselves sufficiently disclose that the other panch Bhagwan Shevlani was in fact available for the prosecution and he was merely out of station on the day on which the evidence of the other four Police Officers was recorded. It may also be noted that none of these Police Officers has even whispered about any alleged effort put by the prosecution agency to secure the presence of the panch witness in Court. It is also not even remotely stated nor suggested in the evidence of any of these Police Officers that after 9 -1 -1992 they made any efforts to secure the presence of the panch Bhagwan Shevlani and his presence could not be secured. In the absence of the evidence of the independent panch witness and considering the fact that the defence has been denied a right of cross examining such an independent witness, we are, therefore, of the view that the alleged offence cannot be held to have been duly proved against the appellant -accused and, therefore, for the want of sufficient and reliable evidence, the conviction and sentence against the appellant -accused will have to be set aside. Disagreeing with the views and the reasonings of the Trial Court, we, therefore, hold that the alleged offence has not been duly proved against the appellant -accused and as such the appellant is entitled to the acquittal.