MOHD GULAM HUSSEIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant herein stands convicted for the offence punishable under Section 22 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") and is sentenced to suffer R.I. for a period often years and to pay fine of Rs. 1 lakh in default S.I. for six months in NDPS Special Case No. 116 of 2007 by the Special Judge under NDPS Act for Greater Mumbai, Vide Judgment and order dated 24th December, 2009. Being aggrieved by the said judgment and order, the original accused No. 1 (hereinafter referred to as "the appellant") has filed the present appeal. Such of the facts, which are necessary for the decision of this appeal, are as follows:-

(2.) PW-1 Sanjay Mandale was working as Assistant Store Keeper at Shivaji Nagar Police Station during the relevant period. He has deposed before the Court that on 6.1.2007 at about 9.30 a.m. PI Raut had instructed him to carry sample to C.A. Office. At about 2 p.m. PI Raut had handed over four envelopes to PW-1 and one letter in duplicate for carrying the samples to C.A. Office. The letter written to the CA was signed by Senior PI Nimhan. The evidence of PW-1 was being recorded on 16.3.2009. On that day, the Muddemal property was not yet received by the Special Court. On 25.3.2009, the envelopes which were carried to the C.A. Office were shown to the witness and the witness identified the same as the envelopes which he had carried to the C.A. Office. The original letter was signed by Senior PI Nimhan. It is elicited in the cross-examination that Senior PI Nimhan was a Senior PI of Govandi Police Station, that Mr. Raut was PI-Administration and is in charge of the Store Room of Shivaji Nagar Police Station. It is further elicited in the cross-examination that the sample envelopes in the present case were not kept in the godown or the store room, but were kept under the safe custody of Senior PI Nimhan and that PW-1 has admitted to have collected the sample packets from Senior PI Nimhan and not from PI Raut. The witness was confronted with the letter at Exhibit 17 which is a letter purportedly signed by PI Raut for obtaining sample envelopes from the store room. In the cross-examination, PW-1 was unable to identify the signature of the officer above the signature of Senior PI Nimhan. He has further admitted that at the time of recording of his substantive evidence, there were no seals on the sample envelopes (articles A-1, B-1, C-1 and D-1).

(3.) It is pertinent to note that the prosecution, for the best reasons not disclosed, has not examined PI Nimhan and hence there is no substantive evidence of PI Nimhan, who was instrumental in the seizure of contraband, initiation of prosecution and signing the letters sent for chemical analysis.