BHASKAR AAYYAR KAUNDER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A new facet touching the aspects of expediency and safe custody that are prerequisites of the procedure prescribed under Sec. 52 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act") has been thrown open for consideration in this appeal. Briefly stated, it has been demonstrated that a sealed sample, which was in the custody of the officer incharge of the Palton Road Police Station, was taken out of safe custody and as per the entry in the outward register, put in transit for being delivered to the Chemical Analyser on 6-2-1987 as per the outward register entry of the Police Station. The certificate of the Chemical Analyser indicates that it was received by hand-delivery in Bombay after a gap of as many as five days, that is to say, on 11-2-1987. There is no explanation whatsoever on record as to what happened to the packet during this period of five days. The question that is posed is as to whether this delay constitutes a fatal infirmity to the prosecution or, whether in the light of the explanation tendered at the appellate stage, this Court can condone the lacuna. We shall first outline a few brief facts that are essential.

(2.) THE appellant-accused, a resident of a hut near the 'c' Ware House, P. D. Mello Road at Bombay, was alleged to have been in possession of ten grams of brown-sugar. The prosecution alleges that the Police Party, while on patrol duty, received information that the Accused was dealing in brown-sugar and, therefore, proceeded to that place. Two panch witnesses were secured and the Accused, who was seen outside his hut, was apprehended. It is alleged that on a search, a plastic bag was found in his pyjama pocket and that the bag contained 42 visle, each of which had a small quantity of powder in it. On examination, the powder was found to be brown-sugar and it was, therefore, collected in a single paper and found to weigh ten grams. Eight grams of the brown-sugar were separately packed-and sealed and a sample of two grams was also separately packed and sealed for purposes of being sent for analysis. The Accused was brought to the Police Station and the two packets were handed over to the authorities at the Police Station and duly kept under safe custody by the Muddemal Authorities. On completion of the investigations, the Accused came to be prosecuted before the learned Special Judge, Greater Bombay, who accepted the prosecution evidence and convicted him for an offence under Section 8 (c) read with Section 31 of the N. D. P. S. Act and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default, to suffer rigorous imprisonment for one year. The Accused has challenged the validity of this conviction and sentence through the present appeal.

(3.) SHRI Dukhande, learned Counsel appearing on behalf of the Accused, has taken us through the evidence of Laxman Wagre (P. W. 1), Baburao Yadav (P. W. 2), the Police Head Constable, the First Information Report (Exhibit 10), which is at page 25 of the paper-book, and the evidence of Police Sub-Inspector Suresh Sawant (P. W. 3), who was the officer incharge of the raid and the investigations. Learned Counsel advanced several submissions with regard to the challenge to the independence of the Panchas and their veracity as also the procedure required to be followed by the authorities in relation to a raid of this type and the infirmities in the evidence inter se on such points as to the question of how the Police, who had been on normal patrol duty, secured the requisite material for testing, weighing, sealing, etc. In sum and substance, learned Counsel contended that the totality of the prosecution evidence does not inspire sufficient confidence to sustain the present conviction.