MATLUB KHAN REHMAT KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants before us, the original accused No. 2 is Sessions Case No. 689 of 1988 assails the correctness of his conviction under section 8 (a) read with sections 29 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was alleged that he, alongwith original accused No. 1 came to be apprehended in room No. 48, plot No. 53, at Chunabhatti at about 11. 20 a. m. on 23-1-1988. The Malwani Police Station, on receipt of information that brown-sugar was being sold at this particular place, sent a raiding party under P. S. I. Rajyadhyaksha. On reaching the spot two panchas were sent for and the party entered room No. 48. It is alleged that the two accused were found seated in that room and that they stood up when the party came in. The prosecution alleges that the two accused were engaged in the act of preparing small packets of brown-sugar out of the bulk of the material that was in a pot which was found in front of them. Ten small packets of approximately 4 grams each were found there and it is also alleged that a roll of silver paper apart from several empty packets were also found. All this material was seized by the police under panchanama and the representative samples were drawn and these were sent for chemical analysis. The report indicated that traces of heroin were detected in all except one of the samples. The investigations also reveal that the room in which the accused had been apprehended belonged to one Usman. His name appears in the F. I. R. but no further action seems to have taken to him out. The two accused were placed on trial before the learned Special Judge and they faced a dual charge namely that of being in possession of brown-sugar and of preparing it for sale. On completion of the trial, the learned Special Judge accepted the prosecution evidence and convicted both the accused who were awarded a sentence of rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac, each in default rigorous imprisonment for two years. The present appeal has been filed only by original accused No. 2 who is in custody.

(2.) MR. Sardar, the learned Counsel appearing on behalf of the appellant, has taken us through the evidence that is on record. He has assailed the manner in which the prosecuting authorities have gone about their job and he has submitted that several serious procedural breaches have been committed by them. To start with, Mr. Sardar demonstrated that even though it is the prosecution case that specific information was received at the police station to the effect that brown-sugar was being prepared for sale in room No. 48, that the relevant entry made at the police station which is Exh. 6/a, is silent in respect of all these material particulars. That apart, Mr. Sardar submits that since this is a case where the charge is one of possession that the seizure if any, ought to have been done in the presence of Magistrate or a Gazetted Officer or at least that the accused should have been offered the opportunity of being taken before one of these officials. We have heard Mr. Sardar with regard to this aspect of the matter and to our mind, they are not of much consequence, for the reasons that we shall indicate presently. It is true that certain special procedures are prescribed by law in respect of the investigation of offences under the Narcotic Drugs and Psychotropic Substances Act and there is valid justification for this, but at the same time the defence cannot be permitted to make a fetish of the requirement and contend that every minor breach would vitiate the entire proceeding. Such lapses may be quite inconsequential particularly in a case, where the remaining material on record overwhelmingly establishes the offence. The charge in the instant case arises out of a two fold accusation against the accused, the first of them being that the accused were found in possession of contraband and the second being that the accused were involved in preparing the contraband for sale. If either of these or both of these had been established the conviction under section 21 of the Act would be sustainable.

(3.) WE have perused the evidence of the material witnesses in this case, the first of them is the Police Constable P. W. 1 Baburao Chikode who refers to the information received by him and who was present at the time of the raid. It is his case that when the raiding party entered the room the accused were found seated and that they stood up when the police entered that place. It is true that, this witness quite categorically mentions that the accused were present in the room and that a pot containing the contraband was found in front of them and he also refers to the silver paper and the ten packets of brown sugar. He is however, silent about the crucial aspect of the matter namely the question as to what exactly the accused were found doing inside that room. The evidence stops short by stating that they were merely seated there and that they stood up. In his cross-examination he has sought to improve upon the earlier statement by trying to suggest that the accused threw the packets down when they stood up, the implication being that the packets were in the hands of the accused. He is categorical that nothing was in the hands of accused No. 2 and it is also clear that this is a distinct improvement because he has admitted that in his police statement he has not indicated this very material act that he attributes to the two accused. The general tenor of his evidence with regard to what transpired on that day, is quite satisfactory apart from these infirmities. Hence, in our considered view, though this evidence would be good enough to justify the seizure of the contraband, it is still insufficient to fasten the culpability to the accused under section 21 of the Act.