MANOHAR PEERAJI VASUDEO (BAGADI) Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE sanctity and scrupulousness in respect of procedural compliance where offences under the Narcotic Drugs and Psychotropic Substances Act are concerned, has been seriously canvassed in the present appeal and having regard to the considerable case law on the subject we consider it necessary to examine the issue in the light of some of the special features of this appeal. To start with, the facts :

(2.) THE Prosecution alleges that the Market Yard Police Station, Sangli, received information on the morning of 2 -2 -1991 that the accused was alleged to be selling brown sugar on the 100 ft. road. The information was recorded and the Police party in the company of two panchas and P.W.2 a Goldsmith proceeded to that spot. They alleged that the accused was passing by on a bicycle and that he was apprehended. Pursuant to a search, a sum of Rs. 1,320/ - in cash was found in his pocket, and a packet containing five grams of powder which appeared to be brown sugar was recovered from him. The Police had the powder weighed by the Goldsmith and recorded in a panchanama that five grams of brown sugar had been recovered from the accused. They also sealed the packet and thereafter took the accused along with the material and his bicycle to the Police Station. The investigations were completed, the accused was put on trial and the learned 3rd Additional Sessions Judge, Sangli, accepted the prosecution evidence and convicted the accused under section 21 read with section 8(c) of the N.D.P.S. Act and sentence him to rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac in default rigorous imprisonment for six months. It is against this conviction and sentence that the present appeal has been preferred.

(3.) MR . Kadam, learned counsel appearing on behalf of the appellant has impressed us by the thoroughness with which he has applied himself to the record and the manner in which he has presented his submissions. He has taken us through the evidence of P.W. 1 Shirish Ukidive who is the pancha and Raghunath Karyakar P.W.2 the Goldsmith. In respect of these two witnesses. Mr. Kadam advances the submission that the evidence of P.W.2 the Goldsmith is of no assistance to the prosecution because he has admittedly stated in the course of his evidence that he is unable to identify the accused before the Court as the person from whom the contraband was recovered. The fact that it might have weighed 5 grams or a little more or less is not in dispute, and therefore, Mr. Kadam submits that this evidence is of no consequence. As far as the pancha is concerned. Mr. Kadam advances the submission that there is a very unusual feature present in this case namely that the pancha who is one of the two persons who witnessed the seizure on that day happens to be only other independent witness produced by the prosecution. He has stated in his examination -in -chief that he had gone to the Police Station to lodge a complaint in connection with a theft that had taken place at his house. He has also stated that pursuant to his complaint at the Police Station that the Police Party has accompanied him to his house to examine the situation there and that they thereafter took him along as a pancha. Mr. Kadam has pointed out to us that the Police Officer who is the Investigating Officer in this case P.W.3, Balkrishana Kanade, as also P.W.5. P.S.I. Shaikh have both put out the version that the panchas had been called for. He states that quite obviously, the P.S.Is. were conscious of the fact that they were not doing the right thing in taking a person who had corne to the Police Station as a complainant along with them for the raid and asking him to act as a pancha because he does not answer to the description of an "independent person". It is Mr. Kadam's contention that where it is a requirement of law that the evidence of the raiding prarty be fully corroborated by that of an independent pancha; and if it is demonstrated that the person who has acted as a pancha cannot be categorised as an independent person, then serious doubt is cast with regard to the validity of the procedure adopted and the inevitable sequetor is that a conviction cannot be based on the evidence relating to such a seizure.