SOU SUBHADRA BABAN SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant before us assails her conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, whereby she has been awarded rigorous imprisonment for 10 years and to pay a fine of Rs 30 -00 in default simple imprisonment for one year. The prosecution alleged that on the afternoon of 31-7-1990, pursuant to information that the accused was alleged to be selling brown-sugar, that PW1 P. S. I. Dewane, proceeded to Khadaki and that he reported the matter to the authorities of that Police Station after which he took a raiding party and went to the building in which the accused resides. She is alleged to have been apprehended near the stair-case and after following the requisite formalities the personal search was taken with the assistance of the lady constable PW3 Leela Raut. The accused was found to have concealed 36 paper packets in her blouse which packets on examination were found to contain small quantities of Gard Powder A panchanama was drawn and after completion of the investigation, the accused was proceeded against. The learned Additional Sessions Judge, Pune accused the prosecution evidence and convicted the accused under Section 21 of the Act. IE is against this conviction, that the present appeal has been directed. 1 Mr Mohite learned Counsel appearing on behalf of the appellant has brought to our notice the face that even though seemingly all requisite formalities were completed and complied with, that in fact there are certain glaring lacunae which the learned Sessions Judge has over-looked. He has taken us through The evidence of PW 1 Popat Devan , as also the panchanama and the FIR With regard the evidence of the P. S. I., Mr. Mohite points out to us that in the course of his evidence, he has referred to the contraband that was seized by him. He is quite clear and candid about the fact that there were 36 packets and these 36 packets were collectively weighed and found to be of 7 grams weight. Mr. Mohite, stated that the panchauama as also the F. I. R. support this version whereas an attempt has been made by the lady Constable as also PW 2 the lady Panch Saraswati to project the impression that the powder was taken out of the packets and that it was weighed sepa­rately. Mr. Mohite has made a serious grievance of this fact because he states that it goes to the root of the matter to so far as the Police Officer has very cryptically stated in his examination-in-chief "property now shown to me is the same". In actual fact, Mr. Mohite draws our attention to the C. A. Report wherein it is categorically mentioned that Heroin was detected in all the 36 packets or samples and that all the powder was used up in the analysis. Under these circumstances, it was necessary for the P. S. L. to have clarified as to what exactly was the property which he has identified before the Court. The matter does not rest there because we have on record Exhibit No. 1 j which is au extract describing the property that was forwarded by the Judicial Magistrate, First Class, Pune, to the Sessions Court stating that the property has been received from the C. A. in a sealed condition, it was essential for the prose­cution to have explained as to what the property that was produced before the Court, was because Mr. Mohite submits that once the powder has been com­pletely used up,, there was no question of the property being produced before the Court. The impression created on a reading of the evidence of the P. S. I. is that the envelope produced as article 1 before the Court was still in a sealed condition and if that was so he ought to leave indicated as who has put the seals. There is nothing on record to indicate that the C. A. has affixed any seal or that there is any practice of sealing any property that is returned. More importantly, if it was only the paper wrapping send back and not the powder then that fact ought to have been clarified by the P. S. J. The evidence given by him before the Court very clearly indicates that the property was still intact and that the same was produced before the Court. 3. The learned A. P. P. Mr. Patil has tried to tender certain explana­tions which we have not accepted for the simple reason that the evidence in this case which is already on record cannot be added to or subtracted from. It was for the P. S. I. or for the prosecution witnesses to have clarified the posi­tion before the Court and not created a total confusion. Mr. Patil submitted before us that even if the powder was used up, that the packets containing wrappers etc. was collected from the C. A. and that the same was deposited with the Judicial Magistrate, First Class, which he in turn forwarded to the Sessions Court and that what was identified as Article No. 1 was precisely was this. This is a possible explanation but to our mind not something that a Court would accept having regard to the aforesaid background. 4. Mr. Mohite, has thereafter drawn our attention to Exh. 17 which is the xerox copy of the Muddemal register which we have checked from the original record of the case. This Exhibit makes disturbing reading because even though there is some degree of doubt with regard to the expressions used, it clearly indicates that the seals had been opened, if this is so, such a proce­dure is fatal to the prosecution, because the identity of the contraband would certainly be in doubt. The learned A. P. P. has sought to explain the entry in Exh. 17 by stating that it is descriptive and that what is meant thereby is that the P. S. I. at the time of the raid had opened the packets. This unfortunately is not a straight and clear meaning that is intelligible to us on the reading of the entry in question. It does strongly suggest that for whatever reason, even it was for checking of the Muddemal, that the seals had been opened, if this was at all necessary, the Act prescribes a procedure and necessarily requires that the officer incharge of the Police Station has to reseal the Muddemal with his seal. 5. In a case of the present type, the evidence relating to the identity of the contraband is crucial. The whole purpose of taking independent panchas and sealing the material that has been seized at the earliest point of time is in order to ensure that there is no possibility of tampering or substitution. In the present case, there is a direct allegation from the accused that she had got into a quarrel with a certain bootlegger who in turn had been instrumental in getting the Police to file a false proceeding against her. In this background, to our mind, having regard to the state of the record, it would be extremely hazardous to hold that the material which is alleged to have ultimately reached the C. A. is in fact the very same material which was seized from the accused. It is unfortunate that such a thing has happened because on a perusal of the record of this case we do find that P. S. I. Dewane has taken all the requisite pre­cautions that are prescribed under the Act and that he has followed the correct procedure at all stages. The difficulty in our way in sustaining the conviction arises from the fact that the learned Counsel on behalf of the appellant has been successful in demonstrating to us that there exists a serious doubt with regards to the identity of the material in question. It is on this ground alone that we are impelled to allow the appeal. 6. The appeal accordingly succeeds. The conviction and sentence recorded against the appellant are set aside. The fine, if paid, is directed to be refunded. Since the appellant is in custody, it is directed that she be set at liberty forthwith if not required in connection with any other offences. Appeal allowed.