NIRANJAN ISHWARLAL JOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal which has been preferred by the original accused Nos. 1 and 2 and is directed against their conviction for offences under the Narcotic Drugs and Psychotropic Substances Act raises certain features that require not only observations but a few directions which we propose to set out during the course of the judgment. Having regard to the seriousness of the offences that are the subject matter of the prosecution under the N. D. P. S. Act and more importantly, to the grave consequences that flow from convictions under that Act we do consider that utmost deligence be displayed at all stages of the investigation and that this degree of care should manifest itself even in the conduct of the prosecution. While the law requires that the evidence to pass the rigorous test of absolute scrutiny before a serious charge of the present type can be established, it is imperative that due steps be taken to ensure that these prosecutions do not unnecessarily fail or go-by default resulting in a miscarriage of justice.

(2.) THE appellants before us alongwith three other persons were put on trial before the learned Additional Sessions Judge, Greater Bombay, on the allegations that a seizure of 2 Kgs. of Heroin at about 17. 40 hours on 18-7-1990 at the Balwas Hotel gate at Balasis Road, Bombay, within the jurisdiction of the Nagpada Police Station, implicated them in charges under the N. D. P. S. Act. P. I. Pathan alongwith some of the other members of the Police force were patrolling the area on the evening of that day when it is alleged that an informant conveyed to them a message that two persons were selling Heroin near the gate of the Balwas Hotel. Pursuant to this, the raiding party divided into two groups, and it is alleged that the informant in fact pointed out the persons concerned who were standing near the hotel gate, each one of them holding a bag in his hand. The raiding party apprehended the two accused, opened the bags and on finding that there was a relatively large quantity of Gard Powder in the Plastic bags in question, the Police Constable was sent to the Police Station to bring the weighing scales, sealing equipments etc. as also to fetch two panchas. On arrival of the panchas, the Police after following the requisite procedure as prescribed under the Act effected a seizure of the two consignments which weighed 1 Kg. each. These were seized under a panchanama after drawing representative samples and the Police Party thereafter took the two accused persons to the Police Station. The information was recorded as required there, after which the F. I. R. was taken down, the accused were placed under arrest and the investigation commenced. The samples were subsequently sent to the Chemical Analyser and the Analysis report indicated that the samples contained Heroin and that they were covered under section 2 (16) (a) of the N. D. P. S. Act. It has come on record that the accused were handed over by the Nagpada Police Station to the Narcotics Control Bureau who in turn completed the investigations. The investigation appears to have taken a curious turn because the Narcotics Control Bureau then arrested a third person at Kandiwali and thereafter took into custody two more persons one of them a Police Constable from the Kandiwali Police Station and the second one a retired head Constable who was supposed to have been incharge of the stores of that Police Station. The Narcotics Control Bureau proceeded on the footing that a consignment of 3 Kgs. of Heroin that has been seized in the course of a raid and deposited in the stores of that Police Station as un-claimed in so far as no arrest had been made in that connection and which was ordered to have been destroyed had through the medium of the last three mentioned persons come into the hands of the present appellants. It was on this basis that the five persons were originally put on trial before the Court but the prosecution itself made an application for discharge of the original accused Nos. 3 to 5 on the ground that there was no material to proceed against them. They were accordingly discharged and the charge was framed only against accused Nos. 1 and 2 who are the present appellants. 6/08/1993

(3.) THE learned trial Judge thereafter proceeded with the trial against the original accused Nos. 1 and 2. It was the defence of the accused that they have been falsely implicated and it was also sought to be suggested that the Police Department being sympathetic to persons of its own cadre, had not only applied for the discharge of the original accused Nos. 3 to 5 but that it was for the same reason that the contraband had been foisted on the present accused who had nothing to do with it, that they have been framed in order to exonerate the members of the Police Department and consequently, unjustifiably implicated. The learned trial Judge rejected the defence and convicted accused Nos. 1 and 2 for the offences under Sections 8 (c) read with Section 21 of the N. D. P. S. Act and sentenced each of them to rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/ - in default rigorous imprisonment for three years. The Appellants have thereafter preferred the present appeal assailing the correctness of the convictions and sentences.