VINAYAK DNYANOBA GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants who were tried before learned Special Judge, Latur in Special Case No. 15 of 2000 for offence under Section20 (b) (i) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act, 1985), have preferred this appeal challenging the Judgment and order of conviction passed on19-12-2001 in which the appellants were sentenced to suffer rigorous imprisonment of 2 and half years and to pay fine of Rs. 10,000/- each, in default of fine to further suffer rigorous imprisonment for six months.

(2.) THE prosecution case in brief was that Shri. Abdul Rahaman Asmahmadminya (P.W.4) who was then Asstt. Superintendent of Police at Latur, while at his office on25-08-2000 at about5. 45 p. m. received information that the appellant Vinayak Gaikwad and his associates were preparing packets of Ganja for sale in the house of one Tukammabai r/o. Kushthadham area. He immediately rushed to Gandhi Chowk Police Station within the jurisdiction of which that Kushthadham area was, and directed Police Inspector Shri. Shinde to take necessary steps to carry out raid, in pursuance of the information received by him. He also directed Police Inspector Shinde to take note of the said information in police station diary so that the raid could be effected without warrant. He also had a talk on telephone with Superintendent of Police Latur about the information. THEn after panchas arrived in the police station, the Asstt. Superintendent of Police Abdul Rahaman (P.W.4) accompanied by the staff proceeded to Kushthadham area and when they reached near the house of Tukammabai, they saw one lady sitting in front of the house of the court yard and on seeing police personnel, she ran away and then he along with other police staff entered the house and to his surprise found the appellants inside the house being engaged in preparing the packets of Ganja. THEy also found polythene bags as well gunny bags containing Ganja and other material. In the presence of panchas the search was taken and Ganja that was found inside the house where the appellants were found sitting came to be seized after taking sample of Ganja from each packet weighing 50 grams each, by making necessary panchanama to that effect. THEn Abdul Rahaman along with accused persons returned to the police station and lodged complaint against appellants vide (Exh. 28 ). THE property seized including the contraband article namely Ganja, samples were given to police authority. THE offence was registered and investigation was carried out by one Shri. Rathod and Kinarwad (P.W.5 ). During the course of investigation the Investigating Officer Shri. Kinarwad sent the samples to the Chemical Analyzer through constable Nagpurne along with forwarding letter vide copy (Exh. 31 ). After receipt of the report of Chemical Analyzer (Exh. 32) indicating that Ganja was detected in all the samples, charge-sheet came to be filed against all the appellants to stand trial for offence under Section20 (b) (i) of NDPS Act, 1985 before the Special Judge.

(3.) BEFORE we consider the submissions made by the learned counsel for appellants, we take note of the fact that admittedly raid was carried out on the basis of the information received by Asstt. Superintendent of Police Shri. Abdul Rahaman (P.W.4) who conveyed the said information to PSI Shinde who was attached to Gandhi Chowk Police Station. He also claimed that he directed PSI Shinde to take note of the information in the station diary. He further claimed in his evidence that he conveyed the information, which he received on telephone to Superintendent of Police Latur, who was naturally immediate superior officer of (P.W.4 ). But unfortunate part of the prosecution case is that except bare words of witness Abdul Rahaman, there is no tangible evidence to substantiate his claim that the information so received by him was conveyed immediately to his superior and PSI Shinde took entry in station diary about the information as directed by him. This say so, because the prosecution did not examine P. S. I. Shinde as witness in this case though it appears that he was a person in-charge of that police station. It goes without saying that had the prosecution examined PSI Shinde as witness in this case, his evidence would have substantiated and fortified the claim of witness Abdul Rahaman that the information that was conveyed to PSI Shinde, was either reduced into writing or a note thereof was taken in the station diary. That is very material and significant and as could be seen from the provision laid down under Section42 (2) of the NDPS Act of 1985 mandatory one. Section42 (2) of the NDPS Act, 1985, reads as under : " Section42 (2) where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. " Under Section42 (1) empowered officer if has a prior information given by any person, that should necessarily be taken down in writing.