MOHAMMAD RAZZAK PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN a conviction under a charge of some seriousness, the gravity of proof that would be essential in law to fasten the nexus between the accused and the contraband that has been recovered, has once again come up for consideration in the present appeal. Undoubtedly, in cases where contraband is recovered from residential premises and the circumstances indicate that the premises are owned and/or occupied by the accused, but more importantly, where it is established that the accused were in exclusive possession, in the absence of evidence or sufficient reasons or explanation to the contrary, the prosecution would be justified in insisting upon the presumption of guilt being drawn. It is however very necessary in such cases that the evidence be free from doubt, infirmities or lacuna and that every other possibility be excluded. This is all the more so when dealing with offences punishable under the Narcotic Drugs and Psychotropic Substances Act, where the punishments prescribed are extremely heavy. First however the relevant facts.

(2.) ON the afternoon of 19th July, 1992, the Bhadrakali Police Station in Nashik conducted a raid on House No. 3650 in Kathada area of Nashik City. The police were acting on the basis of information received to the effect that accused No. 1 and accused No. 3 are alleged to have been dealing in Ganja and that they had stored such contraband in the residential premises. There is no dispute about the fact that the police had complied with all requisite formalities and that they had gone to the place with two independent panchas. It is alleged that as the police party was approaching the house, the accused No. 1 was seen running away from that place. The Police Head Constable Mali, who is P. W. 1 chased him but he is alleged to have got away. In the course of the raid that was conducted, accused No. 2 and one (Kalyan Khan since deceased) were found in the House No. 3650. The house consists of several rooms and on a search of one of the rooms certain gunny bags were found under a heap of fire wood and unused articles. These gunny bags contained considerable quantities of Ganja. The police searched the adjoining premises when the other two ladies namely accused Nos. 3 and 4 were found present there. Once again certain gunny bags were found from one of the rooms which on examination were found to contain Ganja. The police weighed the contraband and found that in all 107 kgs. of Ganja valued at approximately Rs. 74,900/- were recovered. After drawing representative samples, completing the panchanama etc. the police commenced the investigations. Accused No. 1 was arrested after more than a month and on completion of the investigations the four accused were put up for trial before the Court.

(3.) IT was the defence of the accused that they had been falsely implicated. Whereas accused Nos. 2, 3 and 4 deny any connection even with that area, the accused No. 1 stated that he was only resident in the house but that he was in no way connected with what was recovered from the premises and that he is innocent. The learned trial Magistrate discarded the defence and held all the four accused guilty and convicted them under sections 20 (b) (i) of the N. D. P. S. Act. The accused No. 1 was awarded a sentence of rigorous imprisonment for four years and fine of Rs. 25, 000/- in default rigorous imprisonment for three months and accused Nos. 2, 3 and 4 were awarded rigorous imprisonment for one year and fine of Rs. 10,000/- each in default rigorous imprisonment for two months each. It is against this set of convictions that the present appeal has been preferred.