RAMA NAGORAO BHAGAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal appeal is against the judgment and order passed by the additional Sessions Judge, Wardha, in Special case No. 5/2004 dated 16-9-2005 where under the appellant came to be convicted for the offence under Section 20 (c) read with Section 8 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the N. D. P. S. Act) , and sentenced him to undergo R. I. for 10 years and pay a fine of rs. 1 lakh, in default to undergo further R. I. for two yeans.

(2.) The prosecution case in brief was that on 15-7-2004, the Police Sub-Inspector, deepak Khobragade (P. W. I) who had been attached to Police Station, Pulgaon, received a secret information that two persons out of whom orre was wearing Safari suit and the other who was wearing full-pant and shirt, were keeping in their possession Ganja in front of the gate of Pulgaon Cotton Mill. That secret information was then transmitted to the Police inspector Taiwade after taking entry in Station dairy vide Station Dairy Entry No. 29 (Exh. 12). Police Inspector Taiwade, in turn, gave this information to Sub-Divisional Police Officer, pulgaon. , on phone, about which Station Dairy entry at Sr. No. 30 was made and permission to conduct raid was sought. Two persons namely Sudhakar Killore (P. W. 2) and Vasant punjab (P. W. 4) were summoned to attend Police station l:o act as panchas. Then the Police inspector Taiwade accompanied raiding party as gazelted office and with P. S. I. Deepak khobragade and panch witnesses and others, went to Pulgaon Cotton Mill, Pulgaon. When they reached that place, they found that on the road leading from Pulgaon to Amaravati, near cotton Mill of Pulgaon, four gunny were stacked on the ground and one person wearing full pant shirt was sitting on those gunny bags, whereas the other person who was wearing safari suit, was standing near those gunny bags and talking with the: person by name Irfan Jufikar Khan who has been examined as prosecution witness no. 3. It is the case of the prosecution that the person wearing safari suit disclosed his name as Rama Nagorao Bhagat, the appellant herein. When he was interrogated as to the contents of the gunny bags, he told that the gunny bags contained chillies. He was immediately informed about the information received that the gunny bags contained Ganja. He was asked about the option of having presence of the Gazetted officer, l:o which he declined. When the gunny bags were opened, not only chillies but Ganja was also found therein. Ganja was separated from the chillies and the gunny bags were given separate serial numbers 1 to 4. Ganja was found in each gunny bag which was weighted separately for notifying the exact weight of chillies, gunny bags, polythene bags etc. In gunny bag no. l, 30 kg. wet ganja was found, in gunny bag no. 2,31 Kg. wet ganja wag found, in gunny bag no. 3, 32 kg. wet ganja was found, and in gunny bag no. 4, 49 kg. wet ganja was found. From out of each gunny gag, two samples each weighing 50 grams, were separated and the samples drawn were packed and sealed separately. Remaining garrja was also put in the gunny bags. As to the seizure and sealing of ganja that was found, panchanama was drawn. Then the accused persons as well as seized material was brought to the Police Station, Pulgaon where P. S. I. Khobragade lodged the complaint on the basis of which offence was registered vide Cr. No. 3080/2004 against the appellant. On 16-7-2004, p. S. I. Khobragade issued a request letter to the learned Judicial Magistrate, Pulgaon, who, in turn, after two days, i. e. on 19-7-2004, certified the inventory after weighing seized ganja as well as the samples. The samples were sealed under the seal of the learned Judicial magistrate. The ganja as well as the samples drawn by the learned Magistrate were again deposited in Malkhana of the Police Station on 19-7-2004. Then, during the process of investigation, the Investigation Officer, on 23-7-2004, sent four samples drawn by P. S. I. Khobragade, so also four samples drawn by the learned Judicial Magistrate, to the office of the Chemical Analyser, Nagpur, through the police Constable Manik. However, the official working at the office of C. A. Nagpur, returned those samples by saying that the Forensic laboratory will accept only one sample for chemical analysis. Those samples were again returned to Police Station and deposited in the malkhana. On 27-7-2004, four samples drawn by the learned J. M. F. C. were sent for analysis, through P. C. Rajendra. On completing routine investigation, charge-sheet against the appellant was filed. The other accused Nitu Dawande who was found to be juvenile, was dealt with separately. Subsequently, four samples drawn by P. S. I. Khobragade were sent to the office of C. A. Nagpur with Police Constable Manik. As per the report of the C. A. Exh. 64, ganja was detected in Exhs. l, 2, 3 and 4, and that ganja so detected falls under Section 2 (iii) (b) of n. D. P. S. Act, 1985.

(3.) The trial Court framed the charge vide Exh. 27. The accused pleaded not guilty and claimed to be tried. In order to bring home the guilt, the prosecution examined in all six witnesses including P. S. I. Khobragade (P. W. 1) , sudhakar Killore (P. W. 2) , Man Jufikar (P. W. 3) , vasanta Anandrao Batamwar (P. W. 4) , Rajendra dhale (P. W. 5) and Manik Parote (P. W. 6) who carried Muddemeal to the office of C. A. The defence of the accused, as gathered from the tenor of the cross-examination of prosecution witnesses, as well as the statement recorded under Section 313, Cr. P. C. and written statement Exh. 74, is that of total denial. According to him, he as well as Nitu Dawande were going from the road in front of the Police station on 15-7-2004. At the time, a Jeep of police Station, Pulgaon, came towards them at a very fast speed. However, the accused could manage to rescue themselves. It is further stated that as the accused abused the Police Officer, they were falsely implicated in the case. The trial Court, accepting the evidence of P. S. I. Khobragade coupled with the entries made in the Station Dairy so also the panchanama of seizure of contraband article ganja from the spot where the appellant was found standing by the side of the road, came to the conclusion that the prosecution has established that the appellant was in conscious possession of ganja and that p. S. I. Khobragade has, as stated in his evidence, complied with the mandatory requirement under Section 42 of the N. D. P. S. Act, as regards the seizure of contraband article, and found the appellant guilty for the offence with which he was charged. In substance, he found that making the Station Diary Entry no. 29 about the secret information received by p. S. I. Khobragade and further Station Dairy entry No. 30 informing about this information so received to the superior officer S. D. P. O. on phone in that regard, was sufficient compliance of the mandatory provisions of Section 42 of n. D. P. S. Act. He, therefore, by his judgment and order impugned herein, convicted the appellant and sentenced him as stated above. Hence this appeal.