ASHOK HARI KHEDKAR Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) In these writ petitions, the order dated 25.8.1999 passed by the Special Judge, NDPS Court, in Special Case No.125 of 1997. is challenged. The accused Gopal Rajlingam, who is the petitioner in writ petition No.1452 of 2002, was the accused in NDPS Special Case No.518 of 1998. In Special Case No.125 of 1997, the accused was prosecuted for the offences under section 8(c), 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which was registered at C.R. No.170 of 1996. It was a case of the prosecution that 10 gms of heroin along-with 3 audio cassettes were found in his possession. The 10gms heroin and audio cassettes were seized by the police under panchanama dated 29.11.1996 from the house at Colaba of Gopal Rajlingam, the petitioner in Writ Petition No.1452 of 2002. After going through the contents in the audio cassette, the police found that though the petitioner Ashok Khedkar was a police officer at the relevant time, when he was on duty, he had in connivance with the petitioner Gopal Rajlingam and the other coaccused have committed offence under section 59 of the NDPS Act. Thus, both the accused and the co-accused were also prosecuted for the offences punishable under sections 59 and 27(a) of the NDPS Act read with sections 201, 204, 218 and 34 r/w section 120B of the Indian Penal Code.

(2.) The trial of the NDPS Case No.120 of 1997 wherein Gopal Rajlingam was the only accused commenced and concluded in acquittal of the petitioner by judgment and order dated 25.8.1999 by Special Judge, NDPS Court. Thereafter, the trial of the NDPS Special Case No.518 of 1998 commenced on 18.9.2001 and PW1 was examined. Thereafter, the prosecution wanted to tender and rely on panchanama dated 29.11.1996 in respect of seizure of the articles i.e., three audio cassettes. Therefore, on the point of issue estoppel, the defence filed application (exhibit 75) objecting to admit the seizure panchanama dated 29.11.1996. The learned Judge by order dated 16.8.2002, which is the subject matter of these writ petitions, dismissed the said applications, hence, these writ petitions.

(3.) Both the learned Counsel for the petitioners submitted that the seizure panchanama dated 29.11.1996 was disbelieved by the learned Special Judge in NDPS Case No.125 of 1997 and the petitioner accused was acquitted. The said judgment of acquittal was not challenged by the State in appeal. Hence, the said judgment and the issues on the facts decided by the said Court attained finality; so is the case of seizure panchanama of the cassettes. The learned Counsel has relied on section 300 of the Code of Criminal Procedure and mainly on the ratio laid down in the judgments of the Supreme Court in Pritam Singh & anr. v. The State of Punjab 1956 Cri.L.J. 805; Manipur Administration, Manipur v. Thokchom Bira Singh 1965(1) Cri.L.J. 120 and in the case of Ashwani Kuma alias Ashu & anr. v. State of Punjab(2015) 6 SCC 308.