LAXMAN SANTRAO MUSALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge in this Appeal is to Judgment rendered by learend Sessions Judge, Aurangabad in Special (NDPS) Case No. 14/2006, whereby the appellant has been convicted for offence punishable under section 8 (c) read with section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic substances Act, 1985 (for short "n. D. P. S. Act") and is sentenced to suffer rigorous Imprisonment for Ten (10) years and fine of Rs. 1,00,000/- (Rupees one Lakh only) in default to undergo Rigorous Imprisonment for (6) six months.

(2.) Briefly stated, the prosecution case is that Police party headed by A. P. I. Jeevan Mundhe was doing patrolling duty on Aurangabad - Paithan road in the night between 21st and 22nd July, 2006. While they were proceeding from near nath Paper Mills in a police jeep vehicle, at about 3. 00 a. m. , they noticed that one Uno Fiat car vehicle was coming from Paithan side. A. P. I. Jeevan Mundhe intercepted the car vehicle on the road. The appellant was driving the car vehicle bearing Registration No. MH-31/z-9656. No one else was in the car. On enquiry, the appellant gave his name and address, but, gave evasive replies to other querries. A. P. I. Jeevan Mundhe asked the appellant to open dickey of the car vehicle with a view to check the contents. The appellant opened the dickey. A. P. I. Jeevan Mundhe and other police officials found that there were two (2)gunny bags in dickey of the car. Those bags gave repugnant smell of ganja. On further enquiry, the appellant informed that it was stock of "ganja". So, A. P. I. Jeevan Mundhe informed P. S. I. Waghmare and also gave information to his superior authority that 'ganja' was found in the car vehicle. Thereafter two (2)panch witnesses were called. A scrap dealer from nearby place was also called to weigh the contents of the gunny bags. The appellant was informed of his right to have the search in presence of a Gazetted Officer. The appellant declined to exercise such right. The ganja that was found in both the gunny bags was thereafter weighed. It was found to be 44 Kgs. A sample of 100 Gms. of ganja was collected from the stock. The samples were separately filled in two (2)brown packets. The brown packets were separately put in two (2) polythene bags. The mouths of the polythene bags were closed by means of flame of candle. Each of the sample packet was affixed with labels signed by the panchas and the police officer. The sample packets were affixed with Lakh seals. Thus, two (2) sample packets marked S-1 and S-2 were prepared. The remaining ganja was refilled in the gunny bags, which were sealed and marked as P-1 and P-2. The appellant was found in possession of Rs. 295/- (Rupees Two Hundred Ninety Five only ). The cash amount was seized and was put in a separate packet, which was sealed. A photographer was called to take photographs of the process of conducting the recovery panchanama. The appellant was lateron taken to the M. I. D. C. Police station at Paithan. A. P. I. Jeevan Mundhe gave report against the appellant. Crime no. 6006/2006 was registered on the basis of his report. The appellant was arrested. Further investigation was carried out by P. S. I. Waghmare. One of the sealed sample packets was sent to the Chemical Analyser through a carrier. The chemical Analyser gave report to the effect that the sample contained greenish flowering tops, pieces of greenish leaves seeds and stalks. The Chemical analyser reported that it was 'ganja', which falls within the meaning of definition Under section 2 (iii) (b) of the N. D. P. S. Act. The appellant was thereafter charge-sheeted and tried before the learned Special Judge for the offence punishable under section 20 of the N. D. P. S. Act.

(3.) Mr. Damle strenuously argued that the recovery panchanama (Exh. 19)is only a farce. He would submit that when the Ganja was found in the dickey of the car, the subsequent recovery panchanama in presence of panchas is rather a formality which was performed to complete the process. He argued that in absence of proper evidence to prove recovery of the Ganja, it could not have been held that the appellant was in conscious possession of the same. He pointed out that there is no tangible evidence to attribute ownership of the car vehicle to the appellant. The learned Advocate would further submit that when Malkhana register was not produced to prove that the samples of ganja and seized stock had been duly deposited with the proper custodian, the link between the report of the chemical Analyser and the sample collected from the stock was missing. Mr. Damle further argued that versions of the police officers are not worthy of credence. A. P. I. Jeevan Mundhe did not locate identity of the car owner. He points out that no driving licence was recovered from the appellant. He urged to give benefit of reasonable doubt to the appellant. The learned A. P. P. , however, supports the impugned Judgment.