SAHEBLAL NABILAL BAGWAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant having been convicted under section 20 (b) of the N. D. P. S. Act and sentenced to RI for one year and to pay a fine of Rs. 5,000/- in default to suffer RI for 4 months has preferred this appeal challenging the order of conviction and sentence recorded against him on 27-7-1992 by the 6th Additional Sessions Judge, Solapur.

(2.) THE appellant along with another accused was prosecuted for offence under section 20 (b) of the N. D. P. S. Act and alternatively under section 66 (1) (b) of the Bombay prohibition Act in Sessions Case No. 75 of 1992 for being found in possession of 350 gms. of ganja in a plastic packet which was found near him. He was sitting along with accused no. 2 at Mulla Baba Tekdi at about 12 in the noon. When the police party attached to the Security Branch at Solapur was on patrolling duty within the jurisdiction of Fauzdar Chawdi police Station they saw the appellant and another accused sitting with a plastic bag. On suspicion they were apprehended, panchas were called and the plastic bag and their person was searched when 350 gms. of ganja was found in the plastic bag and cash of Rs. 10 was found on the person of the appellant. Two ganja packets were found on the personal search of the accused No. 2. Sample of 50 gms. was taken from the ganja found in the plastic bag and the panchanama was prepared. 50 gms. of ganja was wrapped in a piece of paper and the label was put on it. Thereafter the contraband and the accused were brought to the police station and the complaint of PW 1 Bharat Jadhav, Police constable was lodged on the basis of which crime was registered under C. R. No. 55/91. Head Constable Shinde PW 5, who was in charge of the police station, handed over the property to PW 4 Police Constable Manjare who entered the property at Sr. No. 53 in the property register. The entry was signed by PI Chavan. It appears that the samples were sealed on 25-4-1991 and were sent to the office of the CA on the following day. The CA reports which are at Exhibits 22 and 23 show that the sample packets contained ganja. After completion of the investigation charge-sheet was filed. Before the Sessions Court charge was framed against the accused under section 20 (b) of the N. D. P. S. Act and alternately under section 66 (1) (b) of the Bombay Prohibition act to which the accused pleaded not guilty.

(3.) BEFORE the trial Court five witnesses were examined on behalf of the prosecution. PW 1 is Bharat Jadhav who was a member of the raiding party and has lodged complaint (Exh. 10) after the raid and seizure of the contraband. PW 2 is jaypal Gadage who was panch to the panchnama of seizure who had turned hostile and denied the entire case of the prosecution except admitting his signature on the panchnama and on the labels when they were shown to him at the trial. PW 3 is Yakub Shaikh, Head Constable who was a member of the raiding party. PW 4 is Pandurang Manjare, Police Constable who put the seal on the sample packet at the police station on 25-4-1991 and also prepared a letter dated 25-4-1991 for sending the sample packet to the CA and took the said letter and sample packets to CA on 26-4-1991. PW 5 is Tulshiram shinde who was in-charge of the police station who registered the offence under C. R. No. 55 of 1991. He admits in his cross-examination that he did not inform his superior officer about the receipt of the panchnama.