Nagnath Pandhari Mekale vs State of Maharashtra

Davare Shrihari P., J

The challenge in this appeal is to the conviction and sentence inflicted upon the appellant (original accused) by way of judgment and order dated 20.5.1998, by the Special Judge. Latur in Special Case No. 3 of 1997, convicting the appellant u/s 2(iii)(b) r/w section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is punishable u/s 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentencing him to suffer rigorous imprisonment for four years and to pay fine of Rs. 4000/- with default condition of non-payment of fine to further suffer rigorous imprisonment for one year.

The factual matrix of the prosecution case can be summarised as under: -

On 27-1-997, PW 5 P.I. Sambhaji Gutte was proceeding from Shivaji Chowk to S.T. Stand Udgir on feet for patrolling duty at about 5.30 p.m. and reached to S.T. Stand within ten minutes and took a round on the S.T. Stand. He kept vigil out side the police chowky and was watching the passengers. At about 5.45 p.m. to 5.50 p.m. there was a crowd of passengers at the S.T. Stand. There was a police chowky (out post) in the main building of S.T. stand within its premises. The routine vigil was kept on the passengers, who were having ingress and outgress at the S.T. Stand and PW 5 P.I. Gutte was sitting out side the said police chowky. He spotted one person who was going across the crowd of passengers and was moving with a suit case in his hand, and suspected the said person as to whether he was carrying some stolen articles. Hence, PW 5 P.I. Gutte sent PW 3 Police Head Constable Sonkawade to bring the said person by pointing him out. Accordingly, pw 3 P.H.C. Sonkawade rushed towards him and caught the hand of the person and brought him to the police chowky with a suit case in his hand.

It is also the case of prosecution that on interrogation, the said person gave his name as Nagnath Pandhari Mekale i.e. accused herein and he also gave his place of residence as Takali. However, on further inquiry, he gave evasive replies. Hence, PW 5 P.I. Gutte decided to call two ponchos in order to search the baggage of the accused. However, before calling ponchos, the accused again was interrogated regarding keys of the suit case. However, the accused replied that the keys were lost. Hence suspicion was strengthened and Police Constable Kumbhar was deputed to bring the keys from the nearby shop of the suit case. In the mean while two ponchos namely PW 1 Subhash Chole and Banu Hamal were called to police chowky. P.C. Kumbhar brought a bundh of key. During the operation to open the lock of the suit case with the assistance of keys brought by P.C. Kumbhar, one of the keys from the said bunch of keys, befitted two locks of the suit case. After opening two locks of the suit case, while third lock was being opened, the accused revealed the information that there was ganja in the said suit case. Then PW 5 P.I. Gutte informed the accused that he himself was a Gazetted Officer, but if the accused wanted presence of any other Gazetted Officer during the search of the suit case, then the accused may exercise that option, but the accused declined therefore and consented to be searched at the hands of PW 5 P.I. Gutte.

Accordingly, the said suit case was opened in presence of two ponchos and it found to contain plastic bag. The said plas-tic bag was opened and blackish moistful ganja was found therein. Hence, nearby fruit vendor was called along with the weighing scale and its weights to weight the stock of ganja. Moreover, PW 5 P.I. Gutte also gave telephonic instructions to the Police Station to bring lac and necessary articles and requisite material for sampling and sealing purpose. Accordingly, said substance i.e. ganja was weighed and weight thereof was found 6 kgs. when fruit vendor PW 4 Wasim Khan weighed it.

It is further the case of prosecution that two separate samples of 25 gms. each quantity of ganja were separated from the plastic bag for sample purpose and were kept in separate plastic sachets and openings thereof were closed and the said two sachets were kept in a paper packets and both were sealed with lac seal and a slips of signatures of the ponchos as well as PW 5 P.I. Gutte thereon were also affixed on each of the said two packets. Besides, the remaining quantity of ganja was put in a plastic bag and same was also sealed, and signatures of the ponchos and PW 5 P.I. Gutte were put on the label affixed thereon, and same was kept in the suit case. Accordingly, a detailed panchanama was drawn and was signed by the ponchos and copy thereof was delivered to the accused. Thereafter PW 5 P.I. Gutte took the accused and muddemal property to the Police Station, Udgir and he lodged a report in the Police Station and registered the crime under C.R. No. 5 of 1997 on 27.1.1997 at 1800 hours (Exh. 21). Moreover, PW 5 P.I. Gutte gave a report of the afore said search and seizure to his Superior Officer by sending wireless message. Moreover, station diary entry was made to the effect and PW 5 P.I. Gutte arrested the accused and recorded the statements of witnesses including that of PW 3 P.H.C. Sonkawade.

The prosecution case further recites that after observing the necessary formalities, PW 5 P.I. Gutte prepared a forwarding letter on 17-2-1997 for sending the sample packets to the office of Chemical Analyser. However, since the police members were busy in Bandobast, he gave forwarding letter in duplicate along with sample muddemal packets to carrier PW 2 Shivaji Bukte on 19-2-1997 and instructed carrier PW 2 Shivaji Bukte to deliver the same to the Chemical Analyser''s office. Accordingly, PW 2 Shivaji Bukte carried and delivered the said sample packets along with original forwarding letter on 20.2.1997 to the office of Chemical Analyser and obtained acknowledgment on the office copy thereof.

Accordingly, after completion of investigation, PW 5 P.I. Gutte filed charge-sheet against the accused on 25.3.1997. PW 5 P.I. Gutte also received the report from the office of Chemical Analyser on 11.3.1997, which is produced at Exh. 20. The said report of Chemical Analyser is positive for the ganja detected in the sample packets u/s 2(iii)(b) of the Narcotic Drugs and Psychotropic Substances act, 1985 (hereinafter referred to as, the said Act"). Hence, charge was framed against the accused on 21.8.1997 for the afore said offences at Exh. 5. However, the accused pleaded not guilty to the said charge.

To substantial the case against the accused, the prosecution examined in as much as five witnesses as follows :-

PW 1 Subhash Pandharinath Chole, panch.

PW 2 Shivaji Bukte, Police Constable, carrier.

PW 3 Khanderao Sonkawade, Police Head Constable.

PW 4 Wasim Khan s/o Noor Khan, Fruit Vendor.

PW 5 Sambhaji s/o Manikrao Gutte, Police Inspector and Investigating Officer.

The defence of the accused is of total denial and the accused submitted that he has been implicated in this case falsely and claimed to be tried, claiming to be innocent.

After scrutinizing and appreciating the evidence on record learned trial Judge held the accused guilty and convicted him u/s 2(iii)(b) r/w section 8(c) of the Act, and sentenced him to undergo rigorous imprisonment for four years and to pay fine of Rs. 4,000/- with default condition of nonpayment of fine to further suffer rigorous imprisonment for one year.

Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence dated 2.5.1998, the appellant original accused has preferred the present appeal seeking quashment thereof.

In order to advert to the submissions advanced by the learned Counsel for the appellant-accused and the learned Additional Public Prosecutor for the respondent/State effectively, it is necessary to deal with the material evidence adduced and produced by the prosecution on record. In the said context, coming to the deposition of PW 5 P.I. Sambhaji Manikrao Gutte, who is the complainant as well as the Investigating Officer in the present case, he has stated that on 27-1-1997 he was proceeding form Shivaji Chowk to S.T, Stand Udgir on feet for patrolling duty and reached to S.T. Stand within ten minutes and took a round on the S.T. Stand and he kept vigil out side the police chowky and watching the passengers. At his jucture he spotted one person moving with a suit case in his hand and who had made 2-3 trips and neither was going out of the stand nor was catching any bus, and therefore, he suspected the said person as to whether he was carrying some stolen articles. Therefore, PW 5 P.I. Gutte gave instructions to PW 3 Police Head Constable Sonkawade and asked him to bring the said person by pointing him out. Accordingly, PW 3 P.H.C. Sonkawade went towards the said person and caught the hand of that person and brought him to the police chowky with a suit case in his hand. On interrogation, the said person gave his name as Nagnath Pandhari Mekale, resident of Takli i.e. accused herein. PW 5 P.I. Gutte also stated that he asked the accused as to why he was standing at the S.T. Stand and where he had gone, however, he gave evasive replies, and therefore, PW 5 P.I. Gutte decided to call two ponchos in order to check the baggage of the accused, and hence he deputed Police Constable Kumbhar to bring two panchas, and accordingly P.C. Kumbhar returned with two panchas namely PW 1 Subhash Chole and Babu Hamal. He further stated that he interrogated the accused about the key of the said suit case, but the accused stated that it was lost. Hence, the accused was frisked form out side to verify whether he had key by P.C. Kumbhar, but no key was found on his person inside the pockets. PW 5 P.I. Gutte further stated that P.C. Kumbhar was deputed to bring the key from outside so as to open the lock of the said suit case. Accordingly, P.C. Kumbhar brought a bunch of keys PW 5 P.I. Gutte stated that during the operation to open the lock of the suit case with the assistance of keys brought by P.C. Kumbhar, one of the keys from the said bunch of keys, befitted to two locks of the suit case and said two locks were opened, but, while the third lock was being opened, the accused informed that there was ganja inside the said suit case.

PW 5 P.I. Gutte further stated that hence, he told the accused that he himself was a Gazetted Officer and whether accused wanted presence of any other Gazetted Officer during the search of the suit case, but the accused declined therefore. Hence, the said suit case was opened in presence of the panchas and it found to contain plastic bag and mouth of it was found to be closed by string. On opening the said plastic bag, it revealed that it contained blackish moistful ganja. Hence, PW 5 P.I. Gutte deputed P.C. Kumbhar, who brought the nearby fruit vendor PW 4 Wasim Khan along with weighing scale and it''s weights to weigh the said ganja. He further stated that said ganja was weighed and its weight was found to be 6 kgs.

Moreover, PW 5 P.I. Gutte also stated that through telephonic message he called lac, necessary articles and requisite material for sampling and sealing the said ganja. Thereafter, two separate samples, each having 25 gms. quantity of ganja therein were separated from the plastic bag and were kept in plastic sachet separately by covering the same with paper packets and both the packets were sealed with lac seal and labelled with the signature of the panchas as well as, signature of PW 5 P.I. Gutte thereon. Moreover, the remaining quantity of ganja was put in a plastic bag and same was also sealed, and signatures of the panchas and PW 5 P.I. Gutte were put on the label affixed thereon, and same was kept in the suit case (Article 1). Moreover, PW 5 P.I. Gutte drew a detailed seizure panchanama on the spot and put his signature as well as signatures of the panchas thereon, and a copy of the same was given to the accused under his acknowledgment The said panchanama is at Exh. 14. Accordingly, PW 5 P.I. Gutte stated that he took the accused and muddemal property to the Police Station Udgir and lodged the report in the Police Station and registered the crime under C.R. No. 5 of 1997 on 27-1-1997 (Exh. 21)

P.W. 5 P.I. Gutte further stated that he gave information to his superior officer in respect of the afore said search and seizure by wireless message. He also took station diary entry to that effect and arrested the accused and recorded the statements of witnesses including that of PW 3 P.H.C. Sonkawade. Moreover, PW 5 P.I. Gutte prepared a forwarding letter in duplicate on 17-2-1997 and handed over the same along with the sample packets to PW 2 carrier Shivaji Bukte to reach the same to the office of Chemical Analyser. Accordingly, carrier PW 2 Shivaji Bukte carried and delivered the said sample packets along with original forwarding letter on 20-2-1997 to the office of Chemical Analyser and obtained acknowledgment on the office copy there of (Exh. 16). Accordingly, after completion of investigation, PW 5 P.I. Gutte filed charge-sheet against the accused on 25.3.1997. PW 5 P.I. Gutte also received the report from the office of Chemical Analyser on 11.3.1997 and was produced on record at Exh. 20.

During cross-examination, PW 5 P.I. Gutte stated that he did not prepare a detailed and full report for giving information to his Superior Officer in respect of search, seizure and arrest of the accused, except the wireless message. Hence, suggestion was given to him that said wireless message was subsequently prepared in order to comply with the provisions of the Act, but same was denied by him. As regards the seal of the packets, he stated that the packets were sealed only with the seals of Police Station and no other seal was put thereon by anybody else. As regards sending of the sample packets to the office of the Chemical Analyser, he stated that after registration of crime, he directly gave the sealed packets of samples to the muddemal Clerk. He also stated that panch witness Babu Hamal was present at the time of weighing the said ganja. As regards the search of the accused. PW 5 P.I. Gutte stated that there is nothing written in the panchanama or report about frisking of the accused for verification as to whether he had key of the suit case before he called a bunch of key. He further stated that personal search of a suspected person is an important job.

As regards sending the samples to the Chemical Analyser''s office, he stated that no separate note was taken about the date and time of giving the forwarding letter and muddemal articles to the carrier. Hence, suggestions were given to him that the suit case was found as an unclaimed property and accused was caught on suspicion, as well as the alleged suit case was not with him and that no personal search of the accused was taken, but the said suggestions were denied by him, It was also suggested to him that the pcmchanama was prepared on the S.T. Stand, but same was denied by him, It was further suggested to him that stock police witnesses were picked up and the documents were prepared at the Police Station and the accused was falsely implicated in this case, but said suggestions were denied by him. Suggestion was also given to him that accused was not informed about the option available to him for presence of Gazetted Officer or Magistrate but same was also denied by him.

That takes me to the deposition of PW 3 Khanderao Sonkawade, who was on duty at S.T. Stand Udgir on 27.1.1997 from 10.00 a.m. to 21.00 hours and at about 5.45 p.m. PW 5 P.I. Gutte came to S.T. stand police chowky on around and found that there was crowd of passengers at S.T. Stand and at about 5.50 p.m. he spotted one person who was going across crowd of passengers and moving with a suit case in his hand. He also stated that PW 5 P.I. Gutte suspected about the said person and asked PW 3 Sonkawade to bring that person to police chowky. Accordingly PW 3 Sonkawade rushed towards the said person and caught his hand and brought him to Police chowky. Thereupon PW 5 P.I. Gutte asked him as to what was inside the suit case, but he stated that nothing was therein and he had no key of the said suit case since it was lost. Hence, PW 5 P.I. Gutte suspected about the said person and called two panchas including PW 1 Subhash Chole. PW 3 Sonkawade further stated that PW 5 P.I. Gutte apprised the panchas that search was to be taken and suit case was required to be opened. Hence, P.C. Kumbhar was sent to bring the bunch of keys. Accordingly, he went and brought 5-7 keys of different type and one of the keys befitted the lock and the suit case was opened. He also stated that two locks were opened and third lock was being opened, the accused blurted out and stated that the suit case contained ganja.

PW 5 P.I. Gutte then told the accused that he was a Gazetted Officer and whether the accused wanted presence of any other Gazetted Officer or that he should proceed with the search, but the accused declined to exercise the option and asked PW 5 P. I. Gutte to go ahead with the search. Thereafter PW 3 Saonkawade stated that he asked the accused about his name and the accused gave his name as. "Nagnath Pandhari Mekale, resident of Takli, Taluka Latur" and thereafter third look was also opened in presence of ponchos and it found to contain a plastic bag containing some flowers of ganja. A weighing scale was brought from the nearby shop and the said ganja was weighed and it''s weight was 6 kgs.

PW 3 Sonkawade farther stated that two separate samples of ganja having 25 gm. each were taken out and the lac seal and other articles were called from the Police Station and the said plastic sachets were kept into separate packets which were sealed with lac seal and labels with signatures of panchas were affixed thereon. Moreover, the remaining quantity of ganja was again kept in the suit case after the mouth of the bag was closed and same was labelled with the signatures of panchas. A detail panchanama was prepared on the spot and signatures of panchas were obtained thereon and the accused along with muddemal property and the panchanama were taken to Udgir Police Station by PW 5 P.I. Gutte and thereafter he lodged the report against the accused after going to the Police Station and registered the crime and kept the investigation with him.

During cross-examination, an omission was elicited in respect of the version of PW 3 Sonkawade that when third lock was being opened, accused blurted out the at suit case contained ganja as well as omission was elicited in respect of the version of PW 3 Sonkawade that initially the accused stated that there was nothing inside the suit case amounting to omission in his police statement and improvement in his testimony. He also stated in the cross-examination that the accused was frisked for verification of the fact whether he possessed the key, but no key was found with him. He also admitted that at the time of taking personal search of the accused, he was not informed as to whether presence of Gazetted Officer was needed by him. An omission was also elicited in respect of the version of PW 3 Sonkawade that two separate samples of 25 gms. each were prepared amounting to omission in his police statement and improvement in his cross-examination. He also admitted that he does not know from which shop the keys of the suit case were brought. Moreover, he also stated in the cross-examination that there were about 200 to 300 persons present at the S.T. Stand and many passengers were going here and there with suit cases, trunks and other baggages, but no other person was asked to give explanation about the luggage except the accused.

Coming to the deposition of PW 1 Subhash Chole panch witness, who has stated that on 27.1.1997 at about 6.00 p.m. he was called to police chowky at the S.T. Stand and PW 5 P.I. Gutte and two police constables were present there, as well as one person i.e. the accused was having suit case with him. On inquiry by PW 5 P.I. Gutte about the contents in the suit case the accused stated that he was not having key of the suit case and there was nothing therein. Hence, one constable was deputed by PW 5 P.I. Gutte, who brought the bunch of the keys from the nearby suit case shop. Then, PW 5 P.I. Gutte told the accused that search of the bag (suit case) was to be taken and he informed the accused that he himself was a Gazetted Officer and whether accused wanted some other Gazetted Officer to be present or a Migistrate to be present, but the accused declined therefor. Thereafter one of the keys was operated and lock of the suit case was opened and it found to contain one plastic bag having string tied thereon and on opening the same, it found to contain ganja therein. It was weighed on the weighing scale brought from the fruit stall at the S.T. Stand and it''s weight was 6 kg. Accordingly, two samples of 25 gram each were separated from the quantity of ganja and the said packets were packed, labelled and sealed with lac seal, as well as remaining quantity of ganja was put in a plastic bag and the same was labelled and sealed and same was kept in the suit case (Article 1). Accordingly, PW 5 P.I. Gutte prepared a detailed panchanama about seizure of ganja and same was read over to panchas and they signed thereon (Exh. 14) and copy of the said panchanama was given to the accused and his signature was obtained thereon.

During cross-examination, PW 1 Subhash Chole stated that after bringing the keys, the accused informed that the suit case contained ganja and thereafter it was opened. PW 1 Subhash Chole improved his version and further stated in the cross-examination that without asking anything to the accused and without his saying anything first the suit case was opened. He further stated in the cross-examination that PW 5 P.I. Gutte asked the accused that he himself also was a Gazetted Officer and whether presence of any other Gazetted Officer was needed. He further stated that he does not know personally as to when accused was nabbed and taken to the Police Chowky and for how much time he was there before he went there. He further stated in the cross-examination that when the accused informed that he was not having key of the suit case, his pockets were searched by the police, but no key was found while he was frisked. Suggestion was given to him that due to good relations with the Police Officer he was called there and false panchanama was prepared, but same was denied by him. It was also suggested to him that due to suspicion the accused was caught and unclaimed property was shown to have been found to him, but same was denied by him. A specific suggestion was put to PW 5 P.I. Gutte that he did not give any offer in presence of Gazetted Officer on Magistrate, but same was denied by him.

Turning to the deposition of PW 2 Police Constable Shivaji Bukte who was working as Police Constable at Udgir Police Station at the relevant time and on 17.2.1997 he was given forwarding letter by PW 5 P.I. Gutte of Udgir Police Station to carry two sample packets kept in sealed bag belonging to C.R. No. 5 of 1997. He also stated that he received it on 17.2.1997, but due to police bandobast he went to Aurangabad on 19.2.1997 and on 20.2.1997 he delivered the packets in sealed condition to the office of the Chemical Analyser along with original forwarding letter and took the acknowledgment on the office copy from the said office.

However, during cross-examination, he stated that he received the letter and muddemal property on 19.2.2007, and therefore, he did not give any explanation in his police statement. He also admitted that for the first time, he gave explanation that due to police bandobast he could not go earlier. He also stated that whenever a carrier is deputed, muddemal property and the forwarding letter are simultaneously handed over to him. Suggestion was given to him that he received muddemal property on 17.2.1997 along with letter, but he denied the same. It was also suggested to him that he did not request the Police Officer to rectify the date 17.2.1997 shown to him and put the date as 19.2.1997.

On the background of the afore said material evidence on record, learned Counsel for the appellant Shri. Sunil B. Jadhav for the appellant submitted that although it is alleged by the prosecution that it was a chance recovery of contraband from the bag held by the accused, it is admitted position that the personal search of the accused was conducted and when person of the accused was searched, it was incumbent upon the prosecution to comply with the provisions of section 50 of the Act, but same have not been complied with. Moreover, it is also submitted that the appellant/ accused was not apprised that he has got right to be searched before the Gazetted officer or the Magistrate prior to conducting his personal search.

To substantiate the said contentions, learned Counsel for the appellant relied upon the observations in the case of Dilip and Another Vs. State of M.P., which are as follows :-

Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of section 50 of the Act, although required in law, had not been complied with.

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Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case.

In this case, the provisions of section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.

Moreover, it was canvassed by the learned Counsel for the appellant that PW 5 P.I. Gutte asked the accused whether he wanted presence of other Gazetted Officer since PW 5 P.I. Gutte himself was Gazetted Officer and even assuming for the sake of assumption without admitting that the prosecution complied with section 50 of the Act, the said compliance is only part compliance, since the accused was asked only that if he wanted presence of any other Gazetted Officer and accused was not apprised that he has got right to be searched before the Gazetted Officer or the Magistrate and such part compliance of section 50 of the Act vitiates the trial.

Learned Counsel for the appellant also relied upon the observations in the case of Beckodan Abdul Rahiman Vs. State of Kerala, , which are as follows :-

In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (P.W.I). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of section 42 of the Act Similarly the provisions of section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of section 50 is held to have been fulfilled on his (PW 1) asking the accused "whether I should search him in the presence of Senior Officers or Gazetted Officer". The accused was required to be apprised of his right conferred u/s 50 giving him the option to search being made in presence of Gazetted Officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.

It is also argued by learned Counsel for the appellant that PW 3 H.C. Sonkawade stated in his deposition that one of the keys was befitted to the lock and the suit case was opened, and prior to opening the suit case, the accused was never apprised that he has got right to be searched before the Gazetted Officer or the Magistrate. Besides that, PW 3 H.C. Sonkawade has stated in his deposition that when two locks were opened and the third lock was being opened, the accused blurted out that it was containing ganja. Then PW 5 P.I. Gutte told the accused that he was Gazetted Officer and whether the accused wanted presence of any other Gazetted Officer or that he should proceed with the search and the said appraisal was made by PW 5 P.I. Gutte to the accused after opening the suit case and not before and even the said appraisal was restricted to Gazetted Officer only i.e. to the extent of alleged part compliance of section 50 of the Act since, he was not apprised that his search could be conducted before the Gazetted Officer or the Magistrate and all these infirmities lead to vitiating the trial.

Learned Counsel for the appellant further submitted that the shop keeper from whom bunch of keys was brought, has not been examined, as well as although it has come in evidence that there were 200 to 300 persons present at the S.T. Stand, no independent witness has been examined by the prosecution. Moreover, signature of second panch does not appear on the panchanama. So also, although the first information report was lodged on 27.1.1997, copy thereof was sent to the Judicial Magistrate, First Class after two days i.e. on 29.1.1997 at about 4-5 p.m., which leads to the position that the prosecution has fabricated the first information report against the appellant.

As regards sending the samples to the Chemical Analyser''s office, it is contended that PW 2 Carrier Shivaji Bukte has stated two contradictory versions in his deposition that he received the sample packets and forwarding letter on 17.2.1997: whereas stated in the cross-examination that he received the same on 19.2.1997. Admittedly the sample packets were handed over to the Chemical Analyser''s office on 20.2.1997. PW 5 P.I. Gutte stated that he gave the sample packets to muddemal clerk after seizure. However, said muddemal clerk has not been examined and said muddemal register has not been produced to show the proper custody of the sample packets from the date of seizure i.e. 27.1.1997 to 20.2.1997, and therefore, possibility of tampering the said sample packets cannot be ruled out, and therefore, appellant cannot be connected with the Chemical Analyser''s report, and consequently, same cannot be connected with the alleged crime.

Learned Additional Public Prosecutor countered the said arguments and submitted that since there was chance recovery of ganja, that too from the bag held by the accused, and therefore, there is no question of conducting the personal search of the accused, and hence, consequently, there is no question of compliance of section 50 of the Act, since it is not applicable, and therefore, there was no necessity of compliance of section 50 of the Act as canvassed by the learned Counsel for the appellant in the instant case, and hence, trial does not vitiate as canvassed by the learned Counsel for the appellant, and the appellant is not entitled to be acquitted as canvassed by the learned Counsel for the appellant. It is further canvassed that the prosecution has successfully demonstrated the recovery of ganja from the suit case/bag held by the accused and necessary formalities were observed, and therefore, the appellant cannot escape the liability of recovery of ganja from the bag/suit case held by him, and hence, he is liable therefor. Accordingly, learned Additional Public Prosecutor submitted that trial Court has rightly convicted the accused and the reasonings given therefore are proper and logical and same cannot be faulted with and no interference therein is warranted in the Appellate Jurisdiction and further submitted that the present appeal be dismissed confirming the conviction and sentence inflicted upon him. 33. I have perused the impugned judgment and order dated 20.5.1998, as well as perused the oral and documentary evidence adduced and produced by the prosecution on record and considered the submissions advanced by the learned Counsel for parties anxiously, as well as gave thoughtful consideration to the observations made in the judgments cited by the learned Counsel for the appellant and after having comprehensive view of the matter. I am inclined to accept the submissions advanced by the learned Counsel for the appellant since although it is alleged by the prosecution that it was a chance recovery of contraband from the bag held by the accused, it is admitted position and it has come in evidence that personal search of the accused was conducted and when person of the accused was searched, it was incumbent upon the prosecution to comply with the mandatory provision of section 50 of the Act, but considering the evidence on record it is amply clear that same has not been complied with in its letter and spirit Pertinently, PW 5 P.I. Gutte asked the accused whether he wanted presence of other Gazetted Officer, since he himself was Gazetted Officer, however, PW 5 P.I. Gutte has not apprised the accused that he has got right, to be apprised before a Gazetted Officer or Magistrate (emphasis supplied). Hence, even assuming for the sake of assumption without admitting that PW 5 P.I. Gutte asked the accused whether presence of any Gazetted Officer was required since he himself was Gazetted Officer amounting to part compliance to section 50 of the Act, and such part compliance is not their substantial compliance of section of the Act, and therefore, it vitiates the trial, and the observations made in the afore said both the Rulings certainly support the case of the appellant.

Moreover, in the said context of alleged compliance, it is also material to note that there is variance in the testimonies of prosecution witnesses, since PW 3 H.C. Sonkawade stated in his deposition that PW 5 P.I. Gutte told the accused that he was a Gazetted Officer and whether the accused wanted presence of any other Gazetted Officer or that he should proceed with the search and there is no reference in his testimony about the search of the accused to be conducted before the Magistrate : whereas PW 1 panch Subhash Chole stated in his deposition that PW 5 P.I. Gutte told the accused that the search of the bag will have to be taken and he further informed the accused that he himself was a Gazetted Officer and whether accused wanted some other Gazetted Officer to be present or a Magistrate to be present; whereas PW 5 P.I. Gutte himself stated in his deposition that he asked the accused whether he wanted presence of any other Gazetted Officer and he informed him that he also was Gazetted Officer, but there is no reference regarding search to be conducted before the Magistrate and PW 5 P.I. Gutte did not apprise the accused in that respect, and the said variance in the testimonies of above referred prosecution witnesses hampers the case of the prosecution.

Moreover, the shop keeper, from whom the bunch of the keys was brought, has not been examined, as well as although it has come in the evidence that there were 200 to 300 persons present at the S.T. Stand, none of the person from the said persons has been examined by the prosecution as an independent witness. So also although the first information report was lodged on 27.1.1997, copy thereof was sent to the Judicial Magistrate after two days i.e. on 29.1.1997 at about 4.15 p.m. resulting into room for suspicion in respect of fabrication of the said first information report

It is also material to note that there is variance in the depositions of prosecution witnesses in respect of form of alleged ganja, since PW 1 Subhase Chole panch witness stated that there was powder of ganja in the plastic bag which was allegedly recovered from the suit case held by the accused; whereas PW 3 H.C. Sonkawade stated in his deposition that the plastic bag in the suit case contained some flowers of garja and pertinently PW 5 P.I. Gutte stated in his deposition that the plastic bag in the suit case contained blackish moistful ganja and the said contradictory statements made by the prosecution witnesses in their respective depositions create suspicion about the recovery of contents in the plastic bag allegedly found in the suit case allegedly held by the accused and the prosecution has not given any plausible explanation therefor.

Moreover, PW 2 carrier P.C. Shivaji Bukte has made two contradictory statements in his deposition that he has received the sample packets and forwarding letter on 17.2.1997, but contradicted himself and stated in the cross-examination that he received the same on 19.2.1997. PW 5 P.I. Gutte stated in his deposition that he gave forwarding letter and muddemal sample packets to PW 5 carrier Shivaji Bukte on 19.2.1997 with direction to him to deliver the same to the office of the Chemical Analyser, however, admittedly the sample packets were handed over to the office of the Chemical Analyser on 20.2.1997. Admittedly, the alleged search and seizure was effected on 27.1.1997 and PW 5 P.I. Gutte stated in the cross-examination that he directly gave the sample packets to the muddemal Clerk. However, the prosecution has neither examined the muddemal Clerk nor produced the muddemal register on record to show the proper custody of the said sample packets during the period from 27.1.1997 to 20.2.1997.

PW 2 carrier Shivaji Bukte stated that he was busy in bandobast, and therefore, he could not deliver the sample packets immediately to the Chemical Analyser''s Office. Hence, the net result is that there is suspicion whether PW 2 carrier Shivaji Bukte received the sample packets on 17.2.1997 or on 19.2.1997, and even assuming for the sake of assumption without admitting that he received the sample packets on 19.2.1997, he delivered the same to the office of the Chemical Analyser on 20.2.1997, and since no muddemal register is produced on record, the custody of the sample packets from 27.1.1997 to 20.2.1997 is under suspicion, as well as custody of the sample packets from 17.2.1997/19.2.1997 to 20.2.1997 is also under suspicion, if the version of PW 2 carrier Shivaji Bukte and PW 5 P.I. Gutte is accepted, and the possibility of tampering the said sample packets during the said intervening period from 27.1.1997 to 20.2.1997 and from 17.2.1997/19.2.1997 to 20.2.1997 cannot be ruled out, in view of the afore said discrepancies, and hence, the Chemical Analyser''s report Exh. 20 dated 11.3.1997 cannot be tacked with the sample packets, and consequently, accused cannot be connected with the alleged crime.

In the circumstances, there are infirmities, deformities and discrepancies in the prosecution case, as well as variance omissions and contradictions in the versions of prosecution witnesses, as discussed herein above, as well as there is substantial noncompliance of mandatory provision of section 50 of the Act, as referred to herein above and therefore, the conviction and sentence inflicted upon the appellant by way of judgment and order dated 20.5.1998 shall not sustain and same deserves to be quashed and set aside and the appellant/ accused deserves to be acquitted from the charges levelled against him by allowing the present appeal. In the result, present appeal is allowed and conviction and sentence inflicted upon the appellant/ accused by judgment and order dated 20.5.1998, rendered by learned Special Judge, Latur in Special Case No. 3 of 1997 stands quashed and set aside and the appellant/accused stands acquitted from the charges levelled against him. The appellant/ accused is on bail, hence his bail bond shall stand cancelled. Fine amount, if paid by the appellant, be refunded to him.