Rama vs State of Maharashtra

P.S. Brahme , J.—This criminal appeal is against the judgment and order passed by the Additional Sessions Judge, Wardha, in Special Case No. 5/2004 dated 16.09.2005 where under the appellant came to be convicted for the offence u/s 20(c) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act), and sentenced him to undergo R.I. for 10 years and pay a fine of Rs. lakh, in default to undergo further R.I. For two years.

The prosecution case in brief was that on 15.07.2004, the Police Sub Inspector, Deepak Khobrabade (PW1) who had been attached to Police Station, Pulgaon, received a secret information that two persons out of whom one was wearing Safari suit and the other who was wearing full-pant and shirt, were keeping in their possession Ganja in front of the get of Pulgaon Cotton Mill. That secret information was then transmitted to the Police Inspector Taiwade after taking entry in Station Diary vide Station Diary Entry No. 29 (Exh. 12). Police Inspector Taiwade, in turn, gave this information to Sub Divisional Police Officer, Pulgaon, on phone, about which Station Diary Entry at Sr. No. 30 was made and permission to conduct raid was sought. Two persons namely Sudhakar Killore (PW2) and Vasant Punjabi (PW4) were summoned to attend Police Station to act as panchas. Then the Police Inspector Taiwade accompanied raiding party as gazetted officer and with PSI 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 Amravati, near Cotton Mill of Pulgaon, four gunny bags were stacked on the ground and one person wearing full-pant and 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, to which he declined. When he 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 weighed 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 was 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 bag, two samples each weighing 50 grams, were separated and the samples drawn were packed and sealed separately. Remaining ganja was also put in the gunny bags. As to the seizure and sealing of ganja that was found, panchnama was drawn. Then the accused persons as well as seized material was brought to the Police Station, Pulgaon where PSI Khobragade lodged the complaint on the basis of which offence was registered vide Cr. No. 3080/2004 against the appellant. On 16.07.2004, PSI Khobragade issued a request letter to the learned Judicial Magistrate, Pulgaon, who, in (sic), after two days, i.e. on J 9.07.2004, 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 19.07.2004. Then, during the process of investigation, the Investigating Officer, on 23.07.2004, sent four samples drawn by PSI 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 27.07.2004, 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 PSI 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. 1,2,3 and 4, and that ganja so detected falls u/s 2(iii) (b) of NDPS Act 1985.

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 PSI Khobragade (PW1), Sudhakar Killore (PW2), Irfan Jufikar (PW3). Vasanta Anandrao Batamwar (PW4), Rajendra Dhale (PW5) and Manik Parote (PW6) who carried Muddmeal 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 u/s 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 15.07.2004. At that 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 PSI Khobragade coupled with the entries made in the Station Diary so also the panchnama 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 PSI Khobragade has, as stated in his evidence, complied with the mandatory requirement u/s 42 of the NDPS 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 PSI Khobragade and further Station Diary 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 NDPS Act. He, therefore, by his judgment and order impugned herein, convicted the appellant and-sentenced him as stated above. Hence this appeal.

Mr. Daga, the Learned Counsel for the appellant submitted that the trial Court has committed grave error in holding the appellant guilty only on the basis of the testimony of PSI Khobragade (P W1) and that too when there was no compliance of the mandatory provisions u/s 42 of the NDPS Act. He pointed out that Section 42 (1) of the NDPS Act naturally, postulate the concerned officer, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, in respect of which an offence punishable under Chapter 4, has been committed, he may conduct search and effect seizure and arrest without warrant or authorization. Section 42 (2) of NDPS Act stipulates that where an officer taken down any information in writing under Sub-section (1), or records grounds of his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior officer. Shri Daga further pointed out that as laid down by the Apex Court in the case of State of Punjab Vs. Balbir Singh, . Section 42 has been held to be mandatory. He submitted that as per the prosecution case, PSI Khobragade, after receiving information secretly, as it was, first informed to the concerned Police Station, on the basis of which Station Diary Entry No. 29 was made. There is nothing to show that the information received by the PSI Khobragade was reduced into writing as required. Then that information, as per the evidence of PSI Khobragade, was communicated to the immediate superior officer on phone about which an entry in the Station Diary at Sr. No. 30 was made. But, to substantiate this fact, except the bare words of PSI Khobragade, there is no evidence. It was vehemently submitted that PI Taiwade to whom the information was given by PSI Khobragade on phone later on, gave the information to SDPS Pulgaon, on phone. If that was so, then it is crystal clear that PSI Khobragade himself did not inform on phone to the immediate superior officer namely the S.D.P.O., Pulgaon, who accorded permission for carrying out the raid. That apart, the entry at Sr. No. 29, nowhere states that PSI Khobragade who received the secrete information, has recorded the grounds of his belief as contemplated under the proviso to sub-Section (1) of Section 42 of NDPS Act. That apart, according to the learned Advocate, the prosecution did not examine the superior officer to whom the information was given much less PI Taiwade who is said to have sent to SDPO the information which was conveyed to him on phone by PSI Khobragade. According to Mr. Daga, the Learned Counsel for the appellant, there is flagrant breach of mandatory provisions u/s 42 of the NDPS Act which vitiates the trial. For that, he placed reliance on the decision of this Court in the case of Syed Yusuf Syed Noor v. State of Maharashtra, 2000(2) B.Cri.C. Wherein it is held that such of those officers mentioned there in, on receiving an information, should reduce the same into writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42 (1) of NDPS Act, and to that extent, they are mandatory. Consequently, the failure to comply with these requirements affects the prosecution case and, therefore, vitiates the trial.

Mr. Daga further submitted that even accepting the version of PSI Khobragade as to the seizure of contraband ganja contained in gunny bags which were stacked by the road side, there is hardly any evidence to clinchingly establish that the said contraband ganja was in conscious possession of the appellant. In that regard, he pointed out that the appellant was found standing by the road side at a place where the gunny bags were stacked. The prosecution brought on record in the evidence that the appellant was apprehended talking with witness Irfan Khan. But, the witness Irfan Khan did not support the prosecution case. The panch witnesses in whose presence the Panchanama of seizure of contraband article from the possession of the appellant was drawn, namely witness Sudhakar (PW2) so also witness Irfan Khan (PW3), has not supported the prosecution case. It is a matter of record that the other person was found sitting on the gunny bags in which the contraband article ganja was stored. It is, therefore, submitted by the Learned Counsel for the appellant that merely because the appellant was found standing there at the place where the gunny bags were stacked by the road side, it is very difficult even to infer that the appellant had any knowledge of the contents of the bags and as such, the prosecution has utterly failed to prove that the contraband article namely ganja that was found, was in conscious possession of the appellant.

Mr. Daga also pointed out that there is disparity in the evidence as regards the Police Officer who gave the information or who communicated the information received-secretly. In that background, it was absolutely necessary for the prosecution to examine PI Taiwade, so also the Police Officer who has accorded the permission for conducting the raid. The Learned Counsel also pointed out that throughout the trial, the properly that came to be seized at the time of raid, was not brought before the Court. The prosecution has not at all proved that there was proper seizure and sealing of the property. He further pointed out that the raid was carried out on 15.07.2004, while the seized property was sent to CA.. on 03.03.2005. It is not known as to where the property was during this period and, therefore, the possibility of tampering with the property cannot be ruled out. In that regard, he has placed reliance on the decision of this Court in the case of Vinayak Dnyanoba Gaikwad and Ors. v. State of Maharashtra, 2004 All MR 1922. Mr. Daga also placed reliance on the decision of this Court in the case of Vinod @ Vinya @ Bhokanya S/o Paitram Gaidhane & Anr. v. State of Maharashtra, 2006 All 53 to support his contention that non-examination of Chemical Analyser and non-production of original article before the Court when there is no proof given of particulars of tests and procedure taken, negated the evidentiary value of the said report.

The Learned Counsel for the appellant, then placed reliance on the decision of this Court in the case of Gangaram Rama Gundkar & Anr. v. State of Maharashtra 2002 All MR 1356 in which it-is held that taking down information and sending copy thereof to superior-officer by sending wireless message is not compliance of the provisions. The provisions requiring to forward a copy of information is mandatory and a written or documentary information is to be forwarded to superior officer and not an oral information. That, a wireless message, if not recorded at the other end, is oral information and sending the same, is not sufficient compliance of the provision u/s 42(2) of the NDPS Act. In such event, wireless message would be on the same footing as an oral information. He, therefore, urged that in view of these serious lacunae in the evidence of the prosecution, the trial is vitiated and appellant is entitled to an acquittal and as such the appeal should be allowed.

Mr. Doifode, the learned APP submitted that in the evidence of PSI Khobragade, it has been proved that the information which he received was communicated to PI Taiwade on phone for which an entry at Sr. No. 29 was taken in the Station Diary and as such, there is sufficient compliance and that has been accepted by the trial Court. He further submitted that the trial Court has accepted the evidence of PW1 in correct perspective. That, there is evidence which has clinchingly established that the appellant was in conscious possession of the contraband article when he was apprehended while he was standing and that is much more so when the appellant himself did not offer any explanation. He, therefore, submitted that the trial Court has rightly found the appellant guilty and has been convicted for the offence and as such, the appeal preferred by the appellant merits no consideration at all and, therefore, the same should be dismissed.

Though the prosecution examined in all six witnesses, it is only the evidence of PSI Khobragade (PWl) who received the secret information and under whose supervision the raid was conducted in which, as alleged by the prosecution, the appellant was apprehended having found in possession of contraband article namely ganja. His immediate superior officer PI Taiwade to whom PSI Khobragade transmitted secret information which was later on, after taking entry in the Station Diary, was said to have been communicated on phone by the PI Taiwade to SDPO, has not been examined by the prosecution for the reasons best known to it. Though the prosecution examined witness Sudhakar Killore (PW2) who acted as punch for search and seizure vide panchnama Exh. 15, he did not support the prosecution. It was the case of the prosecution that along with panch witness Sudhakar, one Vasant Punjabi was the other panch. But, again for the reasons best known to the prosecution, he was not examined. The witness Irfan (PW3) was the third witness examined by the prosecution. As stated in the earlier part of the judgment, his evidence was material as, according to the prosecution, when the appellant was apprehended, he was found talking with this witness Irfan at the place where the said contraband article ganja was stacked in gunny bags. But this witness Irfan did not support the prosecution and as such the prosecution could not lay its hands on his evidence. The fourth witness "was Vasant Batamwar, who, according to the prosecution, carried the sample to the office of the Chemical Analyser for analysis. The other witness Rajendra Dhale was the Police Constable then attached to the Police Station, Pulgaon, who carried the samples received from the Muddemal Moharir to the Chemical Analyser, Nagpur. So the evidence of witness Vasant and Rajendra is of a formal nature and the trial Court has accepted their evidence rightly so. The last witness Police Constable Manik Parote (PW6) was then attached to police Station, Pulgaon. On 23.07.2004, he received the property in this crime with eight sealed samples out of those, four samples were drawn by the learned Judicial Magistrate, First Class, while the remaining four samples were drawn by the PSI Khobragade. His evidence was to the effect that as the property was in his possession in the Police Station, he carried muddemal to the office of C.A. Nagpur. It is the case of the prosecution that C.A. Nagpur accepted only one sample for analysis and, therefore, he returned to Police Station with all seven sealed packets and deposited the same with Muddemal Moharir. As such the evidence of this witness also is of formal nature. It was brought on record by the prosecution that Police Inspector Taiwade transmitted on phone the secret information, to SDPO who, later on, accorded permission for conducting raid. There is an entry to that effect in the Station Diary. But, then the prosecution did not examine the said SDPO to whom-the information was transmitted on phone by PI Taiwade. In my opinion, non-examination of PI Taiwade and the concerned SDPO brings out great infirmity in the prosecution case having regard to the mandatory provisions laid down u/s 42(1) and 42(2) of the NDPS Act. So, considering this position as to the evidence led by the prosecution, it is to be said that the only evidence on which the prosecution could lay its hands or on which the prosecution is banking upon, is the evidence of PSI Khobragade. In other words, his evidence is the only relevant evidence worth to be considered.

As regards the compliance of the mandatory provision u/s 42 of the NDPS Act, witness PSI Khobragade has stated in his examination-in-chief that he received the secret information that near the gate of Mill, two persons are about the carry ganja. He had received the information that one person out of them was wearing safari suit and the other was wearing full-pant and shirt. In respect of that information, a note was taken in the Station Diary vide Station Diary Entry No. 29 (part of Exh. 12). The evidence of PSI Khobragade so also the particulars of Station Diary Entry No. 29, though give description of the persons as regards the possession of ganja with them, their names are not disclosed. It is also pertinent to note that it is no where stated in Entry No. 29 that the said information was received by PSI Khobragade. That apart, there is nothing on record to show that the information received by PSI Khoragade was reduced into writing. Even PSI Khobragade has not stated in his evidence that whatever secret information was received by him, was reduced into writing by him.

PSI Khobragade further stated in his evidence that he transmitted this secret information to PI Taiwade. Then PI Taiwade communicated this information to NDPS on phone and sought permission for conducting raid. According to PSI Khobragade, the SDPO granted permission and a note to that effect was taken in the Station Diary at Entry No. 30. In fact, this entry at Sr. No. 30 is to the effect that the information was given to Police Inspector, on phone and permission was sought from SDPO for conducting the raid. However, the particulars of Entry at Sr. No. 30 show that an entry was taken that information received through the informer was given to Police Inspector that two persons were possessing ganja and they are about to move the ganja from there. Thereafter, Police Inspector Shri Taiwade sought permission from SDPO Pulgaon, Camp Arvi, on phone for conducting raid.

PSI Khobragade was cross-examined by defence in respect of receipt of information and communication of the same to that effect. He stated in his cross-examination, "It is true that apart from Station Diary Entry, I had not recorded secret information received by me on paper. It is true that by getting secret information reducing into writing, I have not sent it to my immediate official superior." He denied the suggestion that he was telling a lie that he had received secret information relating to ganja. He also denied the suggestion that he was telling a lie that he disclosed the secret information to Police Inspector orally. But, to crown this all, he further stated in his cross-examination that it is true that Police Inspector Mr. Taiwade had not sent any information regarding possession of ganja in writing to SDPO. However, he denied the suggestion that he was telling lie that PI Taiwade disclosed the information to SDPO on telephone and obtained his permission to conduct the raid.

Perusal of the record goes to show that the information that was received by PSI Khobragade was not reduced into writing by him. Though he claimed that he transmitted that information to PI Taiwade, there is nothing on record to show that PI Taiwade has reduced into writing the said information. As stated in earlier part of the judgment. Section 42( I) of the NDPS Act, inter alia, postulates the concerned officer, if he has reason to believe from the personal knowledge or information given by any person and taken down in writing that any narcotic drug, in respect of the offence punishable under Chapter 4, has been committed, may conduct search and effect seizure. Section 42(2) stipulates that when an officer takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior It is in this context, in none of the entries, there is even a whisper as to taking such information in writing and recording grounds for his belief under the proviso. As could be seen from the evidence of PSI Khobragade, that he simply transmitted the information to PI Taiwade. Though there is entry to that effect in Station Diary, in the absence of taking down entry in writing and also recording the reasons of his belief, merely taking the entry in the Station Diary is not at all sufficient compliance of the mandatory provisions. I have also pointed out that PSI Khobragade himself, in his evidence, stated that PI Taiwade did not inform to the SDPO the information received by him. In that situation, then at least it was incumbent on the prosecution to examine PI Taiwade to verify or corroborate the version of PSI Khobragade, that in fact, whatever information was received by him was communicated to PI Taiwade. Then to support the statement of PSI Khobragade that the information was communicated by PI Taiwade to SDPO as recorded in Entry No. 30, on phone, it was necessary to examine the concerned SDPO. Therefore, as I have stated earlier, non-examination of PI Taiwade and the concerned SDPO for the reasons best known to the prosecution, evidence of PSI Khobragade even about the receipt of information so also transmitting the same to PI Taiwade, becomes doubtful. That apart, even accepting the evidence of PSI Khobragade as it is, in the absence of any record that the information received was reduced into writing recording therein that he has reason to believe as required under the provisions of Section 42(2) of the NDPS Act, the trial is vitiated.

In this regard, the decision of this Court in the case of Gangarum Rama Gundkar (cited supra), has, been rightly relied upon by the teamed counsel for the appellant. It has been observed that mere communication on telephone not reduced to writing, vitiates the trial for non-compliance of the mandatory provisions of Section 42(2) of NDPS Act. Having regard to the facts of the case at hands, and the infirmities in the evidence of PSI Khobragade and absence of any evidence showing that the information received by him was reduced into writing, so also absence of recording reasons of his belief, the trial is vitiated. The case at hand is on the stronger footing in the sense, neither there is any record about transmitting information on phone except the Station Diary Entry No. 30, not the concerned superior officer SDPO was examined, atleast to show that such information that was alleged to have been communicated on phone, was received by him.

The other decision reported in 2002 All MR 1356 (supra) so also the decision reported in 2004 All MR 1922 (supra); following the decision of the Apex Court in the case of State of Punjab v. Batbir Singh, it has been stated with emphasis that the provisions of Section 42 of the NDPS Act are mandatory and the contravention of the same would affect the prosecution case and vitiate the trial. Sub-Section (2) of Section 42 of the NDPS Act 1985 gives a mandate to authorized officer to forthwith send a copy of information or the grounds of his belief to his immediate official superior.

In the case reported in 2002 All MR 1356 (supra), the information received by the police Officer was communicated to the superior officer by sending wireless message. this Court held that it is not compliance of the provisions of Section 42(2) of the NDPS Act. A wireless message, if not recorded at the other end, is practically an oral information and sending the same is not a sufficient compliance of the provisions u/s 42(2) of the NDPS Act. So it is on this count alone the prosecution against the appellant fails. The trial Court has, therefore, committed an error in recording findings of conviction ignoring the flagrant breach of mandatory provision contained u/s 42(2) of the NDPS Act.

The Learned Counsel for the appellant has rightly submitted that the prosecution has not established beyond doubt that the appellant was in conscious possession of contraband article. In this context, it may be re-stated that except the particulars of the clothes worn by the appellant, there is nothing in the information recorded in Station Diary Entry No. 29 regarding the identification of the appellant. What is more striking is that the name of the appellant is not disclosed in the information received, Now, the situation in which the appellant came to be apprehended was such that by the road side, the contraband articles namely ganja was stacked in gunny bags. What was noticed when the raiding party led by PSI Khobragade reached to that place, was that the appellant was standing nearby and talking with witness Irfan. It is already pointed out that witness Irfan has not supported the prosecution case and as could be seen from the tenor of cross-examination when he was declared hostile, nothing has been elucidated in his cross-examination that he was giving false evidence to favour the defence. The effect of this witness Irfan having not supported the prosecution is that the claim of witness PSI Khobragade that the appellant was talking with Irfan, is falsified. It is a matter of record, as per the prosecution case, that another person who was later on also made an accused in this case and who was a juvenile, was sitting on the gunny bags. So far as the appellant is concerned, all that has been led by the prosecution and brought on record through the evidence of PSI Khobragade is that he was just standing in the vicinity of the place where the gunny bags were stacked. Here again it is eloquent to note that the name of the appellant is not disclosed in the information received. Therefore, merely because of the description of the clothes worn by the appellant, it is very difficult to identify the appellant as a person who was standing in the vicinity of the place where the contraband article was stacked in gunny bags. In this back ground, therefore, even accepting for the sake of discussion that the appellant was present at that place when the raiding party reached there, it is very difficult to infer that the appellant was concerned with the contraband article namely ganja that was contained in the gunny bags, if that is so, then it is difficult to accept the prosecution case that the appellant was in conscious possession of the contraband article. So, in my opinion, the prosecution has, on the evidence on record, also failed to establish clinchingly, beyond reasonable .doubt, that the- appellant was in conscious possession of the contraband article that came to be seized at the time and place by raiding party led by PSI Khobragade. That is the reason why the trial Court has committed an error in accepting the solitary evidence of PS1 Khobragade in that regard.

The Learned Counsel for the appellant also pointed out that the property was seized on 15.07.2004, while the said property was sent to C.A. On 03.03.2005. There is nothing on record to show as to where the property was during this period from 15.07.2004 to 03.03.2005. So, as rightly contended by the Learned Counsel, the possibility of tampering with the property cannot be ruled out. This, in my opinion, brings out again great infirmity in the prosecution case. So, in my considered opinion, the appellant is entitled to an acquittal and as such the appeal preferred by him will have to be allowed and conviction and sentence awarded by the trial Court will have to be quashed and set aside. Hence the order:

The appeal is allowed. The conviction and sentence passed by the trial Court vide its judgment and order impugned is quashed and set aside. The appellant is acquitted. The appellant who is in jail, be released forthwith if not required in any other cases.