State Of Maharashtra vs Kondiba Bahiru Thambare

V.G.Bisht, J

This Criminal Appeal has been preferred by the Appellant-State aggrieved by the judgment and order dated 3rd May, 2000 passed by the learned

Sessions Judge, Satara in Sessions Case No. 94 of 1998 whereunder respondent/accused was acquitted of the offence punishable under Section 8 (b)

r/w Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Actâ€​).

The brief facts of the case are:

Shri. V.H.Jadhav, Deputy Superintendent (PW-4) and Shri B.V.Dhavale, Excise Sub-Inspector (PW-5) informant accompanied by panch witnesses

went to the village Bawdhan on 25th February, 1997 and raided certain fields including the field of Kondiba Bahiru Thombare (accused) bearing Gat

No. 211. The prosecution alleged that they found accused growing opium-poppy plants in his field where the wheat crop was standing. Those opium-

poppy plants were 400 in numbers. In the presence of the accused and panch witnesses the opium-poppy plants were uprooted and out of it, two

samples alongwith earth sample were taken from the field under the panchnama.

PW-5 informant later on lodged a report on the basis of which Crime No. 46 of 1997 under Section 8 (b) r/w Section 18 of the NDPS Act came to

be registered against the accused and after necessary investigation the accused was chargesheeted. The accused abjured his guilt and put forth the

case of false implication.

Heard Mr.Konde-Deshmukh, learned APP for the appellant-State and Mr.Borulkar, learned Counsel for the respondent -accused.

Perusal of the record would show that in order to substantiate the charge, the prosecution examined five witnesses.

PW-5 informant stated in his evidence (Exh. 12) that on 25th February, 1997 he was attached to Flying Squad of State Excise Department at

Satara. He was called by the Superintendent and told that a raid was to be effected in the area of Bavdhan for detection of opium-poppy plants. From

Satara, Deputy Superintendent Jadhav (PW-4), two panch witnesses and the constables of the department went to Bavdhan by a jeep. It is his further

evidence that when they reached Thombare Mala in Wakeshwar locality, they found a person working in wheat crop. They asked his name and he

disclosed his name as Kondiba Bahiru Thombare i.e. accused. It is his further evidence that they then counted the plants which were around 400 and

separated two plants as sample and as also soil from the root of those plants and treated it as sample. They sealed it and took the custody of the same.

According to this witness, they then brought the seized contrabands and accused to their office at Satara. They also collected 7/12 extract (Exh. 17)

from the Talathi. The muddemal was kept in his safe custody in his office. On 1st March, 1997, he forwarded sample packets to the office of

Chemical Analyzer, Pune. He then proved his report at Exh. 15.

From the bare reading of the evidence of this witness, it would appear that on 25th February, 1997 he alongwith PW-4 and other staff members

went to the field of accused. The evidence does not clearly show as to gat number of field which this witness and other had raided. It also does not

show in so many clear terms as to who was the owner of that field from where they collected 400 plants. Further, as is claimed in the FIR, there is no

specific evidence as to from where these 400 plants were uprooted.

Suffice to say, there is no absolute clarity coming from the evidence of this witness. What is surprising from his cross-examination is that even he

was not told the name of persons, by Superintendent, whose fields were required to be raided.

Equally important witness is PW-4 Vishnu Hanmant Jadhav. It appears from his evidence (Exh. 11) that on 25th February, 1997 he was working

as Deputy Superintendent in Krishna Sahakari Sakhar Karkhana, Karad. According to him, his Superintendent told him that he wanted to do some

cases at Wai and therefore, he accompanied him. Excise Sub-Inspector Dhavale (PW-5) and other staff members including two panch witnesses

went to Wakeshwar Vasti, Thombare Mala, Bavdhan Shiwar. They were standing by the side of field in which the crop of wheat was grown. They

noticed that there were some plants having white flowers in that field. One person was working nearby that field. PW-5 asked him as to whom that

field belongs to which that person told that it is his field and gave his name as Kondiba Bahiru Thombare. The rest of the evidence of this witness is on

the line of PW-5 as far as collection of 400 plants and sampling etc., are concerned.

The examination-in-chief of this witness clearly shows that when Mr.Dhavale (PW-5) asked the person who was working in the field as to whom

the field belonged, that person not only replied that field belonged to him but also revealed his name. However, in the cross-examination, this witness

stated that in his presence there was no conversation between the accused and Sub-Inspector Dhavale (PW-5) except that PW-5 had asked his

name. This clearly goes to show that except asking identity of the accused by PW-5, nothing more was asked, namely, as to ownership of field and

rightly so because PW-5 in his whole evidence has nowhere stated that he had inquired with accused about the ownership of field from where the

alleged opium-poppy plants were seized.

There is one more reason to doubt the testimony of informant and this witness and the reason for that is cross-examination of PW-4.

In the cross-examination, PW-4 stated that the Talathi and Police Patil were called at that place and that they were not called prior to making of

raid. In sharp contrast, firstly, the presence of Police Patil is nowhere revealed either by panch witnesses or for that matter, by informant in their

substantive evidence respectively. As regards summoning the Police Patil is concerned, who is none other than PW-2, his evidence clearly points to

the fact that right from the beginning he accompanied PW-4 and PW-5 and other staff members.

Thus, the testimony of this witness falls short of in the material particular i.e. summoning of Police Patil. Not only there is perceptible inconsistency

between the versions of PW-4 and PW-5 but at the same time, panch witnesses are also not lagging behind and we say so for the reasons to be

recorded hereinafter.

PW-1 Mahesh Gajanan Shedage stated in his evidence (PW-6) that on 25th February, 1997 he was called by Excise Sub-Inspector Dhavale (PW-

5) in the Excise office. He told him that he wanted to go for raid and therefore, he should accompany him. Accordingly, he went with him. They went

to village Bavdhan. Shende, Javalikar, Rasal and the Excise staff had also accompanied them. Second panch, namely, Nipane was also present there.

They saw that there was wheat crop in the field and in that field, opium-poppy plants of the height of 3-4 ft. were grown. Sub-Inspector asked as to

whom those plants belong. Excise Sub-Inspector had also asked his name and was asked to uproot those plants. The panchnama was drawn. Bundles

were prepared. Two to three bundles were packed and therefore, their signatures were obtained. He then proved the panchnama at Exh. 7.

This witness lastly stated that the bundles were wrapped in a gunny-bag and was marked. The plants were counted and weight was also taken.

He then stated that he cannot tell how many plants were there and what was its weight.

At the very outset, it must be noted that this witness has nowhere attributed the presence of PW-2 Police Patil through out in his evidence. We

point out this fact because PW-4 in his substantive evidence has deposed about the presence of Police Patil at the time of making raid.

The evidence of PW-1 clearly suggests that there were opium-poppy plants in the field where the wheat crop was standing and the owner

Thombare was present. Interestingly, this witness has nowhere stated in his evidence as to how many plants were there. In the cross-examination also

he clearly admitted that he was not in a position to tell as to how many opium-poppy plants were there. If the whole raid was carried out in his very

presence and the fact that prosecution has a specific case of collection of 400 opium-poppy plants from the field, then in all seriousness this witness

ought to have stated the number of opium-poppy plants seized from the field. This definitely is very important aspect which cannot be overlooked.

Then the evidence of this witness points out and again suggests that he was knowing that the accused was the owner of that field. If that was so,

then a question also arises as to how he came to know that the accused was the owner of that field because it is not his evidence that he was knowing

the accused since prior to incident. For the above said reasons, it would not be safe to accept and approve the testimony of this witness.

PW-2 Ashok Gulabrao Bhosale stated in his evidence (Exh. 8) that he knows accused. It is his evidence that when he was sitting in the

Grampanchayat Office, Excise Sub-Inspector came and took him with them for seeing the field. The opium-poppy plants were there. He does not

know the gat number or survey number of that land. The field is owned by accused. In the cross-examination, he stated that he is a Police Patil.

At the very beginning of the appreciation of evidence of PW-1, we have pointed out that PW-1 panch witness throughout in his evidence has

nowhere revealed or attributed the presence of this witness at the time of alleged raid. Even according to PW-4 this witness was called at the time of

raid alongwith the Talathi. It may not be out of place to mention here that this witness being Police Patil of village and the fact that he knows accused

very well was unable to tell the gat number of the land where the opium-poppy plants were found. As already noted, the presence of this witness

being doubtful and it gets further so in the light of his cross-examination where he stated that he does not remember whether the wheat crop was

there in that field or not. It must be remembered here that according to prosecution those opium-poppy plants were seen in the field where wheat crop

was standing. Therefore, inability of this witness to state whether there was wheat crop or not is quite questionable.

His cross-examination then shows that he cannot tell as to who actually was cultivating the land in question from where opium-poppy plants came

to be seized and was also not knowing that the land pertains to accused prior to raid. This certainly implies that he was told by somebody on the date

of raid that the land in question was of ownership of accused. Then comes material omission.

His examination-in-chief showing that the opium-poppy plants were in the field being not part of his statement recorded under Section 161 of the

Code of Criminal Procedure he was therefore confronted in the cross-examination and he insisted that he had in fact stated before the police that

there were opium-poppy plants in the field of accused and he is unable to tell the reason as to why that fact is not mentioned in his statement.

This omission could not be proved by the prosecution inasmuch as the investigating officer was not brought before the Court for the reasons best

known to it. Thus, the defence was deprived of the opportunity of proving this material omission for want of presence of investigating officer. In such

a situation an adverse inference must be drawn against the prosecution.

The oral evidence discussed so far by us definitely presents a gloomy picture and does not in any manner raise confidence in our mind. There are

other shortcomings and pitfalls as well.

The last witness examined by the prosecution is PW-3 Shirish Baburao Jangam who appears to be carrier of the seized muddemal to the Forensic

Science Laboratory, Pune. It is his evidence (Exh.9) that on 1st March, 1997, Excise Sub-Inspector Dhavale (PW-5) gave him two sample packets in

sealed condition and he accordingly carried those sample packets to the office of Chemical Analyzer, Pune. Though findings of the Chemical Analyzer

favours prosecution but we cannot resist ourselves from putting a comment or two on record about the procedure in respect of seized muddemal as

adopted by PW-5 informant.

We have already pointed out from the evidence of PW-5 informant that the muddemal was in his safe custody in his office. He being informant

what he meant thereby that the muddemal was kept in his safe custody is nowhere explained. Absolutely no evidence is adduced by the prosecution to

prove that the seized opium-poppy plants were safely deposited with the concerned in sealed condition after taking proper entry in the register meant

for the purpose. It is also not the evidence of PW-5 informant that he himself was In-charge of the said register and therefore, he was entitled to keep

the custody of the seized articles after he returned to the office.

As is evident from the evidence of PW-3 that the muddemal was carried to the office of Chemical Analyzer, Pune on 1st March, 1997, it is

quite clear that the said muddemal was lying with PW-5 for about five days. Needless to say, there is no evidence of safe custody of the seized

muddemal. In other words, it cannot be said that the prosecution has ruled out the possibility of the sample parcel having not been tampered with by

anybody till it reached the hands of Chemical Analyzer. This circumstance further makes the case of the prosecution a suspect. Thus, seen from any

angle, there is nothing but total failure on the part of prosecution.

A careful perusal of 7/12 extract (Exh. 17) would show that accused is one of the owner of the agricultural land bearing Gat No. 201. It also

shows the joint owners of land in question. The column pertaining to the crops at the relevant time shows that there were groundnuts, rice, ghevada,

dubashalu etc. It nowhere discloses standing of wheat crop whereas the case of prosecution is that opium-poppy plants were found in the standing

wheat crop. The prosecution has not been able to prove and as already noted that it was accused and accused alone who was responsible for alleged

opium-poppy plants.

In the aforesaid premise, we conclude that the learned trial Court has taken into consideration all the material aspects of the case. The prosecution

has not been able to make out good grounds for interference at the hands of this Court. The impugned order being in accordance with law and being

neither perverse nor illegal, the Appeal is liable to be dismissed. Hence, the Appeal is dismissed accordingly.

Bail bonds, if any, shall stand cancelled.