Riyazuddin Quazi Vs. State of Maharashtra - Court Judgment

Oral Judgment:

1. This criminal appeal takes exception to the judgment and order dated 28.02.2001, passed by the Special Judge (N.D.P.S. Court), Nagpur in Special Case No.32/1999, whereby the appellant came to be convicted for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the N.D.P.S. Act") and is sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.3000/-, in default to suffer further rigorous imprisonment for three months.

2. Briefly, it is the case of prosecution that on 04.06.1999 P.W.1 PSI Deokare was attached to Panchpaoli Police Station. At about 11:00 a.m. he received a secret information involving appellant in a transaction of selling ganja at Ekta Colony, N.I.T. Qtr. No.B-15/171 to his customers. This information was reduced into writing and was forwarded to the superior officer - Police Inspector. P.W.1 thereafter in the presence of two panchas, made arrangement for effecting raid by arranging weighing scale, sealing material and on taking station diary entry proceeded to the spot at about 11:45 a.m. along with P.I. Shri D.R. Moon, the Gazetted Officer. On reaching to the spot PSI Deokare, knocked the door and gave a call to find out if anybody was in a room situated on the first floor of the building. In response to the call, appellant came out of the house to whom PSI apprised information received by him, and on having introduced himself, panchas and other police team, informed the appellant that his house search was to be obtained. On inquiry appellant disclosed his name as Kazi. PSI Deokare apprised the appellant of his right of search to be obtained in presence of a Gazetted Officer or a Magistrate, to which appellant declined, accordingly the premises came to be searched wherein 1.530 Kg. of contraband ganja came to be found in a polythene bag. Two samples of 40 grams each were taken out of same and bulk quantity of contraband was separately sealed and seized under panchnama.

3. Appellant along with seized Mudemal articles and accused were brought to Panchpaoli Police Station. P.W.1 Deokare lodged his report against the appellant and registered the offence vide Crime No.6094/1999 under Section 20 of the N.D.P.S. Act. During the course of investigation samples were forwarded for its analysis to Chemical Analyzer at Nagpur on 05.06.1999 and the bulk quantity of ganja-mudemal articles were deposited in the Malkhana. The samples were certified to be positive for ganja. Accordingly, charge-sheet came to be filed.

4. Charge is framed against the accused for the offence punishable under Section 20(b)(i) of the N.D.P.S. Act, to which accused did not plead guilty and claimed to be tried. The defence of the accused is of total denial.

5. On considering the evidence on record, the learned Special Judge convicted the accused as stated above. Hence, this appeal.

6. I have heard Shri Qazi, the learned counsel for the appellant and Ms. Udeshi, the learned Additional Public Prosecutor for the respondent/State.

7. To effectively evaluate the submissions advanced by the learned counsels for both the sides, with their assistance, I have scrutinized the evidence on record.

8. Admittedly, the case of the prosecution is based on information received by P.W.1 Deokare P.S.I. on 04.06.1999 at around 11:00 a.m. and as such mandatory provision of Section 42(1) and (2) of the N.D.P.S. Act are attracted in the present case.

Further, since it is the case of the prosecution that the contraband ganja was seized from a house occupied by the appellant and as nothing incriminating was found on the person of accused, admittedly, no mandatory provisions of Section 50 of the N.D.P.S. Act are thus attracted in the present appeal. In the background of above facts and mandatory provision, I have first considered the evidence on the record.

9. P.W.1 PSI Deokare has stated that on 04.06.1999 while on duty to Panchpaoli Police Station at about 11:00 a.m. he received a secret information involving accused in a transaction of sale of ganja at Ekta Colony, N.I.T. Qtr. No.B0-15/ 171. According to said witness, on receiving information he gave written report about this information to P.I. Moon and has proved the same on record vide Exh.16. It is further stated that on the basis of Exh.16, P.W.1 P.S.I. Deokare was granted permission to conduct a raid and accordingly by taking station diary entry at Sr. No.36, raid was carried out. In so far as the evidence of P.W.1 with reference to mandatory provisions of Section 42(1) of N.D.P.S. Act, is concerned he is silent about his reducing information received by him into writing. Though the learned Additional Public Prosecutor has submitted that evidence of P.W.1 substantially establishes compliance of said provision. I am not inclined to accept said submission as even otherwise on considering the contents of Exh.16, it appears that by issuing said communication to P.I. Panchpaoli Police Station. PSI Deokare has sought direction to take proper action in respect of information received by him as above.

In the light of above evidence, thus, it cannot be said that the prosecution has even established strict compliance of Section 42(2) of the Act as evidence of P.W.1 Deokare is silent to the effect that on receiving the information he reduced the same into writing and forwarded copy thereof to his immediate superior officer, as contemplated under Section 42(1) (2) of the Act. Even otherwise it is pertinent to note that P.W.1 Deokare, in the cross-examination has clearly admitted that he did not reduce the information into writing on separate sheet of paper. While Exh.16 cannot said to be issued in compliance of Section 42(1) but as already stated earlier, it is communication made by said witness to his superior officer seeking directions to take further steps on the basis of information received by them.

In the light of above facts involved in the appeal, I find it useful to rely on the decision of the Apex Court in the case of Kishan Chand vs. State of Haryana reported in A.I.R. 2013 SC 357 in which Apex Court has observed that "the provisions like Section 42 or 50 are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial".

As already stated earlier, since the alleged contraband ganja involved in this appeal is recovered from the house, no compliance of Section 50 of the N.D.P.S. Act is attracted. However, evidence of P.W.1 Deokare on this aspect when considered, even does not appear to be satisfactory in compliance to the provisions of Section 50 of the Act as it has come in the evidence that before obtaining search what was apprised to appellant was that if appellant desires to give search in the presence of Gazetted Officer or Magistrate it can be arranged before the search is obtained. P.W.1 further stated that he has apprised accused of his entitlement in the presence of Gazetted Officer or Magistrate. When above evidence is considered, it appears that evidence of P.W.1 is silent about apprising appellant of his right to have his search to be obtained in the presence of Gazetted Officer or Magistrate. As such prosecution has also failed on this count since as it did not establish strict compliance of Section 50 of the N.D.P.S. Act.

10. Evidence of P.W.1 Deokare further reveals that, the house wherein the appellant was alleged to be found along with the contraband ganja is situated on the first floor of the building at Ekta Colony N.I.T. Qtr. No.B/15/171. Similar is the evidence of P.W.2 Anil Awale who was accompanying the raiding team and has acted as a panch. In view of above evidence the learned counsel for the appellant had canvassed that there is nothing on record to establish that the appellant was sole owner of the premises where from contraband was recovered nor it is established by the prosecution that appellant alone was in possession of said premises as there is nothing on record to establish above aspect.

11. To counter this submission, the learned Additional Public Prosecutor Ms. Udeshi had submitted that said issue cannot be raised in appeal as according to her there is no cross-examination to P.W.1 or P.W.2 the panch on this aspect at the time of trial. In support of her submission the learned Additional Public Prosecutor has relied upon the decision in the case of Dalel Singh vs. State of Haryana reported in A.I.R. 2009 (Supp) 2880. In that case contraband charas was found in a house which was described as "gher" (compound), and it was contended that there was no evidence collected regarding the ownership of the premises from where the contraband charas was seized. The contention raised as such however, was not considered observing that it cannot be urged at that stage, as both the courts below accepted that the house actually belonged to the appellant and the concerned room was within the gher and was in his possession. Having considering the facts involved in the case of Dalel Singh referred supra, the law relied by the learned Additional Public Prosecutor cannot be made applicable to the appeal on hand, as it is not the case that said issue of ownership of premises was raised in appeal for the first time. In fact, P.W.1 PSI Deokare - Investigating Officer is cross-examined on this aspect and has admitted that during the course of investigation he had not collected any evidence to show that the house which was subjected to search belonged to or was exclusively possessed by the appellant. By going further, Investigating Officer admitted that he has also not collected any evidence to show if appellant was alone residing in the house which came to be searched. In view of admission, as above, prosecution has failed to establish that at the time of incident appellant was exclusively found in possession of ganja or that he was owner of the house where from ganja is alleged to be recovered.

12. From the evidence of P.W.3 Raghunath Sormare - Head Constable and P.W.4 Gangadhar Kodape - Police Constable, prosecution can said to have established that after the raid was conducted on 04.06.1999, sample were deposited with P.W.3 and on the same day the samples drawn were forwarded to Chemical Analyzer in sealed condition through P.W.4 Gangadhar while bulk quantity of ganja was deposited in the malkhana room, and in spite of the fact that the Chemical Analyzer report certified that sample sent for its analysis tested positive for ganja, this evidence by itself is not sufficient to establish the guilt of the appellant. In the absence of compliance of mandatory provision as above and also since the prosecution has failed to establish that the appellant had exclusive possession over the house where from the contraband ganja was seized, the prosecution has failed to establish the guilt of the accused.

13. In that view of the matter, I find that the prosecution has failed to establish charge levelled against the appellant beyond reasonable doubt. In the circumstances, the appeal succeeds. Hence the following order.

The appeal is allowed.

The judgment and order passed by the Special Judge, Nagpur on 28.02.2001 in Special Case No.32/1999 is set aside. The appellant is acquitted of the offence punishable under Section 20 (b) (i) of the N.D.P.S. Act.

His bail bond stands cancelled. Fine amount, if any, is paid be refunded to the appellant.