Sathaliya, Dist. Nizamabad v. The State Of Maharashtra Through Ravindrasingh Rakasing Dhumne

1. Challenge in this appeal is to the Judgment rendered by Special Judge, Jalgaon, in Special Case No. 8 of 2004 whereby appellant-Sathaliya is convicted for offence punishable under Section 20(b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short "the N.D.P.S.Act, 1985") and sentenced to suffer rigorous imprisonment for 5 (five) years and to pay fine of Rs. 25,000/ (Rs.Twenty-five thousand) in default, to suffer rigorous imprisonment for 3 (three) months.

2. Briefly stated, the prosecution case is that on 3.10.2004, Purna-Khandwa passenger train was standing at platform No. 5 at about 2.00 p.m. The departure of train was scheduled at 2.20 p.m. As usual, Police Constable - PW-1-Baburao Padghel and another Constable - Pathan were carrying out random inspection of the bogies. While checking the train, PW-1 Baburao Padghel (P.C.B. No. 938) entered coach No. 817527. It was noticed that the appellant was sitting on a seat bearing berth Nos. 1, 2 and 3. He was having a blue coloured rexin bag in his possession. The bag gave repugnant smell of ""ganja"". Therefore, he was got disembarked from the train alongwith the rexin bag. He was produced before P.S.I.-Dhumne at the railway Police Station. A report was submitted by PW-1 Baburao. Thereupon, P.S.I.Dhumne deputed him to fetch weights of various denominations. A Naib Tahsildar was called. The rexin bag was opened and was found to contain ""ganja"". The "ganja" was weighed in presence of the panchas and Naib Tahsildar. The "ganja" was found to be 8 kg and 700 gms. A sample of 100 gm of "ganja" was separated. The sample packet was thereafter kept in brown envelope, which was sealed. A seizure panchnama was drawn. The sample was sent to Office of the Assistant Chemical Analyzer, Aurangabad, through a carrier. The report of Assistant Chemical Analyzer indicated that the sample contained flowering tops mixed with greenish leaves and stalks. It was reported that the sample was of "ganja" within the meaning of Section 2(iii)(b) of the N.D.P.S. Act, 1985. Consequently, the appellant was charge-sheeted for offence of possessing contraband "ganja" without having any licence or permit to do so.

3. A charge was framed and explained to the appellant. He pleaded not guilty. He denied the accusation as regards possession of the rexin bag containing "ganja". His defence was of simple denial. The prosecution examined in all 6 (six) witnesses in support of its case. On merits, the learned Special Judge came to the conclusion that the appellant was found in possession of the blue coloured rexin bag containing "ganja". Admittedly, the appellant did not possess any licence or permit. So, he was convicted and sentenced for the offence as indicated earlier.

4. Mr. Mukhedkar, learned Advocate appointed for the appellant, would submit that conscious possession of the blue coloured rexin bag is not proved against the appellant. He would submit that the interested testimony of PW-1-Baburao Phadghel cannot be accepted as gospel truth. He argued that though independent persons were available, yet the prosecution failed to obtain help of such persons and thereby reasonable doubt is created about versions of the prosecution witnesses. He argued that the appellant is entitled to benefit of reasonable doubt. As against this, learned A.P.P. Mrs.Khekale supports the impugned Judgment.

5. To begin with, it may be stated that PW-1 Baburao Padghel (B. No. 938) is the only witness, who allegedly came across the appellant, while checking the Coach No. 817527 at about 2.00 p.m., when Purna-Khandwa passenger train was being inspected in routine manner. It is important to note that he was accompanied by other Constables. However, his companion Constables were not examined by the prosecution. His version purports to show that the appellant was found sitting on a seat bearing berth Nos. 1, 2 and 3 holding a bag of blue colour. He made enquiry with the appellant about contents of the bag. His version purports to show that the bag gave smell of "ganja". He further deposed that the appellant told him that it contained "ganja". Thereafter, the appellant was escorted to the railway Police Station alongwith the blue coloured rexin bag. He lodged a written report (Exh.16). The report shows that the appellant was found sitting on the seat of berth Nos. 1 to 3 with blue coloured rexin bag. However, PW-1 - Baburao states that the appellant was holding the blue coloured rexin bag. As a matter of fact, when the appellant was sitting on a large seat of three seater bench, then he had no special reason to hold the bag. There is discrepancy in the version of PW-1-Baburao and the report about the manner, in which the blue coloured rexin bag was found in possession of the appellant. For, the report does not show that it was held in the hands of the appellant. Secondly, it appears from the recitals of the report that no enquiry was made about contents of the blue coloured rexin bag. However, PW-1-Baburao states that the appellant was asked regarding contents of the bag and he confirmed that there was

"ganja"

6. Cross-examination of PW-1 - Baburao reveals that other passengers were present in the Coach though they were sitting in another compartment. His version reveals that the appellant alone was sitting on the seat Nos. 1 to 3, which was adjacent to the entrance door of the Coach. The Police Constables could have enquired with the co-passengers about conscious possession of the appellant. That was not done. No attempt was made to secure presence of independent panchas before the appellant and the rexin bag were brought to the railway Police Station. The rexin bag was not locked.

7. The recitals of the order issued by PW-P.S.I. Dhumne (Exh.17) reveal that contents of the bag were known. Therefore, PW-1-Baburao Padghel was directed to fetch various weights to weigh the "ganja". It is stated in the order (Exh.17) that the appellant was found transporting the "ganja". The rexin bag was probably kept by side of the appellant. In any case, besides the interested version of PW-1-Baburao Padghel (B. No. 938), there is no iota of evidence to attribute conscious possession of the said rexin bag to the appellant.

8. The versions of PW-2-Murlidhar, Taluka Executive Magistrate and PW-4 - Shaikh Jafar lend corroboration to recitals of the seizure panchnama (Exh.20). It appears that PW-4 Shaikh Jafar was well acquainted with P.S.I. Mr. Dhumne. He admits that he is an illiterate person. His version reveals that he visited railway Police Station at about 5.15 p.m. and signed the panchnama at about 5.30 p.m. His version purports to show that panchnama was drawn between 5.30 p.m. and 6.00 p.m. Obviously, since about 2.10 p.m., the rexin bag was lying in the railway Police Station. There was considerable delay in preparing the seizure panchnama. The process was completed by about 6.00 p.m. The seizure from the appellant cannot be said to have been corroborated by these witnesses. For, the seizure panchnama was drawn much later after the appellant was accosted on suspicion and was brought to the railway Police Station alongwith the rexin bag. Hence, versions of these witnesses are not sufficient to attribute conscious possession of that bag to the appellant. The recitals of the seizure panchnama (Exh.20) would show that enquiry with the appellant revealed name of one Mangalsing, as owner of "ganja". No attempt was made to locate identity of said Mangalsing.

9. The other evidence adduced by the prosecution is not of much significance. It comprises of the testimony of carrier of the sample, and the Investigating Officers i.e. P.S.I. Dhumne and P.S.I. Garbade. Their versions have no direct bearing on the question of complicity of the appellant. The Chemical Analyzers report (Exh.27) reveals that "ganja" was found in the sample packet. It is well settled that in a serious case of crime like one under the N.D.P.S. Act, 1985, standard of proof required is of high degree. The uncorroborated testimony of PW-1-Baburao Padghel falls short to reach definite conclusion that the appellant was found in conscious possession of the blue coloured rexin bag containing "ganja". The Apex Court in State of Punjab v. Balkar Singh and Anr. held that act of an accused, who was allegedly sitting on the bags of poppy husk, by itself cannot be regarded as the act of "conscious possession". It is held that the Police could have conducted further investigation to prove that the incriminating document was found with the appellant. It is difficult to say that the appellant was really the possessor of the said six bundles. So also, in "Avtar Singh and Ors. v. State of Punjab" ), the Apex Court had an occasion to consider the question of "conscious possession" in respect of narcotic drug. In the given case, bags containing poppy husk were seized from a vehicle, in which the accused were travelling. One of the accused was found driving the vehicle whereas, other two were found sitting on the bags. The Apex Court held :

The word possession no doubt has different shades of meaning and it is quite elastic in its connection. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants -one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt.

10. For the reasons aforesaid, I am of the opinion that the prosecution failed to establish conscious possession of the "ganja" with the appellant. The impugned order of conviction and sentence is therefore, unsustainable. Hence, the appeal is, allowed. The impugned Judgment is set aside. The appellant is acquitted from the charge, for offence punishable under Section 20(b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be set free, if not required in any other case.