(1.) By this appeal, the appellant/accused is challenging the judgment and order dated 31st August 2010 passed by the learned Special Judge under NDPS Act, Greater Bombay, Mumbai, in NDPS Special Case No.2 of 2009, thereby convicting the appellant/accused of th offence punishable under Sections 8(c) read with 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He is sentenced to suffer rigorous imprisonment for 10 years apart from directing him to pay fine of Rs. 1,00,000/and in default, to undergo further rigorous imprisonment for 1 year. He, however, is acquitted of the offence punishable under Section 8(c) read with Section 29 of the NDPS Act.
(2.) Facts in brief leading to the institution of the present appeal can be summarized thus :
(a) PW3 Assistant Police Inspector (A.P.I.) Kedare Pawar was attached to Anti Narcotic Cell (ANC), Azad Maidan Unit of Mumbai. On 11th August 2008, at about 7.00 a.m., he received information from his informant to the effect that at about 10.45 a.m. of that day, the appellant/accused is coming to Matoshri Ramabai Ambedkar Prasuti Gruha, Chembur, Mumbai, for selling charas, after purchasing it from Ajay alias Babli, resident of Uttar Pradesh. This information is recorded in the Station diary by PW3 A.P.I. Kedare Pawar. This information was then transmitted to PW5 Police Inspector(P.I.) Vilas Chavan. Telephonic information about this information was given to Assistant Commissioner of Police as well as Deputy Commissioner of Police. PW3 A.P.I. Kedare Pawar, was directed by the Deputy Commissioner of Police to take necessary action under leadership of PW5 P.I. Vilas Chavan.
(b) PW5 P.I. Vilas Chavan then called his staff members and disclosed the information received from PW3 A.P.I. Kedare Pawar to them. Two panch witnesses namely PW6 Chandrakant Kengare and Manik were summoned through Police Constable Pisal. Necessary entry was taken in the Station diary. Material required for effecting raid was summoned.
(c) Panch witnesses were asked about their willingness to participate in the trap. After their consent, panchas took personal search of members of police team which was to effect raid. Similarly, they searched raiding material including the brass seal in order to ascertain that the same does contain any narcotic substance or psychotropic drug. Panchas came to the conclusion that no objectionable article or material was found either on person of members of the police team or in the articles/material collected for effecting raid. Then, pretrap panchnama Exhibit 39 came to be scribed.
(d) By two police jeeps, PW5 P.I. Vilas Chavan, PW3 A.P.I. Kedare Pawar, PW7 A.P.I. Mohan Mane as well as other members of the raiding team and panch witnesses proceeded towards spot i.e. Matoshri Ramabai Ambedkar Prasuti Gruha of Chembur. There, raiding team was divided in two groups. Under leadership of PW5 P.I. Vilas Chavan - one team took its position towards the northern side of the spot, whereas the another team took position at the southern side of the spot.
(e) According to the prosecution case, at about 10.50 a.m. of 11th August 2008, one person matching description given by the informant to PW3 A.P.I. Kedare Pawar came in front of gate of Matoshri Ramabai Ambedkar Prasuti Gruha. He was holding a chocolate coloured cloth bag in his right hand. PW3 A.P.I. Kedare Pawar confirmed the fact that the person who came there is the person who has imported charas as per information received by him. The raiding team was accordingly signaled. The appellant/accused Premsingh Jaiswal came to be surrounded by members of the raiding team. PW5 P.I. Vilas Chavan disclosed his identity and showed his identity card to the appellant/accused. Inquiry regarding his name, address etc. was conducted.
(f) According to the prosecution case, in tune with the provisions of Section 50 of the NDPS Act, PW5 P.I. Vilas Chavan informed the object and purpose of search of the appellant/accused to him. He was conveyed that he had right to give his personal search before a nearest Magistrate or a Gazetted Officer. The appellant/accused declined this statutory right, which was also communicated to him vide a written communication Exhibit 37. The appellant/accused gave endorsement thereon to the effect that it is necessary to undertake this formality and signed it.
(g) According to the prosecution case, then, PW7 Mohan Mane, took the bag from right hand of the appellant/accused. After opening, it was found to be containing a transparent plastic bag. That transparent plastic bag was containing 63 cakes of blackish, greenish colour, separately kept in separate transparent plastic pouches. PW5 P.I. Vilas Chavan then weighed those 63 cakes along with transparent plastic pouches in which those were kept separately. The material was found to be weighing 16 kgs. PW5 P.I. Vilas Chavan took out small samples therefrom and tested them by the field testing kit. It was found to be charas. Then PW5 P.I. Vilas Chavan took out sample from all those 63 cakes by cutting each plastic pouch containing those cakes from the middle portion of the pouch. In this manner, from all 63 cakes, two samples each weighing 25 gms. were drawn. Both samples were then kept in two different transparent plastic pouches. These plastic pouches were closed by applying stapler pins. Those were kept in two different brown envelopes. Both envelopes were then sealed and marked as "A1" and "A2". Remaining contraband weighing 15.950 gms. of charas came to be kept in original transparent plastic bag in which it was found. The bag was then covered by white cloth and ends of that cloth came to be closed by sewing it. Wax seal came to be applied on sewed portion. It was labeled as Article A. Accordingly, a post trap panchnama Exhibit 39A came to be prepared in presence of panch witnesses.
(h) Routine investigation followed. One sample, which according to the Investigator, was containing charas weighing 25 gms., was sent through PW2 Jayawant Khopkar, Carrier Constable to the forensic laboratory, where it was examined by PW1 Sandeep Chetty, Assistant Chemical Analyser. Upon chemical analysis of the said sample, it was found to be containing charas falling under Section 2(iii)(a) of the NDPS Act, 1985.
(i) On completion of routine investigation, the appellant/accused came to be charge sheeted. The learned Special Judge under NDPS Act, Greater Bombay, Mumbai, framed Charge for offences punishable under Sections 8(c) read with 20(b)(ii)(c) of NDPS Act as well as under Section 8(c) read with 29 of the said Act. The Charge was explained to the appellant/accused. He abjured his guilt and claimed trial.
(j) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all seven witnesses. PW1 Sandeep Chetty, Assistant Chemical Analyser, had conducted forensic examination of the sample sent to the forensic laboratory and the report of examination of the sample is at Exhibit 15. PW2 Jayawant Khopkar had reached the sample to the forensic laboratory. PW3 A.P.I. Kedare Pawar is an officer who received the secret information and who participated in the raid conducted by the ANC. PW4 Vijay Nimbalkar, A.S.I. attached to ANC was entrusted with the duty of the safe keeping of the seized muddemal, he being store keeper with the ANC. PW5 P.I. Vilas Chavan had headed the raiding team and seized the contraband. Independent panch Chandrakant Kengare is examined as PW6 who proved seizure panchnama Exhibit 39. PW7 Mohan Mane, A.P.I., is the Investigating Officer.
(k) Defence of the appellant/accused was that of total denial. He, however, did enter in the defence. After hearing the parties, by the impugned judgment and order, the learned trial court came to the conclusion that the appellant/accused was found in possession of 16 kg charas on 11th August 2008. However, the charge of conspiracy was held to be proved. Accordingly, the appellant/accused is convicted and sentenced as indicated in opening paragraph of this judgment.
(3.) I have heard the learned advocate appearing for the appellant/accused. He vehemently argued that seized muddemal i.e. the bulk quantity was never produced before the learned trial court for being inspected and identified by the concerned witnesses. This has caused great prejudice to the appellant/accused. The learned advocate for the appellant/accused submitted that it was the duty of the prosecution to produce that bag in which seized muddemal was kept before the learned trial court. The witness ought to have identified the bulk, while in the dock. This would have granted an opportunity to the appellant/accused to demonstrate that the contraband was seized from him.;