R.C.CHAVAN - (1.) THIS appeal is directed against the appellant's conviction by the learned Special Judge, Mumbai, for offence punishable under Section 20(c) read with 8(c) of the Narcotic Drugs and Psychotropic Substance Act, (for short called as, "NDPS Act".), and sentence of R.I. for 10 years with fine of Rs. 1,00,000/- or in default R.I. for one year, imposed upon him on conclusion of trial in Special case No.191 of 2007.
(2.) '' The facts which are material for deciding this appeal are as under:- On 23rd June, 2007, Police Sub Inspector, Chavan, of the Anti Narcotic Cell, had received information that the appellant alongwith the absconder Pawankumar, was to come near Kalanagar Junction, Bandra, for sale of ganja at about 1.00 p.m. Accordingly after making entry in the station diary and informing his superiors and on receiving directions to lay a trap, a police party comprising of PSI Chavan, as well as PSI Shinde, organized a raid by calling panchas after collecting requisite material. They went to the spot and kept a watch. They found the appellant at the spot carrying on shoulder bag and a handbag. He was accosted by the police and was informed of the purpose. After acquainting him of his rights, he was then searched and two bags containing 19 Kgs and 6.100 Kgs of ganja respectively were found. The bags were seized in presence of panchas and two samples of about 25 grams each were drawn up and sealed. Thereafter a report was made to the superiors. An offence was registered. The property was lodged with the Officer Incharge of the Store. One of the two samples was sent to the Forensic Science Laboratory which reported that the sample was of ganja. On completion of investigation, a chargesheet was sent to the Special Court. The learned Special Judge, charged the appellant of offence under Sections 20 read with section 8(c) of the N.D.P.S. Act. The appellant has pleaded not guilty and so he was put on trial. The prosecution examined in all four witnesses, in its attempt to bring home the guilt of the appellant. '' After considering the prosecution evidence in the light of defence of false implication, learned Special Judge convicted and sentenced the appellant as indicated earlier. Aggrieved thereby the appellant is before this Court. '' I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence on record. P.W.1 PSI Shinde, and P.W.4 PSI Chavan, are the officers, who had participated in the raid. Both stated that PSI Chavan, had received information about the appellant's coming to Mumbai with ganja. Even the panchnama as well as F.I.R. show that PSI Chavan, had received information. However, in the report sent after raid to the Deputy Commissioner of Police at Exh.23, reference to information received by PSI Shinde is made. P.W.1 PSI Shinde and P.W.4 PSI Chavan, stated about proceeding to the spot after suitably arming them with the equipment required for raid and performing a pre-raid panchnama in presence of P.W.2 Yogesh, who, however, refused to support the prosecution, by stating in cross examination he did not remember name of the Police Officer who read over the contents of panchnama to him and that police officer had told him to depose before the Court as per contents of panchnama and had also shown the accused to him in police station. He stated that he signed the panchnama in the police station and had not accompanied police party to the spot. He stated that everything was over before he reached and he was merely asked to sign.
(3.) '' P.W.1 PSI Shinde, stated that Senior Police Inspector Jadhav, was present with them, identified himself to the appellant and informed him that he was entitled to be searched before a Gazetted Officer or a Magistrate and if the appellant so demanded, arrangements could be made. The appellant is supposed to have declined this offer. Appellant was then searched by the raiding officer and the shoulder bag as well as hand bag were found to contain ganja. Both PSI Shinde and PSI Chavan, state that the two samples of 25 grams each were collected from two bags of Ganja and were sealed in plastic pouches. Even Panchnama at Exh 9A, recounts that some ganja was taken from the two bags and was packed in two separate plastic pouches and the pouches were sealed. P.W.3 police constable Barge claimed to have carried one of the samples to the Forensic Science Laboratory which reported that it contained Ganja. '' The learned counsel for the appellant submits that panch witness P.W 2 turned hostile. He points out that there is discrepancy in the evidence of P.W.1 PSI Shinde and P.W.4 PSI Chavan and the report at Exh.23 about the person who received the information. Therefore, according to him if the report at Exh.23 shows that PSI Shinde had received information, whereas account of two witnesses show that it was PSI Chavan, who had received information, the very foundation of the raid i.e. receipt of information becomes suspicious and therefore, the entire evidence would be discarded.;