DANI, J. - (1.) THE order dated 14th January 1992 passed by the Sessions Judge, Thane in Sessions Case No. 145 of 1989 holding the appellant accused guilty of the offence punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentencing him to suffer R.I. for 10 years and a fine of Rs. 1,00,000/ - in default to suffer R.I. for one year, is being challenged in the present appeal by the appellant -accused.
(2.) THE facts giving rise to this trial and appeal are stated thus: P.W. 1 - Dattatray Narayan Pandhare (Ex. 7) was the constable attached to Ulhasnagar Police Station while P.W. 2 - Abhimanyu Raghunath Sonavane (Ex. 8) was attached as a Head Constable to the said Police Station at the time of the incident. P.W. 3 - Kedu Ragho Devare (Ex. 11) was working as a P.S.I. at the said Police Station. The incident is alleged to have taken place on 11/10/1987. P.W.2 - Abhimanyu and P.W. 3 - Kedu received the information on that day in the evening that the appellant -accused Tulashidas was dealing in opium. On receiving the said information, the arrangements for raiding the shop styled as 'Kismat Laundry' at Shivaji Road were made. Shri Bhagwan Samanmal Shevlani and Shri Pama Dwarkadas Kewalramani both residents of Ulhasnagar were called to the Police Station to act as panchas. The Police Officers and the panchas then proceeded towards the shop of the accused. The accused was present in the shop. He was informed about the raid and he was also offered the personal search of the panchas and the police before his personal search was taken. The appellant -accused however, declined to take the personal search of the persons engaged in the raiding party. The personal search of the accused was then effected in the presence of the panchas and a packet containing opium, weighing about one Tola, was discovered under a panchanama (Ex. 10) in the shop itself. The accused and the muddemal article were then brought to the Police Station and P.W. 2 - Abhimanyu then lodged his complaint (Ex. 9). The article in question was then carried over to C.A. by P.W.4 - Ramkishore Pande (Ex. 12). On receiving the report (Ex. 15) and on completion of the other necessary investigation, the appellant -accused was charge sheeted on 5 -2 -1988 for the alleged offence. The accused stood his trial in Sessions Case No. 145 of 1989 before the Sessions Judge, Thane and he denied the charge and claimed to be tried. It is the case of the defence that the concerned constable of the Police Station was demanding damages as his shirt was torn in the laundry process and the accused denied to pay any amount and, therefore, he was falsely implicated. On consideration of evidence on record, the Sessions Judge found that the accused was in possession of the said quantity of opium at about 6.45 p.m. on 11 -10 -1987 and was thus answerable to the charge under section 18 of the said Act. Accepting the prosecution evidence, the Sessions Judge, therefore, held the accused guilty for the alleged offence and by an order dated 14 -1 -1992 convicted and sentenced the appellant -accused as aforesaid. It is this order of conviction and sentence that has been challenged by way of the present appeal. The prosecution adduced the evidence of four witnesses and admittedly they all are the Police Officers. P.W. 1 - Dattatray Pandhare, P.W. 2 - Abhimanyu and P.W. 3 - Kedu are the Police Officers attached to the said Police Station and who have taken part in raid. While P.W. 4 Ramkishore Pande is the Police Inspector who forwarded the article to C.A. for examination and on receiving the report (Ex. 15) had charge sheeted the accused. It is an admitted position in this case that the prosecution has not adduced the evidence of any of the panch witnesses. The panchanama in question is placed on record at Exhibit 10 and it is also in the evidence of the Police Officer that Shri Bhagwan Samanmal Shevlani and Shri Pama Dwarkadas Kewalramani had acted as panchas at the time of the personal search of the accused and the attachment of the article i.e. opium from his person. Out of these two panch witnesses Shri Pama Dwarkadas Kewalramani is reported to be dead. It is, however, not disputed that the other panch Shri Bhagwan Samanmal Shevlani has not adduced his evidence so as to prove the contents of the panchnama (Ex. 10). It may also be noted that during the trial, report (Ex. 5) was filed by the prosecution on 9 -1 -1992 informing the Court that the only surviving panch witnesses Bhagwan Shevlani was reported to have gone to Aurangabad to attend a wedding ceremony and, therefore, he was not present on that day in the Court. By the said report (Ex. 5) the time was, therefore, sought by the prosecution to adduce the evidence of the said panch witness on the next day. The Sessions Judge granted the time and postponed the hearing to the next day. On 10 -1 -1992 the evidence of four prosecution witnesses were adduced and the report (Ex. 16) was then filed informing the Court that the prosecution does not, want to lead any further evidence. On that day therefore, the prosecution closed its case and the matter then came to be argued and decided on 14 -1 -1992. It is, therefore, an admitted position in this case that even though Shri Pama Kewalramani, a panch, was reported to be dead, the other available panch Shri Bhagwan Shevlani has not entered into the witness box to prove the contents of the panchanama (Ex. 10). As stated above, by report (Ex. 5) it was informed to the Court that the second panch had gone out of station and had not returned, and by the purshis report (Ex. 16) the prosecution informed the Court that the evidence was closed. It is, therefore, not a case that the witness Bhagwan Shevlani was not traceable, but it is an admitted position that he was not merely available on that day to depose on behalf of the State. It, therefore, cannot be said that the presence of the surviving panch could not be secured by the prosecution agency. There is also nothing on record to show either in the evidence of any of the Police Officers or otherwise on record that the attendance of the surviving panch could not be secured after 9 -1 -1992. It is, therefore, not disputed that in the case at hand the prosecution has tried to prove the contents of the panchanama (Ex. 10) through the evidence of the Police Officers even though the panch witness was available. Admittedly because of these action the defence has been denied the right to cross examine the panch. The case of the prosecution itself is that in the presence of two independent panchas the personal search of the accused was taken and the article in question was attached from his shirt pocket. If this is so, it was but necessary for the prosecution to lead the evidence of the concerned independent witnesses to prove the contents of the panchanama including the search and the attachment of the article. It would have been a different story if any of the panch witnesses was not available and his presence could not have been secured. As stated above, the other surviving panch Bhagwan Shevlani was not untraceable. He was only not available on the day when the prosecution adduced the evidence of the other Police Officers as prosecution witnesses. The prosecution in this case has, therefore, chosen to leave the fate of the case at the evidence of the four Police Officers. A useful reference in this connection may be made to the ruling in the case of Mohanlal Bababhai v. Emperor1. The Division Bench of this Court in the said case has ruled as under: - "The panchanama is merely a record of what a panch sees, and the only use to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchanama can be used as a contemporary record to refresh his memory. But a police officer is not entitled to give evidence of what the panch told him, that he saw, and that is what it comes to if a police officer is allowed to put in the panchanama. A police witness may state that he held a panchanama and offer to produce the record if the accused asks for it, but he cannot bring it on record in his evidence in chief. If the police hold a panchanama, and do not offer to call the panch, an inference may be drawn against them from the fact that the panch is not submitted for cross examination. The putting in of a panchanama without calling the panch is not only an infringement of the rules of evidence against the admission of hearsay evidence, but it is unfair to the accused, because it enables the police to get the advantage of evidence in corroboration without putting that evidence to the test of cross -examination." Therefore, as long whereas in 1941 the practice of allowing the prosecution to put in a panchanama without calling the panch for evidence was disapproved.
(3.) COMING to the facts of the present case, it may be reiterated that the prosecution chose not to lead the evidence of a panch witness who was available and who cannot be held to be not traceable and as such the defence has been denied the right to cross examine the alleged independent witness. In view of this, we are, therefore, of the view that it would be most improper to hold the alleged offence as duly proved against the appellant -accused in the absence of the evidence of an independent panch witness. It has been observed by the Sessions Judge that the efforts to secure the presence of the panch in Court were futile but there is nothing on record or in evidence to indicate likewise. As stated above, the reports of the prosecuting agency (Ex.5 and Ex.16) themselves sufficiently disclose that the other panch Bhagwan Shevlani was in fact available for the prosecution and he was merely out of station on the day on which the evidence of the other four Police Officers was recorded. It may also be noted that none of these Police Officers has even whispered about any alleged effort put by the prosecution agency to secure the presence of the panch witness in Court. It is also not even remotely stated nor suggested in the evidence of any of these Police Officers that after 9 -1 -1992 they made any efforts to secure the presence of the panch Bhagwan Shevlani and his presence could not be secured. In the absence of the evidence of the independent panch witness and considering the fact that the defence has been denied a right of cross examining such an independent witness, we are, therefore, of the view that the alleged offence cannot be held to have been duly proved against the appellant -accused and, therefore, for the want of sufficient and reliable evidence, the conviction and sentence against the appellant -accused will have to be set aside. Disagreeing with the views and the reasonings of the Trial Court, we, therefore, hold that the alleged offence has not been duly proved against the appellant -accused and as such the appellant is entitled to the acquittal.;