TMI Blog1988 (11) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter, two panch witnesses, including Arun Madhav Zankar (P.W. 2), were called and his personal search was taken which revealed that there were four packets of gard in the left side pocket of his shirt. The said packets were put in a plastic box and were sealed, labelled and attached under a panchanama. The appellant along with the seized property was taken to Bazarpeth Police Station where Police Constable Kalgutkar filed a complaint (Exh. 9). Police Sub-Inspector Ashok Shankarrao Surveganth (P.W. 3) registered the crime and handed over further investigation to Police Head Constable Govind Sitaram Satardekar (P.W. 4) who upon completion of the investigation charge-sheeted the appellant in the court of the Judicial Magistrate, First Class, on October 13, 1986. During pendency of the proceedings, the seized property was sent to the Chemical Analyser, Bombay. The learned Magistrate committed the case to the Court of Session, Thane. 3. The learned Additional Sessions Judge, Thane, framed a charge as per Exh. 4 which clearly stated that on or about October 2, 1986 at about 1.15 p.m. at Valipeer Naka, opposite Swagat Lunch Hotel at Kalyan, Tal. Kalyan in Thane District, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te appearing on behalf of the appellant, criticized this evidence that although the witness deposed that before starting for the patrolling duty they had taken with them a plastic box and a seal and other materials but no such entry was made in the police station diary. We feel that even if no such entry was made at the police station, there is nothing on the record to discredit this testimony of the witness. Mr. Sangani also submitted that at the relevant time there was traffic on the road and therefore there was no reason for the patrolling party to have called panch witnesses from a place called Parnaka. There is no substance in this submission of Mr. Sangani because Parnaka is a place at a distance of about half a kilometre from the place of the incident and the police did nothing illegal in calling the panch witnesses from there, for no-one expects motorist to wait for a Panchanama. What is required under S. 100(4) of the Cri.P.C. 1973, while taking search of a person in such a situation, is to call upon two or more independent and respectable inhabitants of the locality in which the place or the person is to be searched and request them to see what transpires during search. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, Goa Bench, of which one of us (Kamat, J.) was a member, while deciding Criminal Appeal No. 5 of 1987 on June 23, 1987 (Reported in (1987) 3 Crimes 12) in case of Amarjit Singh Cheema v. State. 8. A perusal of the panchanama (Exh. 11) shows that four small white paper packets containing gard (drug) powder were found from the left side shirt pocket of the appellant and the same were taken charge of in a small plastic box which was sealed and labelled in the presence of the panch witnesses which corroborates the oral testimony of the panch witness. Mr. Sangani found fault with the panchanama that according to Police Constable Kalgutkar the appellant was apprehended at about 1.00 p.m. whereas the first information report (Exh. 9) shows that he was chased and apprehended at about 1.15 p.m. and the panch witness Arun Zankar stated that he was called by the police at about 1.00 p.m. whereas the panchanama shows that it was started at 1.15 p.m. and completed at 1.30 p.m. and in the cross-examination panch witness Arun Zankar stated that police went to call him at about 12.30 p.m. to 1.00 p.m. All these minor discrepancies about the timings do not go to the root of the matter and hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the witness when he stated to a question put by the Court as to way the property was sent so late as on July 20, 1987 that it was a practice to send samples only in ten crimes per month to the Chemical Analyser. There is no reason to disbelieve this explanation. At any rate, Mr. Sangani has not been able to point out as to what prejudice was caused to the defence by late analysis of the drug in question. Mr. Sangani also urged that there is nothing on the record to show that what was sent to the Chemical Analyser was the same property which was seized from the appellant. The submission of Mr. Sangani holds no water as the letter Dt. July 20, 1987 bearing outward No. 3499/86 of the Bazarpeth Police Station (Exh. 14) clearly shows that this was the property seized from the possession of the appellant in C.R. No. III 470/1986 and sent to the Chemical Analyser at Bombay with Police Sub-Inspector G. R. Gavande. The reported (Exh. 15) send by the Assistant Chemical Analyser to the police Inspector of Bazarpeth Police Station, shows that it was in connection with the Bazarpeth Police Station letter No. 3499/86 dt. 20-7-87 regarding one sealed plastic container seized in C.R. No. III-470 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Maharashtra and published in the Government Gazette of December 19, 1985 at page 1160 shows that all Police Officers of and above the rank of Head Constable in the State of Maharashtra are empowered for the purposes of sub-section (1) of Section 42 of the Act. Section 43 provides that any Officer of any of the Department mentioned in S. 42 may seize, in any public place or in transit, nay narcotic drug or Psychotropic substance and detain and search any person whom he has a reason to believe to have committed an offence punishable under Chap. IV of the Act. Therefore, in this case Police Head Constable Thakur was an officer properly empowered and authorised by the State Government to detain and search the appellant and seize the property in question from his possession. 13. We thus find that the evidence on the record proved beyond all reasonable doubt that the appellant was found in possession of narcotic drug viz. heroin and, therefore, his conviction and the minimum sentence of ten years rigorous imprisonment and a fine of rupees one lakh inflicted on him are correct and in accordance with law. Giving our anxious thought to the matter, the punishment being very heavy, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r these Sections. 14. Before parting with the judgment, we may also point out that the Chemical Analyser's report in the case does not show at all as to under what definition of S. 2 of the Act the analysed drug would fall. It is pertinent to note here that there are large number of drugs and substances covered under the Narcotic Drugs and Psychotropic Substances Act, 1985. Again, some substances and drugs undergo changes after certain processes and come under different definitions. Section 2 of the Act defines several substances and drugs. Many a time, it is not possible for the police and the Courts to bring the seized item under a particular definition even when the said item is analysed by a Chemical Analyser and named. It is our ardent desire that in future the Chemical Analysers on analysing a particular drug or substance do spell out as to under what definition of S. 2 of the Act the drug or substance falls so that the trial Courts may be able to lay their hands on appropriate sections while framing charges and awarding appropriate punishments. Office is, therefore, directed to send a copy of this judgment to the Secretary, Public Health Department, Government of Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
