MANU/MH/1136/2008

Equivalent Citation: 2008(111)BOMLR207

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal No. 595/2006
Decided On: 25.11.2008
Appellants: Prakash alias Sanjay S/o Kerbaji Barse
Vs.
Respondent: State of Maharashtra through P.S. Kanhan
Hon'ble Judges/Coram:
R.C. Chavan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.H. Rawlani, Adv.
For Respondents/Defendant: T.A. Mirza A.P.P.
Case Note:
Narcotics - Search and seizure - Alteration of Charge - Sections 20(b)(ii)(C),20(b)(ii)(A),42 and 43
of Narcotic Drugs & Psychotropic Substances Act (Act) - Appellant convicted under Section 20(b)(ii)
(c) of Act - Hence ,the present appeal - Appellant contended that information received was not
recorded as required under section 42 of Act - Held , as search and seizure was made at public place
thus compliance of section 42 and 43 is not required - No inventory prepared by prosecution as per
Section 20(b)(ii)(C), - Seized materials not shown before court - Appellant be convicted under
section 20(b)(ii)(A) instead of 20(b)(ii)(C),
JUDGMENT
R.C. Chavan, J.
1. This appeal is directed against conviction of the appellant for offence punishable under Section 20(b)(ii)(c) of
Narcotic Drugs & Psychotropic Substances Act and sentence of R.I. For 10 years and fine of Rs.1 lakh or in
default R.I. For one year imposed upon him by the learned Special Judge under Narcotic Drugs & Psychotropic
Substances Act at Nagpur in Special Case No.77/2004.
2. Facts which led to prosecution of the appellant are as under:
On 30.8.2004 P.I. Purundare of P.S. Kanhan received information from Police Control Room on
wireless at 00.45 hours that Ganja was being transported in a Tata Sumo Vehicle bearing
Registration No. MH-26-L- 717 on Nagpur -Jabalpur road. This information was recorded in the
Station Diary vide Sr. no. 19 and conveyed to Superior Officer S.D.P.O. Shri Gautam who too
started chasing the vehicle. Police party saw the vehicle which slowed down, two persons jumped
off the vehicle and started running. Some policemen went to chase these persons. The vehicle was
stopped. It was being driven by the appellant. Police told him that they wanted to take a search and
asked him if he would like to be searched in presence of a gazetted officer. S.D.P.O. Shri Gautam, a
gazetted officer too reached the spot. Search of the vehicle yielded six gunny bags containing 230
kg of ganja. Samples were taken from each gunny bag and samples as well as rest of the ganja in
gunny bags was sealed and seized by drawing a panchnama Exh.28
3. After reaching P.S. P.I. Purandare lodged a report vide Ex.47 whereupon Crime 3045/2004 was registered
vide Exh.48. Property was deposited in the malkhana vide receipt Ex.49. Appellant was arrested vide Exh.50.
P.I. Purandare submitted reports to his superiors. Samples were sent to the Chemical Analyser vide requisition
Exh.53 and the Laboratory certified that all 6 samples were of ganja. Despite attempts, absconders Satva
Rupsingh Jadhav and one Anna could not be arrested. On completion of investigation charge-sheet was filed.
4. The learned Special Judge charged appellant of offence punishable under Section 20(b)(ii)(C) of the Narcotic
Drugs & Psychotropic Substances. Appellant pleaded not guilty and so was put on trial at which in all 6
witnesses were examined. The defence of the appellant was that of denial. After considering the evidence
tendered, the learned Special Judge convicted and sentenced the appellant as indicated above, whereupon the
appellant has preferred this appeal.
5 . I have heard the learned Counsel for appellant and the learned Additional Public Prosecutor for the state.
With the help of both the learned Counsel I have gone through the record of the case. Panchas P.W. 1 Ratiram
and P.W. 2 Ganesh turned hostile. They merely admitted their signatures on panchnama Exh.28.

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6. P.W. 4 P.I. Purandare stated at length about receipt of information, its being recorded and communicated to
superiors, as also about the actual raid, seizure of articles and post seizure steps in investigation.
7 . P.W. 3 H.C. Jitendrasingh acknowledged having received the property from P.W. 4 P.I. Purandare, taking
entry in relevant register and dispatching the samples to Chemical Analyser. Though he missed stating to have
sent the requisition along with samples, he soon corrected himself. He identified the property.
8. P.W. 6 P.C. Mangesh carried samples to the Laboratory vide Ex. 56 and lodged them with the laboratory
vide invoice challan Exh.51
9. P.W.5 Assistant Chemical Analyser Shri Ramteke stated having received samples with requisition, found seals
intact and tallying, analysed the samples, found them to contain ganja and issued report at Exhibit 55. He
stated that the six samples sent contained about 50 grams ganja each, out of which about 10 grams from
each sample was taken for analysis. Remaining samples were re-sealed by his office.
10. The learned Counsel for the applicant submitted that the learned trial Judge should have seen that the
entire proceeding was vitiated due to non compliance of provisions of Section 42 of the N.D.P.S. Act. He
submitted, first, that the evidence of P.W. 4 P.I. Purandare shows that information received from the control
room via wireless was not at all recorded. Relying on the judgment of Five Judge Bench of Supreme Court .
State of Punjab v. Baldev Singh reported in MANU/SC/0981/1999 : 1999CriLJ3672 the learned Counsel
submitted that the requirement of taking down in writing the information given by any person is mandatory. In
that case the Bench was considering a reference made by the Three Judge Bench which felt that the view,
taken by another Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of GujratMANU/SC/0695/1995 :
1995CriLJ2662 , that noncompliance of requirement of Section 50 can vitiate the trial, needed a fresh look. In
this background after examining the relevant provisions in relation to requirement in Section 42 of the N.D.P.S.
Act as well, the Court held as under:
(2-C) Under Section 42(1) the empowered officer, if has a prior information given by any person,
that should necessarily be taken down in writing. But if he has reason to believe from personal
knowledge that offences under Chapter IV have been committed or materials which may furnish
evidence of commission of such offences are concealed in any building etc. he may carry out the
arrest or search without a warrant between sunrise and sunset and this provision does not mandate
that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has
to carry out such search between sunset and sunrise, he must record the grounds of his belief.
(3)- Under Section 42(2) such empowered officer who takes down any information in writing or
records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his
immediate official superior. If there is total non-compliance of this provision the same affects the
prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or
whether the same has been explained or not, will be a question of fact in each case..
He submitted that in Directorate of Revenue v. Mohammed Nisar Holia reported in 2008(2) Mh.L.J. 287, the
court held that an officer who receives such information was bound to reduce the same in writing and it was
not for the person who heard about the information to write it down. In that case, the fax message on which
the information was allegedly recorded was illegible and P.W.17 who had received the fax message could not
prove the contents of the fax. It was tendered in the form of a xerox copy. Therefore, according to learned
Counsel, since P.W. 4 P.I. Purandare does not even claimed to have recorded the information in writing, non-
compliance of provision of Section 42 of the N.D.P.S. Act is writ large on the face of record.
11. The learned Counsel for the appellant submitted that the requirement to record information, if received
prior to the raid, is applicable even in case of commission of offence in a public place, as has been held by the
Full Bench of this Court in Jayantilal Modi and Anr. v. State of Maharashtra reported inMANU/MH/0252/2001 :
(2001)3BOMLR385 . Therefore, according, to the learned Counsel it would not be open for the prosecution to
contend that because raiding officer was inspecting a vehicle on Highway it was not necessary to comply with
the provisions of Section 42 of the Act. In said case Full Bench of this Court held that in respect of offence
under N.D.P.S. Act it is necessary for the empowered officer to comply with the provisions of Section 42 even
when the information received by him is regarding commission of offence in public place of the type mentioned
in explanation to Section 43.
12. Learned Additional Public Prosecutor contested these submissions. He pointed out first, that the judgment
of the Full Bench of this Court in Jayantilal Modi and Anr. v. State of Maharashtra may no longer be held as
laying out the correct position of law as regards the applicability of provisions of Section 42 of the Act to raids
conducted in the public places, to which provisions of Section 43 apply.
13. The learned Additional Public Prosecutor submitted that even in the judgment in Directorate of Revenue v.
Mohammed Nisar Holia reported in 2008 (2) Mh.L.J 287 relied on by the learned Counsel for the appellant, the

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Supreme Court had categorically observed in paragraph 13 as under:
13- Requirements of Section 42 was read into Section 43 of the NDPS Act. A somewhat different
view, however, was taken subsequently. Decisions were rendered opining that in conducting search
and seizure in public place or a moving vehicle, provisions appended to sub Section (1) of Section 42
would not be attracted. Decisions were also rendered that in such a case even Sub-section (2) of
Section 42 need not be complied with.
He further submitted that in paragraph 16 the Apex Court held as under:
16- It is not in dispute that the said Act prescribes stringent punishment. A balance, thus, must be
struck in regard to the mode and manner in which the statutory requirement are to be complied with
vis-a-vis the place of search and seizure.
In this case the Apex Court had also referred to a judgment in Narayan Swami Ravishankar v. Assistant
Director, Directorate of Revenue Intelligence reported in MANU/SC/0866/2002 : 2003CriLJ27 , in that case
Three Judge Bench of the Apex Court had observed in paragraph 5 as under:
5- In the instant case, according to the documents on record and the evidence of the witnesses, the
search and seizure took place at the airport which is a public place. This being so, it is the provisions
of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act
was not applicable in the present case, the seizure having having effected in a public place, the
question of non . compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly
irrelevant. Furthermore, in the mahazar which was prepared, it is clearly stated that the seizure was
made by P.W. 1. The mahazar was no doubt drawn by one S. Jayanth. But, the contention of the
earned Senior Counsel that the prosecution version is vulnerable, because Jayanth has not been
examined, is of no consequence because it is P.W. 1 who has conducted the seizure. With regard to
the alleged non-compliance of Section 57 of the NDPS Act, the High Court has rightly noted that PW
3 has stated that the arrest of the accused was revealed to his immediate superior officer, namely
the Deputy Director..
In face of this categorical observation, that when the search and seizure take place at a public place, provisions
of Section 43 of the N.D.P.S. Act would be applicable and Section 42 would not be attracted, it may not be
permissible to rely on judgment of Full Bench of this Court in Jayantilal v. State.
14. It can not be contended that search of a moving vehicle would still be governed by provisions of Section
42 of the N.D.P.S. Act in view of the observations in paragraph 13 of the Directorate of Revenue ..vs.
Mohammed Nisar Holia which have already been extracted above. Therefore, the entire argument relating to
the non compliance of provision of Section 42, based on absence of evidence on the part of P.W. 4 P.I.
Purandare that he himself recorded the information in writing, would have to be rejected.
15. All the same, it may be useful to recount as to what had exactly happened in the case at hand. Station
diary entry no.19 at Exhibit 44 reads as under:
19- At the said time, R.T. P.C. Jaiprakash B. No.460 informed that information was received from
CRONR that Ganja was being carried from Nagpur to Seoni, by a Tata Sumo jeep bearing No. MH 26
L 717. On the basis of the said information the Police Station officer, Head Constables, B.Nos. 1260,
987 and Police Constables, B.Nos. 339, 467, 700, 792, 95 and 678 started for Nakabandi at railway
crossing Kanhan, by a Government vehicle bearing No. MH 31 AG 9175, taking with them, lac seal
candle stick, thread and sealing material. The Police Station Officer orally instructed Head Constable
Suresh, B.No. 1258 to bring photographer, two Panchas and weigh man near the railway crossing
Kanhan N.H.7. Hence Head Constable B. No. 1258 was sent for the said work.
This would show that (i) information was received from the control room over wireless; (ii) that the wireless
signal was received however, by radio technician Police Constable Jaiprakash; (iii) P.W. 4 P.S.Purandare who
was P.S.O. issued necessary instructions to prepare for raid; (iv) these instructions along with fact of receipt of
information, over wireless was recorded in the aforementioned station diary. The entry would thus show that it
was caused to be made by the P.W. 4 P.I. Purandare, though it was actually made by Head Constable Buckle
No.705, who has not been examined.
16. The learned A.P.P. Submitted that as held by the Apex Court, in Directorate of Revenue v. Mohammed
Nisar Holia, a balance has to be struck in regard to the mode and manner in which statutory requirements are
to be complied with vis-a-vis the place of search and seizure. He submitted that the object of requiring that
information received must be recorded before proceeding for raid is to ensure that there is no frame up and
that authorities who exercise vast powers, record all their action scrupulously so that they can be checked up,
with reference to the evidence that surfaces. Therefore, according to him, the information recorded by the
Head Constable Buckle No.705 at the behest of P.I. Purandare would have been adequate compliance to the

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requirement of Section 42 had that section been applicable. He submitted that practical difficulties of an officer
who receives a message about a vehicle carrying contraband and moving on a highway have to be imagined. If
officers were to be bogged down to personally writing down the information & preparing messages to be sent,
the miscreants would merrily run away with the booty when the officer is busy in completing the paper work.
Therefore, if the officer caused an information to be recorded by his subordinate this should be sufficient. In this
case, the information was not actually received by the raiding officer but by a radio technician over the wireless.
17. The learned A.P.P. submitted that the Legislature has not prescribed that the information must be taken
down by raiding officer in his own hand or under his own signature. Further, according to him merely because
steps taken by the officer in preparing for raid are also noted along with information received, the information
received does not get diluted. Relying on the judgment of the learned Single Judge of this Court in Hanmanlu
S/o Vithal Yarkondawar v. State of Maharashtra reported in 2006 ALL MR (CRI) 3001learned A.P.P. Submitted
that any omission in this behalf may merely create a suspicion, but can not be a circumstance vitiating the trial.
In that case the question was of forwarding copy of report by raiding officer as required under Section 42(2) of
the Act. The learned Single judge relied on the judgment of the Apex Court in Abdul Rashid Ibrahim Mansuri v.
State of Gujrat reported in MANU/SC/0059/2000 : 2000CriLJ1384 to hold that the omission does not vitiate
the conviction and consequently the learned Judge dismissed the convict's appeal.
18. In Abdul Rashid Ibrahim Mansuri v. State of Gujrat on which even the learned Counsel for the appellant
placed reliance, the raiding officer had received information, but he neither recorded it in writing, nor did he send
a copy of such information to his immediate superior. The Apex Court held that there was no compliance of
Section 42. After considering a decision of Constitution Bench in State of Punjab v. Baldeo Singh the court
concluded in paragraph 18 as under:
18- When the same decision considered the impact of non-compliance with Section 50 it was held
that .it would affect the prosecution case and vitiate the trial.. But the Constitution Bench has settled
the legal position concerning that aspect in State of Punjab v. Baldev Singh the relevant portion of
which has been extracted by us earlier. We do not think that a different approach is warranted
regarding noncompliance with Section 42 also. If that be so, the position must be the following: If
the officer has reason to believe from personal knowledge or prior information received from any
person that any narcotic drug or psychotropic substance (in respect of which an offence has been
committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that
the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate
official superior. The action of the officer, who claims to have exercised it on the strength of such
unrecorded information, would become suspect, though the trial may not vitiate on that score
alone. Nonetheless the resultant position would be one of causing prejudice to the accused..
19. The learned A.P.P. thus rightly submitted that ratio of State of Punjab v. Baldeo Singh as explained in Abdul
Rashid Ibrahim Mansuri's case, as applied by the learned Single Judge of this Court in Hanmantu v. State of
Maharashtra, would result in irresistible conclusion that such non compliance does not vitiate the trial, and the
question whether any prejudice was caused to the accused or not would depend upon facts of each case.
20. In any case all these aspects are not material in view of the judgment in Narayanswamy Ravishankar v.
Assistant Director, Directorate of Revenue Intelligence reported at MANU/SC/0866/2002 : 2003CriLJ27 and
the fact that in this case the raid was sought to be conducted in a public place namely on a highway. The
contraband was being carried in a vehicle as recorded in the information at station diary entry no.19. Learned
Counsel for the appellant submitted that for the purpose of searching a conveyance, the procedure prescribed
under Section 42 would have to be followed. It is true that the word .conveyance. is used in Section 42 of the
Act, but the same word is also used in Section 43 which prescribes that an officer mentioned in Section 42 may
seize in any public place or in transit any narcotic drug along with the conveyance as well. Thus it is not that the
conveyance in which the contraband is being carried is impregnable without the invocation of powers under
Section 42. So long as the conveyance is in the public place, or in transit, such seizure can be effected by
recourse to powers under Section 43. This would stand to reason, since the difficulties of raiding officers in
chasing or intercepting the vehicles in which the contraband is being carried could well be imagined.
2 1 . Ratio of decision in Wessel Van Beelan v. State of Goa reported at MANU/MH/0441/1999 :
1999(5)BomCR575 would not be applicable since at the raid and search Sub Divisional Police Officer, himself a
gazetted officer was present.
22. The learned Counsel for the appellant submitted that the information was required to be communicated in
writing to the immediate official superior, but was claimed to have been conveyed on telephone, as may be
seen from the station diary entry at Exhibit 45. Relying on the judgment of Division Bench of this Court in L.
Lamin Bhojang v. State of Maharashtra reported at 1997 (1) BCC 380, the learned Counsel submitted that this
was not sufficient compliance. Since the information was required to be submitted in writing. The object of
submitting information to the superior is again to ensure that there is a record of the activities undertaken by
the Police Officer which could then be checked up to ensure that there is no frame up. As held by the Apex

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Court in Directorate of Revenue v. Mohammed Nisar Holia, referred to above, a balance has to be struck in
regard to the mode and manner in which statutory requirement are to be complied with. In this case the
information was allegedly communicated on mobile telephone to S.D.P.O. who was the immediate superior of
the I.O. The evidence of P.W. 4 P.I. Purandare would show that when they had accosted the appellant and told
him that he could seek to have himself searched in presence of Gazetted Officer, S.D.P.O. Shri Gautam arrived
at the spot. Had the information not been communicated to Shri Gautam there would have been no occasion
to Shri Gautam to reach the spot. It may be seen from evidence of Shri Purandare that when information was
given to Shri Gautam, Shri Gautam was chasing the same vehicle. Thus, though information may not have
been communicated in writing, it was in fact given to Shri Gautam. Otherwise there would have been no
occasion for Shri Gautam to reach at the time of search. The presence of Shri Gautam has also been
mentioned in the panchnama. When contraband is being carried in a vehicle, in order to intercept and seize the
contraband, it would be necessary for the officers concerned to position themselves to effect seizure. It would
have been impossible to effect seizure had the officer waited for written communication being sent. Therefore,
it cannot be said that there is non-compliance of provisions of Section 42 of the N.D.P.S. Act. As regards the
sending of detailed report after the incident is concerned, P.W. 4 P.I. Purandare has proved his report at Exhibit
52 which was sent to the Superintendent of Police. To sum up, since the provisions applicable are those under
Section 43 and not those under Section 42 of the N.D.P.S. Act, all the arguments based on non compliance of
Section 42 have to be rejected.
23. In this case, both the panchas have not supported the prosecution. P.W. 1 Motiram as well as P.W. 2
Ganesh turned hostile. That merely proved their signatures at panchanama at Exhibit 28. According to the
learned Counsel for the appellant there was no independent evidence about the seizure and prosecution had
not examined any member of the raiding party, photographer or weigh man who were present at the raid to
corroborate the word of P.W. 4 . P.I. Purandare. Relying on a judgment in Ritesh Chakravarti v. State of M.P.
reported at MANU/SC/4301/2006 : 2006(9)SCALE644 , the learned Counsel submitted that nonexamination
of material witness would make conviction of appellant unsustainable. In that case raid was conducted at a
busy place at 4.00 p.m. and in that context the court observed that none who could have been naturally
present was even named as a witness. Here raid is conducted on a highway in the dead of night. Further, in
that case, nonexamination of witness who would be present was not the only ground on which conviction was
reversed. Judgment of the Apex Court in Jagdish v. State of M.P. reported at (2003) 9 SCC 159 is based upon
appreciation of evidence tendered in that case, and cannot lead to the conclusion that conviction cannot be
based on sole testimony of a raiding officer. Here his testimony is fully corroborated by the fact that prior
information was received and recorded in respect of the very vehicle which was found carrying contraband.
2 4 . In Jitendra and Anr. v. State of M.P. reported at 2004 Criminal 52 apart from non-examination of
independent witness, even Investigating Officer was not examined and seized articles were not produced in the
court. Hence ratio of that judgment of the Supreme Court cannot be applied to the case at hand. As rightly
submitted by learned Additional Public Prosecutor it was not necessary to examine any additional witnesses, if
the evidence of the Investigating Officer was sufficient to inspire confidence about truthfulness. For this purpose
the learned A.P.P. Placed reliance on judgment of Supreme Court in Mohd. Aslam v. State of Maharashtra
reported at MANU/SC/2255/2000 : (2001)9SCC362 . The cross-examination of P.W. 4 P.I. Purandare consist
of mere suggestions which have been denied. There is absolutely no reason why the word of P.W. 4 Purandare
should be disbelieved on the factum of his receiving information, his communicating same to his superior Shri
Gautam, his making arrangement for the raid, conducting the raid, and seizing contraband articles from the
vehicle in question. P.W. 4 P.I. Purandare had stated that two gunny bags were kept in the middle of the seat in
Tata Sumo vehicle, whereas 4 gunny bags were were in the rear side. He also claimed that upon being asked
accused told that there was Ganja in the gunny bags. P.I. Purandare states that gunny bags were taken out
with the help of staff and panchas and was found to be containing Ganja which was measured and found to
weigh in all 230 k.g. Two samples were taken from each of the gunny bags and were sealed with labels bearing
signatures of panchas. Signature of the accused was also taken on those samples.
25. Learned Counsel for the appellant submitted that it can not be said that the appellant was in conscious
possession of the property. He was merely driving the vehicle in fact the other occupants of the car, who fled
after the vehicle was stopped may be held to be in possession of the contraband. For this purpose, he placed
reliance on a judgment of the Supreme Court in Awtar Singh v. State of Punjab reported at . In that case three
appellants were charged for possession of 640 k.g. of opium husk which was being carried in truck which was
checked by police. Appellant no.3 was driving the vehicle. A person sitting by the side of the driver as well as
one who was sitting behind ran away. Two other sitting in the back of the vehicle were the appellant no.1 and
2. It was contended before the High Court first that mere fact that the appellants were sitting in the truck could
not lead to attribution of possession of the contraband to them. The High Court held that the appellants did not
come up with the case that they were mere passenger and were unaware of what was contained in the bags
and therefore, left the conviction undisturbed. The Hon. Supreme Court held that the possession is the core
ingredient to be established before accused could be punished. If they are found to be in possession it was for
them to account such possession satisfactorily. No investigation had been directed in that case to ascertain the
role played by each of the accused and the nexus between the accused and the offending goods. The court

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observed that the word 'possession' has different shades of meaning and it is quite elastic in its connection. In
that case court held that it transpired from the evidence that the appellants were not the only occupants of the
vehicle, since two persons had run away. Therefore, the court concluded that it was quite probable that one of
the persons who had ran away could be the custodian of the goods. The court held that the third appellant was
merely driving the vehicle and therefore allowed the appeal.
26. Learned Counsel for the appellant submitted that there is a striking resemblance in the facts in Awatar
Singh and the case at hand. Even in the present case, when the vehicle was stopped two persons jumped
down and ran away. He therefore, submitted that those persons might have been in possession of the
contraband articles and that the appellant was a mere driver. The learned A.P.P. pointed out that P.W. 4 P.I.
Purandare stated that upon noticing gunny bags in the vehicle, the accused was asked as to what the bags
contained and the accused stated that there was ganja in the bags. Thus it is not that the accused was not
aware that he was carrying contraband in his vehicle. Learned A.P.P. Further submitted that it is difficult to
conclude that the appellant would be having some other ideas about contents of the bags which he was
transporting towards Seoni in M.P. In the dead of night. The appellant is resident of Vasmat in Hingoli District far
away towards south east of Nagpur. Vehicle which he was driving bears registration from Nanded R.T.O. near
Vasmat. Therefore, according the learned A.P.P. It would defy common sense if the court were to conclude
that the appellant was merely innocently carrying passengers and their cargo without knowing what was
loaded. Therefore, though persons who are alleged to have fled, too may be having a nexus with the
contraband articles seized, it cannot be said that the appellant was ignorant of the contents of the gunny bags
and therefore innocent. It would be difficult to distinguish between role of various occupants of a vehicle and
the goods that it carries since in that case every occupant of the vehicle will pass on the buck to the other and
all would walk scot free. Since these facts would be in the special knowledge of the occupants themselves, it
would be for them to furnish explanation as is required under Section 54 of the N.D.P.S. Act. In view of this,
contentions of the learned Counsel for the appellant based on judgment of Supreme Court in Awtar Singh, have
to be rejected in view of the distinct and peculiar facts of the present case.
2 7 . It may not be necessary to consider the judgment in Rubyana @ Smita Sanjib Sanjib Bali v. Stte of
Maharashtra reported at MANU/MH/0151/1995 : 1996(3)BomCR410 on the question of conscious possession
in view of the forgoing. In State of Punjab v. Balkar Singh and Anr. reported at 2004 Criminal 403 the question
was of accused being required to explain his presence at the place of recovery, an open place. Here accused
cannot dispute his driving the vehicle which carried contraband.
2 8 . In this case, admittedly an inventory was not drawn up as is required under Section 52-A(2) of the
N.D.P.S. Act. No application was made to the Magistrate to certify the correctness of inventory prepared or for
taking photographs of the contraband articles in presence of the Magistrate. Relying on the judgment of the
learned Single Judge in Hanmantu v. State of Maharashtra 2007 (2) Mh. L.J. 991 and Maltibai Hume v. State of
Maharashtra (Criminal Appeal No 518/2005) decided on 26.6.2007, the learned Counsel submitted that
seizure itself would have to be held as not proved. As rightly pointed out by the learned Additional Public
Prosecutor, all that non-compliance of Section 52-A would imply is failure to prove seizure of articles which
were eventually not produced before the court. As far as the articles which are produced before the Court, the
failure to take inventory would be inconsequential. In Mohan and Anr. v. State of Maharashtra Criminal Appeal
No. 592/2005 decided on 3.10.2006 apart from failure to prepare inventory, there was also question of
identity of samples analyzed by the Chemical Analyser and hence the decision does not help.
29. P.W. 4 P.I. Purandare is himself the officer in charge of Police Station. He deposited the property with P.W.
6 Head Constable Jitendraprasad, who was Malkhana Moharir . officer in charge of property room. In view of
this the judgment in Ramesh Urmal Bafna v. State of Maharashtra reported at 1994 B.Cri. 20 on which learned
Counsel for the appellant relied, would not be helpful since in that case property was lodged with an officer in
charge of a police out post and not police station. The learned A.P.P. Also submitted that requirements under
Section 55 of the N.D.P.S. Act about officer incharge of Police Station taking charge of seized articles have
been held in Bahadur Jangali Chavan v. State of Maharashtra reported at AIR 2008 Bom R 464 to be not
mandatory.
30. In view of the foregoing it has to be held that appellant was in conscious possession of ganja seized from
vehicle which he was driving. However, since no inventory was prepared and the entire property seized is not
shown to have been produced before the court (P.W. 3 Head Constable Jitendraprasad, as well as P.W. 4 P.I.
Purandare identify only 6 pockets produced before the court), appellant could be held to have been in
possession of only the property produced namely 300 grams which is less than .small quantity. of 1000 grams.
Hence conviction of the appellant would have to be altered to one punishable under Section 20(b)(ii)(A) in
place of under Section 20(b)(ii)(C).
31. Appeal is therefore, partly allowed. Conviction of the appellant for offence punishable under Section 20(b)
(ii)(C) of N.D.P.S. Act and sentence of R.I. For 10 years and fine of Rs.100,000/- or in default R.I. for one year
is set aside. He is convicted of offence punishable under Section 20(b)(ii)(A) of the N.D.P.S. Act and sentenced

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to suffer R.I. For 6 months and to pay a fine of Rs. 10,000/- or in default suffer R.I. For further period of one
month.

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