Bombay High CourtVinod Ramchandra Dhakad vs M.S.A. Khan on 6 September, 2011Author:J.H.BhatiaBench:J.H.Bhatia1    Cri-Appeal-493-07.sxw

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
Mhi




                                                                                   
                    CRIMINAL APPEAL NO. 493              OF 2007




                                                          
      Vinod Ramchandra Dhakad                    )
      Age 22 years, Res: at village Khachrod     )
      Dist: Ujjain, Madhya Pradesh               )
      (at present lodged at Kolhapur Central     )




                                                         
      Prison).                                   ).. Appellant
                                                  (Orig.accused No.1)
                   Vs.




                                              
      1)    M.S.A. Khan                        )
            Intelligence Officer, NCB, Mumbai. )..Rspondent No.1
                                 ig             (Ori. complainant).

      2)    The State of Maharashtra.            ). Respondent No.2
                               
      Mr.Atul S. Sarpande, Advocate, for the appellant.
      Ms. Rebecca Consalvez, Advocate for the respondent No.1.
              


      Smt. S.V.Sonawane, APP, for the respondent No.2 - State.
           



                                           CORAM: J.H.BHATIA,J.

                                           DATE :       6th September, 2011.
     




                                        JUDGMENT :1.          The appellant, who was original accused No.1 in NDPS Special Case

       No.107/2004, has preferred this Appeal against the Judgment and order passed by





       the learned Special Judge, NDPS Cases, Mumbai, whereby he was convicted for

       the offence punishable under Section 21(c) read withSection 8of N.D.P.S. Act

       and was sentenced to undergo R.I. for ten years and to pay fine of Rs.1 lakh and::: Downloaded on - 09/06/2013 17:42:10 :::2    Cri-Appeal-493-07.sxw

    in default to suffer simple imprisonment for six months.2.          Prosecution case, in brief, is that on 7.4.2004, early in the morning,




                                                         
    three Intelligence Officers of Narcotic Control Bureau, received an intelligence to

    the effect that one person by name Vinod, resident of Madhya Pradesh, was going




                                                        
    to deliver substantial quantity of heroin to one Velamayil from Trichy, Tamil

    Nadu, outside the Hotel Lokesh situated at Plot No.8, Sector 1, Koparkhairane,




                                             
    Navi Mumbai between 8.00 to 9.00 a.m. The intelligence also revealed that the
                              
    heroin would be received on behalf of one Selvam, who was the owner of Hotel
                             
    Lokesh. The intelligence was reduced to writing and signed by all the three

    officers and it was placed before PW-9 Ajit Patil, Superintendent of the N.C.B.

    Immediately, the Superintendent directed the officers to take action and                   to
           


    proceed to the spot near Hotel Lokesh. PW-1 Sanjay Poojari, who was at the
        



    residence of his colleage Mr. Kedare, also got the message and accordingly both





    these officers also rushed to the spot. PW-9 Ajit Patil himself along with several

    other officers of his Department went to the spot and reached there at about 7.30

    a.m. Two persons were called to act as panch witnesses and they were duly





    informed about the information received and the purpose of the raid. Thereafter,

    the team of officers of N.C.B. and the panch witnesses took positino near the

    Hotel Lokesh and kept a watch. At about 8.25 a.m., one person was seen coming::: Downloaded on - 09/06/2013 17:42:10 :::3   Cri-Appeal-493-07.sxw

    and standing near the Hotel Lokesh and after some time another person came

    from the Hotel Lokesh and received first one and took him inside the Hotel. The




                                                                                
    first person who had come to Hotel Lokesh was having a black colour shoulder




                                                       
    bag. When he was about to hand over the said bag to the second person who had

    received him, they were intercepted and caught. Accused No.1 Vinod, who is




                                                      
    appellant before this Court, was the person who had come there with a black

    colour shoulder bag. Accused No.2 - Subramanian Velmayil was the person who




                                            
    had received him and to whom accused No.1 was to hand over the bag. These
                              
    persons were asked about their names and addresses. Both of them informed that
                             
    the bag contained heroin. They were informed about their right to be searched

    before a Magistrate or a Gazetted Officer, but they declined the offer and agreed

    to give search in presence of the officers of N.C.B. and the panch witnesses. The
          


    bag was opened. In the bag Inside there was one scotch taped packet. Scotch
       



    taped packet was cut and then a polythene bag containing brown colour powder





    was found. PW-1 Sanjay Poojari cut open the corner of the polythene bag and a

    small quantity of brown powder was taken and tested it with the help of field

    testing kit and it confirmed the presence of heroin. The said polythene bag was





    emptied in another cleared bag and weighed it on weighing scale and it was found

    to be 3 kgs. Two representative samples of 5 grams each were taken from the

    said powder. The said samples were placed in two separate small polythene::: Downloaded on - 09/06/2013 17:42:10 :::4    Cri-Appeal-493-07.sxw

    sachets and were duly heat sealed. The sachets were put in two separate paper

    envelopes and pasted. The description was written on the paper envelopes and




                                                                                 
    they were duly sealed with NCB Seal No.03. When the powder was being




                                                        
    weighed, accused No.3 Selvam Pillai, who was said to be owner of Hotel Lokesh,

    also came there and accused No.2 informed as per the instructions from accused




                                                       
    No.3 Selvam the consignment was brought. The container of 2.990 kgs. heroin

    was kept in the polythene bag, it was heat sealed and then put in a carton which




                                            
    was closed with scotch tape and the label with description of the contents was

    affixed on it.It was also sealed with NCB Seal No.03. The labels were also
                             
    signed by the panchas as well as all the accused persons. The shoulder bag,

    scotch taped bag and empty polythene bag were kept in another carton, which was

    also closely sealed and labelled with the label. About all this proceeding a
           


    panchnama was prepared on the spot. Thereafter, house of the accused No.3 was
        



    searched. About that also a panchnama was prepared. The Railway tickets from





    accused Nos. 1 and 2 were also seized under a panchnama. Muddemal property

    was deposited with the concerned oficer on the same day. The statements of all the

    accused three persons were recorded underSection 67of the NDPS Act.                 After





    recording the statements of the accused persons, they were arrested and arrest

    notes and arrest reports were submitted. The samples were forwarded to the

    Customs Laboratory as well as the State Forensic Science Laboratory. They::: Downloaded on - 09/06/2013 17:42:10 :::5   Cri-Appeal-493-07.sxw

    confirmed that the contents were heroin. After investigation, the case was filed by

    the CBI against all the three accused persons. The accused persons were put to




                                                                                    
    trial for the offence punishable underSection 21(c)read withsection 8(c)and




                                                           
    underSection 29read withSection 21(c)andSec. 8(c)of the NDPS Act. They

    pleaded not guilty.3.           On behalf of the prosecution, in all 16 witnesses were examined and




                                               
    a large number of documents were placed on record. After trial, the learned
                               
    Special Judge convicted the accused No.1 - Vinod alone and sentenced him as
                              
    stated above. Accused Nos. 2 and 3 were acquitted of both the charges. Accused

    No.1 Vinod was also acquitted of charge underSec. 29read withSec. 21(c).4.           Evidence led by the prosecution pertains to the role of the three
        



    accused persons, but as the accused Nos. 2 and 3 have been acquitted and this





    Appeal is only filed by accused No.1, it is not necessary to deal with all the

    evidence of the 16 witnesses. Only the evidence relevant for the decision of this

    appeal in respect of the accused No.1 will be scrutinized.5.           Heard the learned Counsel for the parties. Perused the record and

    proceedings of the trial Court.::: Downloaded on - 09/06/2013 17:42:10 :::6    Cri-Appeal-493-07.sxw6.           Mr. Sarpande, learned Counsel for the accused-appellant vehemently




                                                                                  
    contended that the prosecution has not examined any of the panch witnesses and it




                                                          
    relies on the sole testimony of PW-1 Sanjay Poojari. According to him, even the

    other officers of intelligence, particularly PW-2 Jitendra Dubey and PW-9 Ajit




                                                         
    Patil, who claimed to have participated in the raid and the panchnama, did not

    depose anything in detail as to what had happened. He also contended that the




                                              
    entries in the documents also do not provide corroboration to the testimony of
                               
    PW-1 Sanjay Poojari. According to him, it would be unsafe to place reliance and
                              
    base conviction on the sole testimony of PW-1 Sanjay Poojari, who was an officer

    of the NCB. On the other hand, the learned Counsel for the NCB fully supported

    the impugned judgment and order of conviction and sentence. According to her, if
           


    the sole testimony of the police officer is found to be trustworthy and reliable, the
        



    conviction can be based on the same. According to her, evidence of PW-1 Sanjay





    Poojari does not suffer from any drawback. All the mandatory provisions of law

    have been duly complied. According to her, the evidence of other witnesses and

    the documents     also provide corroboration to the testimony of PW-1 Sanjay





    Poojari. Both the learned Counsel placed reliance on certain authorities in support

    of their respective contentions.::: Downloaded on - 09/06/2013 17:42:10 :::7    Cri-Appeal-493-07.sxw7.          The prosecution evidence will have to be scanned and scrutinized in

    the light of the rival contentions advanced by the Counsel for the parties.Evidence




                                                                                  
    on record reveals that PW-1 Sanjay Poojari, PW-2 Jitendra Dubey, Vipin Nair,




                                                         
    P.S.Namboodri and one Kedare were the Intelligence Officers working with

    NCB. PW-9 Ajit Patil was the Superintendent of NCB at Mumbai. As per




                                                        
    evidence of PW-2 Jitendra Dubey, early in the morning on 7.4.2004, he and other

    two Intelligence Officers Namboodri and Vipin Nair received intelligence from




                                             
    their informant that one Vinod, resident of Madhya Pradesh, was going to deliver
                               
    substantial quantity of heroin to one Velamayil, resident of Trichy, Tamil Nadu,
                              
    outside hotel Lokesh, situated at Plot N.8, Sector-I, Koarkhairane, New Mumbai

    between 8 and 9 a.m. on the same day. It was also revealed that the consignment

    of heroin was brought on behalf of one Selvam, who was the owner of hotel
           


    Lokesh. PW-2 Jitendra deposed that he immediately typed this information at
        



    about 5.30 a.m. and put his signature and date on the same. Other two officers





    Namboodri and Vipin Nair also signed the same. The said intelligence note Ex.15

    was immediately placed before PW-9 Ajit Patil, who was also present in the

    office for some official work. He also endorsed and signed and put date on the





    said intelligence note. PW-9 Ajit Patil placed that information before his superior,

    Assistant Director K.J.Sanchis who also initialled and signed the same. The

    Superintendent Ajit Patil and the Assistant Director approved the proposed action::: Downloaded on - 09/06/2013 17:42:10 :::8    Cri-Appeal-493-07.sxw

    of surveillance, apprehending the culprits and to recover heroin.                  After its

    approval, PW-9 Ajit Patil called the officers for the raid.8.           Besides PW-2 Jietendra Dubey, P.S.Namboodri, Vipin Nair,

    C.A.Fernandis, B.S. Mulay and Inspector S.B.Gokhale joined the team. PW-9




                                                          
    also telephonically called Kedare, another Intelligence Officer to remain present at

    Koparkhairane. PW-1 who was also present and he was also instructed to remain




                                              
    present. Therefore, PW-1 Sanjay Poojari and Kedare joined the said team. These
                               
    persons reached the spot near a small store which is at a distance of 100' from
                              
    Hotel Lokesh. PW-9 Ajit Patil informed PW-1 Sanjay Poojari and other officers,

    who had directly come there, about the information and interception.                      PSI

    Namboodri had brought complete search kit consisting of                field testing kit,
           


    weight balance, sealing material, stationery ,empty cartons etc. He handed over
        



    the kit to PW-1 Sanjay Poojari, who was directed to conduct the raid and





    complete the formalities. According to PW-1 Sanjay Poojari, he called two

    persons from near Kerala Stores at about 7.30 a.m. and requested to act as panch

    witnesses. Both these persons were informed about the purpose of the raid.9.           Evidence of PW-1 Sanjay Poojari reveals that at about 8.25 a.m. he

    noticed one person standing near the Hotel Lokesh. Accused No.1 Vinod is::: Downloaded on - 09/06/2013 17:42:10 :::9    Cri-Appeal-493-07.sxw

    identified as that person. He was having a black coloured shoulder bag.According to him, after some time, another person, who was identified as accused




                                                                                 
    No.2 - Subramanian Velamayil, came from the Hotel and received accused No.1




                                                         
    and took him into the hotel premises. After entering into the hotel premises when

    accused No.1 was about to hand over the said bag to accused No.2, the raiding




                                                        
    party immediately pounced upon and intercepted them. They were asked about

    their names and addresses and they disclosed. On enquiry, both of them admitted




                                             
    that the bag contained heroin. PW-1 Sanjay Poojari deposed in detail about the
                              
    procedure followed. According to him, both the accused persons were informed
                             
    about their right to be searched in presence of a Magistrate or a Gazetted Officer,

    if they so desired. However, both of them declined the offer and agreed to be

    searched by the Investigating Officer in presence of panchas. Therefore, PW-1
           


    Sanjay took custody of the black coloured shoulder bag from accused No.1. It
        



    was opened and inside a scotch tape packet was found. The said scotch tape





    packet was cut and polythene bag containing brown colour powder was found in

    it. Firstly, PW-1 Sanjay cut a corner of that polythene bag and took small

    quantity of powder which was tested with the help of testing kit and it was





    confirmed that it was heroin. Thereafter the polythene bag was emptied into

    another empty polythene bag, which was carried by the NCB. It weighed 3 kgs.From the said powder, representative samples were taken. Each sample was put::: Downloaded on - 09/06/2013 17:42:10 :::10   Cri-Appeal-493-07.sxw

    in a separate sachet which was duly heat sealed. The said sachets were separately

    placed in separate paper envelopes which were pasted.             Description of the




                                                                                 
    contents was written on the said paper envelopes and each of them was sealed




                                                         
    with NCB Seal No.03. He also deposed in detail about the enquiry from accused

    Nos. 2 and 3 and their involvement. However, it is not necessary to advert that




                                                        
    part of the evidence. After completing search and seizure, a panchnama Ex.8 was

    prepared. The panchnama was signed by both the panch witnesses and by Sanjay




                                             
    Poojari. The copy of the said panchnama was given to each of the accused
                              
    persons and they signed at the bottom of the same in acknowledgment of receipt
                             
    of the said panchnama.10.         PW-2 Jitendra Dubey, who had initially received the information as
             


    well as PW-9 Ajit Patil, the Superintendent, after deposing about the receipt of
          



    intelligence, arrangements for raid etc., deposed that they participated along with





    a team of the officers and search and seizure carried out at the Hotel Lokesh.They also deposed that search was conducted in presence of two panch witnesses.According to them, 3 kg. heroin was recovered from the black coloured shoulder





    bag.   According to them, panchnama was prepared and all the events were

    correctly mentioned in the panchnama.::: Downloaded on - 09/06/2013 17:42:10 :::11   Cri-Appeal-493-07.sxw11.            It may be    noted that the panchas were not examined by the

    prosecution.   On behalf of prosecution, PW-16 Narayan Panigrahi, who was




                                                                                 
    working as Hawildar with NCB, was examined to prove that the said panch




                                                         
    witnesses could not be traced out. In the panchnama, their local addresses as well

    as their permanent addresses were given. He searched for the said panch witnesses




                                                        
    but the address given on the summons was not sufficient to locate and trace out. In

    the entire panchnama Ex.8 the addresses of the panch witnesses must have been




                                             
    noted on the basis of information given by the panch witnesses. If the addresses
                               
    given by them were not complete or if they could not be traced out at the given
                              
    addresses, it cannot be held that prosecution has kept back the witnesses. It

    appears that one of the panch witnesses Mahadev was shown to be permanent

    resident of District Hasan in Karnataka, while he was residing and working at
            


    Koparkhairane, New Bombay. Second panch witness Sami Chitravelu was also
         



    residing and working at Koparkhairane and he had given his local address. He





    had also given his permanent address of his village in District Viradar Kanyarity

    in Tamil Nadu. The panchnama was recorded on 7.4.2004, while the evidence

    was recorded before the trial Court from April 2006 onwards. As these two





    persons had come from two different States to work and earn livelihood at New

    Bombay, it is possible that they might have either shifted from there to any other

    place of work and therefore they could not be traced at the local address. A s they::: Downloaded on - 09/06/2013 17:42:10 :::12   Cri-Appeal-493-07.sxw

    had left their original place, it is possible that when the police officer reached at

    their permanent addressed they could not be traced out. In view of this, merely




                                                                                  
    because the panch witnesses could not be examined, the prosecution case cannot




                                                          
    be discarded.12.          Mr. Sarpande, learned Counsel for the accused/appellant vehemently

    contended that if the panch witnesses are not examined, it is not safe to place




                                              
    reliance on the sole testimony of the police officer and for this purpose, he placed
                               
    reliance upon Noor Aga vs. state of Punjab and Anr. (2008) 16 SCC 417. In
                              
    that case, two persons were called as panch witnesses, but neither of them was

    examined and there was nothing on record why they could not be examined at the

    time of trial. In para 110, the Supreme Court observed that although examination
            


    of independent witnesses in all situations may not be imperative, if they were
         



    material, in terms ofSection 114of the Evidence Act, an adverse inference can be





    drawn.    As per illustration (g) to Section 114, the Court may presume that the

    evidence which could be and is not            produced, would, if produced, be

    unfavourable to the person who withholds it. If the prosecution would have





    withheld the important panch witnesses without any valid                reason, adverse

    inference could be drawn. However, in the present case, the prosecution has made

    serious attempts to find out panch witnesses and to bring them before the Court,::: Downloaded on - 09/06/2013 17:42:10 :::13   Cri-Appeal-493-07.sxw

    but it could not succeed and therefore adverse inference cannot be drawn against

    the prosecution.13.           Mr. Sarpande placed reliance uponRamji Surjya and Anr. vs.

    State of MaharashtraAIR 1983 SC 810 wherein the Supreme Court held that




                                                         
    where there is only a sole eye-witness of a crime, conviction can be recorded

    on the basis of the sole testimony of the witness provided the Court is satisfied




                                              
    that the witness is entirely truthful. However, Their Lordships also observed that
                               
    prudence requires that some corroboration should be sought from the other
                              
    prosecution evidence in support of the testimony of a solitary witness, particularly,

    where such witness also happens to be closely related to the deceased or if he has

    ill-will or motive against the accused.Similar view was taken by the Supreme
            


    Court in theState of U.P. vs. Satish Chandra & Ors.AIR 1986 SC 313.The
         



    learned Counsel alsoplaced reliance uponMohd. Hussain Babamiyan Ramzan





    vs. State of Maharashtra II (1994) CCR 1223, Tulashida Nemandas Dengara

    vs. State of Maharastra 1992 (3) Crimes 421 and Shaikh Nazre Alam Zahoor

    & Anr. vs. The State of Maharashtra 2001 (II) LJ 47. In these cases, the





    independent panch witnesses were available, but were not examined. It was held

    that in such cases, it was improper to hold that the offence was proved against the

    accused.::: Downloaded on - 09/06/2013 17:42:10 :::14   Cri-Appeal-493-07.sxw14.            On the other hand, the learned Counsel for the prosecution contended




                                                                                   
    that if the sole testimony of the police officer is found to be trustworthy and




                                                           
    reliable, it     can be made basis for conviction and she finds support fromLopchand Naruji Jat & Anr. vs. State of Gujarat(2004) 7 SCC 566, Abdul




                                                          
    Majid abdul Hak Ansari vs. State of Gujarat (2003) 10 SCC 198 and P.P.

    Beeran vs. State of Kerala(2001) 9 SCC 571. In view of the authorities referred




                                               
    to by the learned Counsel for both parties, the settled position of law is that
                                
    conviction can be based on the testimony of solitary witness, even if he is a police
                               
    officer, provided the court is of opinion that the witness is truthful and trustworthy.If the Court finds it necessary, it may look for some corroboration to the testimony

    of such witness. However, if the independent panch witnesses, particularly in
            


    serious        cases, are available but are withheld and not examined by
         



    prosecution,adverse inference may be drawn against the prosecution.                   In the





    present case, for the reasons noted above, it is difficult to hold that the prosecution

    has intentionally withheld the panch witnesses and, therefore, no adverse

    inference can be drawn against the prosecution on that count.15.            As the prosecution mainly relied on the testimony of PW-1 Sanjay

    Poojari, his evidence has to be scrutinized to find out whether the mandatory::: Downloaded on - 09/06/2013 17:42:10 :::15   Cri-Appeal-493-07.sxw

    provisions of law have been followed in completing the proceedings, whether

    there was delay in respect of any part of the proceedings and whether any




                                                                                 
    mandatory provisions of law was violated or not followed.16.         On scrutiny of evidence, it appears that as soon as PW-2 Jitendra




                                                       
    Dubey got the information early in the morning on 7.4.2004, he and his

    companion officers prepared the intelligence note Ex.15, signed the same and




                                            
    placed the same before his immediate superior PW-9 Ajit Patil the Superintendent
                              
    of NCB, who was also present in the office at that time. Ajit Patil not only
                             
    endorsed and signed and     approved the proposed action of surveillance and

    recovery of the contraband, he also without any loss of time placed that

    intelligence note before his superior Assistant Director, who also signed and
            


    approved the said note. Immediately, several officers of the Department were
         



    summoned and directed to proceed to the spot near Hotel Lokesh for the purpose





    of raid.   PW-1 Sanjay Poojari and his companion officer Kedare received

    information at the house of Kedare and went to the spot of incident and reached

    there at about 7.30 a.m. PW-1 Sanjay Poojari called both the panch witnesses. As





    per the evidence, at 8.25 accused No.1 first appeared and thereafter the other

    events took place. Recording of panchnama was commenced immediately after

    the search and seizure, etc. and was completed by 12.30 hrs. The panchnama::: Downloaded on - 09/06/2013 17:42:10 :::16   Cri-Appeal-493-07.sxw

    was signed by both the panch witnesses and copy of the panchnama was supplied

    to each of the accused persons who signed at the bottom of the panchnama in




                                                                                 
    acknowledgment of receipt of the copy thereof. There is nothing to show that the




                                                         
    panch witnesses were not independent.       The panchnama also shows that the

    accused persons were informed about their right of being searched in presence of




                                                        
    the Magistrate or a Gazetted officer, but they declined that offer and agreed to be

    searched in presence of NCB Officers and panchas. After search and seizure was




                                             
    completed, PW-1 Sanjay Poojari submitted a note Ex.11 to the Superintendent that
                              
    two representative were drawn from total quantity of 3 kg. heroin and were
                             
    marked S-I and S-II and the balance quantity of heroin, which was duly sealed,

    was being deposited in safe custody. PW-4 Mohd. Shaif Ahmed Khan, who was

    also Intelligence Officer, deposed that on 7.4.2004, he was present in office. A
           


    team consisting of officers head by the Superintendent Patil came back to the
        



    office along with seized 3 kg. of heroin and three persons. He was informed that





    the seizure had taken place at Hotel Lokesh, Koparkhairane. All the three accused

    persons were introduced to him and the Superintendent Patil directed PW-4

    Mohd. Khan to investigate the case. According to him, besides the statements of





    two other accused, he also recorded statements of accused No.1 Vinod vide Ex.21

    wherein he admitted that he had brought consignment from Madhya Pradesh for

    handing over to accused No.2 at Hotel Lokesh.      The evidence on record reveals::: Downloaded on - 09/06/2013 17:42:10 :::17   Cri-Appeal-493-07.sxw

    that after recording of the statement of accused No.1, which was completed by

    about 8 p.m., he was arrested as per the arrest memo Ex.22 by PW-4 Mohd.Khan. He also submitted the arrest report Ex.23 to the Superintendent, who in




                                                        
    turn placed the same before his superior Assistant Director, NCB. All this was

    done on the same day almost immediately without loss of any time at any stage.17.         On 8.4.2004, PW-4 Mohd. Khan forwarded one envelope marked




                                            
    sample S-II to Forensic Science Laboratory, Kalina, Maharashtra State and one
                              
    sample was sent to New Customs House Laboratory. Ex.33 is the Test Memo-cum-report- from Customs House Laboratory, which shows the presence of

    heroin.   Exhibit 34 is the C.A. report from Forensic Science Laboratory,

    Maharashtra State, which reveals that one sealed envelope as per the copy sent
            


    and marked S-II was received on 13.4.2004 through one U.B.Darge. The C.A.
         



    report dated 8.6.2004 shows that heroin (diacetyl morphine) was detected in the





    sample. PW-3 who was Assistant Chemical Analyser from Customs Department

    deposed in detail about the sample marked S-I received on 8.4.2004 itself.According to him, he analyzed the same on 16.4.2004 and found that it was





    heroin and accordingly he submitted his report Ex.18. Exhibit 18 and Ex.33 are

    copies of the same report. From the evidence of the Chemical Analyser from the

    Customs Department Laboratry       as well as the Chemical Analyser from the::: Downloaded on - 09/06/2013 17:42:10 :::18   Cri-Appeal-493-07.sxw

    Forensic Laboratory, it is clear that both the samples were sent almost

    immediately and both samples were received by the concerned Laboratories with




                                                                                  
    seals intact and on analysis the contents were found to be heroin.18.         As per the testimony of PW-1 Sanjay Poojari and the contents of the




                                                         
    panchnama Ex.8, it is revealed that after the search and seizure of the contents of

    the black coloured shoulder bag, personal search of accused N.1 Vinod was taken




                                             
    and during that personal search,two railway tickets were seized from him. One
                               
    ticket was from Khachrod to Ratlam and another ticket was from Ratlam to
                              
    Mumbai Central. This provided corroboration to the statements of the accused

    recorded by PW-4 Mohd. Khan that accused No.1 had travelled from Khachrod to

    Ratlam and then from Ratlam to Mumbai Central with the said consignment. The
            


    seizure of these two railway tickets provides corroboration to the prosecution case
         



    against accused No.1.19.         The learned counsel for the appellant vehemently contended that the

    report Ex.11 submitted by Sanjay Poojari to the Superintendent and the search and





    seizure report Ex.12 submitted by him do not disclose that the samples were also

    sealed. In these two documents it was mentioned that two representative samples

    of 5 grams from the total quantity of 3.000 kgs. of heroin were drawn and marked::: Downloaded on - 09/06/2013 17:42:10 :::19   Cri-Appeal-493-07.sxw

    S-I and S-II respectively. It further reveals that the balance quantity of 2.990 kgs.of heroin was put in a polythene packet, heat sealed and placed in a cardboard




                                                                                  
    carton, closed and a label giving description of its contents was affixed on the said




                                                          
    carton and sealed with NCB Seal No.03 and t was being deposited for safe

    custody. According to him, it indicated that only packet containing the bulk




                                                         
    ramnant of the powder was heat sealed, but samples were not sealed. According

    to him, if the samples would have been sealed, the officer would have noted this




                                              
    fact also in these two documents. It is true that in this report Ex.11 and search and
                               
    seizure report Ex.12, it is not specifically mentioned that samples marked S-I and
                              
    S-II were sealed. However, in my opinion, this cannot be a ground to doubt the

    evidence in this respect. PW-1 Sanjay Poojari specifically deposed that they were

    sealed and this fact is noted in the panchnama Ex.8. PW-2 Jitendra Dubey and
           


    PW-9 Ajit Patil, who were members of the raiding party, also deposed that they
        



    had participated in the search and seizure and a correct panchnama was drawn





    about the same. Evidence of PW-9 shows that after conclusion of the panchnama

    at the house of accused No.3, he directed PW-1 Sanjay Poojari to hand over all the

    relevant documents and samples to PW-4 M.S.A. Khan and to deposit the





    remaining quantity with PW-9 Ajit Patil himself which he did on the same day.PW-4 Khan, as noted above, forwarded the samples in the sealed condition almost

    immediately to both the Laboratories and both Laboratories have reported that the::: Downloaded on - 09/06/2013 17:42:10 :::20     Cri-Appeal-493-07.sxw

    seals were intact. Therefore, in my opinion, the prosecution has established that

    the samples were duly sealed on the spot of incident.20.         The learned Counsel for the accused/appellant could not point out

    violation of any mandatory provisions of law. It appears that the procedure was




                                                         
    strictly and scrupulously followed by the NCB Officers. They acted swiftly and

    promptly without loss of any time at any stage. Therefore, no doubt can be




                                              
    raised about their conduct.    The recording of intelligence immediately after
                              
    receiving the same, action which followed and the consequent seizure are further
                             
    corroborated by seizure of the two railway tickets marked C-1 from accused No.1

    Vinod. There is no material on record to show that PW-1 Sanjay Poojari or any

    other officers of NCB had any reason to falsely implicate the accused No.1 Vinod.Therefore, in my opinion, the evidence of PW-1 Sanjay Poojari appears to be
         



    truthful and trustworthy and is also corroborated by other circumstantial evidence.Therefore, merely because panch witnesses were not examined, the evidence of

    Sanjay Poojari cannot be rejected.21.         In view of the facts and circumstances noted above, I find no fault

    with the impugned judgment and order of conviction. The trial Court has awarded

    the sentence which is minimum as prescribed by law and, therefore, needs no::: Downloaded on - 09/06/2013 17:42:10 :::21   Cri-Appeal-493-07.sxw

    interference.22.             In the result, the Appeal stands dismissed.(J.H.BHATIA,J.)::: Downloaded on - 09/06/2013 17:42:10 :::