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Bombay High Court

SURYAKANT BABURAO VARHADE. AND ONE OTHER .versusTHE STATE OF MAHARASHTRA .

Decided
Disposal
Allowed

Holding

The conviction was quashed because the prosecution failed to establish compliance with Section 42(2) of the NDPS Act and ownership of the premises, leading to the appellants' acquittal.

Summary

The appellants, Suryakant Varhade and Lalita Pawar, were convicted by the Additional Sessions Judge, Raigad, for allegedly planting a cannabis plant in the courtyard of their residence, under Sections 20(b)(i) of the NDPS Act. The prosecution’s case was based on a raid conducted after receiving prior information, but the trial court’s judgment did not demonstrate compliance with Section 42(2) of the NDPS Act regarding proper search and seizure procedures. Moreover, there was no evidence establishing that the appellants owned or possessed the house where the plant was found, and the witness testimonies regarding the timing of the raid were inconsistent. The appellate court examined the evidence, noting the lack of documentary proof of ownership and the failure to adhere to statutory requirements for seizure. Consequently, the court held that the conviction was unsustainable and quashed the judgment, acquitting the appellants. The appeal was allowed, the fine was to be refunded, and the bail bonds were cancelled.

Issues considered

  • Did the seizure of the cannabis plant comply with the procedural requirements of Section 42(2) of the NDPS Act?
  • Were the appellants proven to be the owners or in possession of the premises where the cannabis plant was found?
  • Can a conviction be sustained in the absence of compliance with statutory search procedures and proof of ownership?

Legislation cited

Subjects

  • NDPS Act
  • search and seizure
  • ownership of premises
  • conviction quashed
  • appeal

Judgment

                                                          1               18-APEAL 37-2000.doc



                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION
                                            CRIMINAL APPEAL NO.37 OF 2000
                       1. Suryakant Baburao Varhade
                       2. Lalita Chandrakant Pawar                  … Appellants
                              Vs.
                       The State of Maharashtra                     … Respondent
                                                           -----
                       Mr. Ganesh Gole a/w Ateet Shirodkar & Bhavin Jain for the Appellants.
                       Mr. V. N. Sagare, APP for the Respondent-State.
                                                           -----
                                                       CORAM : N.R. BORKAR, J.
                                                       DATE      : 17TH JUNE 2026
                       ORAL JUDGEMENT :
          Digitally
          signed by
          MUGDHA
MUGDHA
MANOJ
          MANOJ
          PARANJAPE
                       1.       This Appeal takes exception to the judgement and order dated 23 rd
PARANJAPE Date:
          2026.07.24
          15:30:39
          +0530
                       December 1999 passed by the Additional Sessions Judge, Raigad in
                       Sessions Case No.170 of 1998.

                       2.       By the impugned judgement and order, the Learned Additional
                       Sessions Judge has convicted the present Appellants for the offences
                       punishable under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic
                       Substances Act, 1985 (for short ‘NDPS Act’) and sentenced them to suffer
                       rigorous imprisonment for a period of one year and to pay fine of
                       Rs.1,000/- each, in default to undergo rigorous imprisonment for three
                       months.

                       3.       The Appellants were tried for the above offences on the allegations
                       that they in contravention of the provisions of the NDPS Act had planted a
                       cannabis plant in the courtyard of their residence.


                       4.       I have heard Learned Counsel for the Appellants and Learned APP
                       for the Respondent-State.

                            Mugdha                                                               1 of 3
                                   2                18-APEAL 37-2000.doc




5.       Learned Counsel for the Appellants submits that the alleged raid
was conducted on the basis of prior information. It is submitted that the
evidence on record, however, does not show the compliance of Section
42(2) of the NDPS Act. It is submitted that there is no evidence to show
that the house in question, where the cannabis plant was allegedly found,
was owned by the present Appellants. It is further submitted that the
evidence of the witnesses is not consistent in relation to the alleged raid. It
is submitted that the trial court thus committed an error in convicting the
Appellants.


6.       On the other hand, Learned APP for the Respondent-State has
supported the impugned judgement and order.


7.       I have perused the evidence on record. It appears from the evidence
of PW-1 Kamalakar Shinde that on 14 th May 1998 he came to the police
station and gave information about the alleged planting of the cannabis
plant to PW-4 Shri Shinde, who was working as Police Sub Inspector with
Karjat Police Station. The evidence of PW-4 PSI Shinde shows that after
receipt of the information, he along with four staff members and two
panch witnesses proceeded towards the spot. One of the panch witnesses,
who was from tribal community, identified the said plant to be cannabis
plant. The plant was uprooted and it was seized.


8.       The evidence of PW-4 PSI Shinde does not show the compliance of
Section 42(2) of the NDPS Act. Apart from it, in a cross-examination, PW-
4 PSI Shinde has admitted that panchnama lasted till 1.10 p.m. However,
the evidence of PW-5 Deepak Behere, who is one of the panch witnesses,


     Mugdha                                                                2 of 3
                                      3                 18-APEAL 37-2000.doc



shows that he had gone to spot at about 4.00 to 4.05 p.m. PW-4 PSI
Shinde has admitted in his cross-examination that there are no documents
to show that the Appellants were the owners or in possession of the
residential house where the alleged cannabis plant was found.


9.       Considering the overall facts and circumstances of the case, the trial
court was not justified in convicting the Appellants. In the result, the
following order is passed :-
                                      ORDER
       i.     Criminal Appeal is allowed.

       ii.    The impugned judgement and order dated 23 rd December
              1999 passed by the Additional Sessions Judge, Raigad in
              Sessions Case No.170 of 1998 convicting the Appellants for
              the offence punishable under Sections 20(b)(i) of the
              Narcotic Drugs and Psychotropic Substances Act, 1985 is
              quashed and set aside and they are acquitted of the said
              offence.

       iii.   Their bail bonds shall stand cancelled.

       iv.    The fine amount, if any, paid by the Appellants shall be
              refunded to them.

10.      The Criminal Appeal is disposed of in the aforesaid terms.


                                                (N.R. BORKAR, J.)




     Mugdha                                                                    3 of 3


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