Revatram Ratanchand Thakur v. State of Goa — 1995 DIGILAW 191 (BOM)

JUDGMENT T.K. Chandrashekhara Das, J. - These appeals arise from a common judgment passed by the Special Judge, N.D.P.S. Court at Mapusa in Special Criminal Case No.42/92. As the facts in both appeals are one and the same, these appeals were heard jointly and we think it proper to dispose of the above two appeals by this common judgment. The Appeal No. 4/94 was filed by the accused No.1 and Appeal No.7/94 was filed by the accused No.2. 2. The appellants alongwith the four others have been charge-sheeted by the Police Inspector, Anti-Narcotic Cell, Allen D'Sa, under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'the Act'). The appellants are convicted and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs. 2,00,000/- each and in default to undergo rigorous imprisonment for a period of 2 years. All other four accused were acquitted by the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa, in Special Criminal Case No. 42/ 92. 3. According to the prosecution case, the accused Nos. 1 and 2 had taken on rent a restaurant called the "Flower Scene Restaurant" which belonged to one Mrs. Severina D'Souza, somewhere in December, 1991. It is located in the compound of her house bearing No.676. The rent which was agreed to be paid was Rs.2,000/- per month and they have paid advance rent of Rs.4,000/- to the said Mrs. Severina. The Accused Nos. 3 to 6 are the helpers/waiters engaged by the accused Nos. l and 2 for running the Restaurant. All the accused are hailing from Himachal Pradesh. It is alleged that on 15.1.1992, when the raiding party headed by P.S.I Vincy Pais, Fabian D'Souza, Jeorge Menezes, Head Constable K.G. Dessai and other Constables attached to AntiNarcotic Cell were on intelligent duties for booking the cases under the Act, one Pradip Kumar was hauled up for illegal possession of drugs. While questioning the said Pradip Kumar by the aforesaid team, Allen D'Sa, In charge of the AntiNarcotic Cell, was also present. During the course of interrogation of the said Pradip Kumar in his restaurant known as Shiva Dens Inn, it was revealed that there was another restaurant by name Flower Scene Restaurant run by the appellant Nos. While questioning the said Pradip Kumar by the aforesaid team, Allen D'Sa, In charge of the AntiNarcotic Cell, was also present. During the course of interrogation of the said Pradip Kumar in his restaurant known as Shiva Dens Inn, it was revealed that there was another restaurant by name Flower Scene Restaurant run by the appellant Nos. l and 2 located at a distance of about 75 to 100 metres from the Shiva Dens Inn Restaurant and it is also disclosed that in that Restaurant run by the appellants, charas were being sold. As pointed out by Pradip Kumar, the Police Inspector Allen D'Sa (PW 6) alongwith other staff of Anti-Nacrotic Cell, i.e. Head Constable K.G. Dessai, Police Constables Amar Pereira and Satyawan Naik and panch witnesses Dayanand Lotlikar (PW 2) and Atchut Walavalekar (DW 1) proceeded to the Flower Scene Restaurant belonging to the aforesaid Severina. On enquiry they came to know that the Flower Scene Restaurant was run by the accused Nos. 1 and 2. But the accused No.2 was not there as he had proceeded to Mapusa for shopping. However, the accused Nos. 3 to 6 were present at the Restaurant. The Appellant in Appeal No. 4/94 (accused No.1) told the party that the accused Nos. 3 to 6 are helpers in the Restaurant. After observing the legal formalities, the Police Inspector Allen D'Sa conducted a personal search of the accused during the course of which, in, the right hand side back pocket of the pant worn by accused No.1 a stick of charas weighing 10 grams was found. On enquiry as to whether any further quantity of drugs was kept in the Restaurant, the appellant No.1 told the party that there were some drugs burried in the Restaurant and, accordingly, the appellant No.1 led the raiding party to a place by the side of the kitchen in the restaurant where they used to sleep by spreading mat on the floor. It is alleged that the appellant No.1 removed the mat and pointed out the place just below that mat and told the party that the appellant in Appeal No.7 /94 (accused No.2) had buried the drugs underneath the ground. There upon, the Constable Amar dug up the place and removed a white cardboard box with the marking 'Bisleri' wherein there were bundles of charas wrapped in polythene plastic paper and tied up in white cloth. There upon, the Constable Amar dug up the place and removed a white cardboard box with the marking 'Bisleri' wherein there were bundles of charas wrapped in polythene plastic paper and tied up in white cloth. On further digging around that place, a water flask brown and yellow in colour having a false bottom was found. When the false bottom of the flask was removed it was found that it also contained some charas. The party went on digging the area and found a plastic bad containing a balance with weights measuring 50 grams, 20 grams, 10 grams, 5 grams and 2 grams. When weighed the charas contained in the plastic water bottle were found to be 310 grams. Along with weights and balance, one white colour plastic container closed with a lead containing slabs/sticks of charas was also found. The charas unearthed from the ground from the Bisleri cardboard box weighed 3.070 kgs. and white plastic container contained 500 grams of charas. In the meanwhile a message calling the S.P. Mr. A.K. Singh to the place of the incident had been sent. On arrival of Mr. Singh after an hour accompanied by a photographer by name Remedios, photographers of the contrabands were taken. Thereafter all the charas sticks/slabs recovered from the place have been properly packed and sealed after taking samples for sending for chemical analysis from each discovery. Samples so taken were also sealed and panchanama was prepared and the signature of the panchas were taken on their) respective covers. The weighing balance and the weights were also packed in an envelope and sealed and those panchas also signed. The cardboard 'Bisleri' box with plastic sheet and the pieces for cloth used to make bundles of charas were also attached under panchnama. On further search of the premises, a plastic wrapper having mark 'Klin Wrap' in a green box used for wrapping the drugs was also attached. A seizure report besides the panchanama was also prepared. 4. Subsequently, on 22.1.1992, at about 4.30 p.m., on the basis of the disclosure allegedly made by the accused No.2, speakers having hollow portions containing plastic bags where charas was being hidden, had been attached from the said Restaurant. A seizure report besides the panchanama was also prepared. 4. Subsequently, on 22.1.1992, at about 4.30 p.m., on the basis of the disclosure allegedly made by the accused No.2, speakers having hollow portions containing plastic bags where charas was being hidden, had been attached from the said Restaurant. At the instance of appellant No.2 charas weighing 7 grams which was kept in the stem of a coconut tree was also removed and the same was put in an envelope, packed and sealed over which the signatures of panchas were also taken. This quantity of charas and speakers were attached under a separate panachanama (Exh. PW 5/A) drawn in the presence of panch witnesses Satish Morajkar and Venkatesh Harischandra Naik. The Department has valued all the drugs weighing 3.890 kgs. at Rs. 1,45,000/-. As the accused were unauthorisedly found to be in possession of those quantities of charas, without any valid licence under the Act, the Police Inspector Allen D'Sa brought them to Calangute Police Station wliere he filed his complaint against the accused who were then arrested. During the investigation, the Police Inspector Allen D'Sa has recorded statements of witnesses and on receipt of report of chemical analysis the Police Inspector Allen D'Sa has submitted the charge sheet against the present accused. 5. As pointed out earlier, the appellants were charged under Section 20(b)(ii) of the Act on the basis of the recoveries made on 15.1.1992 and the appellant in Appeal No.7/94 was separately charged under Section 20(b )(ii) of the Act on the basis of the recovery made on 22.1.1992. The other accused Nos.3 to 6 were also charged under Section 29 r/w Section 2(b)(ii) of the Act. During the trial, the prosecution had examined in all six witnesses besides one Court Witness Remedios, the Police Photographer. PW 1, Maria Calderia, is the Junior Scientific Officer attached to the Food and Drugs Laboratory having analysed the samples and submitted her reports Exh. PW v 1/B and Exh. PW1/D, respectively. PW2, Dayanand Lotlikar, is the witness to the panchanama Exh. PW2/A under which 10 grams of charas recovered from the person of accused No.1 and other quantities of the contraband drugs recovered from the Flower Scene Restaurant on 15.1.1992 have been attached. PW5, Satish Morajkar, is a witness to the panchanama Exh. PW v 1/B and Exh. PW1/D, respectively. PW2, Dayanand Lotlikar, is the witness to the panchanama Exh. PW2/A under which 10 grams of charas recovered from the person of accused No.1 and other quantities of the contraband drugs recovered from the Flower Scene Restaurant on 15.1.1992 have been attached. PW5, Satish Morajkar, is a witness to the panchanama Exh. PW5/ A under which the 7 grams of charas recovered from the stem of coconut tree in Flower Scene Restaurant at the instance of accused No.2 on 22.1.1992. PW 3, Felix D'Souza, the son of Severin a D'Souza, the owner, of the Flower Scene Restaurant. PW 4, Maria D'Souza, is the wife of PW 3 and daughter-in-law of the aforesaid Severilla D'Souza. PW 6, Allen D'Sa, is the Police Inspector Incharge of Anti Narcotic Cell who has filed the complaint Exhibit PW 6/A. CW 1, Reginaldo Remedios, is the Police Photographer. CW 1 was examined as a Court witness on the application made by the defence since the prosecution did not choose to examine him on behalf of the prosecution. On behalf of the defence, one Atchut Walavalkar who is being the second witness to Panchanama Exh. PW 2/A has been examine as DW 1. 6. The learned Counsel for the appellant in Appeal NoA/94, Mr. J.P. D'Souza, has submitted that the accused were not properly identified in the Court, particularly by PW 2. PW 2, according to him, has not properly identified the first appellant. He further submits that the Investigation Officer, PW 6, was not empowered to investigate the offence subsequent to the lodging of the complaint to the Calangute Police Station on 15.1.1992. This Investigation Officer was not the Office-in-charge of Calangute Police Station and neither was he attached to the same. Besides, the Anti-Narcotic Cell on the relevant date had not been declared as a Police Station. Hence the alleged recovery was illegal. The learned Counsel further submitted that there were serious irregularities in conducting the investigation of the case. Elaborating he submitted that Section 106 of Criminal Procedure Code had not been complied with while preparing the panchanama Exh. PW 2/A as it was not given to the accused. He further attacked that the seizure report Exh. PW 6/A which is alleged to have been given to the accused at the time of the arrest does not contain the signatures of Panchas. PW 2/A as it was not given to the accused. He further attacked that the seizure report Exh. PW 6/A which is alleged to have been given to the accused at the time of the arrest does not contain the signatures of Panchas. Another point raised by the learned Counsel for the appellant is that the information obtained from Pradip Kumar who was arrested earlier by Shiva Dens Inn was not reduced in writing before the conductofthe search in Flower Scene Restaurant. Therefore, the learned Counsel submits that the search made in this case was against Section 42. Another argument advanced by the learned Counsel for the appellant is that there was no material to show that the accused and the articles were not forwarded to the Officer-in-charge of Police Station (here, in this case, Calangute Police Station). Therefore, there is -violation of Sections 52(3) and (4) of the Act. The learned Counsel for the appellant in Appeal No. 4/94 further argues that Section 57 of the Act has been violated as no such report as envisaged under that Section has been forwarded. Dwelling on this point, the learned Counsel for the appellant argued that Superior Officer S.P. Mr. A.K. Singh was present during the raid and the case diaries were submitted to him and he argues that none of the actions can replace the clear provisions of Section 57. S.P. Mr. A.K. Singh was not present at the most vital point of time of the raid because by the time he reached the scene, the contraband articles had been recovered and weighed. Therefore, he has no personal knowledge as to how and from whom of where those drugs were recovered. By mere showing of case diaries the Superior Officer will not satisfy the requirements of Section 57 of the Act. 7. The next contention of the Counsel for the appellant in Appeal No. 4/94 is that the lower Court has committed a serious error or illegality in appreciating the evidence. He argued that all the recoveries and seizures made in this case do not satisfy the requirements of the relevant Sections 41, 42 and 50 of the Act. He cited the decision of State of Punjab v. Balbir Singh1. He argued that all the recoveries and seizures made in this case do not satisfy the requirements of the relevant Sections 41, 42 and 50 of the Act. He cited the decision of State of Punjab v. Balbir Singh1. He cited the decisions of Hemant Venkatesh Agwan v. State of Maharashtra2 and Shankar Raju Banglorkar v. State of Goa3, wherein it has been stated that though the provisions of Sections 41, 42, 50, 52 and 57 are not mandatory, it would not mean that they could be ignored with impunity and if they were not complied with the Court would expect at least some reasons to be given for the non-compliance. Here, in this case, the learned Counsel submitted that no such explanation is forthcoming from the prosecution for non-compliance of the aforesaid sections. The learned Counsel has come heavily on the panchanamas Exh. PW2/A and Exh. PW6/B. He argues that the recovery of the charas and it sealing along with' the pant of the accused was completed before the arrival of S.P. Mr. A.K. Singh accompanied by the Police Photographer Remedios (C.W.1). Another contention of the Counsel is that while preparing the seizure report, compliance under Section 106 Cr.P.C. has not been adhered to as the seizure report has not been signed by the witnesses. He also contended that the panchanama was not handed over to accused which itself will fail the prosecution case as held in Hemant Venkatesh Agwan v. State ofMaharashtra (supra) and Shankar Raju Banglorkar v. State of Goa (supra). 8. The learned Counsel for the appellant in Appeal No. 4/94 further submitted that LPSI Sunita Sawant who allegedly wrote the panchanama Exh. PW 2/A was not actually named as one of the members of the raiding party. The panchanama or the complaint do not mention Sunita Sawant's name. The discrepancies of the version of PW 6 regarding the timing of arrival of Sunita Sawant and A.K. Singh cannot be ignored and reasonable doubts as regards the presence of LPSI Sunita Sawant will arise and, therefore, the Counsel argues that the panchanama cannot be said to be proved without requirement of law. 9. Another point which the Counsel for the appellant in Appeal No. 4/94 has urged is the alleged attempt of the prosecution to suppress the proof of photographs and not examining the Police Photographer will throw a cloud over the entire prosecution. 9. Another point which the Counsel for the appellant in Appeal No. 4/94 has urged is the alleged attempt of the prosecution to suppress the proof of photographs and not examining the Police Photographer will throw a cloud over the entire prosecution. Admittedly the photographs were taken by a photographer brought by Mr. A.K. Singh. He has taken photographs of the scene and the accused in different angles, but those photographs have not been produced by the prosecution in support of their case and no sufficient explanation has been forthcoming for non-examination of the photographer. In fact, the application for calling up the photographer as defence witness was entirely opposed by the Public Prosecutor. In fact, the prosecution, at the first instance, has cited the photographer as witness No.13 and, in fact, he was summoned by the Public Prosecutor. For the reasons best known to the prosecution, that witness was dropped and subsequently the said photographer was examined as Court Witness. Therefore, the learned Counsel submits that adverse inferences have to be drawn against the prosecution for casting reasonable doubt about the guilt of the accused which entails the benefit of doubt to be given to the accused. 10. The Counsel for the accused in Appeal No. 4/94 tried to make out a case that no cogent evidence to prove the attachment of 10 grams of charas from the pant of the appellant was adduced. Detailing his arguments, the learned counsel submits that the indentification of the appellant in Court by pancha PW 2 was highly irregular, unfair and prejudicial to the appellant, though nowhere the pancha PW 2 stated that the said 10 grams were packed and sealed. In fact, as per panchanama Exh. PW 2/A and complaint Exh. PW 6/8, attachment of pant and substance has been done immediately on recovery prior to arrival of S.P. and photographer. Therefore, the recovery of 10 grams was not regular. All the recoveries of charas and panchanama have been done before the S.P. Mr. A.K. Singh had arrived at the scene. He also submitted that there was no evidence to show whether the pant was kept after the attachment though the above property other than the samples was supposed to be kept at the A.N.C. godown. All the recoveries of charas and panchanama have been done before the S.P. Mr. A.K. Singh had arrived at the scene. He also submitted that there was no evidence to show whether the pant was kept after the attachment though the above property other than the samples was supposed to be kept at the A.N.C. godown. Another irregularity which was pointed out by the Counsel for the appellant in Appeal No.4/94 is that Maria (PW 4) says that she was present from beginning to end of the raid and she saw all the five accused, but she fails to affirm that drugs were recovered from any of the accused and, on the contrary, she states that she does not think that any of the drugs were recovered from the said persons. Even the second pancha DW 1 docs not state anything about the recovery from the person of the accused. 11. The next phase of the arguments of the Counsel for the appellant in Appeal No. 4/94 is that the prosecution has failed to prove that Flower Scene Restaurant was in possession of or run by the appellant. Admittedly, the Flower Scene Restaurant was being run by PW 3 and PW 4 but there is no evidence to prove that at the relevant time the restaurant was run by the appellant. Except the fact that they have taken a room on rent, there was no evidence to establish that the appellants are running the restaurant. The learned counsel argues that the fact that licence of the restaurant was in the name of Severina, mother of PW 3, on the date of the raid has to be presumed that she was running the restaurant on that date. The prosecution has not adduced any evidence to rebut the presumption. The counsel for the appellant submits that the testimony of PW 3 and PW 4 ought to have been ignored by the court below as they are the most interested witnesses and the reliance of their testimony to establish the guilt of the accused will amount to great miscarriage of justice. The Counsel for the appellant further submits that there was serious discrepancy about the version regarding the place of recovery which was sufficient to cast reasonable doubt about the entire recovery. The Counsel for the appellant further submits that there was serious discrepancy about the version regarding the place of recovery which was sufficient to cast reasonable doubt about the entire recovery. He submits that the Investigating Officer, PW 6, says that it had been recovered from the sleeping place and he deposed in categorical terms that no drugs were recovered from kitchen portion and there were no cooking utensils in the sleeping place, whereas PW 4 would say that drugs were recovered from cooking place or kitchen. All photographs taken were also of the kitchen portion and not of sleeping place. Therefore, the serious discrepancy about the place of recovery definitely drawn an adverse inference against the prosecution. 12. Another submission made by the Counsel is that in none of the photographs the appellant in Appeal No. 4/94 has been depicted. It was stated by PW 6 that the appellant (accused No.1) was not depicted in the photograph. Moreover, there is considerable discrepancy in referring to the appellant. Photographer, C.W. 1 explained colour scheme of photographs and identified person in 'X-2' was not wearing white shirt. As per the panchanama, appellant Revatram was wearing white coloured T-shirt. Therefore, the conclusion that can be drawn is that the person in 'X-2' is not appellant Revatram who is the prime accused in this case. So also, the learned Counsel for the appellant submits that no container of drugs was identified in any of the photographs. The prosecution has not cared even to attempt identification of muddemal, except to indentification is done by defence in relation to flask. Photographer, C.W. 1, was unable LO match flask with any item in muddemal inspite of him saying he would be able to identify the item if shown to him. The counsel further contended that the prosecution has not proved any connection ofthe appellant Revatram with regard to the recovery of 7 grams from coconut sapling as alleged to have been recovered from Kishan Dugal, the appellant in Appeal No.7/94. He submits that no disclosure statement was recorded prior to recovery and there are glaring discrepancies about the version of the discovery. On these grounds the Counsel for the appellant in Appeal No. 4/94 submits that the Court below has travelled on a different tangent without properly appreciating the evidence and found the accused guilty. He submits that no disclosure statement was recorded prior to recovery and there are glaring discrepancies about the version of the discovery. On these grounds the Counsel for the appellant in Appeal No. 4/94 submits that the Court below has travelled on a different tangent without properly appreciating the evidence and found the accused guilty. He submits that the appellants are entitled to be acquitted and the judgment of the Court below is liable to be set aside. 13. The Counsel for the appellant in Appeal No. 7/94 has also taken the same line of arguments as argued by the Counsel for the appellant in Appeal No. 4/94. He also submitted that PW 6, the Investigating Officer, was not authorized to investigate the offence subsequent to the lodging of the complaint in the Calangute Police Station on 15.1.1992. He was not the Officer-in-charge of Calangute Police Station, because the Anti-Narcotic Cell on the relevant date was not declared as a Police Station. He also questioned the authority of the I.O. who investigated the offence for not producing a document of authority to conduct the investigation. Therefore, the learned Counsel argues that the recovery of the 7 grams of charas in the person of the second accused, namely, the appellant in Appeal No. 7/94, is found to be illegal. He further argued that the case set up by the prosecution about the recovery of 22.1.1992 cannot be believed in view of the evidence of PW 4. Pointing out the discrepancies in the statement of PW 4 about the recovery made on 15.1.1992, no imputation was possible against the first accused. He emphasized that as per PW 4, the police again came on 17.1.1992 and there are all possible factors to infer that the recovery said to have been made on 22.1.1992 has been made on 17.1.1992 and he is surprised that the Investigating Officer who was examined as PW 6 is silent about his visit between 15.1.1992 and 22.1.1992. He challenges the recovery made at night on various grounds, namely, that no disclosure statdment was recorded prior to the alleged recovery; that the entire panchanama (Exh. He challenges the recovery made at night on various grounds, namely, that no disclosure statdment was recorded prior to the alleged recovery; that the entire panchanama (Exh. PW 5/A) was recorded subsequent to the alleged recovery; that nowhere in the panchanama is recorded the exact words used by the appellant which led to a recovery; that the panchanama cannot be used as a substantive evidence; that nowhere in the panchanama or in the depositions of both pancha (PW 5) and I.O. (PW 6) it is stated that the raiding party offered' their search to the accused; that the alleged recovery took place seven days after the accused person was arrested, etc. etc. He also referred to the recovery of two speakers said to have been made at Flower Scene Restaurant from the room and the hollow portion of the speaker. These recoveries, according to him, are not in pursuance of a disclosure made by his client. He further argued that if an Investigating Officer uses a statement made by the accused to a Police Officer leading to a discovery, then, it is vitally important that the actual words used by the accused should be recorded and deposed to in the Court. This has not been done in this case as the conversation by the accused is being in Hindi and the statement was recorded in English. He refers to Sections 25, 26 and 27 of the Evidence Act which deal with the recovery pursuant to the disclosure. The learned counsel has relied on the substantial arguments in the decision of Mohamed Inayatullah v. State of Maharashtra4. He also cited another decision of Supreme Court in Pohalya v. State of Maharashtra5, at para 15. Citing the decisions, he argued vehemently that in the instant cases there were no contemporaneous records nor statements, neither the panchanama Exh. P.W. 5/A written subsequently records such words of such person in Hindi or what was stated by the appellant/accused. 14. Another infirmity that has been pointed out by the learned Counsel for the appellant in Appeal No. 7/94 is that there is no evidence to suggest that the raiding party offered their personal search to the accused-appellant at any time during the proceedings, particularly when the amount of drugs allegedly recovered from the persons of the accused/appellant is only 7 grams and one cannot rule out the possibility of planting. He also cited, to fortify his statement, a decision of the High Court in B.R. Sawant v. State of Maharashtnra6. 15. Another weakness in the prosecution pointed out by the Counsel for the appellant is that the alleged recovery had taken place after the accused/appellant was in custody for a period of 7 days. He cited the decision of Ahmad alias Ahmad Chakri Ors. v. State of Maharashtra7, at para 10. He also argued that the information which was received by the N.D.P.S. Cell has not been reduced in writing as required under Section 42 of the Act. Any action pursuant to such an information is, therefore, illegal and cannot be looked into for finding the guilt of the accused. On these points he argued that the appellant in Appeal No. 7/94 is entitled to be acquitted. 16. The learned Public Prosecutor started his arguments saying that the recoveries made on 15.1.1992 and 22.1.1992 had to be taken separately and the evidence had to be evaluated independently. It may be noted that on 15.1.1992 there were two recoveries, one from the person of accused No.1 (appellant in. Appeal No. 4/94) and the kitchen side of the Flower Scene Restaurant, and on 22.1.1992 the only recovery which was made is the recovery of 7 grams of charas from the sapling of a coconut which is alleged to have been written by accused No.2 (appellant in Appeal No. 7/94) and also the speaker which was used for transporting the charas as allegedly stated by the accused No.2. The learned Prosecutor has further taken us to the statements made by PW 2, PW 6 and DW 1 and argued that the recovery made on 15.1.1992 was proved and no infirmity could be pointed out in this recovery. He relied on the statement made by PW 2 and stated that, during the personal search of Revatram, a stick of brownish colour was found in his back pant pocket. He has also spoken in his cross-examination that it was weighed and found to be 10 grams. He also stated that it was put in envelope which was packed and scaled and their signatures were taken. The learned Prosecutor has disputed the case of the Counsel for the appellants that there was no proper identification of accused No.1 because the prosecution witnesses could not properly identify the accused in the Court. He also stated that it was put in envelope which was packed and scaled and their signatures were taken. The learned Prosecutor has disputed the case of the Counsel for the appellants that there was no proper identification of accused No.1 because the prosecution witnesses could not properly identify the accused in the Court. But the learned Prosecutor has taken us to the statement of PW 2 where he says, pointed out to Revatram, that Revatram is the accused No.1. He pointed him out with his finger. He also pointed him out to a Court question regarding the identification of the accused No.1. The Court has asked the witness, PW 2, whether he could tell the Court which accused out of the two (Nos. 1 and 5) were searched by the police. PW 2 answered -to that question after seeing the face of accused No. 1 and accused No. 5 who were standing before the Court and said that it was the person called Revatram who was searched. He also pointed out to Revatram with his finger. Therefore, learned Prosecutor submits that the case put forward by the Counsel for the accused that the accused No.1 has not been properly identified in the Court during the examination of the witnesses cannot be accepted. We also see the force in the argument of the learned Public Prosecutor that the recovery made on 22.1.1992 (Exh. PW 5/ A) could not be challenged by the accused. The learned Counsel for the accused could not shake the evidence of PW 5 who spoke about the recovery made on 22.1.1992 from the person of the accused No.2. In fact, as regards the recovery of 15.1.1992 from the person of accused No.1 (appellant in Appeal No. 4/94) recovery made from the person of accused No.2 on 22.1.1992 could not be challenged by the accused. Moreover as pointed out by the Court below the Statement recorded under Section 313 Cr. P.C. refused to answer the question when incriminating circumstances appearing in the prosecution evidence were brought to their notice and they were given opportunity to explain. PW2's evidence corroborates the prosecution case with regard to the recovery, particularly the recovery made on the persons of accused Nos. 1 and 2. 17. P.C. refused to answer the question when incriminating circumstances appearing in the prosecution evidence were brought to their notice and they were given opportunity to explain. PW2's evidence corroborates the prosecution case with regard to the recovery, particularly the recovery made on the persons of accused Nos. 1 and 2. 17. However, on going through the entire evidence, we find that the recoveries made in the kitchen side of the Flower Scene Restaurant on 15.1.1992 cannot be said to have been proved with all the legal requirements. First of all, it is true that it has been proved that the recovery made in the kitchen side of the Flower Scene Restaurant was done as pointed out by the accused No.1. But at the same time, admittedly, accused No.2 was not there. Therefore, any recovery made in the kitchen side as proved by the prosecution no liability could be fastened against the accused No. 2 who was admittedly not there at the time of the recovery. PW 3, the son of the owner of the building, says that they have rented out only one room to the accused No.1 and accused No.2 and the accused Nos. 3 to 6 were seen there in the Restaurant also. According to PW 2, the entire search of Flower Scene Restaurant was initiated, on the basis of the information supplied by one Pradip Kumar. But PW 2 says that on the basis of the information he along with the police party went to search Flower Scene Restaurant. He says that he saw five persons in the Flower Scene Restaurant. He also says that the persons who were present 1here had told that the Restaurant belongs to one Kishan, namely, the accused No.2 who was away to purchase things in Mapusa. According to PW 2, Revatram had pointed out the place where the charas were hidden and the finding of the Court that such recovery is of incriminating articles. Here, according to PW 2, the Police Officer was asking him whether any charas was hidden and the accused No.1 was to show the place where the charas were hidden, but this will not attribute to the guilt of the accused in possessing the charas. The accused might have the knowledge where the charas was hidden; that always does not mean that the hiding was done by him. The accused might have the knowledge where the charas was hidden; that always does not mean that the hiding was done by him. In order to fasten liability under Section 20(b)(ii) of the Act possession of the charas has to be proved positively and mere knowledge of the person or the place where the charas could be found cannot be equated with the possession in order to come under the ambit of Section 20(b )(ii) of the Act. 18. Another point of attack of the recovery made on 15.1. 1992 at the site of the kitchen is that the panchanama was not prepared by the Officer at whose instance the recovery was made. PW 2, in cross-examination, admits that "S.P. A.K. Singh, photographer and the lady police Sawant came and joined us during the search of Flowers Scene Restaurant". That means that S.P. A.K. Singh and the photographer reached at least after the search was started. It has come out in evidence by the time. A.K. Singh carne to the scene the charas was recovered and weighed. Therefore recovery records cannot be regular. Yet another point of attack is that the exhibited photograph does not contain the photograph of Revatram, the accused No.1. The prosecution tried to explain that the portion which is shown as 'X-2' of the photograph is of the accused No.1. He says that in the photograph the missing person is Revatram. PW 2 also stated that they did not make entire search of the house and they also did not know who was the person" who was there in the house though he admits that there was an elderly lady from whom the police enquire and she was reported to have stated that it is she who gave the restaurant to the accused for running. 19. Another important point is that there is no evidence to establish that the Flower Scene Restaurant has been leased out to the accused No. 1 and accused No. 2. PW 3 categorically stated that 3t the time of handing over the Restaurant, there was a contract drawn in the handwriting of Revatram and the same was with his wife. He also stated that it was not handed over to the Police at the time of investigation nor did he inform the police about such an agreement. PW 3 categorically stated that 3t the time of handing over the Restaurant, there was a contract drawn in the handwriting of Revatram and the same was with his wife. He also stated that it was not handed over to the Police at the time of investigation nor did he inform the police about such an agreement. He stated that the contract was for four months to run the Restaurant by Revatram from the month of December to March. He says that the room which was rented to the accused was searched by the Police on 15.1.1992. He saw the police and the accused entering the said room and searching it and he said that on the day of the raid, i.e. on 15.1.1992 the Police did not take anything from the said room. Therefore, the recovery made in the kitchen on 15.1.1992 cannot be said to have been proved beyond reasonable doubt. In order to pin down the accused with the offence of possessing the drugs under Section 20(b)(ii) of the Act, the recovery must be proved beyond reasonable doubt. Therefore, we cannot say that the recovery made in the kitchen side on 15.1.1992 of the Flower Scene Restaurant is proved by the prosecution. Going by the contention of the learned Prosecutor, if the three recoveries should be treated as independently, en the guilt imputed against the accused with regard to these recoveries cannot be said to have been proved beyond reasonable doubt. The manner in which the recovery was recorded, the exclusion of the owner of the building from the guilt, non-examination of photographer by the prosecution, doubt cast by the witness in identifying the accused etc. all will go to show that recoveries in the Flower Scene Restaurant have not been proved, but cast doubt in the guilt of the accused. Therefore we are inclined to extend that benefit of doubt in favour of the accused. 20. Coming to the recoveries made on the person of accused No.1 on 15.1.1992, as fairly pointed out by the learned Prosecutor, no evidence adduced by the prosecution was able to be shaken by the Counsel for the appellants. No statement of PW 2 nor of other witnesses regarding the recovery made on the person of accused No.1 could be successfully challenged by the accused. No statement of PW 2 nor of other witnesses regarding the recovery made on the person of accused No.1 could be successfully challenged by the accused. The testimony of PW 2 and PW 6 could not be challenged by the counsel for the appellant in Appeal No. 4/ 94, though minor discrepancies are there to be pointed out. Therefore, the recovery made from the person of accused No.1 can be said to have been proved beyond all reasonable doubt. So also no glaring defect could be pointed out on behalf of accused No. 2 (appellant in Appeal No. 7/94) to shake the evidence of recovery of 7 grams of charas from the stem of the coconut plant at the instance of the accused No. 2. It is proved that on 22.1.1992 the Police again came in Flower Scene Restaurant and the recovery was made with all formalities. Therefore, the finding of guilt by the lower Court Against the accused No.2 with regard to the recovery made in his presence on 22.1.1992 cannot be altered. 21. In view of the finding that the recovery of 15.1.1992 in the kitchen side of the Flower Scene Restaurant could not be proved beyond all reasonable doubt, we think that both appellants are entitled to a reduction in the sentence. The conviction and sentence of the accused Nos. 1 and 2 are therefore ordered to be reduced to Rigorous Imprisonment of 10 years instead of 15 years. The fine also correspondingly be reduced to Rupees One Lakh each and, in default, to undergo Rigorous Imprisonment for a period of six months. Both the Appeals are partly allowed as indicated above and the sentence reduced as above. Appeals partly allowed. 1. 1994 Cr.L.J. 3702. 2. 1990 (1) Bombay C.R. 433. 3. 1992 Cr.L.J. 3034. 4. 1976 SCC (Crl.) 199. 5. AIR 1979 SC 1949 . 6. 1974 (1) Mah. L.R. 807. 7. 1974 Crl L.J. 274.