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Bombay High Court · body

2007 DIGILAW 1501 (BOM)

Neil Fonseca v. State through Public Prosecutor

2007-10-12

N.A.BRITTO

body2007
JUDGMENT:- This appeal is by the accused who has been convicted and sentenced under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused was charged and tried with the allegation that on 6-02-2003 the accused was found in possession of 1.035 kgs. of charas valued at Rs. 1,03,500/- near the Chapel at the junction of the flea market at Anjuna when the accused was raided pursuant to the information received. 2. The case of the accused was that on the said date he had gone to the Oxford Library near S1. Michael's Chapel at Anjuna for exchanging his books after taking permission from the wife of the owner of the restaurant where he was working as a waiter and that he had borrowed a Kinetic Honda scooter from the said owner and he was also to check his email and before he could go to check the e-mail he was detained by the police and brought to the police station in Panaji and he thought that he was detained because he was driving the said scooter, without a licence. According to the accused a false case was filed against him. 3. In support of their case, prosecution examined five witnesses. In support of the defence the accused examined the owner who confirmed that on 6-02-2003 the accused had borrowed the Kinetic scooter bearing no. GA-03-M-0390 which was in the name of his wife but on that day the accused did not return to the restaurant but later after two days he had got back the said scooter from Panaji police station. He also stated that the police had asked him if the accused was working with him and he had confirmed about the same. He stated that the police had not asked him as to why the accused had borrowed the scooter. He further stated that he had produced the RC book and had collected the said scooter. 4. The case of the prosecution, as narrated by Police Inspector Shri. Vincy Paesl PW -4 is that on 6-02-2003 at about 11.00 hrs. he had received reliable information through his sources that a person of stated description would becoming to deliver a consignment of charas to his customer near the flea market junction near the Chapel at Anjuna between 1.30 to 2.00 p.m. which information he reduced in writing and handed over its copy to Dr. he had received reliable information through his sources that a person of stated description would becoming to deliver a consignment of charas to his customer near the flea market junction near the Chapel at Anjuna between 1.30 to 2.00 p.m. which information he reduced in writing and handed over its copy to Dr. S.P. Shri. D'SouzaIPW-5 for his information and thereafter at about 11.25 a.m. he directed police constable Datta Vernekar to secure the presence of two panch witnesses and who returned with Kavlekar/PW-3 and Vijay Surlikar/CW-1 at about 12.20 hrs. and thereafter he requested them to act as panchas and informed them about the information received and thereafter along with the said Shri. D' Souza/PW -5, Police Inspector Shri. Naik and other members of the police party left the police station at about 2.30 p.m. to go to the flea market and along with them they carried the seal, the kit box and other sealing material, etc. including a typewriter, and reached the flea market at Anjuna at about 1.00 p.m. and there they parked their vehicles near German Bakery and concealed their presence near the flea market junction near the Chapel and at about 1.45 hrs. he saw the person of the stated description walking towards the flea market junction, from the flea market side, carrying a shoulder bag on his left shoulder and since the description tallied with the description earlier received, they all surrounded the said person from all directions and he identified himself and asked the accused for name and address which the accused gave and then told the accused that he had reliable information and that he wanted to take his personal search as well as the bag carried by him for charas and prior to that he told the accused that he had a right to be searched before the Gazetted Officer or a Magistrate of his choice but he declined the offer. 5. 5. Paes/PW-4 further stated that he also told the accused that he had a right to search the members of the raiding party including panchas and himself which offer the accused declined and thereafter he told the accused to hand over the shoulder bag which the accused was carrying and the said shoulder bag was a blue colures in bag with a logo of a hockey stick of white colour on it, and after opening the said bag it was found to contain a white colour polythene bag inside which was removed and upon examination it was found to contain blackish substance in spherical shapes and of different sizes wrapped individually in cellophane paper and upon minute observation they were suspected to be charas and when weighed were found to be 1.035 kgs, and the same were put in an envelope packed and sealed with the seal of Anti Narcotic Cell, Panaji, Goa-l with Ashoka emblem and the relevant writings were also made on the envelope which was signed by him and the panchas as well as the accused. As per him, a personal search of the accused was also taken but nothing incriminating was found and when the accused was asked for documents, for possession of the said charas, the accused did not produce any. 6. Paras/PW -4 further stated that a seizure panchnama and seizure report were prepared and signatures of the panchas, the accused etc. were taken. He stated that the letter addressed to the Director of Foods and Drugs Administration was prepared at the spot in duplicate bearing the specimen seal impression. He stated that he also prepared a letter to Shri. D'SouzaIPW-5 at the spot for handing over the seal under his signature and he also handed over the said letter to D'Souza/PW -5 upon return to the police station, bearing the specimen seal impression under outward no.223 dated 6-02-03 and after return to the police station he registered the offence under Crime No.2 of 2003. He stated that he kept the seized property in his custody after making the relevant entry to that effect on the muddemal register and on the next morning he deputed lady police constable Smita Parsekar to the office of the cm, CB, Panaji along with the said muddemal property and the said forwarding letter addressed to the Director of Foods and Drugs Administration and to SP, cm, Crime Branch, Panaji and prepared an intimation under Section 57 of the Act to be given to Shri. D’Souza/PW -5 and after receipt of the balance quantity from the Scientific Assistant, he filed the charge-sheet against the accused. 7. Shri. D'SouzaIPW-5 stated that although the seal was handed over at the spot, the letter handing over the seal Exhibit -49 was handed over to him at the police station after it was out warded. Shri. Mapari/PW-2 confirmed that he was attached to cm Branch at Panaji as Scientific Assistant and that on 7-02-2003 he had received letters addressed to SP, CID, Crime Branch at Panaji and also to the Director of Foods and Drugs Administration, both dated 6-02-2003, in duplicate bearing specimen seal of the Anti Narcotic Cell, Panaji and along with the sealed envelope marked as Exhibit 1 in Crime No.2 of 2003 containing 1.035 kgs. Of suspected charas from the said Smita Parsekar and which he personally handed over on the same day to the Director of Foods and Drugs Administration and on 21-03-2003 he received the letter from the Director of Foods and Drugs Administration to collect the balance quantity. 8. Kaissare IPW -1 who was working as a Junior Scientific Officer in the Director of Foods and Drugs Administration, who was previously working as a chemist stated about the receipt of the said sealed envelope on 7-022003 with seals intact, individually covered with cello tape and tallying with the specimen seal impression, sent separately and that he opened the said envelopes on 12-02-2003 and found its weight to be 1.025 kgs., with wrappings and without wrappings it weighed 1.015 kgs. and then he carried out the analysis by several tests which he mentioned he came to the conclusion that the substance contained charas and he submitted his report and the balance quantity of the substance was sent back. 9. and then he carried out the analysis by several tests which he mentioned he came to the conclusion that the substance contained charas and he submitted his report and the balance quantity of the substance was sent back. 9. The learned Special Judge after considering the evidence produced on behalf of the prosecution came to the conclusion that the prosecution had proved its case. The learned trial Court found that the case of the accused that he had borrowed the scooter did not appear to be plausible as the registered owner of the said scooter was not examined. The learned trial Court also observed that the plea about the scooter appeared to be taken by the accused for the first time when the statement of the accused was recorded under Section 313 of Cr.P.C., 1973 and therefore was an afterthought, inspite of the fact that, it was clearly suggested to Shri. Paes IPW -4 and Shri. D'Souza IPW-5 that the accused had come on Kinetic Honda motorcycle belonging to his employer and the said scooter was subsequently released by him in favour of the wife of the said owner by name Celina. The learned trial Court also observed that Kavlekar/PW-3, pancha witness was materially unshaken in his presence at the time of panchnama and found his testimony to be independent and even otherwise in case he was held not to be present at the time of panchnama, the unrebutted testimony of Paes/PW -4 coupled with the records produced would be adequate to establish the case against the accused. 10. Counsel on behalf of the accused contends that the prosecution had failed to prove the scene of offence in that it is not at all clear as to from which place the accused was apprehended and this is because neither Kavlekar/PW-3 nor Shri. D'SouzaJPW-5 were present at the time of the raid of the accused. Learned Counsel on behalf of the accused further contends that the accused was on his Kinetic Honda scooter and certainly not in the flea market as alleged by the prosecution and since the description given by different witnesses did not match there is a doubt created whether the accused was at all arrested in the manner stated by Paes/PW -4. Learned Counsel on behalf of the accused further contends that the accused was on his Kinetic Honda scooter and certainly not in the flea market as alleged by the prosecution and since the description given by different witnesses did not match there is a doubt created whether the accused was at all arrested in the manner stated by Paes/PW -4. Learned Counsel further contends that Kavlekar/PW -3 is a stock panch witness of the Anti Narcotic Cell Police Station and had stood previously as panch witness at least in three cases along with the other panch witness Shri. Surlikar and Police Inspector Shri. Paes/PW-4 and in such a situation his evidence could not be accepted as that of independent witness to corroborate the version given by the police witnesses namely Paes/PW-4 and D'Souza/PW-5. Learned Counsel also points out that after the receipt of the remnant quantity there is no record made of the same on the muddemal register (copy of which is at page-88). Learned Counsel also r points out that there is no record to show as to t how the seal was obtained earlier, in case after r the raid it was handed over to D'Souza IPW-5. 11. On the other hand, the learned Public Prosecutor submits that even if the evidence of Kavlekar/PW-3 is kept out, being that of a regular panch witness, the evidence ofPaes/PW-4 and D'SouzaIPW-5 is sufficient for the purpose of convicting the accused. Learned Public Prosecutor further submits that only because Kavlekar/PW-3 was unable to give certain details of the place it does not mean that he was not present since the details sought from him were not at all relevant. 12. The first question to be addressed is not whether the version of Paes/PW -4 was independently corroborated by Kavlekar/PW-3 but whether Kavlekar/PW-3 was at all present? 13. Admittedly, this was the fourth drugs case of Kavlekar/PW-3 in which he stood as a panch witness along with the said Surlikar and this has been admitted by Paes/PW-4. Kavlekar/PW-3 had earlier stood as panch witness in cases of B. Chandramohan, Mark Laligand, Dhanasur Ghartimagar and later in case of Joseph Gomes and when it was suggested to Paes/PW-4 that Kavlekar/PW-3 was a regular panch witness readily available to him, he denied the suggestion. Kavlekar/PW-3 had earlier stood as panch witness in cases of B. Chandramohan, Mark Laligand, Dhanasur Ghartimagar and later in case of Joseph Gomes and when it was suggested to Paes/PW-4 that Kavlekar/PW-3 was a regular panch witness readily available to him, he denied the suggestion. Paes/PW -4 when questioned on this aspect stated that he knew that the other panch witness by name V. Surlikar had stood as panch witness in three cases conducted by him including one of Yallapa Chalwadi. D'SouzaIPW-5 had also admitted that he knew that both the panch witnesses prior to the date of the raid since they had earlier stood as a panch witness in drugs raids. He had also admitted that both the said panch witnesses had acted as such in raids conducted by Paes/PW-4 in other matters and that'he did not tell Paes/PW -4 to bring different witnesses knowing that both the panchas had acted in several cases investigated by Paes/PW -4 and other Officers. When Paes/PW -4 was questioned on this aspect he stated that he had not secured the presence of any Government employee to act as panch witness nor he had made any attempts in that regard and that was because there was no sufficient time to communicate with any Government Department and secure the presence of such Government servants for the raid. If Paes IPW4 had received information at 11.00 hrs, that the accused would be coming between 1.30 and 2.00 p.m. there was more than sufficient time at his disposal, in case he wanted to arrange Government servants or other independent witnesses and therefore his explanation that he had no sufficient time could not have been accepted. 14. Although Paes/PW -4 admitted that Kav1ekarIPW-3 had stood as a panch witness previously in three other cases, when questioned on this aspect Kav 1ekarlPW - 3 stated that he had acted as a panch witness on earlier occasions in drugs cases at the instance of PaesIPW-4. When further questioned he stated that he acted as a panch witness in about two to three drugs cases and admitted that in all those cases the said Surlikar was the other panch witness along with him and Paes was the Investigating Officer. When further questioned he stated that he acted as a panch witness in about two to three drugs cases and admitted that in all those cases the said Surlikar was the other panch witness along with him and Paes was the Investigating Officer. He was further cross-examined as regards the details of the other cases but stated that he did not recall if he had acted as panch witness in a raid involving a foreign national by name Mark Laligand or the date of the said raid. It was suggested to him that he was not doing any business or he was not working as a driver but only as a panch witness at the instance of police a suggestion which he denied. The said suggestion was presumably put to Kavlekarl PW -3 because in the panchnama, his occupation was recorded as business but when he was examined in Court he gave his occupation as a driver. 15. Apart from KavlekarlPW -3 having stood as a panch witness in three cases involving PaeslPW-4 along with the said Surlikar, the evidence of KavlekarlPW-3 does not at all inspire confidence as that of a person who was present at the time of arrest of the accused. Kavlekar/PW-3 has stated that on reaching Anjuna they parked their vehicles near the German Bakery and then walked towards the market area and concealed their presence near the Chapel. However, he was not able to give any description of the said Chapel whether it had a concrete roof or a tiled roof or whether it was newly constructed or whether it was open or closed. If a person had gone near the said Chapel the least which was expected of him was to say whether the said Chapel had a tiled roof or a concrete roof. If according to Kavlekar/PW-3 they had concealed near the Chapel, as per Paes/PW -4 they had concealed themselves in four groups, some on the road, some behind the Chapel and some behind the STD booth and some in the fields. Shri. D' Souza/PW -5 had yet another story to tell. As per him they had not hidden themselves in groups but they had scattered individually. According to him some had hidden behind the telephone booth and others behind the Chapel. In the light of the said conflicting versions the plea taken by the accused becomes relevant. Shri. D' Souza/PW -5 had yet another story to tell. As per him they had not hidden themselves in groups but they had scattered individually. According to him some had hidden behind the telephone booth and others behind the Chapel. In the light of the said conflicting versions the plea taken by the accused becomes relevant. The accused had taken the plea and it was also suggested to Paes/PW-4 and Shri. D'Souza/PW -5 that he was arrested when he was coming on the motorcycle which, plea he had substantiated with the evidence of his owner. In the light of the conflicting versions given by the three witnesses as to the place of arrest of the accused, the version ofPaes/PW-4 that the accused was arrested in the manner stated by him cannot be accepted. In fact there is no corroboration of the place described by him in the evidence of other witnesses being the place from where the accused was arrested; If according to Paes/PW-4 the Chapel is 150 mts. away from German Bakery and the flea market is at a distance of about 150 mts. away from the junction, the German Bakery could not be at a distance of about 5 to 6 mts. from the flea market, as stated by Kavlekar/PW-3. The evidence of Kavlekar/PW-3 when read with the evidence of Paes/PW -4 creates a doubt whether Kavlekar/PW-3 was not at all present and that he has given his evidence because he is a stock panch witness ofPaes/PW-4 and it is for this reason that he sought to create lot of confusion as regards the place from where the accused was arrested, not knowing the location of the German Bakery, flea market, Chapel, etc. The evidence of Kavlekar/PW -3 therefore had to be rejected not only because his evidence showed that he was not present but otherwise he was a person who was at the beck and call of Paes/ PW-4. In the light of the conflicting versions given by the aforesaid three witnesses and in the light of the evidence of the defence witnesses, the learned Counsel on behalf of the accused would be right in contending that the prosecution had failed to prove the scene of offence from where the accused was arrested. 16. In the light of the conflicting versions given by the aforesaid three witnesses and in the light of the evidence of the defence witnesses, the learned Counsel on behalf of the accused would be right in contending that the prosecution had failed to prove the scene of offence from where the accused was arrested. 16. Learned Counsel on behalf of the accused has placed reliance on the case of Rajesh J agdamba Avasthi V s. State of Goa ( 2005(9) SCC 773 ) and has submitted that, that case was not accepted by the Apex Court because one of the panch witnesses examined therein was a stock witness. Indeed the Apex Court observed that PW - 2 in that case appeared to be a stock witness and the other panch witness was not examined. The Apex Court further stated that PW-2, the panch witness, had admitted in very clear terms that he was earlier associated in two other cases under the NDPS Act as a panch witness. In both those casys, PSI Thorat was the Investigating Officer and on 14-12-1994 he was summoned by PSI Thorat and acted as a panch witness against P.c. Kulbi who had disclosed the complicity of the accused and thereafter he was requested by PW -4/Naresh Mhamal to act as a panch witness and it appeared that PSI Thorat was also associated with this case as he was present with PW-4 when P.c. Kulbi was apprehended and thereafter when the accused therein was apprehended and searched at the instance of the aforesaid Kulbi. The Apex Court considered the above feature, as one of the features on account of which it would be unsafe to sustain the conviction of accused and proceeded to set aside the conviction and sentence of the accused. 17. As stated by this Court in Aspaq N. Ahmed Vs. State of Goa (2006(2) AIR Born R 111 : [2006 ALL MR (Cri) 2089]), corroboration by independent witnesses is not a rule of law but one of caution and prudence. It gives an assurance whether version given by the Police Officers is true or not. This is not the case where a panch witness had turned hostile to the case of the prosecution and the evidence of Paes/PW-4 inspires confidence. In fact, it does not and as it is also? It gives an assurance whether version given by the Police Officers is true or not. This is not the case where a panch witness had turned hostile to the case of the prosecution and the evidence of Paes/PW-4 inspires confidence. In fact, it does not and as it is also? contrary to the version given by D' Souza/PW -5 as to the place from where the accused was arrested. As already stated, D'SouzaJPW-5 knew both the panch witness as being regular panch witness of the said Anti Narcotic Cell Police Station and yet he chose not to advise Paes/PW-4, as superior officer, that he should ensure that independent witnesses or Government servants were called for to witness the raid. In the case of B. Chandramohan Vs. State of Goa (Criminal Appeal No.53 of 2004 decided on 24-03-2006) where Kavlekar/PW-3 was also a panch witness this Court had observed that it was not understood as to what sort of Superior Officer Dy. S.P. D'SouzaIPW-5 was so as not to have advised Paes/PW -4 that he should desist from engaging a panch. witness in so many cases and this inspite of the Government having given instructions to call on Government servants to act as panch witness (Aspaq N. Ahmed Vs. State of Goa [2006 ALL MR (Cri) 2089] (supra». If presence of Kavlekar/ PW-3 is held to be doubtful that would again create a doubt regarding the veracity of the versions given by Paes/PW -4 and D' SouzaIPW5. 18. Prosecution can derive no benefit from the case of Mohammed Salim Mohammed Issak Shaikh Vs. State of Maharashtra (2001 Drugs Cases 255) wherein the public panch witness had fairly admitted in his cross-examination that he had stood as such in seven cases but that happened to be of different police stations and in that context a Division Bench of this Court had noted that the circumstance that the public panch witness is a habitual panch witness would certainly weigh with the Court if it finds that the evidence of police witness is not free from blemish and in that situation the circumstance that the public witness was a professional would certainly be an impediment in the way of the Court in confirming a conviction in a case under the NDPS Act. 19. In the case of Abdul Sattar Vs. 19. In the case of Abdul Sattar Vs. State of Goa (1989 Cr.L.J. 430) it was observed by a Division Bench of this Court that once it was accepted that the police who had raided the accused had taken the panch witnesses and when one of them was examined in Court and it was proved that he was a person amenable to the member of the raiding party, it would not lie in the month of the prosecution to contend that the evidence of such a witness be discarded and the evidence of the police officer only be relied upon. In the case of Mohammed Hussain B. Rarnzan Vs. State of Maharashtra (1994 B.Cr.C. 223 (Born.» another Division Bench of this Court observed that it is normally expected that the Investigating Officer will take independent panch witnesses and if knowingly he has taken pliable witnesses as panch witnesses the entire raid would become suspect and in such a case it would not be possible to hold that the evidence of the police witnesses by themselves would be sufficient to base a conviction. Yet another Division Bench of this Court in Shri. Bhagwatsingh Gaud Vs. State of Go a (1998 ALL MR (Cri) 1421) has stated that once it is said that the witness is a stock witness who could be termed as a pliable witness, it casts serious doubt and creates serious suspicion about the entire raid operation and the minimum care expected of a search officer of a PI level is that he takes independent panch witnesses to witness the search and seizure transaction and if such officer does not act with reasonable prudence, the entire search and seizure operation may become doubtful. 20. As already stated the evidence of Kavlekar/PW - 3 does not at all inspire confidence, to conclude that he was present at the time of ( the raid. The evidence of the two police witnesses namely Paes/PW-4 and D'Souza/PW-5 is conflicting as to the place from where the accused was arrested. In such a situation there was no other option before the learned trial Court but to have given benefit of doubt to the accused. 21. As a result of the above discussion the appeal deserves to succeed. The impugned judgment and order dated 7 -04-2005 is hereby set aside. In such a situation there was no other option before the learned trial Court but to have given benefit of doubt to the accused. 21. As a result of the above discussion the appeal deserves to succeed. The impugned judgment and order dated 7 -04-2005 is hereby set aside. Consequently, the accused is given benefit of doubt and acquitted under Section 20(b)(ii)(c) of the NDPS Act 1985. The accused shall be set to liberty forthwith in case he is not required in any other case. M.O.S. shall be disposed off in terms of the order dated 7 -04-2005. Appeal allowed.