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2007 DIGILAW 1631 (BOM)

Sharangauda R. Bagali v. State of Goa

2007-11-22

N.A.BRITTO

body2007
ORAL JUDGMENT N.A. Britto, J.-This appeal is by the accused who has been tried, convicted and sentenced under Section 20(b)(ii)(B) of NDPS Act, 1985 (Act, for short) to undergo R.I. for a term of four years and to pay a fine of Rs. 30,000/- and in default to undergo S.I. for four months with a rider that the period of detention from 10.12.2003 to 22.1.2004 shall be set off against the said sentence. 2. The raid was conducted by Police Inspector Shri Pereira/PW 4 of ANC Police Station, Panaji, upon prior information. The charge against the accused was that the accused was found in illegal possession of 3.102 kgs. ganja on 10.2.2003 at about 18.10 hours near Colonia de Braganza at Naikawaddo, Calangute for which the accused could not lawfully account for. In support of the charge prosecution had examined six witnesses which included P.I. Shri Pereira/PW 4, the panch witness Jacinto Travasso/PW 3 and the analyst Mahesh Kaissare/PW 1. 3. The learned Special Judge after considering the evidence produced by the prosecution concluded that the prosecution has established its case beyond all reasonable doubt against the accused and proceeded to convict and sentence the accused as aforesaid. 4. As per the version of P.I. Shri Pereira/PW 4, he had received specific information at about 15.00 hours on 10.12.2003 that a person of stated description would come to deliver consignment of ganja to his customers at Ashley Classic between 17.00 hours at 18.00 hours which information he reduced in writing and a copy of it, he submitted to Dy. S.P. Fernandes/PW 6 for his information and the said Dy. S.P. made his endorsement ordering him to conduct the raid and that he also informed Dy. S.P. Fernandes/PW 6 telephonically and in the meantime he secured the presence of two panchas, namely. Jacinto/PW 3 a and Santosh Mandrekar the former having been called from the office of the Collector and the latter was secured by deputing Constable Rama Sawal. P.I. Shri Pereira/PW 4 further stated that he introduced the panchas to the members of the raiding party and at about 17.15 hours left for the raid in the police jeep and took along with him the seal of the Police Station namely, ANC Panaji, Goa-II with Ashoka Emblem whilst Constable Paes carried the kit box containing necessary material for weighing, packing, sealing, etc. as well as torches and a typewriter and they reached the football ground at about 17.45 hours b and parked their vehicles near "Taste of Tibet" restaurant and thereafter he along with Constable Vaz walked further along the road whilst the other members of the raiding party concealed their presence near Colonia de Brazanza building, when Constable T. Vaz saw one person whose description matched with the description received, sitting on a laterite stone, near Ashley Classic building and thereafter both of them returned to the spot where the other members of the raiding party were and told them about the detecting of the suspected person and thereafter all of them rushed and surrounded the said person namely, the accused, to whom he introduced the members of the raiding party and asked the accused for his name and particulars and informed him about the reliable information, received by him and orally informed the accused that he wanted to take his personal search as well as the search of his carry bag which he was carrying in his hand. P.I. Shri Pereira/PW 4 further stated that he also told the accused that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate but he declined the offer and he also told the accused that he had a right to search the members of the raiding party including the panchas which offer the accused also declined. Thereafter, the accused was told to hand over the blue colour polythene bag, which was handed over and on opening the same, there was in it a transparent polythene bag and in which there was leafy and flowery greenish colour parts of a plant and after smelling the same he informed the raiding party that it was suspected to be ganja and thereafter the said transparent polythene bag was knotted and weighed and was found to be 3.102 kgs. and the said polythene bag with suspected ganja was put in a blue colour polythene bag wrapped in white colour cloth and tied with a jute string and then it was sealed with four seals of ANC Panaji. Goa-II with Ashoka Emblem and a paper label was pasted on the said cloth on which he signed and so the panchas and during the personal search of the accused nothing incriminating was found. Goa-II with Ashoka Emblem and a paper label was pasted on the said cloth on which he signed and so the panchas and during the personal search of the accused nothing incriminating was found. P.I. Shri Pereira/PW next stated that he again told the accused that the accused had a right to search the members of the raiding party including the panchas which offer the accused declined and then the panchanama was drawn by Constable Vaz under his directions whilst the weighing and packing was done by Constable Paes and the sealing was done by him personally. He stated that the panchanama was signed by him and the panchas as well as the accused and the accused also signed in acknowledgment, the copy of the panchanama which 'was furnished to him. The Seizure Report was also drawn at the spot and was signed by him and then he addressed a letter to the Director of Food and Drugs Administration. Panaji on which he affixed the specimen seal impression and then he handed over the seal to Dy. S.P. Fernandes/PW 6 on the spot along with the covering letter bearing Outward No. 1885 on which he too affixed the specimen seal impression and after obtaining an acknowledgment from the said Dy. S.P. Fernandes/PW 6 he returned to the Police Station with the accused and the attached property and filed a complaint on behalf of the State. He also stated that he sent intimation under Section 57 of the Act to Dy. S.P. Fernandes/PW 6 through P.I. Uday Naik/ PW 5 which was duly acknowledged by him. He further stated that the attached property was sent to DFDA through the Office of SP, CID, CB, Panaji through P.I. Naik/PW 5. He stated that the attached property was kept in safe custody by P.I. Naik/PW 5. He stated that he had also requisitioned the services of a panch by writing to Director. Settlement and Land Survey who informed that they had no staff to spare as panchas. 6. Jacinto/PW 3, who was the panch witness, stated that he was working as a bailiff in the Office of the Collector since 1974. He produced the Office Order dated 1.12.2003-Exh. 23 by which his services were placed at the disposal of the Police Inspector of ANC Police Station by the Additional Collector. 6. Jacinto/PW 3, who was the panch witness, stated that he was working as a bailiff in the Office of the Collector since 1974. He produced the Office Order dated 1.12.2003-Exh. 23 by which his services were placed at the disposal of the Police Inspector of ANC Police Station by the Additional Collector. According to him, he went to ANC Police Station on 10.12.2003 at 5.00 p.m. and when he reported to P.I. Shri Pereira/PW 4, the other panch by name Santosh Mandrekar was present, whereupon P.I. Shri Pereira/PW 4 told them that he had received some reliable information that one person was going to supply some narcotic drugs to somebody at Calangute near Ashley Classic near the playground and thereafter P.I. Shri Pereira/PW 4 had introduced them to the raiding party and P.I. Shri Pereira/PW 4 had also given them the description of the person who was going to supply the said narcotic drugs. According to him, they left the Police station at about 5.00 p.m. and P.I. Shri Pereira/PW 4 had carried with him the seal with inscription and Ashoka Emblem, of Anti Narcotic Cell. Panaji, Goa-II and a Constable had carried a kit box and a typewriter. According to him, they reached near Calangute football ground at about 17.45 hours and parked their vehicles on the side of the main road and thereafter alighted from the said vehicle and whilst they remained hidden near a restaurant. P.I. Shri Pereira/PW 4 and Constable Terrence walked ahead and thereafter they returned and told them that the person of stated description was sitting on the laterite stone near Ashley Classic building and accordingly all of them went towards the said person and surrounded him. He identified the accused as the said person. He also stated that P.I. Shri Pereira/PW 4 identified himself a to the accused and asked the accused his name and particulars which the accused gave. As per him, the accused was in possession of a blue colour polythene bag regarding which P.I. Shri Pereira/PW 4 told the accused that he wanted to take his search for drugs and before taking the search P.I. Shri Pereira/PW 4 told the accused that he could take search of the raiding party members, including the panchas, which the accused declined. He also stated P.I. Shri Pereira told the accused that he had a right to be searched before a Gazetted Officer or a Magistrate but the accused declined the offer and then P. I. Shri Pereira/PW 4 told the accused to hand over the blue colour polythene b bag and on opening the same, it was found containing leafy and flowery parts of a greenish plant and after P.I. Shri Pereira/PW 4 took its smell, he told them that it was suspected to be ganja and thereafter P.I. Shri Pereira/PW 4 re-tied the said polythene bag and then it was weighed and found to be 3.102 kgs. and this bag was then put in an earlier bag and then put in a white cloth which was tied with jute string and the said cloth parcel was sealed with four seals of ANC. Panaji, Goa-II with Ashoka Emblem and then a label was affixed and the signatures of the accused were taken on the said label. He stated c that P.I. Shri Pereira/PW 4 asked the accused if he had any documents to support his possession and since the accused produced none, the accused was placed under arrest and once again an offer was made to the accused that he could take search of the members of the raiding party and the panchas, which the accused declined. He further stated that the conversation between the accused and P.I. Shri Pereira/PW 4 took place in Hindi. In cross-examination, Jacinto/PW 3 stated that the panchanama was written taking the support of a plank but later corrected himself and stated that it is the kit box which was used as support to write the panchanama, Jacinto/PW 3 further stated that the place at which P.I. Shri Pereira/PW 4 had stopped was visible from the hiding place and the accused was also visible from the place where they had hidden themselves. He stated that P.I. Shri Pereira/PW 4 waited in the vicinity of the accused whilst Terrence came to call them. In further cross-examination he stated that P.I. Shri Pereira/PW 4 had handed over the seal used by him to Dy. S.P. Fernandes/PW 6 at the spot. He also stated that the greenish substance was in the nature of crushed leaves and in powdery form and not leafy leaves. In further cross-examination he stated that P.I. Shri Pereira/PW 4 had handed over the seal used by him to Dy. S.P. Fernandes/PW 6 at the spot. He also stated that the greenish substance was in the nature of crushed leaves and in powdery form and not leafy leaves. He also stated that the building Colonia de Braganza is first in point of-time and on the left side of the road leading from the beach side and then comes Ashley Classic at a distance of about 10 metres away and the football ground is towards the left side of the road as one proceeds from the beach towards the road leading to Mapusa. 7. P.I. Shri Uday Naik/PW5, as stated by him, also accompanied P.I. Shri Pereira/PW 4 for the said raid. He has confirmed having entered the seized property on the muddemal register and having kept the same in his safe custody till the next date when he sent it to the Scientific Assistant, CID, along with the forwarding letter addressed to the Director, DFDA through Head Constable Tulsidas Kalangutkar for onward dispatch to the laboratory and after effecting entry in the station diary. Gaurish Mapari/PW 2 who was attached as Scientific Assistant in the Office of CID, Crime Branch, has in his turn, confirmed having received letter dated 10.11.2003 addressed to S.P. CID, CB, Panaji and the letter addressed to DFDA, Panaji from Tulsidas Kalangutkar and having personally handed over the sealed cloth parcel in the Office of DFDA along with letter dated 11.12.2003 signed by the Senior S.P. Krishna Iyer. He has also stated that on 6.1.2004 he received letter from DFDA addressed to S.P. cm. along with analysis report and with a request to collect the balance quantity. 8. Shri Kaissare/PW 1 who works as a Junior Scientific Officer in the Office of the Directorate of Food and Drugs Administration stated that on 11.12.2003 he received the sealed cloth parcel and the seals fixed on the said parcel were intact and were individually covered with cello tape and tallied with the specimen seal impression sent separately. He stated that he weighed the sealed parcel and found it weighing 3.135 kgs. He stated that he weighed the sealed parcel and found it weighing 3.135 kgs. and on opening the same he found that it was containing greenish, dry, loose, non-adherent, leafy and flowery parts of the plants placed in colourless transparent carry bag tied with a self knot, in turn placed in another blue colour polythene bag. As per him, the weight of the substance alone was 3.085 kgs. while the weight along with the bags was 3.135 kgs. He also stated that he inspected the entire substance and took about 10 gms. as representative sample and carried out three tests, as stated by him, and concluded that the substance analysed contained ganja. He stated that the balance quantity of the substance was put back into the polythene bag and wrapped in the cloth in which it was first received. He stated that the balance quantity was collected by the officials of the Police Department on production of letter addressed to DFDA dated 20.1.2004. In cross-examination, he stated that the seeds and leaves could not be weighed as they were attached to the flowering tops. In further cross-examination, he stated that it was possible that in the said bulk quantity there were some flowering tops without seeds and leaves. He further stated that it was not possible to carry out the weight of the terms from the top since it was part and parcel of the flowering tops. He denied the suggestion that more than 50% of the bulk quantity comprised of stems and leaves without flowering tops. 9. Learned counsel on behalf of the accused contends that Santosh Mandrekar, who was one of the panch witness for the raid was a regular panch witness of ANC Police Station as seen from the cases decided by this Court of Yellappa Chalwadi (Criminal Appeal No. 56/2004) and Sanjay Kumar Thakur. Learned counsel further contends that the evidence of Jacinto/PW 3 creates a doubt whether he was at all present for the said raid. As per learned counsel, Jacinto/PW 3 has a stated that he reported to the Police Station at 5.00 p.m. when Santosh Mandrekar was already present but the said Santosh Mandrekar could not have been present because the station diary shows, vide entry No. 34 that Constable Buckle No. 4171 returned with Santosh Mandrekar at 17.05 hours. As per learned counsel, Jacinto/PW 3 has a stated that he reported to the Police Station at 5.00 p.m. when Santosh Mandrekar was already present but the said Santosh Mandrekar could not have been present because the station diary shows, vide entry No. 34 that Constable Buckle No. 4171 returned with Santosh Mandrekar at 17.05 hours. Learned counsel further points out that Jacinto/PW 3 stated that he was dropped, after the conclusion of the panchanama, at his house at Betim whilst Dy. S.P. Fernandes/PW 6 has stated that both the panchas had returned to the Police Station. In my view, the aforesaid discrepancies, if at all, are too trivial and are not at all b sufficient to doubt the presence of Jacinto/PW 3 for the said raid. Admittedly, Jacinto/PW 3 was a Government servant namely, a bailiff attached to the Collector and as the very Order dated 10. 12.2003-Exh. 23 shows he was directed to report to the Police Inspector. ANC Police Station to serve as a panch witness. On behalf of the accused, no reason has been assigned as to why Jacinto/PW 3 should have deposed for the prosecution and against the accused. There is also nothing even to suggest remotely that the order produced by him at Exh. 23 signed by the Additional Collector. Panaji, was subsequently obtained. The evidence of Jacinto/PW 3 is convincing and reliable and corroborates the version given by P.I. Shri Pereira/PW 4. That Mandrekar had stood as a panch witness previously in no way diminishes the value of the testimony of Jacinto/PW 3. 10. Next, learned counsel on behalf of the accused submits that in case P.I. Shri Pereira/PW 4 and Constable Terrence Vaz had proceeded ahead in search of the accused and had found the accused sitting on a laterite stone, both of them would not have returned back to the place where the remaining members of the raiding party had concealed themselves and at least one of them would have remained present near the accused. This situation has best been explained by Jacinto/PW 3 who stated that the accused was visible from the place where they had hidden themselves whilst P.I. Shri Pereira/PW 4 had waited near the vicinity of the accused and Terrence Vaz had come to call them. This situation has best been explained by Jacinto/PW 3 who stated that the accused was visible from the place where they had hidden themselves whilst P.I. Shri Pereira/PW 4 had waited near the vicinity of the accused and Terrence Vaz had come to call them. It is nobody's case that P.I. Shri Pereira/PW 4 and Constable Terrence spotted the accused sitting on the wall there was any occasion for the accused to suspect that they were Police Officers and only because one of them did not remain near the accused is insufficient to discard their evidence. In case one of them had remained near the accused that might have created suspicion and the accused might have tried to run away. 11. Learned counsel on behalf of the accused next submits that the presence of Dy. S.P. Shri Fernandes/PW 6 is also doubtful because there were two raids conducted on the same day, first at 8.30 a.m. which was conducted by Uday Naik/PW 5 and then this raid was conducted by Pereira/PW 4 at 5.30 p.m. However, the evidence of Jacinto/PW 3 as well as the evidence of Dy. S.P. Shri Fernandes/PW 6 when read with the evidence of P.I. Shri Pereira/PW 4 does not give cause for any such doubt. Dy. S.P. Shri Fernandes/PW 6 has stated that he was present when two panchas were brought to the Office around 16.45 hours and had reported to the Office in the meantime from the earlier raid. This statement of Dy. S.P. Shri Fernandes/PW 6 is in conformity with the entry No. 32 at 16.45 hours of 10.12.2003 of the station diary. 12. Learned counsel on behalf of the accused also contends that the letters and the station diary have been manipulated in this case as can be seen from the letters and the station diary itself and therefore prosecution case ought not to be accepted as free from doubt. Learned counsel submits that letter bearing No. 1847- Exh. 27 i.e. the information sent to the Dy. S.P. Shri Fernandes/PW 6 was outwarded at 15.10 hours of 10.12.2003. as per the station diary while letter bearing No. 1815-Exh. 43 was outwarded at 16.00 hours vide entry No. 28 on the same day. Learned counsel therefore contends that letter bearing outward No. 1845. considering its very number ought to have been dispatched prior to letter bearing No. 1847. However, learned Public Prosecutor Ms. as per the station diary while letter bearing No. 1815-Exh. 43 was outwarded at 16.00 hours vide entry No. 28 on the same day. Learned counsel therefore contends that letter bearing outward No. 1845. considering its very number ought to have been dispatched prior to letter bearing No. 1847. However, learned Public Prosecutor Ms. Winnie Coutinho submits that the Outward numbers are not given by the Investigation Officer and they are given by the Outward Clerk and it is quite probable that the Outward Clerk gave the Outward numbers without considering the sequence in which the said letters were prepared. In my view, this submission of the learned Public Prosecutor appears to be probable and needs to be accepted. Firstly, it must be stated that there is no cross-examination at all on this aspect to the Investigation Officer. Secondly, a perusal of most of the letters and particularly Exh. 43 i.e., the letter bearing Outward No. 1845/2003 shows that it was a cyclostyled letter on which the outward number was written subsequently in hand. The information bearing Outward Number 1647-Exh. 27 colly shows that it was a handwritten letter on which subsequently a rubber stamp was put which had outward number and date and which were filled in with ink. In this situation, the contention that the said letters and/or the station diary was manipulated has to be rejected. 13. Next, learned counsel refers to the definition of "ganja" in Section 2(iii)(b) and submits that in the light of the said definition what was recovered from the accused could not be termed as ganja. Learned counsel has referred to the evidence of Jacinto/PW 3 and has submitted that, as per him, what was found was in the form of crushed leaves and not in the form of leafy leaves. Learned counsel further submits that the seized substance could be called as ganja only if the flowering or fruiting tops were accompanied by seeds and leaves and in this case they were not and therefore could not be considered as ganja. 14. The expression "ganja" has been defined in Section 2(iii)(b) of the Act, to mean the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), a by whatever name they may be known or designated. 14. The expression "ganja" has been defined in Section 2(iii)(b) of the Act, to mean the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), a by whatever name they may be known or designated. As per Modi's Medical Jurisprudence and Toxicology "ganja" has a rusty green colour and a characteristic odour and consist of the flowering or fruiting tops of the female plant quoted with rexin and grown on the plains. Jacinto/PW 3 was no expert and the opinion given by him that the seized substance was greenish and was in the form of crushed leaves being a layman's opinion cannot be considered to decide whether the seized substance was in fact ganja or not. That was an ordinary layman's opinion, as he saw the substance shown to him. Kaissare/PW 1 has categorically stated that the seeds and leaves could not be weighed separately as they were attached to the flowering tops. True, he admitted that in the bulk/quantity there were some flowering tops without seeds and leaves. Possibly after the seized substance had dried up some seeds and leaves might have fallen off, but Kaissare/PW 1 has categorically denied the suggestion that more 50% of the bulk quantity was comprising of seeds and leaves without flowering tops. In the light of the opinion given by Kaissare/PW 1 the contention of the accused that the substance seized was not ganja or that the accused ought to be convicted for a lesser quantity, cannot be accepted. 15. Learned counsel on behalf of the accused has also referred to Section 52(3)(a) of the Act and has submitted that the accused was not taken to the nearest Police Station but was brought at the ANC Police Station. At the same time, learned counsel concedes that the aforesaid provision is not mandatory but according to the learned counsel in the facts of this case non-compliance of the said provision ought to be seen with suspicion. As far as the provision of Section 52(3)(a) is concerned, it is now well settled that the said provision by itself is not mandatory. 16. As far as the provision of Section 52(3)(a) is concerned, it is now well settled that the said provision by itself is not mandatory. 16. The Apex Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 , has stated that these provisions contain certain procedural instructions for strict compliance by the officers but if there is no strict compliance that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search but such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material and therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice and that the officers cannot totally ignore this provision and if there is no proper explanation for non compliance or where the provision is ignored it will definitely have an adverse effect on the prosecution case and the Courts have to appreciate the evidence and the merits of the case bearing these aspects in view. In Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 , the Apex Court reiterated that the provision of Section 52 is directory but the Investigation Officer cannot totally ignore this provision but failure will have a bearing on appreciation of evidence. In fact, as far as the facts of this case go there has been no cross- examination on that aspect nor it has been demonstrated on behalf of the accused that by not following the said provision any prejudice was caused to the accused. 17. Learned counsel on behalf of the accused submits that the sentence imposed upon the accused is severe and therefore the same needs to be reduced. Learned counsel contends that the accused is 60 years old and is the only bread earner of the family. However, the charge-sheet shows that the accused was 45, years old at the time of his arrest. The accused gave his age as 48 years when his 313 statement was recorded on 10.4.2006. The accused was found with 3.102 kgs. of ganja which is three times more than small quantity. However, the charge-sheet shows that the accused was 45, years old at the time of his arrest. The accused gave his age as 48 years when his 313 statement was recorded on 10.4.2006. The accused was found with 3.102 kgs. of ganja which is three times more than small quantity. The punishment provided for variable quantity like the case in hand is R.I. for a term which may extend to 10 years and with fine which may extend to Rs. 1,00.000/-. The learned trial Court has taken into consideration, whilst imposing sentence that drugs have a devastating effect on the society at large. Sentence has always got to be proportionate to the crime committed. Considering the quantity of ganja found with the accused the sentence imposed could not have been said to be disproportionate. 18. Considering the facts of the case, in my view, the conviction and sentence imposed on the accused could not be faulted. 19. The appeal is therefore dismissed. The accused to surrender to undergo the remaining sentence before the learned Special Judge within a period of three weeks. Appeal dismissed.