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2014 DIGILAW 687 (BOM)

State (ANC P. S. , Panaji) v. David Abraham

2014-03-13

U.V.BAKRE

body2014
JUDGMENT 1. Heard Mr. Rivankar, learned Public Prosecutor appearing on behalf of the appellant and Ms. Bandekar, learned Counsel appearing on behalf of the respondent. 2. This is a State appeal against acquittal. 3. The respondent(hereinafter referred to as accused) was tried by the Special Judge, Mapusa in Special Criminal Case No.19/2008 for offences under Section 8(C) punishable under Sections 20(b)(ii)(C) and Section 21(b) of Narcotics Drugs and Psychotropic Substances Act, 1985 ('NDPS Act') 4. The prosecution case, in short, was that upon specific and reliable information, the staff of Anti Narcotic Police Station, Panaji, led by P.S.I. Loveleen Dias (PW8) along with two panch witnesses namely Amit Balekar (PW6) and one Ischit Bhandari conducted Narcotic raid on 21/01/2008 between 13.30 hours to 16.30 hours near Shamrock Karaoke Bar and Restaurant, Palolem, Canacona and caught the accused red handed while in illegal possession of 14.0485 grams of cocain worth Rs.56,000/- and 5.2775 Kilograms of charas worth Rs.5,33,500/- approximately which articles were attached under the panchnama along with one Pan Card bearing No. ADC PA 2286p belonging to the accused. 5. Charge was framed and explained to the accused. The accused pleaded not guilty. The prosecution examined eight witnesses in support of its case. The accused denied the case of the prosecution and alleged that he has been falsely implicated in the case. He examined four witnesses including himself. 6. Upon consideration of the entire evidence on record, the learned Special Judge found that though PW1, the Deputy Director of Central Forensic Laboratory, Hyderabad (C.F.S.L.) found that Exhibit I contained Cocaine and Exhibit II contained Charas, however, he did not state the actual percentage of Charas in the sample analysed by him from Exhibit II and with regard to cocaine (Exhibit I). PW1 admitted that he did not carry out the quantitative test to find out the purity of cocaine in the sample analysed. Therefore, the Special Judge held that it would not be justified to say that there was conclusive proof indicating that the substance found with the accused comprised of commercial quantity of cocaine and Charas. The Special Judge, however, held that the prosecution could be said to have successfully proved that the accused was found in illegal possession of small quantity of Charas and Cocaine. The Special Judge, however, held that the prosecution could be said to have successfully proved that the accused was found in illegal possession of small quantity of Charas and Cocaine. The accused was, therefore, held guilty of the offence under Section 8(c) punishable under Sections 20(b)(ii)(A) and 21(a) of NDPS Act and sentenced him to undergo imprisonment for a period of six months for each offence. Both the sentences were ordered to run concurrently. The records revealed that the accused was arrested on 21/01/2008 and was in custody till the date of the judgment i.e. 04/06/2010. Therefore, the period undergone by the accused in custody was ordered to be set off under Section 428 of Cr.P.C. 7. The accused did not challenge the judgment and order dated 04/06/2010 passed by the learned Special Judge in Special Criminal Case No.19/2008. However, the State, aggrieved by the acquittal of the accused for the offences punishable under Section 20(b)(ii)(C) and 21(b) of NDPS Act, filed the present appeal. 8. Mr. Rivankar, learned Public Prosecutor appearing on behalf of the State, submitted that since the conviction of the accused for the offence in respect of the small quantity of Charas and Cocaine was not challenged by the accused and since the said case with regard to commercial quantity pertains to the same Charas and Cocaine found in possession of the accused, the accused cannot challenge the evidence on record. He submitted that insofar as Cocaine is concerned, there was evidence that the purity of the sample was not tested. He, therefore submitted that the offence regarding commercial quantity of cocaine was not proved. However, he submitted that insofar as Charas is concerned, the question of testing purity did not arise and, therefore, the entire quantity of 14.0485 gms of Charas was to be considered and that being the commercial quantity, the accused ought to have been convicted and sentenced for possession of commercial quantity of Charas. He pointed out that no suggestion was put to PW1 that Charas contained something else. He relied upon: (i) the judgment dated 16/10/2009 of learned Single Judge of this Court in Criminal Appeal No.20/2009 (Yair Daniel Lavon Vs. The State of Goa) and (ii) Judgment dated 12/08/2011 of learned Division Bench of this Court in Criminal Appeal No. 39/2009 (Nandlal Shyamdas Vs. State of Goa). He relied upon: (i) the judgment dated 16/10/2009 of learned Single Judge of this Court in Criminal Appeal No.20/2009 (Yair Daniel Lavon Vs. The State of Goa) and (ii) Judgment dated 12/08/2011 of learned Division Bench of this Court in Criminal Appeal No. 39/2009 (Nandlal Shyamdas Vs. State of Goa). He, therefore, submitted that the impugned judgment, order and sentence, insofar as acquittal of the accused for the offence punishable under Section 20(b)(ii)(C) of NDPS Act is bound to be quashed and set aside and the accused is liable to be convicted and sentenced for the said offence. 9. On the contrary, Ms. Bandekar, learned Counsel appearing on behalf of the accused submitted that the attachment of the Charas from the person of the accused was itself not proved and, therefore, the question of setting aside acquittal of the accused, does not arise. She submitted that there are various serious discrepancies in the evidence of witnesses and non-compliance of the statutory provisions of law, due to which the attachment of the alleged drugs from the possession of the accused was not proved. Learned Counsel pointed out that according to PW8 Loveleen Dias she had folded bag containing suspected Charas in a white coloured cloth and had, thereafter, tied the same with jute thread and the said cloth parcel was then sealed at 7 places with the seal carried by her. However, PW1 Priyankar Ghosh, the Deputy Director of C.F.S.L., Hyderabad did not state that the said cloth parcel was found tied by means of jute thread. According to PW1, he found a sealed cloth bound envelope having 7 seals fastened on it. The learned Counsel further pointed out that according to PW8, the said bag containing Charas was wrapped in white coloured cloth. However, according to PW5 Ashwini Dessai, she had received a cream coloured cloth parcel containing green coloured shoulder bag having charas and, therefore, the colour of the cloth parcel changed. Learned counsel pointed out from the charge framed against the accused that the quantity of Charas was actually, 5. 2775 kgs, but according to PW2, PW5, PW6, PW7 and PW8, the quantity was 5.335 kilograms. Learned counsel pointed out from the charge framed against the accused that the quantity of Charas was actually, 5. 2775 kgs, but according to PW2, PW5, PW6, PW7 and PW8, the quantity was 5.335 kilograms. Learned Counsel further pointed out that neither the evidence of panch witnesses and the Investigating Officer nor the panchanama of seizure of articles from the person of the accused mentions that any mobile or any key was found in possession of the accused and was attached, though the said witnesses and the panchanama mention of the Pan Card of the accused, being found with him. However, she pointed out that as per the property register maintained by the Jail, the accused had one mobile with him. Learned Counsel questioned as to how the mobile of accused could be deposited with the Jail Authorities, if no mobile was found in his possession at the time of his arrest. She further submitted that search of the house of the accused was conducted and according to PW8, the accused opened the door of the room and after the search, locked the said house. Learned Counsel, therefore, questioned as to how key of the said house was with the accused when he had no such key in his possession at the time of the arrest. Learned Counsel also pointed out many other discrepancies in the evidence of witnesses. Learned Counsel submitted that there is no question of accused being tried for the offence regarding commercial quantity. She submitted that there is no material sufficient enough for doing the same. 10. Learned Counsel also pointed out many other discrepancies in the evidence of witnesses. Learned Counsel submitted that there is no question of accused being tried for the offence regarding commercial quantity. She submitted that there is no material sufficient enough for doing the same. 10. Learned Counsel appearing on behalf of the accused relied upon various judgments and they are as under: (i) State of Karnataka Versus Mohammed Mansoor @ Kachcha Mansoor, [2013 (1) Drugs Cases (Narcotics) 482] (ii) Kishan Chand Versus State of Haryana, [2013 (1) Drugs Cases (Narcotics) 36] (iii) Shri Murata Chiharu Versus State of Goa, [1998 ALL MR (Cri) 889] (iv) Rajesh Jagdamba Avasthi Versus State of Goa, [2004 Drugs Cases (Narcotics) 322] (v) Makna Versus State of Rajasthan, [2012 (2) Drugs Cases (Narcotics) 83] (vi) State of Gujarat Versus Jabbirsing Ratansing Indra Rajput, [2013 (1) Drugs Cases (Narcotics) 427] (vii) State of Gujarat Versus Govindbhai Vershibhai Thakor, [2013 (1) Drugs Cases (Narcotics) 388] (viii) Smt. Satyabhama Kishan Kardak Versus The State of Maharashtra, [2013 (1) Drugs Cases (Narcotics) 310] (ix) Judgment dated 21/08/2003 in Criminal Appeal No. 2 of 2002 (Manjeets/o Surjit Singh Versus State). 11. I have gone through the record and proceedings. I have considered arguments advanced by the learned Counsel for the parties. I have also considered the judgments relied upon by the learned Counsel for both the parties. 12. PW1, Shri Priyankar Ghosh, the Deputy Director of C.F.S.L., Hyderabad has deposed that in terms of his analysis, he formed the opinion that Exhibit - 1 contained Cocaine, whereas Exhibit -2 contained Charas. However, he added that quantitative test to find out the purity of Cocaine was not carried out, since the laboratory was not possessing certified reference material of cocain. Therefore, the learned Special Judge was right in holding that there was no justification to say that there was conclusive proof indicating that the substance with the accused comprised of commercial quantity of Cocaine. Prosecutor. There is no dispute about the said finding of the Special Judge. However, insofar as Charas is concerned, the quantity that was found in possession of the accused was more than 5 Kilograms. and at the relevant time, the commercial quantity insofar as Charas, was concerned, was 1 Kilogram. 13. Prosecutor. There is no dispute about the said finding of the Special Judge. However, insofar as Charas is concerned, the quantity that was found in possession of the accused was more than 5 Kilograms. and at the relevant time, the commercial quantity insofar as Charas, was concerned, was 1 Kilogram. 13. In Criminal Appeal No. 39/2009, by judgment dated 12/08/2011, the learned Division Bench of this Court found that the appellant was in illegal possession of 1.125 Kilogram of Charas. The question was whether the appellant was found to have possessed Charas in commercial quantity and, therefore, liable to suffer imprisonment under Section 20 (b)(ii)(C) of NDPS Act for 10 years or above. Learned Division Bench found from the reading of the evidence that the substance analysed by the Chemical Analyser contained Charas, which referred to existence of Charas having been found throughout the substance i.e. 1.125 Kilograms and not as if a part of substance was Charas. It was held that there is no merit in the contention on behalf of the appellant that the statement of the witness that the substance contains Charas refers only to a part of the sample as containing Charas which means that only 1 % may be Charas or 99% may be Charas and that since there is an ambiguity as to how much of it is Charas, the benefit of this doubt must be given to the accused. It was held that there is nothing in the evidence of the prosecution that suggests that the substance contained anything other than the Charas. It was found that there is a categorical assertion that the substance, which was analysed, contained Charas and that this cannot be interpreted to mean that Charas was only a part of the contents and there may be other substances which have not been named and whose quantity or preparation has not been established and therefore, there is a doubt as to the quantity that was found in possession of the appellant. It was further found that no foundation was laid in the evidence by cross-examination or in any manner by the appellant for the assumption that the substance contained a mixture of Charas with some other substance and that the weight of Charas in that mixture was less than 1 kilogram. It was further found that no foundation was laid in the evidence by cross-examination or in any manner by the appellant for the assumption that the substance contained a mixture of Charas with some other substance and that the weight of Charas in that mixture was less than 1 kilogram. The learned Division Bench held that the definition of Charas as given in Section 2(iii) contemplates that Charas may be crude or refined and there need not be mixture of any other substance along with Charas only because the witness said that the substance 'contains' Charas. 14. In Criminal Appeal No. 20/2009, the learned Single Judge of this Court, by judgment dated 16/10/2009, held that the accused made no effort in cross-examination to find out whether the seized article contained any other substance for it to be called a mixture of any other neutral substance and, therefore, in the absence of any cross-examination reading the evidence of PW1/Kaisare as a whole, one has to presume and conclude that the whole of the substance analysed by him was Charas without any other substance, neutral or narcotic ganja. 15. In the present case also, there is no foundation laid down in the cross-examination of PW1 that the Charas that was identified by PW1 contained some other material in the same. However, it is pertinent to note that the quantity of Charas mentioned at different places in different documents is not the same. As per the letter dated 28/01/2008, sent to the Director, C.F.S.L. Hyderabad, the quantity of charas was stated to be 5.335 Kilograms, but if the total of the weight of all the Exhibits is considered, the same would not be 5.335 Kgs. PW1 has nowhere given the total weight of charas. It is pertinent to note that charge with regard to Charas is framed in respect of the possession of 5.2775 Kilograms of Charas. Therefore, the question arises as to what was the true weight of the Charas that was allegedly found in possession of the accused. 16. PW4, Deputy Superintendent of Police, A.N.C., Panaji had received the covering letter along with the copy of information from PW8, Lady PSI, Laveleena Dias and he directed the concerned PSI to conduct raid. But according to PW8, there is no mention of the timing at which the said information was received. 16. PW4, Deputy Superintendent of Police, A.N.C., Panaji had received the covering letter along with the copy of information from PW8, Lady PSI, Laveleena Dias and he directed the concerned PSI to conduct raid. But according to PW8, there is no mention of the timing at which the said information was received. In the said forwarding letter, made to PW4, there is no mention of the timing of receipt of the information. Though there is inward and outward register at the office of PW4, no extract of the same was produced on record. 17. It is pertinent to note that PW8, Loveleena Dias, who had conducted the panchanama of search and attachment, which is Exhibt 29, specifically stated that she had folded bag containing suspected Charas in a white coloured cloth and had, thereafter, tied the same with jute thread and then the said cloth parcel was sealed at 7 places with the seal carried by her. Even PW6, Amit Balekar, one of the panch witnesses to that panchanama deposed that the green coloured shoulder bag containing Charas was folded and wrapped in a white coloured cloth and then tied with jute thread. Similarly, the panchanama which is at exhibit 29 mentions that the bag containing Charas was wrapped in white coloured cloth and tied in jute thread (sutali) and the said cloth parcel was sealed at 7 places. However, PW1, Priyankar Ghosh, the Deputy Director of C.F.S.L., Hyderabad did not say that he found the said folded bag in the white coloured cloth, which was tied with jute thread. He has stated that he found one cloth parcel with 7 seal impressions on the same. According to PW1, said Charas was repacked in the same manner in which it was found and the same was sealed with the seal of CFSL, Hyderabad. If that be so, then, the said Charas had to be repacked in the same white coloured cloth and had to be tied with jute thread which was not done. What is pertinent is that the said white coloured cloth parcel became cream coloured when it came to PW5, Ashwini Dessai. According to PW5, Head Constable, she was allotted the work of Writer H.C. and that she has received muddemal properties. However, according to her, the cloth parcel which she received, was not in green cloth, but it was in cream coloured cloth. According to PW5, Head Constable, she was allotted the work of Writer H.C. and that she has received muddemal properties. However, according to her, the cloth parcel which she received, was not in green cloth, but it was in cream coloured cloth. Therefore, there is reasonable doubt whether really Charas was found in possession of the accused and packed and sealed in the green coloured cloth as mentioned in the panchanama. 18. The evidence of PW6, the panch witness and PW8, the Investigating Officer, as also the panchanama (Exhibit 29) clearly reveals that no mobile and no key of any lock was found in possession of the accused. What was found was Pan Card. PW8 has categorically stated that both the times during search, she did not find any mobile phone. However, the register sheet of the office of Inspector General of Prisons pertaining to private property of convicted persons contains a mention that on 11/02/2008, one mobile phone Nokia was brought by A.N.S. Police Station and was deposited in the prison pertaining to David Abraham (accused). The question, therefore, is as to how mobile phone came to be in possession of the accused when the same was not found during his personal search. 19. The accused had examined four witnesses including himself to establish the fact that the investigating Officer had attached his mobile of Nokia Make bearing No. 9370167338. The fact that the accused had mobile phone in his possession was duly established. But the same was suppressed by the prosecution. 20. The cross-examination of PW8 reveals that a house search panchanama of the house of the accused was conducted by PW8, on 23/01/2008. Panchas, as stated by PW8, were one Anand Naik and Rajesh Dhuri, who have not been examined by the prosecution. This panchanama was conducted in order to find out whether there was any narcotic substance in the house. PW8 stated that this was her first narcotic raid and that she was not aware of the process of house search. According to PW8, house of the accused was closed and there was no one in the house. Sh deposed that the accused opened the door of the room. PW8 in her cross-examination further stated that the accused locked the house after raid. According to PW8, the staff members along with her included Dina Mandrekar. According to PW8, house of the accused was closed and there was no one in the house. Sh deposed that the accused opened the door of the room. PW8 in her cross-examination further stated that the accused locked the house after raid. According to PW8, the staff members along with her included Dina Mandrekar. However, even PW7, Dina Mandrekar is totally silent about this house search panchanama conducted on 23/01/2008. Such panchanama has not been produced on record. There is no explanation for suppression of the said panchanama. 21. As already stated above, no key was found in possession of the accused on 21/01/2008, when his personal search was taken. Since 21/01/2008, the accused was in Police Custody. Therefore, the question arises as to how the accused could open the room and lock the same after it was searched. 22. Section 41 of the NDPS Act lays down the procedure for search of an house if there is reason to believe that any narcotic drug or psychotropic substance or controlled substance is kept or concealed. Search warrant for search of the accused had to be obtained from the authority mentioned in this Section. No such procedure was followed. In the circumstances above, the search of the accused on 21/01/2008 and the panchanama (Exhibit 29) which pertains to the attachment of Charas, Cocaine and Pan Card of the accused but not the mobile phone and key of the room of the accused, from the possession of the accused, is also not beyond suspicion. 23. (a) In the case of “Rajesh Awasthi” (supra), the Hon'ble Supreme Court has observed that the credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW1, the Junior Scientific officer, was less than the quantity sealed and sent to him. It is observed that the question was not how much was seized, but whether there was actual seizure and whether what was seized was really sent for chemical analysis to PW1. It has been held that the prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. It is observed that the question was not how much was seized, but whether there was actual seizure and whether what was seized was really sent for chemical analysis to PW1. It has been held that the prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. (b) In the case of “Makna” (supra), it was held by the Rajasthan High court that preparation of site plan is essential to know the exact place from where the contraband article was recovered, whether the place is private or public or accessible to all. It is seen for the judgment supra that if there are material contradictions about the place of occurrence, search, seizure, seal and arrest, etc., the entire prosecution is bad in law. (c) In the case of “Jabbir Singh Ratan Singh Indra Rajput” (supra), it was held by the Gujarat High Court that it is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if other view is possible then also, the Appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (d) Again, in the case of “Govindbhai Vershibhai Thakor” (supra), it has been held that in an appeal against acquittal, where there is a possibility of two views, the one favourable to the accused, should be adopted. (e) In the case of “Kishan Chand” (supra), it has been held that non-compliance of mandatory provision of Section 42 of NDPS Act is fatal to the prosecution case. 24. In view of all the circumstances above, the case of the prosecution insofar as the attachment of Charas from the person of the accused is itself doubtful. Therefore, the question of setting aside the acquittal of the accused in respect of the offence punishable under Section 20(B)(ii)(c) and 21(b) of NDPS Act, does not arise. No interference with the impugned judgment and order is required. 25. In the result, the appeal is rejected. Appeal rejected.