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2021 DIGILAW 1073 (BOM)

Fabian Helmchen v. State Of Goa

2021-08-02

M.S.JAWALKAR

body2021
JUDGMENT M S Jawalkar, J. - Heard Shri S. Saudagar and Shri Tushar Jarwal, learned Advocates for the Applicant and Shri S. G. Bhobe, learned Public Prosecutor for the respondents. 2. The present application is filed by the applicant under Section 397 of Cr.P.C. for quashing and setting aside the Order dated 08/04/2021 passed by the Adhoc Additional Sessions Judge, (FTC) Mapusa, Goa. The learned Adhoc Additional Sessions Judge dismissed the application filed by the applicant under Section 227 of CrPC seeking discharge of the applicant in the proceedings initiated under Section 22(c), 20(b)(ii)(A) and Section 29 of the NDPS Act. 3. The brief facts of the case are as under : The applicant is a German Citizen, aged 40 years and is a qualified Audio Engineer and Roofing Specialist for the assembly of solar panels. He comes from a reputed family settled in Germany. The applicant planned his entire trip to India and booked round trip flight tickets. The applicant arrived in India on 31/01/2020 from Germany and was scheduled to return to Germany on 18/03/2020. The applicant from 31/01/2020 to 05/03/2020 stayed in Goa at a rented accommodation located at 1765 (3) Gummal Waddo, Anjuna Bardez, Goa - 403 509. On 05/03/2020, the applicant had rented an apartment for one night at Exotic Regency, Phase-I , Siolim, Goa as he was scheduled to leave for Assam on the next day. Around this period he met Ms. Arshiya Anjum (Accused No.1) in Goa which was nothing but a mere acquaintance. The applicant being a totally stranger in a new country was not aware of any credential or any conduct of the Accused No.1. On 06/03/2020, the applicant went to Assam and returned on 09/03/2020. The applicant stayed at an apartment in Exotic Regency, Phase-I, Siolim, Goa till 12/03/2020 and the applicant checked out on 12/03/2020 with all his belongings to meet his friends at Arambol. While the applicant was going to meet him, the applicant was picked up by respondent No.1. As per the FIR dated 13.03.2020 read with Complaint and Panchanama Report (being part of Chargesheet dated 07.09.2020), it is the case of Respondent No. 1, that on 13.03.2020, a Head Constable namely Mr. While the applicant was going to meet him, the applicant was picked up by respondent No.1. As per the FIR dated 13.03.2020 read with Complaint and Panchanama Report (being part of Chargesheet dated 07.09.2020), it is the case of Respondent No. 1, that on 13.03.2020, a Head Constable namely Mr. Mohan Parab along with PSI Vidyesh Pilgoankar, Tirtharaj Mhamal and Shrekrishna Redkar PC, were patrolling in a private vehicle and while patrolling at about 01:15 hour (early morning), PSI Vidyesh received specific and reliable information that the Main Accused Ms. Arshiya Anjum (Accused no.1) had concealed narcotic drugs at her rented apartment at Flat no.CG-5, C Complex, Phase II, Exotic Regency, Tarchi Bhat, Siolim, Goa and the said person (lady) is likely to dispose of the drugs to the customer at about 03:00 hrs to 04:00 hrs (early morning). Accordingly, Respondent No.1 with some more Police officers were called and allegedly a raid was conducted without obtaining any search warrant between 02:45 hours till 05:40 hours (early morning). The Respondent No.1 states that commercial quantity of LSD in 12 perforated sheets weighing about 17.4 grams, was obtained from the apartment of the Accused no.1 along with small quantity of charas weighing around 6.2 grams. It is also the case of Respondent No. 1 that the Applicant herein was present in the Accused No.1's flat. As per the F.I.R and the Panchnama Report, the 12 perforated paper sheets recovered from the Flat occupied by the Accused no.1 (Ms. Arshiya Anjum) wherein the suspected LSD was kept in the safe locker of a steel cupboard belonging to the Accused no.1 in her bedroom. Inside the safe locker, there was one silver color polythene zip lock bag. Inside the zip lock bag there was one autopress polythene bag where the suspected LSD was kept safely. As per the Complaint and Panchnama, which forms the part of the Chargesheet, there is a clear admission made by Accused no.1 that the suspected LSD belonged to her. The steel cupboard, apart from the suspected LSD and Charas contained the belongings of Accused no.1 only which mainly comprised of women's clothing. There is no evidence or factual recording which demonstrates or indicates Applicant's connection in whatsoever manner with the seized drugs/narcotics. The steel cupboard, apart from the suspected LSD and Charas contained the belongings of Accused no.1 only which mainly comprised of women's clothing. There is no evidence or factual recording which demonstrates or indicates Applicant's connection in whatsoever manner with the seized drugs/narcotics. As per the FIR read with Complaint and Panchanama Report, and it has been alleged that the Applicant was present at the flat of Accused no.1 at the time of raid between 02:45 hours till 05:40 hours. Accused no.1's flat, solely occupied by her since October 2019, and has one hall, one bedroom, one kitchen and one balcony. The backpack of the Applicant was found in the hall of the flat from which no contraband or narcotic substance was found/recovered. The Applicant's role in the entire proceedings is limited to the fact that he was present in the flat of Accused no.1 at the time of raid and nothing more. 4. The learned Counsel submitted that the order dated 08/04/2021 passed by the Ad-hoc Additional Sessions Judge, Mapusa is patently erroneous, illegal and liable to be set aside. There is nothing in the charge-sheet against the applicant with respect to the ingredients mentioned under Section 20 of the NDPS Act i.e. "produces, manufactures, possesses, sells, purchases, transports, imports inter State, export inter State or uses cannabis." So also nothing under Section 22 of the NDPS Act. The learned Ad-hoc Additional Sessions Judge only on the basis of the assumption that the applicant may be involved due to his presence in the flat and as per the statement of the caretaker rejected his application for discharge. The learned Judge wrongly placed reliance on the statement of caretaker. Even if his statement is considered no offence is committed by the applicant. A person cannot be put to trial in the absence of reasonable suspicion. In the whole order the learned Judge has neither contended nor concluded that the applicant is involved in the commission of offences so as to fall under the ambit of Sections 20 and 22 of the NDPS Act. Without there being any piece of evidence and observation that the applicant was involved in the commission of offence under Sections 20 and 22 which mandate the presences of sale, possession, use, manufacture etc. the applicant cannot be subjected to trial and is liable to be discharged on this ground alone. Without there being any piece of evidence and observation that the applicant was involved in the commission of offence under Sections 20 and 22 which mandate the presences of sale, possession, use, manufacture etc. the applicant cannot be subjected to trial and is liable to be discharged on this ground alone. Thus, applicant's involvement in the alleged offence is based on the application of Section 29 only. Merely his presence at the place of raid Section 29 cannot be attracted. That conscious possession is a mandatory requirement to proceed with the stringent provisions leading to conviction under the NDPS Act. After careful consideration of FIR and chargesheet, there is no sufficient ground against the applicant to proceed with the framing of charges and it is urged that this is a fit case to discharge the applicant from the stage of framing of charges. 5. The learned Advocate for the appellant relied on: 1. Union of India Vs. Prafulla Kumar Samal and others, (1979) 3 SCC 4 2. Shivaji Vs. Stae of Mahrashtra Criminal Application [APL 952 of 2018] 3. Savitri Periyaswamy Devendra Vs. State of Maharashtra,2018 SCCOnlineBom 5909 4. Rashmi Kerkar v/s State of Goa [LD-VC-BA-84- 2020] 5. Amarsingh Ramjibhat Barot Vs. State of Gujarat, (2005) 7 SCC 550 6. Akash J. Jariwala Vs. State of Maharashtra [Criminal Bail Application No.3032 of 2019] 7. Dipakbhai Jagdishchandra Patel Vs. State of Gujarat, (2019) 16 SCC 547 8. Ismailkhan Aiyub Khan Pathan Vs. State of Gujarat, (2000) 10 SCC 257 6. As against this learned Public Prosecutor Shri S.G. Bhobe submitted that he is not conceding that the statement of caretaker cannot be relied upon and not admissible. It is admissible. However, the learned Public Prosecutor fairly conceded that the trial Court is not right in holding conscious possession. 7. Heard submissions of the learned Counsel for the parties and perused the charge-sheet. Admittedly, the applicant is a German citizen having valid traveling documents. He came to India for the first time for tourism purpose and booked round trip flight tickets. He arrived on 31/01/2020 and was scheduled to return to Germany on 18/03/2020. The visa was valid from 06/12/2019 to 04/12/2020. Supporting documents i.e. air tickets are on record. Record also shows that his flight AF-217 on 19/03/2020 between Mumbai and Paris was canceled. He is having sufficient funds and bank credit card at the time of his visit. He arrived on 31/01/2020 and was scheduled to return to Germany on 18/03/2020. The visa was valid from 06/12/2019 to 04/12/2020. Supporting documents i.e. air tickets are on record. Record also shows that his flight AF-217 on 19/03/2020 between Mumbai and Paris was canceled. He is having sufficient funds and bank credit card at the time of his visit. It is not disputed that from 31/01/2020 to 05/03/2020 he stayed in Goa at rented accommodation located at 1765 (3) Gummal Waddo, Anjuna Bardez, Goa. The learned Public Prosecutor also admitted this position. He hired one rented apartment for one night on 05/03/2020 at Exotic Residency, Phase I, Siolim Goa, as he was scheduled to go Assam on the next day. This fact was confirmed by the statement of Francis Ligorio Menezes, a caretaker of Exotic Regency Building phase I and II for last six years, which reads as under: "I say that in the month of March 2020 Ms. Arshiya Khan introduce to me the said foreigner Mr. Fabian Helmchen, Deutsch National as her friend and informed me that he wants a room to stay for one day. I say that since Ms. Arshiya knows the said foreigner I let him stay in one of the flat at Phase-I First Floor for one day and then he left to Assam." 8. It is also appears to be correct that he left for Assam and returned back on 09/03/2020 and stayed at one Apartment of Exotic Regency, Phase I. It is also the case of the applicant that he was on the way to meet his friend when police picked him up and taken him to Anjuna Police Station where he was detained illegally and as per his contention this fact can be confirmed from the phone call of the applicant and the police officials. Without going into that aspect it is further necessary to note that the said Arshiya Anjum Khan was staying in Flat No.CG-5, C complex, Phase II, Exotic Regency, Siolim, Bardez Goa since last 5 months. She came to reside there in October, 2019. The tenant verification form at Siolim Outpost Goa is on record. This fact is also confirmed by caretaker Francis. She came to reside there in October, 2019. The tenant verification form at Siolim Outpost Goa is on record. This fact is also confirmed by caretaker Francis. Thus, it can be seen that the apartment which was hired by the applicant for one day is in Phase I, first floor and thereafter, he was occupying the flat on ground floor at phase I since 09/03/2020 to 12/03/2020. As per statement of the said caretaker he checked out at round 2.00pm alongwith his belongings and saw him going to the flat of Ms. Arshiya Anjum. Thus, the conclusion of trial Court connecting accused No.2 on the basis of the fact that he was residing in the said Exotic Regency building with the accused No.1 in joint occupation of the flat thereby attracting statutory presumption under Section 35 is totally erroneous. Section 35 of NDPS Act reads as under : "35. Presumption of culpable mental state. (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation - In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." 9. Now question is there is nothing in chargesheet attracting ingredients of Section 20(b)(ii)(A) and Section 22(c) against the applicant/ Accused No.2. Therefore, only Section which would be made applicable is Section 29 that is punishment for abatement and criminal conspiracy. Except his presence, nothing is on record even to prima facie hold that the applicant has any role to play in the abatement or conspiracy. The information was received as per complaint, that one female person had concealed narcotic drugs at her rented residential flat No.CG-5, C Complex, Phase II, Exotic Regency, Tarchi Bhat, Siolim, Goa. Accordingly, a raid was conducted. As per complaint, the applicant was also present there. There were four buildings in the said complex. The information was received as per complaint, that one female person had concealed narcotic drugs at her rented residential flat No.CG-5, C Complex, Phase II, Exotic Regency, Tarchi Bhat, Siolim, Goa. Accordingly, a raid was conducted. As per complaint, the applicant was also present there. There were four buildings in the said complex. The flat where raid was conducted consisting of a hall and balcony attached to it, bedroom, toilet, bathroom and kitchen. A gray colour backpack kept in the left corner of the hall which was disclosed by the applicant belongs to him. The said backpack containing the belongings of the applicant, his passport, visa and nothing incriminating was found in the backpack as well as in the hall. It also revealed from the said complaint that PSI opened the steel cupboard in the bedroom which was partially opened and it was found containing ladies clothes which Ms. Arshiya states that they belongs to her. Thereafter, PSI opened the safe locker and had found containing one silver colour polythene zip lock bag. It was informed by said Arshiya Anjum that the said pouch belongs to her. In the said pouch there was one autopressed polythene bag containing in it 12 paper sheets. On being asked to Ms. Arshiya Anjum she confirmed the said paper sheet to be LSD. Another transparent polythene pouch containing in it blackish colour sticky substance suspecting 'charas' have also seized. On being asked Mr. Arshiya Anjum confirmed that the said substance is LSD and charas which she has brought to deliver the same to her customers. 10. Admittedly, the applicant Fabian was having separate accommodation in Phase I which can be confirmed from the statement of caretaker also whereas the said Arshiya was residing in CG-5, C Complex, Phase II since more than five months. The learned trial Judge failed to apply his mind and failed to give any consideration to this aspect. Just because the said Arshiya introduced him to the caretaker as her friend learned Judge presumed his involvement in the offence. It is also wrongly concluded that the accused no.2 had no other dwelling place than the flat of the accused No.1. The learned trial Judge failed to apply his mind and failed to give any consideration to this aspect. Just because the said Arshiya introduced him to the caretaker as her friend learned Judge presumed his involvement in the offence. It is also wrongly concluded that the accused no.2 had no other dwelling place than the flat of the accused No.1. There is also absolutely no material on record to arrive at the conclusion of conscious possession in respect of the applicant on the basis of fact that the cupboard and safe locker in which the drugs were found partially open to which both the accused had equal access. It ought to have considered by the Ad-hoc Additional Sessions Judge that backpack of the applicant was in the hall and the cupboard was in the bedroom and in the said cupboard there were only ladies clothes and in the safe locker the said ziplock pouch was found which Arshiya admitted that the same belongs to her. In such circumstances, the assumption of equal access to the contents thereof is misconceived. 11. The learned Counsel for the applicant relied on Ram Singh Vs. Central Bureau of Narcotics, (2011) 11 SCC 347 : "It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control." 12. The learned trial Court on the basis of the statement of caretaker arrived at the conclusion that there is case against the applicant herein. The learned Counsel for the applicant relied on Shivaji (supra) wherein this Court held that, "while deciding a discharge application, the Court is entitled to examine the admissibility of the incriminating material as opposed to the probative value thereof. The trial cannot be an empty ritualistic formality. The learned Counsel for the applicant relied on Shivaji (supra) wherein this Court held that, "while deciding a discharge application, the Court is entitled to examine the admissibility of the incriminating material as opposed to the probative value thereof. The trial cannot be an empty ritualistic formality. It is true that strong suspicion is sufficient to frame charge. Equally settled is the position of law that suspicion cannot be whimsical and must be supported by material, which would admissible in the trial." 13. In my considered view, even if the entire statement of caretaker is taken as gospel truth there is nothing incriminating against the applicant/ accused. There is no material whatsoever on record to even arose strong suspicion against the applicant / accused. 14. The learned Sessions Judge committed an manifest error in assuming the existence of prima facie material against the applicant / accused. 15. The learned Counsel also relied on Dipakbhai (supra) which is relied by this Court in Shivaji (supra). Paragraph 23 is relevant and read as thus : "21. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence." 16. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence." 16. The learned Counsel for applicant relied on Ismailkhan and Savitri (supra) in support of his contention that mere presence in a room does not lead to possession of room. The Hon'ble Apex Court in Ismailkhan(supra) held that "In this case there was no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of one N. But that person is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question. Thus the only modicum of evidence that was available against the accused-appellants was that they were present in the room which was in the possession of one N and that the said room contained a gunny bag with the narcotic substance "charas", It is not possible to sustain the conviction of the offence under Section 20(b) read with Section 29 of the Act as for any one of the appellants on the strength of the aforesaid evidence. It is too insufficient to bring home the guilt of the appellants." So far as Savitri(supra) is concerned there was no recovery of any contraband at the instance of the applicant. The name of the applicant was also not reflecting in the information and only on the basis of the statement of the arrested co-accused, the applicant/accused also roped in. This Court held that such statement of co-accused is not admissible in law and Court cannot frame charge in relation to inadmissible evidence. The name of the applicant was also not reflecting in the information and only on the basis of the statement of the arrested co-accused, the applicant/accused also roped in. This Court held that such statement of co-accused is not admissible in law and Court cannot frame charge in relation to inadmissible evidence. It is further held that it is a settled principle of law that the sufficiency of the ground for a proceeding must be judged on the basis of the material in the chargesheet which is capable of and is expected to be transformed into evidence during the trial. 17. The learned Counsel also placed reliece on Rashmi Kerkar, Amarsingh Barot and Akash Jariwala (supra) in support of his contention that to attract Section 29 there has to be some evidence suggesting there is any conspiracy i.e. plan or scheme embodying means to accomplice object, an agreement or understanding between two or more accused etc. with common accomplishment by joint operation. Total evidence on record nowhere discloses that accused no.2 was having knowledge about the contraband seized. The information was also in respect of accused no.1 and the place i.e. flat was also in possession of accused no.1. The cupboard where the contraband was seized was in the bedroom of accused No.1. It was also containing articles belongs to accused no.1 and the said contraband found kept in zip lock pouch in the safe locker of the said cupboard. All these facts, as per complaint as well as Panchanama shows that the cupboard and articles therein are admittedly belongs to her. It is also clear from the fact that accused no.2 / applicant herein was having round trip tickets and unfortunately his flight was cancelled. He was having valid visa, passport and legal travel documents. It has also been revealed from 31/01/2020 to 05/03/2020, he was residing at 1765(3), Gummal Waddo, Anjuna Bardez, Goa - 403 509. From the statement of caretaker it reveals that he was occupying some other flat in phase-I whereas accused no.1 occupying the flat in phase-II. Accused No.1 occupying the said flat for more than six months. The backpack of accused No.2 was found in the hall of the apartment belonging to accused no.1 and nothing incriminating was found either in the hall or in the backpack or on the person of accused No.2 applicant. Accused No.1 occupying the said flat for more than six months. The backpack of accused No.2 was found in the hall of the apartment belonging to accused no.1 and nothing incriminating was found either in the hall or in the backpack or on the person of accused No.2 applicant. From these evidence it is very well clear that he was about to leave India and went to the flat for a temporary stay that does not at all sufficient to conclude that he was having knowledge about the contraband kept in the bedroom of accused No.1 that too in the zip lock pouch kept in the safe locker of the steel almira belong to the accused no.1. As such observation by the learned Trial Court about the conscious possession in para 13 that both the accused had equal access to the contents thereof that is without any material on record. 18. The learned Counsel relied on Prafulla Kumar Samal (supra) wherein the principles were laid down while deciding the application under Section 227 which are reproduced hereunder : "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 19. As such I am satisfied that the order passed by the learned Ad-hoc Additional Sessions Judge while deciding N.D.P.S.No.61 of 2020 is patently illegal, erroneous and without application of mind. He has failed to consider the material before it in its proper perspective. Neither there is any material attributing to the involvement of accused no.2 in the alleged offence nor there is any material to show that any meeting of mind between accused no.1 and 2 at any point of time in connection with the alleged offence. Thus, the order is liable to be quashed and set aside. In my opinion, there is no sufficient material/ evidence for trying the accused in the present case and he is entitled to be discharged. Accordingly, I pass the following order: ORDER 1. Revision application is allowed 2. The order dated 08/04/2021 passed by Adhoc Additional Sessions Judge (FTC), Mapusa below application u/s 227 CrPC filed by the applicant / accused No.2 is hereby quashed and set aside. 3. The accused is discharged in the proceedings initiated under Sections 22(c), 20(b)(ii)(A) and Section 29 vide N.D.P.S. No.61 of 2020. 4. Bail bond furnished by him stands discharged.