Criminal Appeal No. 1478 of 2011 · Bombay High Court · 2011

Judgment

1. This appeal is directed against conviction of the appellant by the learned Special Judge, Mumbai for offence punishable under Section 8(c) r/w Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, (cid:28) the NDPS Act(cid:29) ) and sentence of rigorous imprisonment for five years and 2 APEAL-OJ-1478.11 fine of `25,000/- or in default rigorous imprisonment for further period of six months imposed upon the appellant by the learned Judge. Since the appellant was arrested on 22-4-2007 and is in custody since then and thus has completed about four years and eight months out of his five years sentence, the appeal was taken up for hearing out of turn.

2. The facts which are material for deciding this appeal are as under: On 22-4-2007 PSI Naikwadi received information through his informant that the appellant was to bring Charas at about 10:00 a.m. for being sold to his customer near Military Camp, Datta Mandir Road, Malad (East). He recorded the information in the Station Diary at about 6:25 a.m. and had it communicated to his superiors, telephonically as also in writing. On receipt of orders from the Superiors to arrange a raid under the command of PI Aigal, the police party arranged for a raid. Panchas were called and a pre-trap panchnama was drawn up. The police party along with the panchas left for the spot where the appellant was to come. After the appellant arrived, PI Aigal was convinced that the 3 APEAL-OJ-1478.11 appellant was the same person in respect of whom information was received. The police party and the panchas, therefore, went to the appellant, identified themselves and sought the appellant(cid:25) s personal information. PI Aigal also explained to the appellant in Hindi of his right to be searched in the presence of a Gazetted Officer, should he so demand. The appellant is supposed to have declined this offer. He was then searched and found to be possessed of a bag in his right-hand. This bag was found to contain 1.40 kgs. of a sticky substance which was found to be Charas. Samples were drawn, sealed and the bulk quantity was also sealed. A panchnama was drawn up and the police party went to police station along with the appellant and offence was registered. The property was lodged with Azad Maidan Warehouse of the Police Department. A requisition for sending the sample to the Forensic Science Laboratory (for short, (cid:28) FSL(cid:29) ) was prepared and a Police Constable was asked to pick up the sample from the Azad Maidan Warehouse and to carry the sample to the FSL. Accordingly the sample was lodged in the FSL where the Assistant Chemical Analyser analysed the sample and found it to contain 2.09 percent tetrahydrocannabinol (THC), the active 4 APEAL-OJ-1478.11 ingredient of Charas. On completion of the investigation, charge-sheet was sent up.

3. The learned Special Judge charged the appellant of the offences punishable under Section 8(c) r/w Section 20 and Section 8(c) r/w Section 29 of the NDPS Act. Since he pleaded not guilty, he was put on trial at which the prosecution examined in all six witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of denial taken by the appellant, the learned trial Judge convicted and sentenced the appellant as indicated earlier. Aggrieved thereby, the appellant is before this Court.

4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, (cid:28) APP(cid:29) ) for the State. With the help of both, I have gone through the record. PW-1 Daundkar is the Assistant Chemical Analyser who states about receipt of the sample in the FSL in sealed condition and analysis carried out by him. He proved the documents pertaining to receipt of the sample and its analysis, as also the chain of custody to show that the sample could not have been tampered 5 APEAL-OJ-1478.11 when it was in the laboratory. He proved his report at Exhibit-14. PW-2 PC Hemant is the carrier of the sample to the FSL, who stated having received the sample from Azad Maidan Warehouse from PW-4 ASI Nimbalkar in whose custody the property was lodged and then having carried the sample to the FSL vide Exhibits-16 and 17. PW-3 PSI Shinde states about information conveyed to him by PI Aigal and steps preparatory to raid. He states about drawal of pre-trap panchnama. He was also a part of the raiding party. He states about PI Aigal explaining to the accused about his rights, about search of the accused and seizure of contraband. The cross-examination of the witness does not disclose anything to warrant disbelief in his words. PW-5 Ramesh Thakur is a hostile panch. The other panch witness was not at all examined. PW-6 PSI Naikwadi was also a member of the raiding party and speaks about seizure of contraband from the appellant. His cross-examination too does not disclose anything to warrant disbelief in his words.

5. The learned counsel for the appellant

submitted, first, that the learned trial Judge should not have accepted the prosecution story as mandatory provisions of Section 50 of the 6 APEAL-OJ-1478.11 NDPS Act had not been complied with. He submitted that it was necessary for the officer to comply with those provisions in view of Judgment of the Supreme Court, dated 7-7-2011, in State of Delhi v. Ram Avtar @ Rama {Criminal Appeal No.1101 of 2004}. The first paragraph of the Judgment reads as under: (cid:28) Ingenuity of counsel sometimes results in formulation propositions, which appear at the first flush to be legally sound and relatable to recognized cannons of criminal jurisprudence. When examined in greater depth, their rationale is nothing but illusory; and the argument is without substance. One such argument has been advanced in the present case by the learned counsel appearing for the appellant who contends that `even where the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') have not been complied with the recovery can otherwise be proved without solely relying upon the personal search of the accused'. According to the learned counsel, the courts are required to take into consideration evidence of recovery of illicit material independently of the factum of personal search of the accused as stated by other witnesses as such evidence would be admissible and can form the basis for conviction of an accused in accordance with law.(cid:29) 7 APEAL-OJ-1478.11

6. As rightly pointed out by the learned APP, first, in Ram Avtar(cid:25) s case (supra) the seizure was effected from three polythene packets recovered from the left side pocket of the accused, that is, from his personal search. Therefore, according to the learned APP, since the Judgment was given in the context of facts which were altogether different from the facts in the present case, namely, that seizure was effected in the case at hand from a bag which the appellant was carrying, the Judgment has no application to the present case. Secondly, the Judgment does not show that there is anything to indicate that the Court had considered and departed from two previous Judgments of the Supreme Court in the State of H.P. v. Pawan Kumar, reported in (2005) 4 SCC 350 and Ravindran @ John v. Superintendent of Customs, reported in 2007 AIR SCW 3100, on which the learned trial Judge had placed reliance. In Ravindran(cid:25) s case (supra), the Court had specifically observed as under: (cid:28) 7. It was then submitted on behalf of the appellant that the provisions of Section 50 of the Act which are mandatory in nature were not also complied with. Reliance was placed on decision of this Court reported in 8 APEAL-OJ-1478.11 Solicitor (1998) 8 SCC 534 Namdi Francis Nwazor Vs. Union of India and Anr. Learned Additional General appearing on behalf of the Union of India submitted that the aforesaid judgment of this Court has been explained in a subsequent judgment of this Court in (2005) 4 SCC 350 State of H.P. Versus Pawan Kumar in which it has been held that the observations relied upon in Namdi Francis Nwazor were obiter on this point. In the later judgment it has been held as under: "A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said 9 APEAL-OJ-1478.11 that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act".

8. In the instant case, it is not in dispute that the appellant was carrying a plastic bag in which the drug in question duly packed had been kept. Section 50 is, therefore, not attracted to the facts of this case.

9. It was, however, contended before us that PWs 1 and 2 had not informed the appellant of his legal right to get his person searched in the presence of a Gazetted Officer or a Magistrate. Merely informing him that he has an option to have his personal search done in the presence of a Gazetted Officer or a Magistrate was not sufficient and that he should have been informed of his legal right to get his personal search done in the presence of a Gazetted Officer or a Magistrate. In this connection, reliance is placed on the decision of this Court in (1999) 6 SCC 1 Pon Adithan Versus Deputy Director, Narcotics Control Bureau, Madras. It was, however, brought to our notice that the question as to whether the accused appellant is not entitled to be informed of his right to be searched in the presence of a Gazetted 10 APEAL-OJ-1478.11 Officer or a Magistrate and that merely being asked as to whether the accused-appellant would like to be searched in the presence of a Gazetted Officer or a Magistrate would be sufficient compliance with the provisions of Section 50 of the Act, has been referred to a larger Bench of this Court to resolve the conflict of opinion on the interpretation of Section 50 of the Act. (See (2005) 12 SCC 574).

10. In our view this question does not survive for our consideration because we have earlier held that Section 50 was not attracted to the facts of this case. If any drug was recovered from the personal search of the appellant as explained in Pawan Kumar's case, the appellant could advance this argument to challenge his personal search. That not being the case, the submission must be rejected. An argument was advanced before us that if the search is found to be illegal that is fatal to the case of the prosecution. Apart from the fact that this question does not arise in the instant case, it cannot be said as a general principle of law that the illegality of the seizure would in all cases prove fatal to the case of the prosecution. As held by this Court in 2006 (9) SCALE 644 Ritesh Chakarvarti Versus State of Madhya Pradesh although the effect of the illegal search may not have any direct effect on the prosecution case, it would all the same have a bearing on the appreciation of evidence of the official witnesses and other materials 11 APEAL-OJ-1478.11 depending on the facts of each case.(cid:29) In view of this, since the seizure was effected from a bag which the appellant was carrying, Section 50 had no application to the case at hand. In any case, the evidence tendered shows that the appellant was made aware of his right to be searched before a Gazetted Officer and the appellant had declined to be so searched.

7. The learned counsel for the appellant next submitted that PW-5 Ramesh Thakur, who had been called at the police station itself as a panch, had not at all supported the prosecution. The other panch witness was not examined. The learned counsel submitted that in such serious cases when search is effected in public place where several independent persons could have been available, the evidence of police officers, without corroboration from independent witnesses, should not have been believed by the trial Judge. For this purpose, he placed reliance on a Judgment of the Supreme Court in Ritesh Chakarvarti v. State of Madhya Pradesh {Appeal (Cri.) 1016 of 2006} delivered on 29-9-2006 wherein the Supreme Court had observed that, in cases under the NDPS Act recovery of contraband in presence of 12 APEAL-OJ-1478.11 independent persons assumes importance. In that case, two witnesses who had been examined, were found by the Court to be not at all independent witnesses. The Court did not believe the evidence tendered, since the evidence did not inspire confidence and then proceeded to allow the appeal granting benefit of doubt to the appellant therein. The learned counsel for the appellant submitted that similar are the facts in the present case and in the face of hostility of Ramesh Thakur and failure of the prosecution to examine the other panch, the evidence of PW-3 PSI Shinde and PW-6 PSI Naikwadi should not have been believed by the learned trial Judge.

8. The learned APP submitted that this Court had held in Mohammad Sheriff Sheikh Mohammad Isak Sheikh v. State of Maharashtra, reported in 2005 (2) Bom.C.R. (Cri.) 594, very much in the context of offence under the NDPS Act, that hostility of panchas need not ipso facto result in rejection of evidence of police officers and in the realm of appreciation of evidence there cannot be any rule of law or a mathematical equation to accept or reject evidence if panchas turn hostile or support the prosecution. There could be cases where in 13 APEAL-OJ-1478.11 spite of support of panch witnesses the Court may refuse to believe the evidence tendered. The question is one of truthfulness of the evidence and how the witnesses appear to the trial Court. As already adverted, the evidence of PW-3 Shinde and PW-6 PSI Naikwadi, who were members of the raiding party, does not disclose any infirmity. Therefore, the learned trial Judge cannot be faulted for holding that the appellant was found to be in possession of 1.40 kgs. of contraband material.

9. The evidence of PW-4 ASI Nimbalkar and PW-2 PC Hemant would show that the contraband material was kept in proper custody and the samples were carried in sealed condition to the FSL before they were analysed by PW-1 Daundkar. Therefore, even on this count there is nothing in the prosecution evidence which would warrant disbelief in the witnesses examined or to warrant findings contrary to those recorded by the learned trial Judge.

10. In view of the above, it has to be held that the prosecution proved possession of 1.40 kgs. of contraband material having 2.09 percent of active ingredient THC therein. The learned trial Judge has rightly considered this 14 APEAL-OJ-1478.11 percentage and come to conclude that the active ingredient would come to about 30 grams. Now if the active ingredient is to be taken into consideration, it would be appropriate to find out what is the quantity of active ingredient prescribed as a small quantity or commercial quantity and these quantities under Entry No. 150 of the Schedule are 2 grams and 50 grams respectively. Therefore, since the contraband in possession of the appellant was less than the commercial quantity, the learned trial Judge has rightly held the appellant guilty of offence punishable under Section 20(B) of the NDPS Act. The sentence of rigorous imprisonment for five years and fine of `25,000/- awarded cannot be said to be exceptionally harsh considering the fact that the appellant was found to be in possession of almost 2/3rd of commercial quantity of the active ingredient THC.

11. In view of the above, there is no merit in the appeal and it is dismissed. Sd/- (R.C. CHAVAN, J.)