1994 ALLMR ONLINE 479

M.F. SALDHANHA, J.

MOHAMAD RAZZAK PATHAN Vs. STATE OF MAHARASHTRA

Cri. Appeal No. 508 of 1993

15th June, 1994

Petitioner Counsel: S. R. Chitnis, U. N. Tripathi
Respondent Counsel: B. R. Patil

Narcotic Drugs and Psychotropic Substances Act (1985),S. 20

JUDGMENT

: -. JUDGMENT : - In a conviction under a charge of some seriousness, the gravity of proof that would be essential in law to fasten the nexus between the accused and the contraband that has been recovered, has once again come up for consideration in the present appeal. Undoubtedly, in cases where contraband is recovered from residential premises and the circumstances indicate that the premises are owned and/or occupied by the accused, but more importantly, where it is established that the accused were in exclusive possession, in the absence of evidence or sufficient reasons or explanation to the contrary, the prosecution would be justified in insisting upon the presumption of guilt being drawn. It is however very necessary in such cases that the evidence be free from doubt, infirmities or lacunae and that every other possibility be excluded. This is all the more so when dealing with offences punishable under the Narcotic Drugs and Psychotropic Substances Act, where the punishments prescribed are extremely heavy. First however the relevant facts.

2. On the afternoon of 19th July, 1992, the Bhadrakali Police Station in Nashik conducted a raid on House No. 3650 in Kathada area of Nashik City. The Police were acting on the basis of information received to the effect that accused No. 1 and accused No. 3 are alleged to have been dealing in Ganja and that they had stored such contraband in the residential premises. There is no dispute about the fact that the Police had complied with all requisite formalities and that they had gone to the place with two independent panchas. It is alleged that as the Police Party was approaching the house, the Accused No. 1 was seen running away from that place. The Police Head Constable Mali who is PW 1 chased him but he is alleged to have got away. In the course of the raid that was conducted, accused No. 2 and one (Kalyan Khan since deceased) were found in the house No. 3650. The house consists of several rooms and on a search of one of the rooms certain gunny bags were found under a heap of firewood and unused articles. These gunny bags contained considerable quantities of Ganja. The Police searched the adjoining premises when the other two ladies namely accused Nos. 3 and 4 were found present there. Once again certain gunny bags were found from one of the rooms which on examination were found to contain Ganja. The Police weighed the contraband and found that in all 197 Kgs. of Ganja valued at approximately Rs. 74.900/- were recovered. After drawing representative samples, completing the panchanama etc. the Police commenced the investigations. Accused No. 1 was arrested after more than a month and on completion of the investigations the four accused were put up for trial before the Court.

3. It was the defence of the accused that they had been falsely implicated. Whereas accused Nos. 2, 3 and 4 deny any connection even with that area, the accused No. 1 stated that he was only resident in the house but that he was in no way connected with what was recovered from the premises and that he is innocent. The learned trial Magistrate discarded the defence and held all the four accused guilty and convicted them under section 20(b)(i) of the N.D.P.S. Act. The accused No. 1 was awarded a sentence of rigorous imprisonment for four years and fine of Rs. 25,000/- in default rigorous imprisonment for three months and accused Nos. 2, 3 and 4 were awarded rigorous imprisonment for one year and fine of Rs. 10,000/- each in default rigorous imprisonment for two months each. It is against this set of convictions that the present appeal has been preferred.

4. I need to record at this stage that Mr. Chitnis learned Counsel appearing on behalf of the accused has advanced one solitary ground insofar as he contends that the crucial aspect of nexus between the accused and the contraband has not been established to the extent that is essential for the purposes of sustaining a conviction. Mr. Chitnis does not dispute the fact that the raid was conducted on the date in question, that all necessary formalities were complied with, that the contraband in question was recovered from the premises as also the other supportive evidence which indicates that on analysis the contraband was found to be Ganja. Mr. Chitnis has taken me through the evidence on record on the basis of which he has canvassed the submission that the prosecution has failed according to him in conclusively bringing home the fact that the four accused were in exclusive possession of the premises or that they had committed any other acts which would be sufficient to bring them within the ambit of the punishing section under the N.D.P.S. Act. For this purpose, he has taken me through the evidence of the relevant witnesses. PW 1 P.H.C. Mali has narrated in detail about the raid and it is his contention that he knows accused No. 1 and that he saw him running away from that place when the Police were approaching. The accused No. 1 has denied this fact and it is Mr. Chitnis's submission that this particular statement has been put in the mouth of the P.H.C. in order to rope in accused No. 1 who admittedly was not present in the premises when the raid took place. Mr. Chitnis advanced the alternate submission that even assuming accused No. 1 ran away from that spot on seeing the Police Party that this cannot be considered as a circumstance of guilty conduct. On the other hand, the learned A.P.P Mr. Patil has vehemently contended that if the accused No. 1 had no knowledge of the existence of the contraband and if accused No. 1 was not the person dealing with it and was innocent, as he seeks to state, that he would have continued to remain there and if at all the contraband was discovered by the Police, he would have told them that he had nothing to do with the same. To my mind, in the absence of any other material to indicate that the accused No. 1 had knowledge of the storage of the contraband or that accused No. 1 had stored it there on both of which aspects there is virtually zero evidence from the prosecution, the isolated circumstance of accused No. 1 running away on seeing the Police Party alone cannot lead to the irresistible conclusion of labelling it as a circumstance of guilt. One does not have to look for reasons but the possibility cannot be excluded of the fact that even if accused No. 1 was around that place when he saw the Police Party which consisted of some Senior Police Officers including the A.C.P. approaching the house that accused No. 1 purely out of a sense of fear or self-preservation might have decided to keep away. It is obvious that the whole locality subsequently came to know as to what was recovered from the premises and the accused therefore having not appeared immediately thereafter again to my mind cannot be used as a circumstance against him in isolation and in absence of any other incriminating material. Except for this aspect, the evidence of PW 1 P.H.C. Mali is by and large narrative and is hardly called into question. He does not unfortunately have any personal knowledge with regard to the number of persons who were residing in those premises which admittedly consisted of a number of rooms.

5. The evidence of PW 5 Vinayak Borade, who is the panch and the panchanama which is at Page 89 of the record have hardly been challenged by Mr. Chitnis. On the contrary, Mr. Chitnis has relied on his evidence and the recitals in the panchanama for the purposes of illustrating that the panchanama for the purposes of illustrating that the 'house and the adjoining one from where the two seizures were made consisted of several rooms and more than one floor and also that the bags in question were concealed and not kept openly. It is nobody's case that any of the accused pointed out the bags or that any of them were seen dealing with them or handling them. The evidence of the Panch therefore establishes the seizure simpliciter.

6. We then have the evidence of A.C.P. Ranade, PW No. 9, who has set out in detail the manner in which the information was received and the raid was executed. He has also referred to the fact that the police made a note of the house number and the Meter No. and that the investigating authorities have thereafter ascertained from the M.S.E.B. and the Municipal Corporation as to in whose name these stood. I shall deal with that evidence separately. The evidence of the A.C.P. followed more or less the same pattern as that of the earlier witnesses and Mr. Chitnis advanced the contention that even this evidence does not establish anything to indicate a guilty nexus between all or any of the accused and the contraband. The last witness of consequence is PW 10 P.S.I. Akolkar, who again narrates the manner in which the raid was conducted, the seizures were effected and the investigation was completed. We also have on record the short evidence of A.P.I. Deshpande who is PW 11 and who had subsequently taken over the investigation and filed the charge-sheet. I need to record here that Mr. Chitnis has laid considerable emphasis on certain parts of evidence of PWs 9, 10 and 11, the Police Officers, for the purpose of indicating that they have in so many words admitted that they were unable to find any conclusive evidence to establish the ownership or exclusive possession of the house No. 3650 and the four accused. The highest that was done was that enquiries were made with the electoral office for the Electoral Roll as also with the M.S.E.B. and the Nashik Municipal Corporation.

7. Dealing with this last head of evidence, Mr. Chitnis points out that a certified copy of the extract of the electoral roll showing the names of the two accused as residents of that house has been produced. Normally, this document could have gone in, being a certified copy of a public document, without formal proof. The learned trial Judge however ought not to have admitted it since the learned defence counsel has raised an objection and mainly because the extract was incomplete. To my mind, if the relevant page of the electoral roll was brought, the matter would have been different but in this case, only two of the names have been copied out on a sheet and under these circumstances it would give a highly misleading impression insofar as we do not know as to whether or not there were other persons registered as voters from the same house. For the purposes of dealing with the concept of exclusive possession a voters' list may be supportive evidence, but it would not indicate that the accused persons and only the accused persons for that matter were resident in the premises at the time of the commission of the offence. This document which has wrongly been relied upon by the learned trial Judge is, therefore, not of much consequence. Similarly, Mr. Chitnis has pointed out to me that the two names of persons indicated by the Nashik Municipal Corporation as owners of the premises are in no way connected with the accused. The learned A.P.P. contended that they were the father and the mother of accused No. 1 but he has denied this in his 313 statement and nothing has been brought on record in order to establish this fact. Merely because the names are similar would not be sufficient for a Court of law to draw an adverse inference in a criminal trial. The same position applies as far as the electric meter is concerned. I hasten to add however, that even if this material were helpful to the prosecution, it would not be conclusive because it is very necessary to prove the factum of actual presence or actual user of the occupation while alleging exclusive possession. Mr. Chitnis sought to submit that if the Police were so certain about the accused that they could have easily procured the ration card which would have been far strongest evidence of residence and possession and would have also reflected as to whether these were the only persons present there.

8. The learned A.P.P. Mr. Patil has vehemently contended that the findings of the trial Court cannot be interfered with. He maintains that accused No. 1 was aware of the purpose of the visit by the Police and that was the only reason why he had run away and stayed away for a considerable period of time. He also maintains that regardless of the denial from the accused No. 1 that it is established that the House No. 3650 belongs to his parents. Next, Mr. Patil submitted that the inter se relationship between the other three accused and the accused No. 1 is sufficient for the purpose of establishing that the liability for the contraband found in the premises can be fastened on these accused.

9. This is a criminal trial where as indicated by me earlier, the charges are serious and the punishments are heavy for those offences. The degree of proof must necessarily pass a high test of scrutiny and in keeping with well settled principles of criminal jurisprudence must also exclude all other possibilities. The very nature of the structures as admitted by the raiding party were such that there were several points of entry and access. There were also several rooms some occupied and some unoccupied. Under these circumstances, before arriving at a conclusion that the accused and nobody else had kept the bags of Ganja in those premises, the prosecution must exclude the possibility of the access of other persons than the accused which it has not done. The fundamental basis of the concept of exclusive possession requires the elimination of third parties. The prosecution evidence in this case is so nebulous that we do not have anything conclusive on record to indicate how many persons were residing in those premises. There is also nothing on record to indicate the point of time at which the contraband was brought there, nor is there even the remotest evidence to indicate as to who brought the contraband there. Under these circumstances, in the absence of any admissions from the accused or any culpable acts on their part, one cannot jump to the conclusion that even accused Nos. 2, 3 and 4 who were merely present in the premises when the raid took place are deemed to be guilty and therefore that they should be convicted.

10. This Court had occasion to consider an identical question in an earlier decision reported in 1983 Criminal Law Journal Page 1502, in the case of Antony Sauri Pilley, Appellant vs. State of Maharashtra. Dealing with an identical situation, this Court had observed as follows :

"even accepting the prosecution case at its best, the position, that emerges is that no evidence was brought forward before the Court in order to indicate that the premises from where the gunny bag was allegedly recovered belonged to the accused, that he was in possession of those premises, that the contraband had been brought there, that he was dealing in it, that he had handled it or that he was in any manner concerned with it. To my mind, the contention raised by Kumari Deshmukh is indefensible and is liable to be accepted."

Even though in that case the prosecution contended that the accused was the sole occupant of the hut at the time of the raid, this Court had held as follows :

"Shri Patil relies on the fact that the accused was the sole occupant of the hut that nothing has come on record to indicate that any other person was residing with him when he was found on the premises at the time of the raid. In these circumstances, it is Shri Patil's contention that the Court must accept the position that he is deemed to have been in exclusive possession of these premises and that the liability automatically fastens on him. Unfortunately, the law cannot accept such short-circuiting. It is essential to establish particularly in serious cases of the present type that the accused and he alone was the person from whose possession the contraband was recovered. His mere presence on the premises is not good enough...".

11. Mr. Chitnis has also relied on an earlier decision of a Division Bench of this Court reported in 1988 Criminal Law Journal Page 1878 in the case of Jeevanchand Baliram Thakur vs. State of Goa, where a seizure of certain rolls of Charas was made from a hotel room at the instance of the accused and the prosecution argued that insofar as the room was allocated to him and since the same was in his possession, that he was liable for the recovery. The Division Bench of this Court noted the fact that the room key was not with the accused and from this small circumstance, concluded that exclusive possession was not established. In that case the Division Bench observed as follows :-

"Link between the seizure of the said Narcotic and the appellant has not, therefore, been established and consequently the prosecution has not established and proved beyond any reasonable doubt that the appellant was in actual possession of the said prohibited drugs. We can, therefore, safely hold that the prosecution having failed to prove one essential ingredient of the offence punishable under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, no conviction would follow.".

12. On a totality of the material adduced by the prosecution, to my mind, the exclusive possession in respect of the contraband has not been established. The prosecution did make an attempt to examine the two of the neighbours PWs Nos. 7 and 8 who unfortunately turned hostile. To my mind, however some better and more complete evidence for the purpose of establishing the nexus between the seized contraband and the accused who are put on trial was necessary and the investigating authorities ought to have taken cognizance of the fact that it was equally important to rule out all other possibilities which would inevitably have been pleaded by the defence. In the absence of not having done that and having produced far from conclusive evidence, to my mind, the benefit of doubt will have to be given to the accused.

13. The Appeal accordingly succeeds and is allowed. The convictions and sentences recorded by the trial Court are set aside. The fine, if paid, is directed to be refunded. The accused who are in custody are directed to be released forthwith. Appeal allowed.

Appeal allowed.