Criminal Appeal No.38 of 1994

29th November, 1996

Petitioner Counsel: Shri L. CHARI, Shri J. P. D'SOUZA
Respondent Counsel: Shri G. U. BHOBE

Cases Cited:
AIR 1995 SC 1157 [Para 7]

JUDGMENT

CHANDRASHEKHARA DAS, J. : The accused in Special Criminal Case No.7/94 on the file of the Narcotic Drugs and Psychotropic Substances Court who was convicted and sentenced by Judgment dated 19th October, 1994, for an offence under Section 20(b)(i) and (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Act"), is the appellant herein.

2. The said Appeal was heard previously by another Division Bench, to which one of us (T. K. Chandrashekhara Das, J.) was a party. While arguing the Appeal on that occasion, the action of the lower court in objecting to certain questions put to P.W.4, A. K. Gautam, during his cross-examination and also the non-production of the Station Diary, have been strongly criticised. In view of these objections, even though this Court has heard counsel for the appellant in detail, by an Order dated 26th September, 1995, it had directed the trial Court to recall the witness P.W.4 for cross-examination and also asked the prosecution to produce the Station Diary, exercising the jurisdiction of this Court under Section 391 Criminal Procedure Code, during the pendency and before the final disposal of the Appeal. We have gone through the order again. As per the aforesaid Order, the trial Court recalled P.W.4 and allowed his cross-examination. The station Diary of the Anti-Narcotic Cell of 8th December, 1993, was also produced by him. By the aforesaid Order, this Court had directed the trial Court to revert the records relating to the case including the additional evidence to this Court after complying with the directions contained in the said Order. Accordingly, the trial Court records have been received by this Court on 9th November, 1995. After the records were received back by this Court the Appeal has been again posted for hearing and the Appeal was accordingly heard finally on 18th July, 1996. The said Order dated 26th September, 1995, is treated as part of this Judgment. The entire facts of the case have been briefly narrated in the said Order. In the circumstances, we need not repeat the facts of the case herein again.

3. Mr. Chari, counsel for the appellant, submitted in his argument that the recovery said to have been made from the possession of the accused is illegal as it does not conform to Sections 42 and 43 read with Section 50 of the Act. Dealing with this point, counsel for the appellant, submits that P.W.4, A. K. Gautam, who is a Gazetted Officer, who was leading the raiding party has not deposed anything about the raid and therefore, it cannot be said that the search has been legally proved. He submits that eventhough he was present during the search the refusal by P.W.4 to answer about the details of the search can draw an adverse inference against the prosecution case. In fact, after remand, P.W.4 was again re-called and a question on similar lines has been asked to P.W.4 and on subsequent examination, P.W.4 said that he was the senior most officer at the time of the raid. He was not ultimately responsible for the raid. He says that he was only present there as a Gazetted Officer at the time of the raid. He went on to say that the Investigating Officer, namely P.W.3, is responsible for the raid. He also admits that he did not give any authority in writing to Shri Kiran Padwal, P.W.3, who conducted the raid. Ofcourse he admits that the raid was based on information he received about the drug transaction in the Morning Star Bar and Restaurant. It is only Kiran Padwal, P.W.3, who recorded the Panchanama. P.W.3 deposed that before making search of the person of the accused and also the Restaurant the accused was told that he is entitled to be searched in the presence of a Gazetted Officer or a Magistrate. This fact has been proved without contradiction. Therefore, the contention of the appellant's counsel that there is violation of Section 42 and Section 43 read with Section 50 of the Act, is not sustainable. In fact, similar argument has been advanced on behalf of the appellant before the trial Court and the trial Court has rightly rejected the said contention.

4. We have perused the records and evidence in this case. It is disclosed that information was received and recorded by P.W.4 and it is also true that he led the raiding party to the spot. It appears from the evidence that he was present, at the time of raid. P.W.2, the panch Shri Sakharam Parwar, has spoken that the raiding party alongwith the pancha and S. P. Gautam went to the Morning Star Bar and Restaurant on 8th December, 1993, then A.S.P. Gautam introduced himself to the said person sitting on the counter in the Morning Star Bar and A.S.P. Gautam also informed the person that they have received information that they are transacting with drugs. P.W.2 further says in his examination-in-chief that then A.S.P. Gautam directed P.S.I. Kiran Padwal, P.W.3, to conduct the search and thereafter P.W.2 corroborated the evidence of P.W.4 that Kiran Padwal is the officer who actually conducted the search. He proceeded to say that P.W.3 had told the accused that he wanted to conduct the search for drugs and if he so desired, his personal search could be taken before the Gazetted Officer of his choice. It has been proved through Padwal that on hearing the reply from the accused in the negative, then only P.W.3 proceeded further in search. In the evidence of P.W.3 it has come out that on questioning the accused as to whether he had any drugs in his possession he voluntarily removed from his right side pocket of his pant two polythene packets containing darkish substance known as charas. This fact has not been controverted in cross-examination and moreover this fact has been reinforced from the panchanama also. Therefore, strictly speaking, there is no personal search as such. On mere asking, the appellant took out the substance from his pant pocket. Therefore, even if an argument is possible about the defect in search, it is not available to the appellant in this case because he has voluntarily taken out the drugs from his pant pocket.

5. Another argument advanced on behalf of the appellant is that the recovery was made by the pancha because one of the panchas has pointed out to P.W.3 the Mac. Dowell box. When it was opened by the appellant it was found that it contained charas. The learned counsel for the appellant argues that search and recovery by pancha cannot be called as a search and recovery made according to law. The argument in fact is based on misconception of facts. As pointed out earlier, pancha only found the box and therefore, it cannot be said that recovery was made by pancha. During the course of search or seizure, if any assistance or help is extended by one of the members of the raiding party, including pancha, it cannot be said that the recovery and seizure are not made by Police.

6. The learned counsel then argued that there are sufficient indications to show that the accused is unnecessarily implicated because of the previous enmity between him and the police officers and the discrepancies in keeping the Station Diary and also producing a carbon copy of the Station Diary and certain corrections about the time recorded in the Station Diary will all cast serious doubt about the search and seizure which has taken place in this case. Mr. Chari has argued that the corrections/discrepancies noticed in the Station Diary and the refusal to answer the relevant questions by P.W.4 will go a long way to disprove the case of the prosecution. Eventhough P.W.4 after remand has been cross-examined thoroughly on this point, no extenuating circumstances have come out to challenge the validity of the proof. The attempt made by the counsel for the appellant that the entire search and seizure were bogus and doubtful cannot be accepted. The search and seizure as we pointed out earlier, have been legally proved by examining P.Ws.2 and 3 and the production of P.W.2/B. The minor discrepancies here and there and refusal to answer certain questions because of distance of time by a witness cannot cast a doubt on the legality of the search and seizure. The lower court has rightly appreciated all the evidence on record. We have also perused the records and deposition of the witnesses after remand. P.W.1 Chemical Analyser, has stated categorically that drugs recovered from the possession of the accused tally with the samples taken and they have been tested in the Laboratory. P.W.2 and P.W.3 have in all details and precision spoken about the recovery of drugs from the possession of the appellant and the recovery and search were done in full compliance with the mandatory provisions of Section 42 and 50 of the Act. No substantial departure of the mandatory provision could be pointed out by the counsel for the appellant in the search and seizure. In the circumstances, we do not find any ground to take a different view from what was taken by the trial Court as regards the guilt of the accused.

7. The learned counsel for the appellant has argued that P.W.3 who conducted the search has not recorded the information he received and he did not forward a copy of the report to the superior officer to proceed with the search in terms of Sections 42 and 43 read with Section 50 and in the absence of such legal compliance on the part of P.W.3 the search cannot be termed as a legal search and the accused is entitled to get the benefit. Counsel for the appellant also cited in support of his argument a decision of the Supreme Court in 'Mohinder Kumar Vs. The State, Panaji, Goa.' reported in AIR 1995 S.C. 1157. We cannot agree with this submission by the counsel for the appellant. As we have pointed out earlier, there is no infraction of any of the provisions of the Act in this case while conducting the search and seizure. There was no necessity for P.W.3 to record the information about the dealing with the drugs by the appellant. Here, in this case, the information has been received by the superior officer and that information is passed on to P.W.3 who conducted the search. Therefore, in such circumstances, he need not send any further report to a superior officer who himself was in the raiding party. The said provision is contemplated only for the purpose of avoiding the abuse of power that is likely to be committed by the officer who conducts the search. Here, in this case, the information is received by the superior officer and the superior officer was present at the time of the raid. Therefore, it cannot be said that the aforesaid decision can be applicable in the facts of this case. An attempt was made by counsel for the appellant to discredit the evidence of P.W.4 as he has not answered certain questions after be was recalled. But we see his inability to answer certain questions, however, has not affected the validity of the search and seizure in this case.

8. In view of the above discussion, we find no illegality or infirmity in the case of the prosecution and therefore, the lower court has rightly found the appellant guilty of the offences charged for. We also find that the sentence imposed on him is also in accordance with law. On re-appreciating the evidence, we also find that the lower court's judgment requires no interference.

9. In the result, the Appeal fails. The Judgment of the court below is confirmed. The Appeal is dismissed.

Appeal dismissed.