2000 ALL MR (Cri) 304
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.K. TRIVEDI AND D.G. DESHPANDE, JJ.

Shaukat Ali Sayyed Rashid Vs. State Of Maharashtra

Cri. Appeal No. 177 of 1995

30th August, 1999

Petitioner Counsel: Mr. C. G. GAVNEKAR, Mr. NIRANJAN SHIMPI h/f P. K. DHAKEPHALKAR
Respondent Counsel: Mr. PRAVIN SINGHAL, A.P.P.

Narcotic Drugs and Psychotropic Substances Act (1985), S.50 - Search and seizure - Search made at public place - Witness to panchanama admitting that he was habitual witness and number of criminal cases were pending against him - His evidence was corroborative evidence - Held trial was not vitiated for not obtaining independent witness.

1994 (2) Mh. L.R. 41 Disting. (Para 12)

Cases Cited:
Mohd. Hussain Vs. State of Maharashtra with Hirala Ramlal Sharma Vs. State of Maharashtra, 1994 (2) Mah. L. R. 41 [Para 10]
Rifakatali Kahn Vs. State of Maharasthra, 1994 Bombay Criminal Cases 493 [Para 10]
Shaukat Ali Sayyed Rashid Vs. The State of Maharashtra, 1997 ALL MR (Cri) 50 [Para 11]
Kishore Chindu Khairnar Vs. The State of Maharashtra, Cri. Appeal No. 263 of 1994 dt. 12-8-1996 [Para 11]


JUDGMENT

D. K. TRIVEDI, J.:- These two appeals arising from the judgment and order of conviction recorded by the learned Additional Sessions Judge, Malegaon Dist. Nashik in Sessions Case No. 63 of 1993, convicting both the accused for the offences under section 21 of the N.D.P.S. Act and both the accused were ordered to suffer R. I. for 10 years each and to pay fine of Rs. 1,00,000/- each in default to suffer R. I. for 2 years each.

2. Criminal Appeal No. 177 of 1995 is filed by accused No. 1 Shaukat Ali Sayyed Rashid and Criminal Appeal No. 183 of 1995 is filed by original accused No. 2 Ekbal Ahmed Jainulabedin for challenging the judgment and order of conviction and sentence.

3. We have heard Mr. Gavnekar learned counsel appearing on behalf of the appellant in Criminal Appeal No. 177 of 1995, Mr. Niranjan Shimpi in Criminal Appeal No. 183 of 1995 filed by original accused No. 2, and Mr. Singhal, learned A.P.P. for the State/respondents.

4. During the course of hearing we have (been) taken through the evidence of prosecution witnesses and the judgment under challenge. Prosecution witness No. 5 P.S.I. Shaikh Nisar, attached to City Police Station, Malegaon, while he was on duty on 26th February 1993 received an information that two persons named Shaukat Ali and Ekbal Ahmed [Appellants herein] are selling brown sugar behind Central talkies in Idgaa area. On receiving the information he called for two panchas for the purpose of carrying out a raid and before proceeding to raid he made an entry in the station diary to the effect that raiding party went towards the place where, as per the information, the accused are selling brown sugar and on reaching there they found that the accused were sitting on a wooden log near Central talkies. On seeing the police party the accused started running and another group of raiding party coming from Kumbharwada caught hold of the accused. The accused were informed about the intention of the raid and asked them whether they want to get themselves searched in presence of Gazetted Officer or Magistrate. When the accused declined to carry out search before the gazetted officer or magistrate, search of the accused in the presence of panchas were carried out, and from the possession of accused No. 1 One gram 500 mg. brown sugar was found and same was seized. From the personal search of original accused No. 2 one gm. 350 mg. brown sugar was seized in the presence of panchas and a sum of Rs. 166.70 ps, was recovered from accused No. 2, and the panchanama to that effect was prepared in the presence of panchas. The copies of the panchanama were furnished to the accused. P.W.No. 5 P.S.I. Shaikh Nisar has lodged a complaint in the City Police Station against the accused and the information about raid was conveyed to his superior officer. The seized Muddemal was sent for examination before the Chemical Analyser at Bombay and after receiving report from the C. A. in positive in respect of seized muddemal, a charge sheet was filed against the accused, and both the accused were placed for trial before the Additional Sessions Judge, Malegaon. Dist. Nashik for the offence under section 21 of the N.D.P.S. Act. The defence of both accused is of total denial and the accused were forcibly implicated in the serious offence.

5. To prove the charge against accused. The prosecution has examined in all five witnesses viz. P.W. No. 1 Ahmed Khan Kasam Khan Pathan, P.W. No. 2 P.S.I. Shaikh Shaukatali Ibrahim Shaikh. P.W. No. 3 Abdul Latif Mohammad Hanif - the panch witness, P. W. No. 4 Police constable Bhausaheb Bhaguji Thakare and P.W. No. 5 investigating Officer Shaikh Nisar Ahmed Chand.

6. It is clear from the evidence of the prosecution that the witnesses have deposed in respect of the raid carried out in the presence of panchas on 26th February 1993 at about 18.40 hours at a place viz. on the eastern side of Central talkies on a public place. In his deposition of P.W. No. 5 Shaikh Nisar has stated that on 26-2-1993 at about 18.00 hours he received an information that one Shaukatali and Iquabal Ahmed are selling brown sugar near wood depot in a lane behind Central talkies in Idgaa area. On receiving the information the P.S.I. asked Police constable Thakare to arrange for two panchas, thereafter he made an entry in the station diary and proceeded towards the place where the accused were selling narcotic substance. At that time he had also taken material for raid viz. Balance, weight, seal, sealing wax etc. They divided into two groups as there were two roads at the place about which the P.S.I. Shaikh received the information. Police constable Shri Thakare and panchas were also with him. When they reached Raaj Video Centre they found that the accused were sitting on a wooden log and on seeing them the accused started running. The other raiding party coming from Kumbharwada was caught hold of the accused. Thereafter the P.S.I. inquired the names of those persons and intimated about their purpose of raid. P.S.I. also asked the accused that whether they want to get their search in presence of Magistrate, but the accused declined for the same. Accordingly search was taken and from the person of accused in all 32 packets were found, out of which 27 packets were containing brown sugar. All the precautions were taken to weigh the said packets as well as the powder and paper and it was taken in a separate packet and sealed it in presence of the panchas. Necessary signatures of the panchas were also taken and all the 32 packets were sealed in a separate packet. From the search of accused No. 2 two packets were found from his right side pocket of Shirt, out of which one was of English packet paper and another was of plastic bag. Brown sugar was found in those packets. It was weighing about 450 milligrams. Cash of Rs. 166.70 ps was also found from the left side pocket of the shirt of accused. Panchanama to that effect was also prepared. It was signed by the panchas and the said panchanama was produced on record by the P.S.I. Shaikh during the course of evidence. It is on record at exhibit 20. He has also produced necessary station diary entry and complaint filed by him as well as the reports of chemical analyser were also produced during the course of evidence. The complaint is at Exhibit 25, the Station diary is at Exhibit 26 and the reports of chemical analysers are at Exhibits 29 to 32. It has also come on record that after the arrest of accused, they were sent for medical examination and their blood was also taken. In the cross examination of P.S.I. Shaikh Nisar it is found that when he was in the police station and when he received the information, even many police officers and constables were present in the police station. The panchas were not acquainted with him and he was not inquired with the panchas as to whether any criminal cases are pending against them. He further stated in his cross examination that he has no idea whether the panchas were involved in the criminal cases and the cases under sections 324, 326, 363 of the Indian Penal Code or under section 12(a) of the Bombay Gambling Act, or under the Bombay Prohibition Act are pending against panch Abdul Latif Mohamad Hanif. It is further found from the cross examination that the Idgaa area is a big area and they stayed there for about 10 minutes for adjusting timing of other party to reach at the spot. It is further found from the cross examination that they have seen the accused for the first time from the distance of 50 to 60 feet. In his cross examination P.S.I. Shaikh Nisar also admitted that he has not mentioned in a complaint Exhibit 25 that he told the accused that you are selling brown sugar and hence they want to search. He has also admitted that he has not prepared separate arrest panchanama of the accused. This witness also denied the suggestion that he did not inform the accused that they want to get themselves to be searched in presence of gazetted officer. He has also denied the suggestions that nothing was seized from the accused and copy of the panchanama was not given to the accused. He denied that false case has been registered against the accused.

7. Another important evidence led by the prosecution is of panch witness (P. W. No. 3) Shri Abdul Latif. He acted as a panch on 26-2-1993 and he accompanied with the raiding party. He also identified the accused in court. He has stated that white powder from the accused was seized. He also stated that the panchanama of search was prepared on the spot where the accused were apprehended and he signed the said panchanama (Exhibit 20) as well as the sealed packets and he also identified the signatures on sealed packets. In cross examination he has also admitted that he acted as a panch in so many cases. He denied the suggestion that he signed the panchanama Exh. 20 and papers in the police station. It is further found in the cross examination that P.S.I. Shaikh was narrating the facts of the panchanama and police constable was writing it. The witness has also admitted that he was involved in the cases of theft, kidnapping a child, case of beating and also in the prohibition cases and same are pending against him in Malegaon Court. The witness has denied that he deposed falsely against the accused.

8. The evidence of Bhausaheb Bhaguji Thakare (P.W. No. 4) who was police constable and attached to Malegaon Police Station at that time is also important. According to him, P.S.I. Shaikh Nisar asked him to bring two panchas and he arranged for panchas. He was also a member of raiding party. They saw that two persons found sitting on a wooden log near wood depot. He has stated that on seeing police party the accused started running and other police party had caught the accused. During inquiry the accused were also asked that whether they want to get searched before the gazetted officer or Magistrate and they declined to examine themselves before the gazetted officer. The search was carried out in presence of the panchas and Shri Shaikh has found from the possession of the accused the packets containing brown sugar and even cash. The samples were taken under the panchanama and obtained signatures of the panchas. In cross examination, the witness has admitted that the Idgaa area is a crowded area. It is further found from the cross examination that P.S.I. Shaikh Nisar, P.S.I. Shaukat and two panchas were with him and they saw the accused from the distance of 50 feet. Nothing much more was brought on record from the cross examination. The prosecution has also produced the reports of chemical analyser which are on record at Exhibit 29 to 32 in respect of the materials seized from the accused.

9. The learned Additional Sessions Judge after scrutinizing the evidence on record has accepted the case of the prosecution and held that on 26th February 1993 at about 18.40 hours the accused were found in possession of brown sugar weighing 2.850 grams for selling in contravention of the provisions of N.D.P.S. Act. The learned trial Judge has also held in respect of the search of the accused which was carried out in the presence of panch witness (P.W.No. 3), that the evidence of P.W. No. 3 Panch witness is corroborated with the evidence of P.S.I. Shaikh Nisar, and accordingly, the evidence in respect of recovery of brown sugar from the possession of the accused, found as per the panchanama Exhibit 20, is proved and on examining the admission made by the panch witness (P.W. No.3) that he was involved in the criminal cases pending against him in Malegaon Court and he was a habitual panch, and also considering the various decisions of this Court as well as the Apex Court accepted the case of the prosecution.

10. The learned trial Judge, while relying upon the decision in the case of Mohd. Hussain Vs. State of Maharashtra with Hiralal Ramlal Sharma Vs. State of Maharashtra, 1994 (2) Mah. L.R. 41 in which Their Lordship held that if the panchas are habitual, then their testimony regarding raid and seizure can not be relied upon safely, and on considering the evidence in the present case, has observed that the panch witness categorically denied about the suggestion that nothing has been seized from the accused. The learned trial Judge has also held that the panch witness supports the prosecution in all respect and further observed that there are no contradictions or discrepancies in his evidence and his evidence is a corroborative evidence. The learned trial Judge has also considered the panchanama Exhibit 20 and the station diary entry No. 62 as per Exhibit 26 by holding that it clearly proves that P.S.I. Shaikh Nisar has informed about the raid to his superior by sending a wireless. Entry in respect of handing over the Muddemal property to the Muddemal clerk is at Exhibit 27. The learned trial Judge has also, while relying upon a decision in the case of Rifakatali Kahn Vs. State of Maharashtra, 1994 Bombay Criminal Cases 493 in which their Lordship observed that the provisions under section 42, 50, 52, 55 and 57 of the N.D.P.S. are directory one and not mandatory, that the breach of these provisions will not vitiate the trial, held that in the present case there is no breach of any mandatory provisions of N.D.P.S. Act and there is full compliance of all the provisions of N.D.P.S. Act. The trial Judge has further held that the prosecution has proved beyond reasonable doubt that the accused were found in possession of brown sugar as per panchanama Exhibit 20 and hence the accused are guilty for the offences punishable under section 21 of the N.D.P.S. Act.

11. Mr. Gavnekar, the learned counsel appearing for the appellant, has vehemently urged that considering the prosecution case that the seizure was done in a public place, the prosecution has not examined any independent witness and further in view of the facts of the case, as found from the evidence of the panch witness, the panchanama Exhibit 20 is not proved. The contention is raised to the effect that there is breach of certain provisions of N.D.P.S. Act viz. that when P.S.I. Shaikh Nisar apprehended the accused, P.S.I. Shaikh Nisar did not ask the accused whether they wanted to be searched in the presence of gazetted officer, that as it is found from the evidence of P.S.I. Shaikh Nisar, he has only stated that the accused were asked whether they want to get their search in presence of magistrate. He placed reliance upon the decision of this Court in Criminal Appeal No. 228 of 1994, Shaukat Ali Sayyed Rashid Vs. The State of Maharashtra, ( 1997 ALL MR (Cri) 50) with Criminal appeal No. 263 of 1994, Kishore Chindu Khairnar Vs. The State of Maharashtra decided on 12th August 1996 in respect of non compliance of section 50 of the N.D.P.S. Act and in that case this Court has held that by merely asking an accused whether he wanted to be searched in the presence of one of the two, that is either a Gazetted Officer or a Magistrate is not compliance with section 50 of the N.D.P.S. Act and it is mandatory for the officer to give the accused a clear choice whether he wants to be searched in the presence of a Gazetted Officer or a Magistrate. Considering this contention raised before us and also considering the submission made by the learned A.P.P. and on examining the evidence on record that we have discussed earlier it was found that the information was received by P.S.I. Shaikh and after arranging the panchas and recording the entry in the station diary to the effect that the raiding party has proceeded to carry out a raid, and as found from the evidence of the witnesses on seeing the police the accused had tried to run away and it is only at the instance of second raiding party who apprehended the accused and the inquiry was made about the intention to search the persons of the accused and when they declined to carry out the search before such officer, in presence of the panchas the accused were searched and contraband drugs i.e. narcotic drugs were recovered from them.

12. In our view there is no breach of the provisions of Section 50 of the N.D.P.S. Act as contended by Mr. Gavnekar. On considering the submissions about non-examination of independent witnesses we have not (been) impressed upon (by) such contentions. As per the prosecution case when the information was received about selling of narcotic drugs P.S.I. Shaikh Nisar has immediately arranged for the panchas and proceeded with raiding party and as found from the evidence when the accused saw the police they tried to run away from the place, and it is also found that the accused were apprehended by the raiding party coming from Kumbharwada. It is clear from the evidence on record that Police constable Bhausaheb Thakare has written the panchanama as dictated by P.S.I. Shaikh Nisar, that in the presence of panchas, the panchanama Exhibit 20 was drawn, that from the possession of the accused brown sugar was recovered and cash of Rs. 166.70 ps. was recovered from accused No.2. Even we are completely in agreement with the learned trial Judge when the trial Judge has accepted the evidence of panch witness though the panch witness has admitted that there are criminal cases pending against him in Malegaon Court. However, the learned trial Judge is, therefore, right in accepting the evidence of panch witness regarding recovery and seizure of the brown sugar from the accused persons.

13. Considering the facts of the present case, the decision cited by the learned counsel for the accused Mr. Gavnekar, we are of the view that the same is not applicable and in our view there is no breach of the provisions of Section 50 of the N.D.P.S. Act. In our view the order of conviction and sentence recorded by the trial Court is based on the evidence on record and the learned trial Judge has rightly accepted the prosecution case. We are also of the view that no independent witness is necessary to be examined as contended by Mr. Gavnekar, the learned counsel appearing for the accused, and in view of the facts of this case there is no substance in the contentions raised by him before us and both the appeals deserve to be dismissed. Hence both the appeals are dismissed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Malegaon is confirmed.

Appeal dismissed