2004 ALL MR (Cri) 2585
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. DESHPANDE, J.
Abdul Gafoor Usman Gani Vs. State Of Maharashtra
Criminal Appeal No.296 of 2000
21st June, 2004
Petitioner Counsel: Mrs. A. M. Z. ANSARI
Respondent Counsel: Mr. D. R. MORE
Narcotic Drugs and Psychotropic Substances Act (1985), S.50 - Taking of samples - Compliance of S.50 - Evidence of two Police Officers - Panch witness supporting the prosecution in his examination-in-chief but in his cross-examination he has deviated from his stand - No evidence nor any document brought on record to shake their credit and credibility of evidence of Police Officers - Held, panchanama fully supports compliance of S.50 - Merely because panch witness deviates from his evidence only in cross-examination and gave some answers to confuse prosecution it cannot be a ground to accept version of the panch witness as a gospel truth.
In the present case, panch witness in his examination-in-chief has fully supported the prosecution and in the cross-examination very shrewdly he has supported the defence also by trying to create confusion about the samples shown to him. In this case admittedly three samples were taken, they were packed, labelled and sealed and numbered. Those three samples were sent to the Chemical Laboratory. There is no challenge as to their safe keeping and safe custody with the police from the time of taking the samples till they were sent to the laboratory and absolutely no submission in this regard was made before Court by the counsel of accused. Samples had the regular seal and signature of the panch. They have been identified and proved by the police officers witnesses and nothing more is bought on record to create the doubt about the samples. Therefore, merely because panch witness deviates from his evidence only in the cross-examination and give some answers to confuse the prosecution case cannot be a ground to accept his version as a gospel truth in the matter. It is true that evidence of the panch is an important evidence because he is an independent person but when it is found from his demaneour that while giving his evidence in examination-in-chief he fully supported the prosecution giving no hint of what is going on his mind and when in the cross-examination he only deviates from his evidence then it is a clear case that he is not giving truthful version in the court. [Para 6]
2. This Appeal is filed by the appellant original accused No.2 against conviction under Section 29 r/w. Section 21 and Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short) by which the accused were sentenced to suffer R.I. for 10 years and fine of Rs.1 lac each in default of fine R.I. for six months and further conviction under Section 21 read with Section 8(c) for 10 years and fine of Rs.1 lac and in default R.I. for six months. Mrs. Ansari, Advocate arguing for the accused made only the following submissions and nothing more challenging the judgment of conviction. According to her the raid was conducted by P.I. Shewale and it was he who informed the accused of their right to be taken to the Magistrate or the nearest Gazetted Officer as required under Section 50, but Mr. Shewale was not examined. P.W.1 Bhaskarrao A. Jadhav who was examined has not been referred to as a person present at the relevant time. And the only panch P.W.4 Nagraj S. Nawade who was examined by the prosecution has in his cross-examination stated in paragraph 21 that :
"After signalling from the officer Shewale, police rushed and detained the accused. I was standing by the side about 10"-12". That time there was a crowd of people coming to the theatre. I was not able to listen what was the talk. I came near the accused persons when packets were found. Prior to that myself and another panch were casually talking with each other."
3. From this evidence of P.W.4, Mrs. Ansari contended that the evidence of the prosecution regarding compliance to Section 50 is liable to be rejected or disbelieved. According to her prosecution did not examine other panch and that there is no corroboration. Non-examination of Shewale is also fatal to the prosecution. The learned APP on the other hand contended that the name of P.W.1 is not figuring in the panchanama. The station diary was produced and proved by the prosecution vide Exhibit 31. In the said station diary all the details regarding preparation of pre-trap panchanama and the arrangements made for proceeding to carry out raid have been given in detail and in that station diary name of P.W.1 is clearly mentioned as a person belonging to the raiding party. He also pointed out that other police officer has fully corroborated the testimony of P.W.1 and therefore not finding the name of P.W.1 in the panchanama, cannot be a circumstance to hold that P.W.1 was not at all present. He also pointed out that it was P.W.1 who had received the information from the informer about coming of the accused at the particular spot and therefore it was impossible that P.W.1 was not present.
4. I find considerable force in this argument. It is true that P.I. Shewale is not examined. It is also true that in the panchanama the name of P.W.1 is not appearing. However, the station diary entry which is proved on record as Exhibit 31 (record page Nos.57 to 60 of paper book) clearly mentions about the information received and thereafter calling of panchas and leaving of the raiding party from the police station. In that it is mentioned that raiding party included two panchas PSI Jadhav and PI Choudhari, Sub-Inspector of Police Kolhe and Sub-Inspector of Police Jadhav i.e. P.W.1. There is no challenge to the station diary entry anywhere in the cross-examination nor any suggestion is put to the other two police officers that P.W.1 is not at all a person belonging to the raiding party. Therefore presence of P.W.1 PSI Jadhav cannot be doubted at all and therefore even if PI Shewale is not examined there are two police officers P.W.1 PSI Jadhav and P.W.5 PSI Kolhe who have given all the details in this regard. Therefore, non-examination of PI Shewale is not at all fatal and non-mentioning of presence of P.W.1 in the panchanama is also not fatal to the prosecution. Both these witnesses have categorically stated that they had complied with the provisions of Section 50 by informing both the accused that they had a right to be examined by a Gazetted Officer or that they had a right to ask for presence of nearest Magistrate or officer of the Gazetted rank during their search. P.W.5 has stated that Shewale has given this information to the accused in Hindi. This is supported by the panchanama wherein there is specific mention of compliance under Section 50, therefore even if P.W.4 panch witness who has while supporting the prosecution in examination-in-chief, shrewdly given some concession in favour of the accused, cannot be preferred to the evidence of these two police officers whose integrity at least in this case is not challenged or successfully challenged. It cannot therefore be said that there was non compliance to Section 50 of the NDPS Act. The accused were made aware of their right.
5. Next point that was urged by Mrs. Ansari was that the witness P.W.4 has not even identified the packets in courts. In this regard she has relied upon the judgment of this Court reported in 1997 ALL MR (Cri) 496, Mr. Milan Sarcanski Vs. The State. In that case the raid was carried on in the house of the accused. In the personal search of the accused 12 grams of charas was found in a bag. Samples were taken and sealed in the presence of panchas as per the rules. Then in the search of the house one bundle containing 640 grams of charas was found. Samples were taken, tagged and sealed in confirmity with the law. Counsel for the accused urged before the High Court in that case that recovery from the person of the accused has not been proved by the evidence of P.W.2 who is the panch. The panch was shown in the examination-in-chief the sample packets, he identified only two packets of the samples which were samples of the contraband recovered from the room and regarding the sample of the contraband recovered from the person of the accused, this panch witness stated in the court as under :
"I say that the substance found in M.O. 1 does not look to be similar to the one attached from the bag since that substance was elongated and the present substance is flat."
In that background of the matter the court held that the prosecution has failed to establish the link between the accused and the goods alleged to have been recovered from the person of the accused.
6. In my opinion, the case is totally on different footing. It is firstly clear that panch P.W.4 in his examination-in-chief has fully supported the prosecution and in the cross-examination very shrewdly he has supported the defence also by trying to create confusion about the samples shown to him. In this case admittedly three samples were taken, they were packed, labelled and sealed and numbered. Those three samples were sent to the Chemical Laboratory. There is no challenge as to their safe keeping and safe custody with the police from the time of taking the samples till they were sent to the laboratory and absolutely no submission in this regard was made before me by Mrs. Ansari. Samples had the regular seal and signature of the panch. They have been identified and proved by the police officers witnesses P.W.1 and 5 and nothing more is bought on record to create the doubt about the samples. Therefore, merely because P.W.4 deviates from his evidence only in the cross-examination and give some answers to confuse the prosecution case cannot be a ground to accept the version of the P.W.4 panch as a gospel truth in the matter. It is true that evidence of the panch is an important evidence because he is an independent person but when it is found from the demaneour of the P.W.4 that while giving his evidence in examination-in-chief he fully supported the prosecution giving no hint of what is going on his mind and when in the cross-examination he only deviates from his evidence then it is a clear case that he is not giving truthful version in this court.
"During the panchanama I saw only one polythene packet in cloth bag for all the bulks. Now I am shown two polythene bags, for all the bulks. Now I am shown bulk contraband bag - Art. No.10 before the Court. It is seen ash coloured powder. When I saw the packet during panchanama, I did see pink coloured powder."
8. It is from this evidence of the panch P.W.4 that Mrs. Ansari contended that the identity of the samples and the material seized was not established. I am not at all in agreement with these submissions. In examination-in-chief this witness has stated that P.I. Shewale and the Officer Kolhe took nylon zipper bag from accused No.1. Inside there were two cloth packets having respective writing 'U' and 'V' in English. Both the packets were stitched. Stitches were taken out and small quantity of pinkish colour powder, from polythene bag was taken out. 2 samples of 5 gms. each were prepared from out of both the packets and they were kept in brown envelope, sealed and labelled with the signatures of panchas and Officer Kolhe. Then so far as accused No.2 is concerned he has stated :
"That he was carrying a plastic bag. Inside there was a cloth bag having mark 'V' in English. Similar testing, weighing and sampling was done for this bag..... Sample packets and remaining bulk and also plastic bags were separately taken in different packets and sealed and labelled as above."
It will be clear that P.W.4 has supported the prosecution on each point in this material aspect of the right. It is only in cross-examination he tried to make a confusion about the colour. It is therefore clear that having supported the prosecution fully, now he wants to support the accused by changing the version in respect of the colour.
9. When his evidence regarding colour is in contradiction with the panchanama and when two police officers P.W.1 and 5 are totally consistent in their evidence in this material aspect, there is no reason to refer to evidence of P.W.4 panch. Judgment of this Court relied upon by Mrs. Ansari is of no use.
10. Mrs. Ansari also relied upon an unreported judgment of this court in Criminal Appeal No.535 of 1999 (Manoj Premchand Rawal Vs. State of Maharashtra). In that case panch witness was found to be conspicuously silent on the compliance with the provisions of Section 50 and therefore the court held that in the absence of corroboration to the evidence of the police officers it could not be held that there was compliance to Section 50 by independent witness. This case is of no help to the accused because the witness P.W.4 in his examination-in-chief has fully supported the prosecution but in his cross-examination he has deviated from his stand. Two police officers P.W.1 and 5 are corroborating each other. There is no evidence to doubt the testimony of these witnesses. There is no evidence or document brought on record to shake their credit and credibility. Panchanama fully supports about compliance to Section 50 and therefore there is no substance in this submission also.