Criminal Appeal No.36 of 2008

24th September, 2008

Petitioner Counsel: Mr. S. M. BHANGDE
Respondent Counsel: Mr. V. A. THAKRE

Cases Cited:
Jitendra Vs. State of M.P., (2004)10 SCC 562 [Para 10,12]
Vinod @ Vinya @ Bhokanya s/o. Patiram Gaidhane Vs. State of Maharashtra, 2006 ALL MR (Cri) 53 [Para 10]
Hanumantu Gangaram Badawat Vs. State of Maharashtra, 2007 ALL MR (Cri) 3359 [Para 10]
Mohan s/o. Ganesh Badwat Vs. State of Maharashtra, 2007 ALL MR (Cri) 367 [Para 10]
Manojkumar @ Ashok Chhidilal Uike Vs. State of Maharashtra, 2008 ALL MR (Cri) 2405 [Para 10]
Ukha Kolhe Vs. State of Maharashtra, AIR 1963 SC 1531 [Para 25]
Bir Singh Vs. State of U.P., AIR 1978 SC 59 [Para 25]
Rambhau Vs. State of Maharashtra, 2001 ALL MR (Cri) 1017 (S.C.) [Para 25]
Durand Didiear Vs. Chief Secretary, Union Tettitory of Goa, (1990)1 SCC 95 [Para 30]
Union of India Vs. Ram Samukh, (1999)9 SCC 429 [Para 33]
Intelligence Officer, Narcotics C. Bureau Vs. Sambhu Sonkar, 2001 ALL MR (Cri) 1006 (S.C.)=(2001)2 SCC 562 [Para 33]
Basheer @ N. P. Basheer Vs. State of Kerala, 2004 ALL MR (Cri) 893 (S.C.)=(2004)3 SCC 609 [Para 33]
Union of India Vs. Kuldeep Singh, 2004 ALL MR (Cri) 541 (S.C.)=(2004)2 SCC 590 [Para 33]

JUDGMENT

JUDGMENT :- The Appellant is accused in Special Criminal Case No. 22 of 1997 for offence under Section 20 (b) (ii) A of the Narcotic Drugs & Psychotropic Substances Act.

2. Police Inspector Mr. Pawade ordered to raid the house of the accused on getting secret information on 29th May, 1997.

3. Police Sub-Inspector Tighare conducted the raid in presence of Police Inspector Mr. Pawade, Panch witnesses and Lady Police Constable Buckle No. 4222 . Sushila.

4. In the search of the house, twenty-five paper sachets of Ganja were found kept in a polythene bag [milk bag].

5. On weightment, Ganja was found to be 85 grams. Samples were drawn for forwarding for analysis, and different packings were done. The Panchanama of raid was completed. Crime No.96 of 1997 under Section 20 of the NDPS Act was registered.

6. According to prosecution, compliances of all statutory requirements, such as Section 42 (1) and (2), Sections 50 and 57 are duly made.

7. In the trial, two Panch witnesses have turned hostile. Based on police witnesses, Trial Court held that the charge was proved and ordered conviction and sentence.

8. This appeal is admitted and sentence has been suspended.

9. Various grounds are raised in the Memo of Appeal to challenge the conviction.

Appeal is, however, pressed only on one ground as to failure of prosecution to produce seized Muddemal narcotic drug before Court. It is a common ground that only part of total of 85 gms of Ganja, which was seized, was produced, while remaining seized Muddemal was not produced. It is urged that this incomplete production is not a due compliance as to need of proof of fact of seizure, and that in view of settled law, the accused is entitled for acquittal.

10. In order to substantiate only point which is argued, reliance is placed on reported judgments in the cases of, namely:-

[1] Jitendra & another Vs. State of M.P. [(2004) 10 SCC 562],

[2] Vinod @ Vinya @ Bhokanya son of Patiram Gaidhane & anr. Vs. State of Mah. [2006 ALL MR (Cri.) 53],

[3] Hanamantu Gangaram Badawat Vs. State of Mah. [2007 ALL MR (Cri) 3359],

[4] Mohan son of Ganesh Kristaiyya & anr. Vs. State of Mah. [2007 ALL MR (Cri) 367], and

[5] Manojkumar @ Ashok Chhidilal Uike & another Vs. State of Mah. [Criminal Appeal No. 462 of 2007, decided on 11th July, 2008 (since reported in 2008 ALL MR (Cri) 2405) (Coram : A. H. Joshi, J.].

11. Learned Advocate for the appellant urges that in view of these judgments, very little work is left for this Court to do, and has simply to write an order of acquittal.

12. Judgment of Hon'ble Supreme Court at Serial No.1 above [Jitendra & another Vs. State of M.P.] [supra] is a binding precedent not on me alone, but other Hon'ble Judges of this Court have followed this Judgment, as is seen from other judgments quoted in foregoing para no.9.

13. This Court had come across - rather was confronted with a similar situation while deciding appeal at Item/Sr. No.5 above.

In the said Judgment, this Court has recorded its serious concern and dissatisfaction towards apathy, negligence and recklessness of prosecution in handling the cases of present nature, observed and directed as follows:-

"15. This Court notes with extreme regrets that it is seen that there are large number of cases where Section 52 is not followed, and in addition, the contraband material, subject-matter of offence, is not produced before the Special Judge, rendering the result of acquittal as arithmetic equation.

16. It is hard to believe that the police machinery and the prosecution, on the whole, is not conversant with this mandatory nature of provisions and settled precedents. It is also difficult to believe that the orders of such acquittal either passed by Trial Court or higher Courts do not come to the notice of the prosecution.

The question then arises is as to why the recurrence occurs - whether it is deliberate, and if yes, why is it not controlled by superiors?

17. This Court, therefore, considers it necessary to direct the State Govt., through the Principal Secretary, Home Department, to ensure that within four weeks from the date of receipt of this Judgment, the Principal Secretary, Home Department, should ensure that proper directions are issued for regular use of the mechanism provided for under Section 52-A of the NDPS Act in future with meticulousness, and ensure that the contraband material is produced before the Court in all cases where procedure under Section 52-A was not availed of. Further directions be issued for fastening the responsibility of production on the Investigating Officer and fasten a duty to Public Prosecutor conducting the case to report failure to produce to a designated officer and who should initiate appropriate action against erring officer in the process of prosecution.

18. The measures suggested by this Court are illustrative and not exhaustive. The Govt., shall coin and devise such mechanism for this purpose as deemed effective by consulting officers concerned and report of the compliance of this order be brought to the notice of this Court.

19. Copy of this order be furnished to Public Prosecutor, High Court of Bombay, Bench at Nagpur, for onward transmission. Office to send a Writ of this direction to the Principal Secretary, Home Department, Mantralaya, Mumbai-400 032, to such other officers, the Public Prosecutor may deem proper."

[quoted from paras 15 to 19 of the Judgment delivered by this Court in Criminal Appeal No. 461/07 [Manojkumar @ Ashok C. Uike & another Vs. State of Mah.], decided on 11-7-08 (since reported in 2008 ALL MR (Cri) 2405)] .

14. Thereafter, two appeals, namely Criminal Appeal Nos.568 and 597 both of 2006 were listed before this Court with a group of like appeals. It did not reveal evidence on record in these two appeals that the Muddemal, i.e., the seized narcotic drug - subject-matter was available with police for production. This Court had, therefore, by its Judgments dated 30th July, 2008, acquitted the accused by following Judgments referred to in para 9 herein.

15. Hearing of present appeal was opened simultaneous to above referred Criminal Appeal Nos.568 and 597 both of 2006.

This Court has noticed in present case that PW 6 has admitted in the Examination-in-Chief which is seen at Page Nos. 57 and 58 of paper-book, which reads as follows :-

"5. I have searched previous history of the accused. I have produced extract copy of crime register. Ex.51 is the same copy of crime register. It bears my signature. I have prepared compliance U/s.57 of N.D.P.S. Act. and it was sent to A.C.P. Kotwali. Ex.52 is the compliance report U/s 57 of the N.D.P.S. Act. Art. A property before the Court is the same. It is S-1 parcel of 15 grams which was sealed to C.A. S-2 and S-3 parcels are available in the police station. I can produce before the Court if so ordered." [Emphasis supplied]

[quoted from page nos. 57 and 58 of the paper book of Criminal Appeal No. 36 of 2008].

16. The defence wants this Court to fall in the line of these follies. To this Court, it is a mystery whether failures are due to being unmindful, negligence or deliberate.

17. Inevitable fact is that conduct of prosecution leading to this situation of sabotaging the prosecution and defeats the enactment of NDPS Act.

18. This Court is mindful towards the fact that it has come on record on oath that Muddemal is available. This Court cannot turn a dumb spectator or a limb of judicial organism acting as an obedient ministerial staff.

19. The conduct of Investigating Officer prosecuting the case in failing to bring evidence - Muddemal on record before the Court in present case has occurred on 2nd July, 2007 when his examination as a witness was completed cannot be simply ignored. This witness is supposed to know his obligation, so is the case of learned Public Prosecutor conducting the prosecution.

20. In these premises, this Court had called upon the State to place on record if the seized drug/substance is still preserved or has ceased to exist.

21. The respondent-State has filed affidavit. It contains a statement as follows :-

"4. .................................. .........in the present case as the property seized is not at all destroyed and still lying in the Malkhana, and respondent State can produce the same."

[quoted from para 4 at page 102 of the paper-book of Criminal Appeal].

22. Court then called upon learned Advocate for the appellant to make submissions on the point as to why the appeal should not be remanded to the Trial Court for production of Muddemal and further evidence as the prosecution may deem just and necessary.

23. Learned Advocate for the appellant sought time to study and address the issue, and has thereafter argued the matter.

24. According to learned Advocate Mr. S. M. Bhangde, the effort of the State by filing present affidavit and based on it, to seek remand is an effort to fill in the lacunae which would prejudice the defence of the accused, and this course should not be open.

25. Learned Advocate Mr. Bhangde has placed reliance in support of his submissions on following judgments :-

[a] Ukha Kolhe Vs. The State of Maharashtra [AIR 1963 SC 1531 (V 50 C 225)

[b] Bir Singh & ors. Vs. State of Uttar Pradesh [AIR 1978 SC 59], and

[c] Rambhau & another Vs. State of Mah. [2001 ALL MR (Cri) 1017].

26. This Court has perused these Judgments.

27. This Court has to remind itself of background of NDPS legislation, which is explicit from the Statement of Objects & Reasons of this enactment which is quoted below for ready reference:-

"Objects and Reasons

The statutory control over narcotic drugs is exercised in India through a number of Central and State enactments. The principal Central Acts, namely, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in the existing laws have come to notice. During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems.

In view of this, there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drugs of abuse considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party. Hence this Act." [Emphasis supplied].

28. This Court is further guided by various judgments of Hon'ble Supreme Court where Hon'ble Supreme Court has adverted to and relied upon the Statement of Objects and Reasons.

29. Hon'ble Supreme Court has given emphasis on severeness of punishment which is to be resorted to.

30. The severeness has been described by Hon'ble Supreme Court in extenso in Para 24 at page 104 in Durand Didier Vs. Chief Secretary, Union Territory of Goa [ (1990) 1 SCC 95], which is quoted below for ready reference:-

"24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."

31. Hon'ble Supreme Court has followed this view and reiterated the same way consistently, and emphasized the need of departure from rule of legal construction considering the matters of bail and fervent reliance on Statement of Objects & Reasons which is permissible in such matters.

32. The need of a very stern and corrective view is emphasized by Hon'ble Supreme Court in various cases.

33. It shall suffice to refer to few citations to appreciate the urge of Hon'ble Supreme Court to deal with the serious offences under NDPS Act. Any further and detailed discussion would not be necessary. These precedents are as follows :-

[a] Union of India Vs. Ram Samujh & another [(1999)9 SCC 429],

[b] Intelligence Officer, Narcotics C. Bureau Vs. Sambhu Sonkar & another [(2001)2 SCC 562 : 2001 ALL MR (Cri) 1006 (S.C.)],

[c] Basheer alias N.P. Basheer Vs. State of Kerala [(2004)3 SCC 609 : (2004 ALL MR (Cri) 893 (S.C.))], and

[d] Union of India Vs. Kuldeep Singh [(2004)2 SCC 590 : 2004 ALL MR (Cri) 541 (S.C.)].

34. Hon'ble Supreme Court then considered aspects of penalogy while referring to the gravity of sentence in NDPS matters, and need of graver sanctions and corrective attitude to be adopted. Their Lordships have also emphasized on the discretion in the matters of awarding sentence in relation to NDPS Act, which has to be guided by the principle and practice of punishing all serious crimes with equal severity, as inadequate sentence would be more harmful. If justice is done in such manner, that it would undermine the efficacy of law, the public confidence would get shaken, and society could not long endure such serious threats. The damage done by the drugs to the society, therefore, needs to be kept in mind while dealing with the matters under NDPS Act.

35. The message to be received from the dictum revealing from these judgments cannot be restricted to the matters of punishment after conviction is ordered; else it would amount to defeat the objective behind the precedents.

36. The message to be received from collective effect of the precedents is that same degree of empathy to the victims of drugs and the community at long has to be borne in mind throughout the implementation of the NDPS Act and said seriousness is not to be restricted to the matter of sentence only. Lack of seriousness in the process of trial would hardly leave anything to be done at the end of trial. If conviction is not ordered, there is no question of sentence at all, and then the dictum of precedent is defeated.

37. True it is that conviction cannot be the object of trial for the Court, but may be certainly a goal to be attained as far as prosecution is concerned. To achieve this goal, exercise of all care and caution for proper trial is inexcusable, as the end result is not the matter within the power of prosecution, but a matter of judicial adjudication.

38. Puzzle that is created due to the behaviour of the investigating agency in the conduct of withholding the crucial evidence from the Court and then leaving the Court to write an order of acquittal is such an act which is not a product of simple lack of interest or of empathy on the part of prosecution, but something which amounts to sabotaging the trial itself. The prosecution thereby defeats the whole object of the NDPS Act and dictum emerging from various precedents.

39. This Court finds that the points, namely :-

[a] prosecution ought not be allowed to fill in the lacunae,

[b] it would not be the function of the Court to 'direct' the prosecution, and

[c] prejudice would be caused to the accused, urged by learned Advocate are based on settled position of law.

Submissions of the defence are attractive, but if followed, the result in case of present nature are going to be disastrous. The trial can legitimately result into acquittal, but failure of prosecution to pursue the trial properly is disloyalty to the criminal law and justice system for which prosecution is avowed.

40. These well recognized objections are always to be read keeping in mind the object of Criminal Law administration and justice.

41. The distinction always would be when the very object of Criminal Law is being defeated by or at the hands of inappropriate approach of the police machinery, a different view of the matter will have to be taken. Moreover, Section 311 of Criminal Procedure Code is a provision which was mindfully incorporated by law makers and this provision would certain aptly apply to situation of the nature which has arisen in the present case upon remand.

42. This apart, when failure of prosecution to bring crucial evidence leads to option less result of acquittal, it means that judicial discretion is practically enticed or usurped by the Investigating machinery, since, now, there is an arithmetic equation, namely failure to produce the Muddemal property is equivalent to acquittal, and thereby final verdict is exercised by the prosecution in a circuitous manner. Thus, who would decide to acquit will be the prosecution, and not the Court.

43. This type of blatant and open abuse of encroachment on judicial function by allowing to take the shelter of Judgments of this Court or Hon'ble Supreme Court cannot be permitted with open eyes.

44. This Court is of the view that this blatant abuse needs to be dealt, with a heavy hand by adopting certain modalities by the Govt. who is at the helm of affairs. In this background, this Court has made observation in para 2 of the Judgment delivered in Criminal Appeal No. 461 of 2007, as noted in para 12 above, and gave certain directions.

45. It is in this background, the prejudice to the accused, if any, upon remand and further continuation of trial can be met by permitting him to further cross-examine the witnesses already examined or cross-examined and his defences remain unaffected.

46. Upon remand, the case would go back to the stage of evidence where the prosecution would produce the Muddemal property, recall such witnesses as would be deemed necessary to prove seizure thereof, including re-examination or recalling of certain witnesses. All remedies available to the accused in law in his defence available to him in the trial remain unaffected.

47. If prosecution is defrauding the law, the situation needs to be dealt with, and accused, who has derived some benefit due to such defrauded deal against the law has to loose said benefit. Any product of such defrauding, such as acquittal as in case does not and cannot create a right, whatsoever, in accused to mean a possibility of prejudice to him. Setting right a wrongly directed trial would not, in any manner, amount to permitting the prosecution to fill in the lacunae in the evidence.

48. There is a difference in rectifying the trial and permitting the prosecution to fill in the lacunae in the evidence brought against the accused who have otherwise failed to scrutiny of the acid test of cross-examination and testing of truth. Failure to bring Muddemal property before the Court in spite of the same being available is an irregularity of a class apart, and does not, in any manner, compare with any of the inherent weaknesses and lacunae in evidence-qualitative.

49. What is important while the rights of the accused persons are protected is that the law and order and enforcement of law, which is inseparable from sovereign function of the State, has to remain salutary to the same degree as was ever before. Thus, when the balance to be struck, it does not, in any manner, undermine the rights of the accused, which are always available to him within the four corners of law.

50. In the result, while the appeal deserves to be partly allowed, the case needs to be remanded in the manner indicated in above paras 45, 46 and other paras.

51. The Judgment and Order of the Trial Court is set aside. Parties are directed to appear before the Special Judge on 13th October, 2008; failing which their presence shall be secured by cancelling the bail, and trial shall proceed according to law. In the event, the accused person suo moto appears and co-operate with the trial, the trial shall be conducted expeditiously considering its year.

Appeal partly allowed.