Criminal Appeal No. 43 of 2006

14th June, 2013

Petitioner Counsel: Mr. P.P. PENDKE
Respondent Counsel: Mr. S.R. RIVONKAR

JUDGMENT

JUDGMENT :- Being aggrieved by his conviction by the judgment and order dated 6th May, 2006 for the offences punishable under Section 20(b)(ii)(B) and Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") the appellant prefers this appeal. On the first charge, he has been sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.10,000/-. For the second charge, he has been sentenced to rigorous imprisonment for 10 years and pay fine of Rs.1,00,000/-.

2. The case of the prosecution stated in brief is as follows :-

On 16th April, 2004 at 01.35 hrs an unknown telephone call was received by Anjuna Police Station that some problem had taken place at Paradiso, Anjuna. Therefore, Anjuna mobile van was sent to Paradiso for further action. On reaching the spot, P.W.6-Head Constable, Naik of mobile van found the appellant lying near Paradiso, Anjuna in injured condition. He was therefore shifted to Asilo Hospital, Mapusa for medical treatment. At the hospital, he was found to have sustained the injury of abrasion of 1 x 0.5 cm on left parito-occipital region associated with haematoma of about 2.5 cm diameter. He was treated for the injury and advised admission to the hospital for observation. The appellant, however, refused to get admitted to the hospital and preferred to go home. He was then brought to the police station and a non-cognizable complaint of the incident of assault on him was registered against two unknown persons. The complaint stated that on the date, time and place of the incident, two unknown persons picked up a quarrel with him on sudden provocation and assaulted him with fistblows and kicks. He was also hit with some hard and blunt object on the head thereby causing simple injury as per the medical certificate and hence "N.C. No. 149/2004" under Section 323 Indian Penal Code was registered.

3. About 10 minutes after the first telephone call i.e. at 01.45 hrs one more telephone had been received by the police station that one person suspected to be dealing in drugs near Paradiso, Anjuna was being assaulted by the public. Since the second telephone call referred to assault on a person suspected to be dealing with drugs and since the appellant had refused to get himself admitted to the hospital, P.W.4-the Investigating Officer felt strong suspicion about the appellant. He therefore called for P.W.3 and another panch for taking personal search of the appellant. During the personal search, 115 gms of contraband charas was recovered from the pant pocket of the appellant. The police then searched the shoulder bag which the appellant was carrying. The shoulder bag was found to contain 1.2 kg of charas. In one of the compartments of the bag, a key of the room rented by the appellant was found. While the contraband from the pant pocket of the appellant and the shoulder bag was seized under the panchanama, the key had been simply retained by the police. There was no seizure panchanama of the key made. Then arrangements for forwarding the seized contraband for chemical analysis were made.

4. Since the appellant disclosed that he was staying at Chapora in a rented room, the Investigating Officer-P.W.4 alongwith the appellant and panchas went to Chapora to the room. In the search conducted of the room, the police, found a multicoloured shoulder bag lying on the cot. The bag was found to contain 1.375 kgs of charas, one Nokia mobile phone, voter's identity card and cash of Rs.3,200/-. The police then prepared seizure panchanama, arrested the appellant and returned to the police station to register offence vide C.R. No. 58 of 2004 under Section 20(b)(ii) of the NDPS Act mentioning the date and place of offence as : "DTPO :- On 16.4.2004 at 04.15 hrs to 06.00 hrs at Anjuna PS and 6.30 hrs to 07.50 hrs at Hno. 287/1 Dabolwado Chapora." The contraband seized was forwarded for chemical analysis. On completion of investigation, the police filed chargesheet against the appellant under Section 20(b)(ii)(C) for illegal possession of charas totally weighing 2.69 kgs recovered from his person, possession and the room in his occupation.

5. The defence of the appellant was of total denial and false implication. He had also alleged non-compliance by the police of mandatory provisions of Section 42 and Section 50 of the N.D.P.S. Act.

6. During the course of trial, the prosecution examined in all nine witnesses, out of which P.W.1 and P.W 2 are the Scientific Officer and Assistant Scientific Officer respectively. P.W.3 is the panch for search and seizure of contraband at both the places. P.W.4 is the Investigating Officer. P.W.5 is the police witness for compliance of Section 57 of the N.D.P.S. Act. P.W.6 is the police constable who had picked up the appellant from Paradiso, Anjuna and taken him to the hospital and from the hospital brought him to the police station. P.W.7 is the police writer. P.W.8 is the Doctor from Asilo Hospital who had examined the appellant and P.W.9 is the landlady of the appellant. The statement of the appellant was recorded under Section 313 Criminal Procedure Code. He did not lead any evidence. On appreciation of the evidence before it, the Sessions Court disbelieved the prosecution case of recovery of seizure of drugs from the room of the appellant. It held that the prosecution had failed to establish the identity of the room and that the seizure had been conducted in contravention of Section 42 of the N.D.P.S. Act. Resultantly, the Sessions Court held that the prosecution had established possession of charas by the appellant of the quantity recovered during search of his person and the bag at the police station, for the possession of which he has been convicted under Section 20(b)(ii)(B) and Section 20(b)(ii)(C) of the N.D.P.S. Act.

7. Mr. Pendke, the learned Counsel for the appellant, submits that the entire trial of the appellant stands vitiated because the statement of P.W.4 (Exhibit-78) which was treated as FIR by the police is not the first information received by the police in point of time. Therefore, that statement was hit by Section 161 Criminal Procedure Code and could not be produced in evidence by the prosecution. According to Mr. Pendke, the search and seizure in the police station will also have to be discarded for non-compliance with the Circulars by the police in that regard and because P.W.3, the pancha is the stock pancha of the police. Once these two documents are rejected, the entire prosecution case would fall to the ground and the appellant will have to be acquitted of the offence alleged against him.

8. In order to appreciate the contention of Exhibit-78, not being the First Information Report, it will be necessary to look into the events unfolded by the evidence of P.W.4, the Investigating Officer himself. There were two calls received by the police separated by an interval of ten minutes. The first call received at 01.35 hrs, merely referred to some incident having taken place at Paradiso, Anjuna. P.W.4, therefore had directed the Anjuna Mobile Police to visit the site for the purpose of enquiry and take necessary action. Accordingly, the Mobile Van was diverted to the place and the appellant was picked up in an injured condition. Ten minutes after the first call, there was one more call received, also from an unknown person informing that a person was being assaulted near Paradiso, Anjuna for selling drugs. This second information must be held to be information giving sufficient particulars of commission of an offence under the N.D.P.S. Act. The entry of this information is seen to have been taken by the police in their case diary. P.W.4 deposed that, in view of this information received and on account of conduct of the appellant in not getting admitted to the hospital, he had a strong suspicion about possession of contraband by the appellant and hence arranged for the search and seizure. The search revealed actual possession of the contraband. After the seizure of the contraband, according to P.W.4, he had made immediate arrangements for forwarding the sealed packets to the Food and Drugs Administration, Panaji for chemical analysis of the substance found. Thereafter, the police had proceeded to the rented premises of the appellant for further search. These facts would indicate that the police had been moved into action of search on account of the second telephone call received by the police which call had given sufficient information as regards the commission of crime under the N.D.P.S. Act. Therefore, the police ought to have treated the information from the second telephone call, which had been reduced into writing by way of an entry in the station house diary, as an FIR. Once that information is treated as an FIR, the statement of P.W.4 reduced into writing and treated as an FIR, would become a mere statement to the police and would be hit by Section 161 Criminal Procedure Code. Therefore, any further investigation into the case by the police on the basis of Exhibit-78 as the FIR would vitiate the further investigation and the trial based on that information would vitiate the trial. Since the information from the second telephone call reduced into writing has not been produced in the Court as FIR, the entire trial of the appellant would get vitiated for non-production of the material and relevant evidence.

9. Mr. Pendke, submits that if not the second telephone call received from an unknown person, the police ought to have treated the entry at serial no.12 at Exhibit-81 as the FIR. This was the entry in the station diary made after recovery of the contraband during personal search of the appellant. He points out that P.W.4 admitted in his evidence that the entry at serial no.12 disclosed commission of a cognizable offence and that it was the first entry in the point of time relating to the registration of the offence in this case. This entry, then atleast ought to have been treated as the First Information Report by the police. P.W.4 in his evidence tried to give an explanation for not treating this entry as FIR by saying that since there was a disclosure by the appellant of the drugs in his house, he had continued the panchanama but at the same time, he admits that the disclosure allegedly made by the appellant had not been reduced into writing before taking him to his room at Chapora. The explanation therefore has to be discarded.

10. Mr. Pendke, has thus succeeded in establishing that, Exhibit-78 could not have been treated as the FIR and hence the trial stands vitiated on that count. Thus, the appeal is liable to be allowed on this ground alone.

11. The next ground of challenge in the appeal is to the procedural defects in the personal search of the appellant. The various defects alleged are (i) it was in breach of standing instructions to the police for search in the offence punishable under the N.D.P.S. Act, (ii) the panch witness-P.W.3 was a stock witness of the police and not an independent person and (iii) selective seizure of articles by the police. Though the police found the key in one of the pockets of the shoulder bag, for the reasons best known to P.W.4, the same was not seized, P.W.4 had proceeded for the second search, i.e. search of the premises rented by the appellant on the basis of the very key.

12. Mr. Pendke, submits that the standing instructions to the police in respect of the search and seizure for the offences punishable under the N.D.P.S. Act are to, as far as possible, arrange for government officers to act as panchas. There is nothing on record to indicate that P.W.4 had complied with the standing instructions and made any attempt to arrange for government officer to act as pancha. The standing instructions have not been produced before the Court during trial. Therefore, it would be difficult to appreciate this argument advanced on behalf of the petitioner.

13. As regards P.W.3 being a stock witness, this fact is seen to have established by his own evidence. The crossexamination of P.W.3, shows that though the witness had initially denied having acted as a panch witness in other cases of Anjuna Police Station for similar offences, he subsequently admitted that he had acted as a panch in a raid involving a foreigner by name, John Donhue and in another case involving one, Kadir Hussain. P.W.3 has deposed in the trials against these two persons. This admission could be obtained by the defence only on the witness being confronted with the documents relating to those two cases. The evidence thus certainly indicates that P.W.3 is the regular panch for Anjuna Police Station. Also, the above manner in which he deposed before the Court, would make to be an unreliable witness. If the evidence of this witness is discarded on the ground of he being either a stock witness of the police from Anjuna Police Station or he being an unreliable witness, there would be no independent witness before the Court of the search and seizure, since the police have not examined the second panch during the trial.

14. Mr. Rivonkar, the learned APP appearing for the respondent-State, submits that, even if the evidence of the panch witness-P.W.3 is discarded, there is no need to disbelieve the fact of search of the appellant and seizure of contraband from his possession, since the fact stands established by the three police witnesses i.e. P.W.4, P.W.6 and P.W.7. In my opinion, the evidence of the Investigating Officer for this purpose will also have to be disbelieved. P.W.4 has deposed about search and seizure at the police station, as well as, at the room rented by the appellant. The Sessions Court has found every defect in the search and seizure at the rented room and disbelieved P.W.4 to that extent. Strangely, the identical defects pointed out in respect of the personal search of the appellant have been not found worthy of acceptance by it. P.W.4 in his evidence admitted that, the entry at serial no.12 of the station house diary, does not disclose that 115 gms of charas recovered during the personal search was duly packed, sealed and signed by the panchas themselves and the accused. The station house diary also does not disclose that 1.2 kg of charas, Nokia mobile phone, money purse with cash, jeans pant and the shoulder bag had been duly packed, sealed and signed by the panchas and the accused. According to P.W.4, these facts were not reflected in the station house diary, because the station house diary contains only a brief account of all the steps taken during investigation. He, however, admitted that in case of a raid or a recovery, the entry made in the station house diary and the FIR registered generally states details of the search, seizure, weighing, packing, sealing etc. The entry at serial no.12 is silent on use of any seal. The entry is silent on the envelopes of the contraband being in sealed condition at the time of handing the same over to S.G. Shetgaonkar for safe custody. There is no reference in the station house diary to preparation of seizure report in the police station pertaining to the recovery. There is also no reference therein to the letters to Director, Food and Drugs Administration being handed over to S.G. Shetgaonkar for the purpose of forwarding.

15. The prosecution has examined, S.G. Shetgaonkar- P.W.7 in the trial who deposed that he had been handed over five sealed envelopes under covering letter and two letters addressed to the Director, Food and Drugs Administration, Panaji and the Superintendent of Police, CID, Crime Branch, Panaji. He further deposed that he had personally carried the three sealed envelopes to the office of Superintendent of Police, CID, Crime Branch, Panaji and the office of Assistant Scientific Officer located at Parvorim and Director, Food and Drugs Administration. P.W.6 is not directly concerned with the search and seizure. But, it is his evidence that he was present at the relevant time in the police station. In my opinion, the evidence of P.W.4, P.W.6 and P.W.7 all police witnesses cannot be accepted by this Court in the absence of support from contemporaneous record of the station house diary. Despite the specific knowledge of the Investigating Officer that the details mentioned above of search and seizure ought to be made in the station house diary, the same is found conspicuously missing. Mr. Pendke, submits that in the absence of supporting evidence of contemporaneous record, the claim of the prosecution that the contraband had been found, had been sealed and immediately forwarded for chemical analysis, will have to be disbelieved.

16. According to Mr. Pendke, there is also doubt whether the contraband sent to Director, Food and Drugs Administration, was the same contraband as recovered from the appellant. I find substance in the argument. The witnesses, P.W.3-the panch, P.W.4-the Investigating Officer, P.W.6-Head Constable Naik have in their evidence referred to recovery of a black coloured substance from the possession of the appellant. However, P.W.1 and 2-the Scientific Officer and Assistant Scientific Officer deposed to have analysed a substance, brown in colour. Mr. Rivonkar, submits that the colours, brown and black, are dark colours. Therefore, there is a possibility of the police witnesses describing the same substance as black, when P.W.1 and 2 have described it as brown. I am not inclined to accept this argument because there is distinct difference between the two colours. Besides, P.W.4 the Investigating Officer appears to be an experienced officer having put in sufficient years of service and who has claimed to have recognised the substance found on the person of the appellant as charas by merely smelling it. Such an officer could not have incorrectly described the contraband found on the person of the appellant.

17. There is one more defect in the entire investigation by the police. It is not the case of the prosecution or evidence of any of its witnesses that the shoulder bag of which search had been taken at the police station was with the appellant when he was picked up from the place near Paradiso, Anjuna. There is also no evidence that the bag was there with him while in the hospital and also when he was brought to the police station. The reference to the bag comes in evidence suddenly for the first time at the time of search of the appellant. Thus the fact that the shoulder bag infact belonged to the appellant has not been proved. The benefit of this missing link must be given to the appellant.

18. Mr. Pendke, also argues that the prosecution has failed to comply with the mandatory provision of Section 50 of the N.D.P.S. Act in view of the above patent defects in the investigation and in the evidence led before the Court. It is not necessary, in my opinion, to go into these allegations.

19. The Sessions Judge has convicted the appellant for the offences punishable under Section 20(b)(ii)(B) and Section 20(b)(ii)(C) of the N.D.P.S. Act. The conviction under both the sub-sections of Section 20(b)(ii) has apparently been awarded on account of seizure of contraband weighing 115 gms of charas from his pant pocket and 1.2 kg charas from the shoulder bag. The alleged seizure and recovery under the same crime report could not have been treated separately by the learned Sessions Judge. Further in the chargesheet filed, the police have not shown the two recoveries as two separate offences. Infact, at the time of filing of the chargesheet, they have added all the quantity of charas for the purpose of attracting the maximum punishment under Section 20(b)(ii)(C) of the N.D.P.S Act. Sub-section (C) of Section 20(b)(ii), relates to contravention of N.D.P.S. Act involving commercial quantity. Sub-section (B), involves quantity lesser than commercial quantity, but greater than small quantity. Sub-Section (A), involves small quantity. These sub-sections have been made for the purpose of prescribing higher punishment depending upon the quantity of contraband found to have been possessed. Merely because during the same search, contraband had been found from two separate places, there could not have been separate conviction of the appellant under the sub-sections. Conviction under Section 20(b)(ii)(C) would have covered the conviction and sentence for the lesser quantity.

20. For the reasons stated above, the appellant succeeds in the appeal. The appeal is allowed. The appellant is acquitted of the offences punishable under Section 20(b)(ii)(B) and Section 20(b)(ii)(C) of the N.D.P.S. Act. He be released forthwith unless required in any other case.

Appeal allowed.