Bombay High Court
Rajesh Jagiamba Awasthi vs State on 3 November, 1997
Equivalent citations: 1998(5)BOMCR766
Author: R.K. Batta
Bench: R.M. Lodha, R.K. Batta
ORDER R.K. Batta, J.
1. The appellant was tried for possession of 180.70 grams of charasunder section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution had examined four witnesses in support of the charge. The said witnesses are P.W. 1 Mahesh M. Kasissare, Jr. Scientific Officer in Directorate of foods and Drugs Administration, who had analysed the samples which were forwarded to him; P.W. 2 the panch witness Nitin Kesarkar in whose presence the search of the appellant was effected and the charas in question was recovered; P.W. 3 Manohar Joshi, Scientific Assistant, to whom the charas was forwarded after recovery by the Investigating Officer and who, in turn, forwarded the charas to the Food and Drugs. Laboratory for analysis and the Investigating Officer P.S.I. Naresh Mhamal, P.W. 4 who had accompanied P.S.I. Thoral to the flea market at Anjuna.
2. The trial Judge accepted the evidence of the prosecution witnesses and convicted the appellant for possession of 180.70 grams of charas under section 20(b)(ii) of the N.D.P.S. Act and sentenced the appellant to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh and in default rigorous imprisonment for 2 years. The conviction and sentence are challenged by the appellant in this appeal.
3. The prosecution case, in brief, is that P.S.I. Mhamal (P.W. 4) alongwith P.S.I. Thorat had gone to Anjuna flea market alongwith the other staff and the panch witnesses including pancha P.W. 2 Nitin Kesarkar for patrolling on 14th December, 1994. At the flea market Anjuna P.S.I. Thorat had arrested one Premchand Kulbi for possession of charas and on being questioned he disclosed that he had come alongwith his friend Rajesh Awasthi -the appellant in this case and the said Rajesh Awasthi have concealed charas in his shoes. This information was recorded by P.S.I. Mhamal {P.W. 4) and the said record is Exh. P.W. 4/C. The said Premchand Kulbi pointed out the appellant to the police party. P.W. 4 P.S.I. Mhamal took search of the appellant after informing him about his right to be searched in the presence of Gazetted Officer or Magistrate but the appellant declined the said offer made to him. On being searched 100 grams of charas was found in one shoe and 115 grams of charas was found in another shoe. The same was separately packed and sealed in the presence of panchas. Panchanama Exh. P.W. 2/A was drawn. P.S.I. Mhamal (P.W. 4) forwarded the charas which was recovered from the possession of the appellant to P.W. 3 Manohar Joshi, Scientific Assistant, for safe custody on the next day and P.W. 3 Manohar Joshi in turn had forwarded the same on 16th December, 1994 to the Food and Drugs Laboratory, Panaji for analysis. Junior Scientific Officer P.W. 1 Mahesh Kaissaro conducted test individually after taking samples out of the charas forwarded to him. He found that the substance was dark brown in colour having characteristic odor of charas. Microscopic examination showed presence of hairs resembling charas and the Beam's Acid test was positive. On the basis of his findings he came to the conclusion that the sample analysed contained charas. After completing the investigation the appellant was charge-sheeted as stated above.
4. Learned Advocate Shri Lawande, appearing on behalf of the appellant, in the first place, contended before us that the mandatory provisions of section 50 of the said Act have not been followed. In this connection his submission is two fold, namely, that the appellant was not made aware of his right to be searched and on this aspect reliance is placed on the evidence of panch P.W. 2 as well as that of the Investigating Officer P.W. 4 Mhamal. The second limb of attack thereunder is that the composite offer which was made by P.S.I. Mhamal to the appellant is not in accordance with law. He drew our attention to the evidence of P.W. 2 and urged before us that according to pancha P.W. 2. P.S.I. Mhamal had used Hindi words to 'tell the appellant about the Gazetted Officer and Magistrate which he did not follow and that P.S.I. Mhamal also used English words to express Gazetted Officer and Magistrate. It is pointed out by learned Advocate Shri Lawande that the panchnama does not support this contention of P.W. 2. However, it may be pointed out here that P.W. 2 was never confronted with the panchnama in the event certain statements which were made by P.W. 2 did not figure in the panchnama. Therefore, reference to the panchanama, which is not a substantive piece of evidence, by itself, would not help the case of the appellant in any manner. As against the evidence of P.W. 2 it is pointed out by Advocate Shri Lawande that P.S.I. Mhamai nowhere states in his deposition that he had explained to the appellant in English that he could be searched in the presence of Magistrate or the Gazetted 0fficer and on the contrary in his deposition P.S.I. Mhamal has stated that he spoke to the appellant in Hindi and the entire conversation with the appellant was in Hindi. He further deposed that for the word 'Magistrate' he had used the word 'Naya Dandha Adhikari' and for the word 'Gazetted Officer' he had used 'Raja Patrita Adhikarl. Reading the evidence of the two witnesses together, in fact, we do not find any material contradiction as such which would have the effect of demolishing the prosecution case on this score. What is relevant is that pancha P.W. 2 has in clear terms stated that P.S.I. Mhamal spoke to the appellant in Hindi language and P.S.I. Mahamal used Hindi words to tell the appellant about the Gazetted Officer and the Magistrate.The panchnama was admittedly recorded in English and in the panchanama naturally the words used are Magistrate or the Gazetted Officer. However both the pancha PW. 2 as well as Investigating Officer P.S.I. Mhamal have categorically stated that it was explained to the appellant in Hindi that he could be searched before the Magistrate or Gazetted Officer. From this it is clear that the appellant was made aware of his right to be searched before the Magistrate or Gazetted Officer and both the witnesses have in categorical terms stated that this offer to be searched before the Magistrate or Gazetted Officer was declined.
5. Coming to the second limb of argument advanced by Shri Lawande, we do not find any merit in the said submission. His contention is that P.S.I. Mhamai is reported to have informed the appellant that be could be searched in the presence of the Magistrate or Gazetted Officer and at the same time he is also reported to have told the appellant that the appellant could search him and the members of the raiding party, but both these offers were declined by the appellant. The appellant was clearly made aware of the fact that he could be searched before the Magistrate or Gazetted Officer and that he also had the right to search the raiding party and that the appellant had declined both the offers. There is no doubt that the two offers were made at the same time, but what is important is the evidence that both the offers were declined.
6. Learned Advocate Shri Lawande next contended that charas is a brittle item and if it is concealed in the sole of the shoes and a person walks wearing the shoes, the charas is likely to be broken into small pieces in all probability but the report of the junior Scientific Officer on the contrary shows that the pieces which were found were flattened elongated. There has been practically no cross-examination regarding the type of shoes which were used by the appellant to conceal the charas in question. In view of the same, it is not possible to accept the bare assertion made by the learned Advocate for the appellant that in all probability the charas in question would have broken in small pieces. We, accordingly, do not find any merit in this submission.
7. Third submission made by learned Advocate for the appellant is that there is no nexus between the charas found by the police and charas received by the Chemical Analyst for the purpose of analysis. In this connection his contention is that according to the police 100 grams of charas was recovered from one shoes and 115 grams from another shoe, but the Junior Scientific Officer found 98.16 grams of charas as against 100 grams and 82.54 grams as against 115 grams.The balance which is used by the Junior Scientific Officer in the laboratory is a scientific balance and there is bound to be some variation in the weight taken by the police and the weight found by Junior Scientific Officer. There is no doubt that in envelope 'B' which was stated to be 115 grams, there is tot of discrepancies in the weight since the Junior Scientific Officer found the said weight to be 82.54 grams. Even if this sample is not considered against the appellant on account of discrepancy in the weight, we do not find material discrepancy in the weight found by the Junior Scientific Officer in respect of the other envelope "A" which was stated to be 100 grams and the Junior Scientific Officer found it to be 98.16 grams. The Investigating Officer had forwarded the envelopes "A" & "B" sealed separately to the Scientific Assistant Manohar Joshi (P.W. 3) on 15th December, 1994 and on the very next day he had forwarded the said samples to the Food and Drugs Laboratory for analysis. Therefore, we do not find any merit in this contention of the Advocate for the appellant especially with reference to the sample relating to 100 grams.
8. Learned Advocate Shri Lawande next contended that the Investigating Officer is required to make a separate record of the fact of the appellant being made award of his right to be searched before the Magistrate or Gazetted Officer in addition to the panchnama which is required to be drawn and the signature of the appellant is required to be taken on such separate record. In this connection he referred to two judgments of the Apex Court in State of Punjab v. Jasbir Singh and others, and in State of Punjab v. Labh Singh, 1996(1) S.C.C. 520. However, he himself candidly admitted that these rulings of the Apex Court do not lay down any preposition of law. If we read section 50 of the said Act no such requirement of maintenance of separate record can be deduced thereunder. The Investigating Officer is required to make panchanama of such record which serves as contemporary record of what was informed to the accused and the fact of recovery from him. In both the cases it was pointed out by the Apex Court that each case depends upon its facts and circumstances. Therefore, we do not find any merit in this submission of the learned Advocate for the appellant.
9. Learned Advocate Shri Lawande then urged before us that PW. 2 is a stock witness. Here also, there is no merit whatsoever in the contention of the learned Advocate for the appellant. The evidence on record shows that pancha P.W. 2 is a person of standing as he is Manager in Mag Sons Co. and is obviously not under the thumb of the police. No doubt, he has appeared as panch in two other drug cases, but that is not sufficient to come to the conclusion that he is a stock witness of the Police Department.
10. Another submission which was advanced is that there is discrepancy in the timings of the panchanama as revealed by the pancha P.W. 2 and the Investigating Officer P.W. 4. and P.W. 2 pancha has stated that the panchanama started at 4.10 p.m. and was over at 5.50 p.m. and our attention was drawn to his statement in respect of the first panchanama in the case of Premchand Kulbi which was stated to be over around 4.30 or 4.45 p.m. As such it was pointed out that the panchanama in this case could not have been commenced at 4.10 p.m. simultaneously. According to P.W. 4 P.S.I. Mhamal, the panchanama in respect of Premchand Kulbi was over at 3.45 p.m. Obviously, the panchanama in this case started later as pancha in respect of both the panchanamas was the same. There appears to be some error made by P.W. 2 in respect of timings of panchanama in the case of Premchand Kulbi though in respect of panchanama in the case of the appellant he has clearly stated that it had started at 4.10 p.m. Even otherwise any minor discrepancy of this kind would not affect prosecution case. Lastly, on merits, it was urged that there is discrepancy in the P.W, 2 and P.W. 4 insofaras seal which was used for the purpose of sealing the charas is concerned. It was pointed out that according to Junior Scientific Officer (P.W. 1) on the specimen seal there are letters 'Anti Narcotic Cell', whereas according to P.W. 2 the seal was having letters 'A.N.C.P.S, P.W. 2 had given the said answer after the panchanama was shown to the witness by Advocate for the appellant and in the panchanama the seal used is said to be of A.N.C. P.S. Panaji. This fact is clear from the question and answers of this witness at internal page 11 of his deposition. P.S.I. Mhamal (P.W. 4) has stated that the inscription on the seal was "Anti Narcotic Cell', Panaji Goa. In view of the above, we do not find any discrepancy as such in fhe evidence of the three said witnesses and there is no merit in this submission of the learned Advocate for the appellant as well.
11. In view of the aforesaid discussion, we hold the appellant guilty for possession of 98.16 grams of charas under section 20(b)(ii) of the N.D.P.S. Act. This finding ultimately does not affect the conviction and sentence awarded to the appellant by the trial Court.
12. Learned Advocate for the appellant then urged that the sentence in default of payment of fine which is 2 years is on the higher side and the practice which has been consistently followed in this Court is that in default of payment of fine of Rs. 1 lakh, sentence of one year is being awarded. In view of the said submission, we are inclined to reduce the sentence in default of payment of fine of Rs. 1 lakh, from R.I. 2 years to R.!. 1 year.
13. For the aforesaid reason, the appeal is hereby dismissed except for the modification that in default of payment of fine of Rs. 1 lakh, the sentence which the appellant shall undergo shall be R.I. for one year.
14. Appeal dismissed.