Bombay High Court
Mr. Olaf Wumling vs State Of Goa on 7 July, 1999
Equivalent citations: 2000(5)BOMCR538, 2000(72)ECC258, 2000(4)MHLJ72
Author: R.K. Batta
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.K. Batta, J.
1. The appellant was tried for possession of 120 gms. Of charas which is punishable under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act). The prosecution had examined five witnesses in support of the charge. The Special Judge has recorded conviction of the appellant for possession of 120 gms. of charas and has sentenced the appellant to undergo 10 years rigorous imprisonment and fine of Rupees one lakh, in default undergo one year simple imprisonment under section 20(b)(ii) of the N.D.P.S. Act. The period of detention of the accused during the trial has been set off under section 428 Cr.P.C. The appellant challenges his conviction in this appeal.
2. The prosecution case, in brief, is that on 23rd January, 1998 at about 1.30 p.m. P.S.I. Uday Naik (P.W. 4) of Anti Narcotic Cell Police Station, Panaji received specific and reliable information that a foreigner with beard, tall having height of more than six feet with knotted hair, medium built was selling charas in a rented room bearing house No. 1318 belonging to Maria C. Dias at Umtawada Calangute between 1.30 to 6.30 to customers. The said information was reduced to writing and copy of the same was sent to S.P. ANC for information. Thereafter two Panchas were called including Uday Shirodkar (P.W. 3) who were informed of the information received. The raiding party then left the Police Station with the kit box containing weighing, packing and sealing materials and torches as well as seal and reached Umtawada Calangute at 5.00 p.m. The police party went to the house in question and found the door of the room open and a foreigner in the said room. The description of the foreigner tallied with the information received and the foreigner namely the appellant who was in the said room was informed about the reliable information and P.S.I. Uday Naik (P.W. 4) told him that he wanted to take search for drugs as well as search of the room for drugs. P.S.I. Uday Naik (P.W. 4) informed the accused that he had to be searched in the presence of a Gazetteed Officer or Magistrate, but the accused declined the offer. He was also told that he had a right to take search of the panchas as well as of the members of the raiding party which was also declined by him. Thereafter the right side trouser pocket of the accused was searched by P.S.I. Uday Naik (P.W. 4). From inside the pocket one black colour substance in cylindrical shape wrapped in transparent cellophane paper was found which was suspected to be charas. It was weighed and found to be 10 gms. The said piece of charas was put in an envelope which was packed and sealed. The envelope was signed by P.S.I. Uday Naik (P.W. 4) and both the panchas including P.W. 3, but the accused refused to sign the said envelope. The Police party then found a white polythene bag kept at the right side of the room and on search of the same found 16 pieces suspected to be charas. The same was weighed and the weight was 110 gms. The said charas pieces were packed and sealed. The envelope was signed by the panchas and P.S.I. Uday Naik, but the accused refused to sign. Likewise, the clothes of the accused were sealed, but the accused refused to sign the sealed envelope. The seizure report was prepared. Copy of the panchanama and seizure report was sought to be handed over to the accused but the accused refused to sign for acknowledging the receipt of copy of panchanama and seizure report. After completing the investigation the charge sheet was filed.
3. The defence of the accused is that the room in question which was searched was rented by an Indian lady and the contraband in the bag found in the said room did not belong to him. The case of the accused further is that he has been consuming charas for over 20 years and during the course of arguments the possession of 10 gms. of charas from the person of the accused was admitted.
4. Learned Senior Counsel Shri L. Chari, has placed before us the following submissions:-
(i) There is no cogent evidence to establish compliance of section 50 of N.D.P.S. Act.
(ii) In respect of the recovery from the room the evidence gives rise to suspicion as to its genuineness and that the prosecution has failed to establish that the room in question was in exclusive possession of the accused.
(iii) The Advocate who was appointed under the Legal Aid Scheme was not present when the statement of the accused was recorded under section 313 Cr. P.C. and in the absence of caution to the accused at the time of recording statement under section 313 Cr. P.C., the same has caused prejudice to the accused inasmuch as the accused did not properly understand the questions for the purpose of effectively replying the same.
(iv) There is no evidence to show as to where and when specimen seal was affixed on the forwarding letter and in view of the fact that the envelopes were handed over to the Scientific Assistant (P.W. 2) by Head Constable Naik who had in fact sealed the said envelopes at the time of seizure and the in warding of the said letter dated 23rd February on the 27th January, 1998, there is considerable doubt regarding the integrity of the sealing process creating suspicion as to the tampering of the sealed envelopes.
5. We shall take up the submissions made by Shri Chari one by one. Insofar as the first submission relating to compliance of section 50 of N.D.P.S Act is concerned, it has been pointed out by learned Senior Counsel that the evidence on record is that the accused kept quiet when he was informed of his right to be searched before a Magistrate or Gazetted Officer and the gestures of nodding made by him have been interpreted by the Pancha (P.W. 3) and P.S.I. Uday Naik (P.W. 4) to suggest that the accused had not accepted the said offer for search before the Gazetted Officer or Magistrate. In this respect, learned Public Prosecutor Shri Lawande has drawn our attention to the fact that the accused in the course of his arguments had admitted the possession of 10 gms. of charas on his person which is recorded by the Special Judge in Roznama dated 17-8-1998 and even in the course of arguments the learned Advocate for the accused had not disputed the recovery of 10 gms. of charas from the person of the accused. On the contrary, it was his submission that the accused is liable for possessing 10 gms. of charas which was found in his custody. His contention is that the said charas was meant for his personal consumption.
6. We shall first deal with the question whether there has been compliance of section 50 of N.D.P.S. Act. On this aspect prosecution evidence consists of that of P.W. 3 panch and P.W. 4 P.S.I. Uday Naik. The pancha has stated that P.S.I. Uday Naik told the accused that he wanted to take his search for drugs and also search of the room for drugs. Thereafter P.S.I. Uday Naik told the accused that he had right to be searched in the presence of a Gazetted Officer or Magistrate. The accused kept quiet. P.S.I. Uday Naik also told the accused that he had right to take search of the members of the raiding party and the panchas. The accused kept quiet and made gesture that it was not necessary. Pancha (P.W. 3) has further stated in his deposition that the accused made gesture by nodding his head indicating thereby that there was no need to take search in the presence of a Gazetted Officer or Magistrate. On this aspect, P.W. 4 P.S.I. Uday Naik has deposed that the accused was informed that he wanted to take his search for drugs and also search of the room for drugs. Thereafter he told the accused that he had right to be searched in the presence of a Gazetted Officer or Magistrate, but the accused declined the offer. He further deposed that he had told the accused that he had right to take search of the panchas and of the raiding party, but the accused declined this offer also. He has further stated that though the accused did not utter a word, but he specifically shook his head in the negative. Learned Public Prosecutor has urged before us that the duty of the Investigating Officer is to inform the accused that he has a right to be searched in the presence of a Magistrate or Gazetted Officer, but beyond that the police cannot compel the accused to make any positive statement. The evidence of P.W. 3 and P.W. 4 is crystal clear on the question that the accused was informed of his right to be searched before a Gazetted Officer or Magistrate. The accused only reacted by gesture and indicating that he did not want to be searched before a Gazetted Officer or Magistrate. The evidence on record clearly establishes that the accused was informed of the right of being searched by a Gazetted Officer or Magistrate, but the same was not availed of by him. In the facts and circumstances we are of the opinion that there has been complete compliance of the provisions of section 50 of N.D.P.S. Act. Added to this, is the admission during the course of arguments before, Special Judge regarding the possession of 10 gms. of charas. In this respect, learned Public Prosecutor has drawn our attention to the judgment of the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak and another, wherein it has been laid down that the Judge's record was conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. It is pertinent to note the following observations of the Apex Court which have relevancy on the question under consideration :---
"The Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."
7. In view of the above not only the prosecution has established that the provisions of section 50 were complied with, but also that 10 gms. of charas was recovered from the possession of the accused through the evidence of P.Ws. 3 and 4 which was in fact accepted by the accused in the course of arguments before the Special Judge and to which a specific reference has been made by the learned Special Judge in para 6 of the impugned judgment. Though the accused has stated that he was addicted to charas for the last 20 years, yet no evidence was led to show that 10 gms. of charas which was recovered from his possession was in fact meant for his personal consumption. In the absence of such evidence the bare plea of the accused that he was in the habit of consumption of charas does not help him so as to bring his case in respect of recovery of 10 gms. within the scope and ambit of section 27 of N.D.P.S. Act. The Division Bench of this Court to which one of us (Batta, J.) was a party has held in Austin Gladwin Roy v. State of Goa, : Criminal Appeal No. 3/1998 that even if there is material to hold that the accused is found in possession of small quantity, yet the accused has to probabilise, on basis of the material on record, that the substance recovered from the accused is meant for his personal consumption. Having failed to probabilise the same, the accused cannot claim any benefit under section 27 of N.D.P.S. Act.
8. The next submission advanced by learned Senior Counsel for the appellant pertains to the recovery of 110 gms. of charas from the room. However, before taking up the same we shall deal with the other two submissions made by learned Senior Counsel relating to prejudice to the accused in relation to his statement under section 313 Cr.P.C. and the attack on the integrity of the sealing process.
9. It was urged by learned Senior Counsel that at the time of recording of the statement under section 313 Cr.P.C. neither any caution was given by the Special Judge nor the Advocate for the accused was present when the statement under section 313 Cr.P.C. was recorded. Insofar as the presence of the Advocate for the accused at the time of section 313 of Cr.P.C. statement is concerned, the contention of learned Senior Counsel is only partly correct since the Roznama dated 11th August, 1998 shows that the Advocate for the accused was present in the morning session when the statement under section 313 Cr.P.C. was partly recorded and it was only in the afternoon session that the Advocate for the accused was not present. The accused, after recording of his statement under section 313 Cr.P.C. had later on filed an application that he had not understood the questions put to him under section 313 Cr.P.C. properly and sought that he be re-examined. This request of the accused was turned down by the Special Judge on the ground that the accused not only spoke English fluently during the time of the trial, but even stated that he would argue his own case inspite of his Advocate. Even otherwise a cursory glance of the answers given by the accused to the questions put under section 313 Cr.P.C. would go to establish that there was no lack of understanding on the part of the accused while answering the questions and the replies itself reflect that the accused had understood the questions and replied the same after understanding the same. In view of the above and in the absence of having established that any prejudice was caused to the accused, we do not find any merit in the submission of learned Senior Counsel for the accused.
10. Insofar as the sanctity of the sealing process is concerned, the same has been attacked on the ground that the sealing of the envelopes was done by Head Constable Naik who is reported to have handed over the said envelopes to the Scientific Assistant (P.W. 2) on 24-1-98; that there is no material on record to show as to when and where the specimen seal which was affixed along with the forwarding letter sent to the Analyst had been put and that the inwarding of the letter dated 23-1-98 stated to have been received by the Scientific Assistant (P.W. 2) on 24th January, 1998 creates grave suspicion regarding the sanctity of the sample and the possibility of the sample having been tampered with in the process cannot be ruled out. In support of his submission, reliance has been placed by learned Senior Counsel on the Division Bench judgment of this Court in Andrea Siddi v. State of Goa, Criminal Appeal No. 42/1997 to which one of us Batta, J. was a party. In that case the contraband had been recovered on 10-5-1996 as a result of which it was held that the specimen seal on the said letter dated 11-5-96 could not have been offered either at the spot of seizure or on the same day thereafter. It was in this context that it was held that the inwarding of the sample on 13-5-96 by Scientific Assistant (P.W. 2) had assumed importance. The facts in the case under consideration are not akin to the facts in the said case, but are different. In the case under consideration the contraband had been recovered on 23rd January, 1998 after 5.00 p.m. and the forwarding letter (Exh. P.W. 1/A Colly) containing specimen seal is dated 23rd January, 1998. The sealed samples bearing signature of the panchas had been forwarded along with this letter to the Superintendent of Police, C.I.D., Panaji for onward transmission to the Directorate of Food and Drugs Administration, Panaji for analysis. It is no doubt true that these samples were handed over by Head Constable Nail who had in fact sealed the said envelopes at the time of the raid, but there is a absolutely no material on record to suggest that the said samples were in any way tampered with nor any suggestion was put to the pancha (P.W. 3) in respect of the tampering of the envelopes which were signed by him. Obviously, without the connivance of the panchas the sealed envelopes could not be tampered with or re-sealed. P.W. 2 has categorically stated that he had received the samples on 24th January, 1998 and, in fact, he had made an endorsement to that effect on letter Exh. P.W. 2/A. It was nowhere suggested nor was it challenged during the course of deposition of P.W. 2 that he had not received the said samples on 24th January, 1998. He had categorically stated that he had kept the sealed envelopes in the steel cupboard and in view of the same, the entry of the envelopes on 27th January, 1998 does not affect the sanctity of the sealed envelopes. There is absolutely no material on record to suggest that there was any tampering with all the samples in question. After the samples in question were examined, the Junior Scientific Officer (P.W. 1) has held that the samples contained charas.
11. The submission which now requires to be dealt with is in respect of the possession of 110 gms. of charas which is said to have been recovered from the room which was rented by the accused. The evidence on this aspect is that of pancha (P.W. 3), Uday Naik (P.W. 4) and the landlady Maria Dias (P.W. 5). Some controversy has been raised that the specific information received was that a foreigner was selling charas in a rented room of the House bearing No. 1318. There is evidence on record that the house in fact bears No. 1318 and there is no separate number on the room in question which was raided. P.W. 5 Maria Dias has stated that the accused had come to her and asked for a room on rent on 22-1-98 and he started residing in the said room from the said date itself. She also stated that the accused was staying alone in the said room. The accused in his statement under section 313 Cr.P.C. has clearly admitted in reply to Question No. 42 that on 22-1-98 he had gone to Maria Dias (P.W. 5) and asked for a room on rent and she gave a room on rent to him for Rs. 100/-. The defence case is that the room in question was not taken on rent by him, but it was taken on rent by an Indian lady by name Anita. There is no material on record to accept this defence version. An attempt was also made to suggest that the accused was not in exclusive possession of the said room and that the said Anita was staying along with him. It is in this connection that reliance has been placed by learned Senior Counsel on two judgments of the learned Single Judge of the Bombay High Court in Antony Sauri Pilley v. State of Maharashtra, and Mohamad Razzak Pathan and others v. State of Maharashtra, . There is no dispute in respect of the proposition that the prosecution has to establish the exclusive possession of the accused and whether the accused is in exclusive possession would depend on the facts and circumstances of each case. In the two cases upon which reliance has been placed, in the facts and circumstances, it was held that exclusive possession of the accused had not been established. However, in the case under consideration, the evidence on record establishes beyond any reasonable doubt that the accused was in exclusive possession of the room in question though an effort was made that the room was occupied by one Anita which cannot be accepted. Admittedly, at the time of the raid, the accused alone was present in the room. It was suggested to pancha (P.W. 3) and Uday Naik (P.W. 4) that in the said room there were garments of a lady which has been categorically denied by both the witnesses. A polythene bag in question where 110 gms. of charas was found was lying in one corner of the room and was not found concealed as such. The presence of the accused in the room is not only established by the prosecution but even suggestions given by the accused to P.W. 3 clearly suggest the presence of the accused in the room though it is stated that he was not alone in the said room at the time of the raid. P.W. 4 (I.O.) had categorically stated that though the said house had four compartments, but only one compartment was rented out and it is that compartment which was rented out which had been raided by the Police. Therefore, suspicion sought to be thrown on the prosecution case that the prosecution has not been able to establish that the room which was rented to the accused had not been searched has absolutely no basis. The prosecution has been clearly able to establish that the room was rented out to the accused and the accused was in exclusive possession of the said room. The recovery of the contraband from the said room which was in exclusive possession of the accused has therefore to be fixed on the accused. In view of this matter, the controversy raised relating to the filling of the C Form, recedes into the background and it is not necessary to deal with the same.
12. For the aforesaid reasons, we are of the opinion that the conviction and sentence of the accused as recorded by the learned Special Judge is well founded and the same does not call for any interference. The appeal is accordingly dismissed.
13. Appeal dismissed.