Bombay High Court
Rajkumar Ramchandra Sahu And Ors. vs State Of Maharashtra on 21 August, 1991
Equivalent citations: 1992(1)BOMCR187
JUDGMENT H.H. Kantharia, J.
1. In this appeal, appellants-accused Nos. 1 and 2 challenge their conviction under section 8(c) read with section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentence of rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-, in default to suffer further rigorous imprisonment for three years recorded by the learned Additional Sessions Judge, Greater Bombay in N.D.P.S. Special Case No. 1010 of 1989 by a judgment and order dated October 8, 1990.
2. The relevant facts giving rise to the appeal are as under.
On September 2, 1989 at about 7.00 a.m. Dattaram Narayan Ketkat (P.W. 1), a head constable attached to Nagpada Police Station, received information that a dealing in narcotic drugs would take place at Room No. 6, Building No. 40 at the 6th lane of Kamathipura, M.R. Road, Bombay. Head Constable Ketkar, therefore, contacted Sub-Inspector Dagdu Patil (P.W. 5) and accordingly the raiding party went to a police chowki situated at the corner of the 5th lane of Kamathipura. There, the informant requested Sub-Inspector Patil to wait for some time and in the meanwhile he would find out the exact time of the dealing. The informant came back at about 9.45 a.m. and told Sub-Inspector Patil that the deal was to take place at 10.00 a.m. Immediately, two panch witnesses viz., Mohammed Amin Mohammed Hussain Shaikh (P.W. 2) and Babu Abdul Khan (P.W. 3) were called and the raiding party along with the panch witnesses as also the informant went to the 6th lane of Kamathipura where the informant pointed out building No. 40 and Room No. 6 therein on the first floor and went away. The police party accompanied by the panch witnesses went to the first floor and stood in front of Room No. 6 of which the door was slightly open. The raiding party knocked at the door and entered the room and noticed that the appellants were about to leave the room. Appellant No. 1 was having a grey bag hanging on his shoulders and appellant No. 2 was found holding a Khaki paper package in his left hand. Both the appellants got frightened on seeking the police party and on being questioned gave evasive replies. Thereafter, their search was taken which revealed that in the grey cloth bag which was with appellant No. 1 there was one white polythene bag and one red cloth bag. In the polythene bag there was one white cloth bag which when opened was found containing one more polytene bag inside which there was a Khaki paper bag. In the said Khaki paper bag was found some brown power which was smelt and it was ascertained that the same was brown sugar. In the red bag there was also a cash amount of Rs. 13,725/- in different denominations. Likewise, in the Khaki paper package which was found the appellant No. 2 there was a polythene bag in which again there was brown powder which was smelt and ascertained to be brown sugar. Weighing apparatus were then procured and what was found with the appellants was weighed. Thus, what was found from appellant No. 1 was 750 grams of brown sugar and what was found with appellant No. 2 was 250 grams of brown sugar. Thereafter, samples of 10 grams from each packet were taken and put in two small polythene packets which was closed with staple pins and put separately in brown paper sheets and sealed. They were marked as A, A-1 and B, B-1 and were labelled with the signatures of the panch witnesses and sealed. The main packets now containing 740 grams and 240 grams of brown sugar were also taken charge under a panchanama. Both the appellants were then arrested and brought to Police Station where Sub-Inspector Patil recorded the statement of Ketkar which was treated as First Information Report upon which a crime was registered. Further investigation was carried out during which a report of the Chemical Analyser was obtained which revealed that what was found from the appellants was brown sugar. On completion of the investigation, the appellants were charge-sheeted in the Sessions Court at Bombay. During the pendency of the trial it appears that original accused No. 3 who was released on bail absconded and, therefore, his trial was separated and thus the present appellants were tried. The defence of both the appellants at the trial was one of not guilty.
3. With a view to bring home the guilt to the appellants, the prosecution in all examined five witnesses i.e., head constable Ketkar and Sub-Inspector Patil as also the two panch witnesses viz. Mohammed Amin Mohammed Hussain Shaikh and Babu Abdul Khan. The other witness was Hari Ramayya Kalloji (P.W. 4) who was a tenant of Room No. 6 in building No. 40 at the 6th lane, Kamthipura who had given the said room to one Champabai, mother of appellant No. 1 with which evidence we are hardly concerned.
4. Now, panch witness Mohammed Amin Mohammed Hussain Shaikh (P.W. 2) did not support the prosecution case but he was not declared hostile by the prosecution and instead was sought to be cross-examined under section 162 of the Criminal Procedure Code which prayer by the prosecution was rejected by the learned trial Judge. The other panch witness Babu Abdul Khan (P.W. 3) did support the prosecution case but the learned trial Judge rightly disbelieved his evidence as he was found to be a professional panch witness. In fact, the learned trial Judge discarded the evidence of both the panch witnesses and, in our opinion, rightly so far which we shall presently point out the reasons. The learned trial Judge thereafter considered the evidence of the police witness viz. Head Constable Ketkar (P.W. 1) and Sub-Inspector Patil (P.W. 5) and accepted the evidence as credible and trustworthy and convicted the appellants and sentenced them as stated above.
5. Now, it is no doubt true that the evidence of Head Constable Ketkar and Sub-Inspector Patil supports the prosecution case in toto as stated hereinabove. The point is whether the learned trial Judge was right in accepting the evidence of head constable Ketkar and Sub-Inspector Patil who were police witnesses as credible and trustworthy so as to hold that the prosecution proved its case beyond shadow of reasonable doubt against the appellant Nos. 1 and 2.
6. Mr. Ponda, learned defence Counsel, vehemently urged that in view of the fact that the investigating agency did not follow the procedure laid down in sections 42, 50, 51, 52, 55 and 57 of the NDPS Act, it would be hazardous to rely upon the uncorroborated testimony of two police officials to convict the appellants. Section 42 provides that the information received in a case like this has to be reduced to writing which was admittedly not done in this case. Section 50 provides that if the person sought to be searched so require, he should be taken to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate without unnecessary delay and be searched in the presence of either a Gazetted Officer or a Magistrate. As per section 51, the provisions of the Code of Criminal Procedure, 1973 shall apply to warrants, arrests, searches and seizures in so far as they are not inconsistent with the provisions of the NDPS Act. Section 52 mandates the Investigating Officers to inform the persons sought to be arrested the grounds of his arrest. Section 55 envisages to take charge of the seized articles in safe custody pending the orders of the Magistrate and section 57 requires the Investigating Police Officer to make a full report of all particulars of the arrest of a person and seizures of the contraband articles to his immediate official superior within forty-eight hours next after such arrest of seizure. The submission of Mr. Ponda is that no procedure as laid down in sections 42, 50, 51, 52, 55 and 57 was followed by the Investigating Officer in this case and, therefore, it would be risky to rely upon the evidence of head constable Ketkar and Sub-Inspector Patil to convict and heavily sentence the present appellants. In order to appreciate the submission of Mr. Ponda, it would be well to remember the well settled principles of law that mere irregularity in following the procedural law or some infirmity therein would not by itself vitiate the trial and consequent conviction recorded against accused person unless it is shown by the defence that in not following the procedural law prejudice was caused to the defence. In the present case, we are inclined to believe and accept the submission of Mr. Ponda to the extent that in not following the procedure laid down in section 50 of the NDPS Act grave prejudice was caused to the appellants in the facts and circumstances of this particulars case.
Section 50 reads as under :
" 50. Conditions under which search of persons shall be conducted :---(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female".
The submission of the learned counsel is that although the appellants desired and requested Sub-Inspector patil that they should be searched in presence of a Gazetted Officer or a Magistrate, the request was not acceded to on a specious ground that Sub-Inspector did not have enough time. In not taking the appellants to the nearest Gazetted Officer or the nearest Magistrate for being searched, grave prejudice can be said to have been caused to the defence in this case inasmuch as the appellants were perhaps sure that they did not possess any contraband goods and would not like to take a risk of being searched by Police Officers and would be more safe and secured if searched in the presence of either a Gazetted Officer or a Magistrate. The least, therefore, that Sub-Inspector Patil should have done in this case was to take the appellants before the nearest Gazetted Officer or Magistrate and search the take the appellants in the presence of such a Gazetted Officer or Magistrate which would have assured fair investigation. When it was a mandate of the law under section 50 of the NDPS Act that if the persons sought to be searched require the Investigation Officer to take him before a Gazetted Officer or a Magistrate there was no reason why Investigating Officer here should not have acceeded to such a request of the appellants which would have meant full implementation of the provisions of law. We are not inclined to accept the hopelessly lame excuse put up by Sub-Inspector Patil that did not have enough time to do so. This procedural defect during the course of investigation certainly can be said to have caused prejudice to the defence and that being so, the appellants are entitled to the benefit for doubt.
7. But that is not enough. There are some more disquieting and disturbing features of this case which also persuade us to think and believe that everything was not fair and proper with the investigation in this case on account of which the irresistible and inevitable conclusion is to hold that the appellants are entitled to the benefit of reasonable doubt that very mush exist in our mind whether or not any narcotic drug was at all found from the possession of the appellants.
8. The glaring defect in the investigation in this case is first of all the selection of two panch witnesses to whom no Police Officer worth the name would ever select in a serious case like this to act as panch witnesses. Thus, the first panch witness Mohammed Amin Mohd. Hussain Shaikh (P.W. 2) who did not support the prosecution case was a person who had acted as a panch witness in many cases of By Nagpada Police Station itself. He had also acted as panch witnesses in many cases of Byculla Police Station. He was once arrested by D.C.B., C.I.D., in a murder case. He was also arrested by Sewri Police Station in a theft case. He was also detained by the State Government under the provisions of National Security Act. He was also involved and arrested in a narcotic case along with his brother-in-law by name Gulkhan. The other panch witness Babu Abdul Khan (P.W. 3) who supported the prosecution case was not less than the first panch witness. He first of all stated in the cross-examination that he was working in diamond Engineering Works at Nagri compound and in the same breath he stated that he was not working there. He had also acted as a panch witness on many occasions at the Nagpada Police Station and on his own admission he had so acted for about 50 to 60 times and proud to say that he was doing so right from the British Raj. He further admitted that he had given evidence as a panch witness in Sessions Case No. 805 of 1989 in the adjoining Court hall of Judge Python of the Bombay City Civil and Session Court. That was a case against one Mohammed Anif Mohammed Siddique Qureshi and in that case he did give evidence that he had acted as a panch witness along with Abdul Gani in about 15 to 20 cases of Nagpada Police Station and when his attention was drawn that the said Abdul Gani was none else but P.W. 2 he refused to accept the said situation. In fact, the panchnama exhibited in the Court of Judge Pathan which is dated 7-1-1989 shows that Abdul Gani was none else than P.W. 2 (see page 61 of the paper book). Then, this witness stated that he had no fixed place of residence in Bombay and in the same breath he came out with a statement that he has four residences in Bombay. He thereafter stated that he stayed with his sisters and brothers in Bombay and went on changing his places of residence. He also deposed that not a single tenements stands in his name. Now, it is needless to say that no Police Officer worth his name would make use of such panch witnesses in any case of investigation at his hands. It is pertinent to note that both these panch witnesses were professional panch witnesses at the Nagpada Police Station itself. If not Sub-Inspector Patil, at least Head Constable Ketkar should have very well known it. And it is pertinent to note that although Sub-Inspector Patil and Head Constable Ketkar did know the profession of the so two panch witnesses as doing no other work but to act as panchas at police station because the panchanama dated 7-1-1989 (page 61 of the paper book) produced before Judge Pathan shows that both P.W. 2 and P.W. 3 had acted as panch witnesses in that case and the Investigating Officers were none else but Sub-Inspector Patil and Head Constable Ketkar. Therefore, the conclusion is inevitable that despite knowing it fully well that P.W. 2 and P.W. 3 were the professional panchas, Sub-Inspector Patil made use of them as panch witnesses in this case of serious nature where the minimum sentence is ten years with a fine of Rs. One lakh.
9. Thereafter, the record shows that in the remand application dated September 3, 1989 (page 95 of the paper book) prepared, written and signed by Sub-Inspector Patil himself, it was shown that the place of raid in this case was not the Room No. 6 in Building No. 40 but Room No. 7 in Building No. 42 of the 6th Kamathipura lane. Therefore, the prosecution is not even sure as to what was the place of the offence and which premises in fact they had raided from where the accused were arrested being found in possession of brown sugar.
10. Thirdly, the defence Counsel contended that Sub-Inspector patil had not given copies of panchanama effecting seizure of brown sugar from the appellants. The learned Metropolitan Magistrate before whom the appellants were put up for remand had ordered Sub-Inspector Patil that he should furnish copy of panchanama to the defence but Sub-Inspector had the audacity to say in the Sessions Court that despite the orders of the learned Metropolitan Magistrate he did not feel it necessary to furnish the copy of the panchanama to the defence as, according to him, he had already furnished a copy of such a panchanama to appellant No. 1.
11. It appears that the conduct of Sub-Inspector Patil working as Sub-Inspector of Police was not above board inasmuch as in para 21 of his cross-examination he stated that a complaint was made by members of the locality to the Commissioner of Police against him and the said complaint had come to his police station seeking his explanation by Senior Police Inspector.
12. From the above facts and circumstances, it is crystal clear that the investigation in this case was neither fair nor proper. It was far from the principles of fair-play, enquiry and good conscience. That being so, the legitimate conclusion is that during course of the investigation a fair amount of prejudice was caused to the defence and not following the proper procedural law, in the facts and circumstances of this case, would be fatal to the prosecution. At any rate, it cannot be said that the prosecution established and proved its case beyond shadow of reasonable doubt against the appellants in this particular case. The appellants are entitled to benefit of such a reasonable doubt and sunscreen acquittal.
13. In this view of the matter, the appeal succeeds and the same in allowed. The impugned judgment and order passed by the learned trial Judge convicting and sentencing the appellants as above are quashed and set aside. The appellants are acquitted of the offences punishable under section 8(c) read with section 22 of the NDPS Act. They shall be set at liberty forthwith unless required in some other case. Fine, if paid by them, shall be refunded.