Bombay High Court
Rubyana Alias Smita Sanjib Bali vs State Of Maharashtra on 25 July, 1995
Equivalent citations: 1996(3)BOMCR410, 1996CRILJ148
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Majithia, J.
1. Vide judgment and order dated December 24, 1993 in Sessions Case No. 49 of 1993, the Special Judge, Pune, convicted the appellant-Rubyana @ Smita Sanjib Bali for the offences punishable under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the N.D.P.S. Act") and sentenced her to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- for both the counts under Sections 20 and 21 of the N.D.P.S. Act, in default to suffer rigorous imprisonment for one year. She was further convicted for the offence punishable under Section 25 read with Section 7 of the Arms Act, 1959 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently. She was given the benefit of set-off under Section 428 of the Criminal Procedure Code.
2. The prosecution case runs as under :-
Pilu alias Bakhtiyar Ahmad Khan alias Sohal Qureshi (hereinafter referred to as "Sohal") was accused in C.R. No. 349/92 under Section 3/25 of the Arms Act at the Yerwada Police Station, Pune. He was present at the police station on Oct. 24, 1992 at about 9.15 p.m. On enquiry from him, he gave information that since, March 1992, he was residing at Graphicon Court, Kalyaninagar, Yerwada, Pune, with his friend Smita alias Rubayan Sanjib Bali, resident of Juhu-Tara Road, North Bombay Society; that he was residing in a rental flat and doing the business of selling narcotic drugs, like brown sugar, cocaine, hashish, etc.; and that in the above mentioned flat at Kalyaninagar, there is a large quantity of drugs. This information was given in the presence of Shinde, ACP of Lashkar Division.
A. S. Shaikh, P.I., Yerwada Police Station, Pune, called two panchas, namely (1) Arun Ganaji Inkar and (2) Chandrakant Rama Pujari, in the police station. The substance of the information was disclosed to them and they were asked whether they were ready to act as panchas. They agreed. The panchas took searches of P.I. Shaikh, ACP Shinde and other police staff and PI Shaikh took search of the panchas. No incriminating article was found in the searches. Shinde, Shaikh, other staff, panchas and the appellant were led by Sohal to Graphicon Court building. They were asked to halt the vehicle in front of the flat and all of them alighted from the respective vehicles. Sohal opened the gate of the compound of the building and led all of them in front of the flat. Sohal opened the latch of the door with the key in his possession. Shinde and Shaikh disclosed to the appellant and Sohal that they intend to take search of the flat and whether they intend to offer search before a Magistrate or any Gazetted Officer and that they are also Gazetted Officers. They declined. Shaikh offered searches and Sohal took the same but no incriminating article was found in the search. Shaikh, Shinde the other police staff and panchas entered the flat. Sohal took them in the hall of the flat and thereafter took them to right side bed room. Sohal took out one leather bag (Article 7) from the tin cupboard. The bag was searched and one .38 revolver and one 9 mm pistol were recovered from fold Nos. 1 and 2; 2 country made revolvers were found in the third fold; and one .445 revolver was found in the fourth fold. The revolvers and the pistol were labelled as Articles 1 to 5 in the Court. Two hundred and eighty one live cartridges of different bores were also found in the said bag. The said cartridges were found in a flap which had a chain. These were labelled as Article No. 6 in the Court. All the revolvers, pistol and the cartridges were wrapped separately. Paper labels bearing the signatures of PI Shaikh and the panchas as also the lac seals were affixed on them.
It is further the case of the prosecution that Sohal took them in the western side bed room and the appellant was present at the said time. A diwan was in the said room. Sohal took out one greenish colour bag (Article 8) which was under the Diwan. The bag was searched and two white colour cloth bags (Article 9) containing 1 kg. 55 gms. and 1 kg. 30 gms. heroin were found therein. One polythene bag was found in the compartment of the green colour bag. On opening it, cocaine weighing 70 gms. (sic) (Article 10) was found therein. One blackish cake (Article 11) was also found in the said bag near the packet of the cocaine. The brown sugar bags, cocaine and hashish were sealed separately and labels bearing the signatures of PI and the panchas and lac seals were affixed thereon. Sohal had disclosed that the articles were hashish, brown sugar and cocaine. Dollars were found in the green colour bag in which cocaine and brown sugar were found. Indian currency was also found in the said bag.
It is further the case of the prosecution that search of the wooden curpboard in the bed room was taken and raw diamonds, driving licence in the name of Sohal (Article 16), pass book of Canara Bank (Art. 17) and colour photographs of the appellant and Sohal joint and with others were also found in the said cupboard. Maruti car coupons and other articles were also recovered from the said room. All the articles were seized under panchanama, Ex. 23. Copies of the panchanama were given to the appellant and Sohal and their signatures were obtained on the panchanama. The muddemal property and the appellant and Sohal were brought to the police station. Shaikh wrote down the complaint, Ex. 44. He handed over the complaint along with his report, Ex. 45, for registration of the offence. On the basis thereof, Yerwada C.R. No. 773/92 was registered. The appellant and Sohal were arrested in the offence. The muddemal property was handed over along with the panchanama to Koshti and the muddemal entry No. 682 was made in the muddemal register. The fire arms were sent to the Forensic Science Laboratory, Bombay, along with a letter. The narcotic substances and drugs were sent to the Chemical Analyser, Pune, along with a letter. Statements of various witnesses were recorded.
3. After completing the investigation, charge-sheet against Sohal and the appellant was filed in the Court of the Special Judge, Pune. However, Sohal had absconded and the learned Special Judge, by order dated August 17, 1993, separated the trial of the appellant.
4. The learned Special Judge charged the appellant for being a party, along with Sohal, to a criminal conspiracy to commit an offence punishable under Chapter IV of the N.D.P.S. Act, for, in pursuance of the said conspiracy, being found, along with Sohal, in possession of brown sugar weighing about 2 kgs. 85 gms. and 70 gms of cocaine an offence punishable under Section 21 of the N.D.P.S. Act and for being found in possession of hashish or charas weighing 50 gms which is cannabis, an offence punishable under Section 20 of the N.D.P.S. Act. The appellants was further charged for being found, along with Sohal, in possession of 4 revolvers, one pistol and 281 live cartridges, an offence punishable under Section 25 read with Section 7 of the Arms Act.
5. The defence of the appellant was that she was residing with Sohal but she was not knowing that his name was Bakhtiyar or Pilu Khan; that she got acquainted with Sohal and fell in love with him and started living in Graphicon Court building; that she had left the flat one month prior to the raid and was residing with her father; that she was not aware that any contraband article or fire arms were stored or kept in the flat and no article was stored in her presence in the flat; that she was apprehended before she reached the flat and she was not present at the time of search of the flat and seizure of the articles.
6. The sine qua non for attracting the penal provisions, viz. Sections 20 and 21 of the N.D.P.S. Act, and Section 25 read with Section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms. The term "possession" is not defined in the N.D.P.S. Act. The term "possession" has been judicially construed to mean, in various decisions, as under :-
'Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object.
(See in this connection Dula Singh v. Emperor, AIR 1928 Lahore 272 : (1928 (29) Cri LJ 481), Kuldip Chand v. Emperor, AIR 1934 Lahore 718 : (1935 (36) Cri LJ 300), Sunder Singh v. Emperor, AIR 1936 Lahore 738 : (1936 (37) Cri LJ 939), and Ram Charan v. Emperor, AIR 1933 All 437 : (1933 (34) Cri LJ 930)).
The Apex Court in Supdt. and L. R. v. Anil Kumar Bhunja, , observed that the test for determining "whether a person is in possession of anything is whether he is in general control of it. "The Apex Court, after examining Salmond's jurisprudence and other earlier decisions rendered by the Court, observed thus (at pp 1392-93 of Cri LJ) :-
"13. 'Possession' is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformally applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of 'possession'. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Ed. 1966) caused by the fact that possession is not purely a legal concept. 'Possession', implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control.
14. According to Pollock and Wright, when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.
15. While recognising that 'possession' is not a purely legal concept but also a matter of fact, Salmond (12th Ed. page 52) describes 'possession, in fact", as a relationship between a person and a thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it'.
16. In Gunwantilal v. State of M.P. , this Court while noting that the concept of possession is not easy to comprehend, held that, in the context of Section 25(a) of the Arms Act, 1959, the possession of a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed (at p 1189 of Cri LJ):
In any disputed question of possession, specific facts submitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question.
7. In the light of these pronouncements, we have to examine whether the appellant can be said to be in possession of the flat from where the contrabands and the fire arms were recovered. To put it concisely, whether the prosecution has proved that the appellant was in conscious and intelligent possession of the flat.
8. The prosecution examined Inayat Ahmad Shakur (PW 4) who claimed that he was the owner of Flat No. 301. He stated that one Mrs. David brought a person to his house. The name of the person was Sohal Quereshi and his wife was with him. The name of his wife was Rubiyana. A licence deed dated March 27, 1992 (Ex. 28) was executed.
Mrs. Lesh Joseph David (PW 5) claimed that she is real estate agent. She got the flat on lease from PW 4 for Sohail Qureshi. She also admitted that the lease agreement dated March 27, 1992 was reduced into writing.
Ext. 28 is the licence deed dated March 27, 1992. The agreement of licence was entered into between PW 4 and Sohail Qureshi. There is no convenant in the document that Sohail Qureshi was to reside in the licensed premises along with his wife. Convenant No. 1 of the licence deed only says that the licensee was permitted to live in the flat for six months. From this document it cannot even remotely be suggested that the appellant entered into the possession of the disputed flat along with Sohail Qureshi. The prosecution has led some evidence to suggest that the appellant remained in possession of the disputed flat. We shall deal with that evidence at a later stage. Suffice it will to say that the appellant is not a party to the agreement of licence, Ex. 28. The oral statement of PW 4 and PW 5 that the appellant along with Sohail Qureshi approached PW 4 and PW 5 for renting of the flat is inadmissible in evidence in view of the bar created under Section 91 of the Evidence Act. Section 91 prohibits the admission of oral evidence to prove the contents of documents. In the case of Bai Hira Devi v. The Official Assignee, Bombay, , Gajendragadkar, J. expounded the true scope and effect of Section 91 thus (at pp 449-50 of AIR) :-
"Section 91 deals with the exclusion of oral by documentary evidence. The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is sometimes described as the 'best evidence rule'. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents. In a sense, the rule enunciated by Section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act."
PW 6 Janabai Sadashiv Jagtap stated that she had been working as a domestic help in the flat. She pointed out that the accused before the Court (the appellant) is the wife of Sohail. In cross-examination she stated that she had stopped working in the house of the appellant two months prior to the recording of her statement by the police. She stated in her examination-in-chief that she had left the work as she had seen a revolver in the flat but she admitted in cross-examination that she had not disclosed the fact of having seen the revolver to anybody before her statement was recorded by the police. The evidence of this witness does not advance the case of the prosecution. She does not say that on the date when the search and seizure was made by the police, the appellant was in possession of the flat.
PW 7 Kamal Namdev Jadhav is a sweeper who had arranged for the engagement of PW 6 as a domestic help. She says that she worked as a sweeper only for 4 months and thereafter she left the work. This evidence also does not establish that when the search and seizure was made, the appellant was in possession of the flat.
PW 8 Shamsuddin Badruddin Pirani is running Glow White Laundry in Kalyaninagar. He stated that the appellant was her customer and she had been giving her clothes to him for washing. He also stated that he knew Sohail Kureshi who was the husband of the appellant. The evidence of this witness also does not establish that the appellant was in possession of the flat when the search and seizure was made.
PW 9 Parshuram Hanumant Jadhav is PSI attached to Yerwada Police Station. He had accompanied PW 10 - PI Shaikh for effecting search and seizure at the disputed flat. He stated that Pillu Bakhatiyar Khan was arrested in connection with C.R. No. 349/92. When he was interrogated, he made a statement and acting on that statement, the raid was conducted. He further stated that when the search was being conducted, the appellant was with Pillu. In cross-examination he admitted that PW 10 recorded his statement on Oct. 25, 1992. He admitted that he did not say in his statement that the appellant accompanied the raiding party to the flat on the 3rd floor. In the words of the witness, he stated thus :-
"My statement is recorded by P.I. Shaikh on 25-10-1992. I have not stated in my statement that Rubiyana accompanied us on the 3rd floor in the flat and she was present in the flat at the time of recovery of the articles."
The witness made a clean breast that the appellant was not present when the search was conducted in the flat.
PW 10-Shaikh Abdul Sattar is Police Inspector attached to Yerwada Police Station. According to him, PSI Bhat had produced the appellant and the absconding accused Pillu before him. During the course of interrogation, it transpired that they were residing at Graphicon Court, Kalyaninagar and were selling narcotic drugs. The information alleged to have been given by Sohail Kureshi was reduced to writing on Oct. 24, 1992 at about 10.00 p.m. and pursuant to that the raid was conducted. He stated that after arranging for the panchas, the raid was organised. He took search of the panchas and they in turn conducted search of the raiding party. Sohal led the raiding party to the flat. Before entering the flat, he asked Sohal whether he wanted to offer search before a Magistrate but he declined. He further offered to Sohal to take search of the raiding party which was taken by him. He stated that when Pilu took them in the western side bed room, at that time the appellant was with them. After the raid was conducted, panchanama was drawn and the Articles 1 to 28 were seized under the panchanama, Ex. 23. He further stated that copies of the panchanama were supplied to the appellant and Pilu and they acknowledged receipt of the same by affixing their signatures on the panchanama in his presence. In cross-examination he admitted that when Pilukhan made the disclosure statement, he was under arrest in C.R. No. 349/92 under Section 3/25 of the Arms Act. He further admitted that whatever information and the source thereof, was received concerning the search and seizure was mentioned in the panchanama. The panchanama does not contain any mention that any information was supplied by the appellant. He admitted that the panchanama contained the details of the entire events which ultimately led to the search and seizure. He admitted that in the panchanama it is not mentioned that the appellant alighted from the vehicle and was present at the time of the search. He further admitted that the search and seizure was completed at about 1.00 a.m. on the night intervening Oct. 24, 1992 and Oct. 25, 1992 and that after returning to the police station, the complaint, Ex. 44, was written and on its basis the offence was registered at the police station at 2.00 a.m. He admitted that it is not mentioned in the complaint that Rubiyana (the appellant) had come upstairs in the flat and in her presence the search was taken.
9. The prosecution evidence dilated supra, does not establish the appellant's conscious and intelligent possession of the flat. The evidence of PWs 4, 5, 6, 7 and 8 is only to the effect that they had seen the appellant living in the flat along with Sohal Qureshi as his wife. Their evidence is only opinion evidence. Section 50 of the Evidence Act says that when the Court has to ascertain the relationship between one person and another, the opinion of any person (family member or outsider) having special means of knowledge and expressed by conduct is admissible under this section. Besides special knowledge evidence by conduct affords an additional guarntee of trustworthiness. Section 50 affords an exceptional way of proving relationship. This section provides for the admission of a class of circumstantial evidence when the Court has to form an opinion as to relationship of one person with another.
Under Section 50, what is relevant is the opinion expressed by conduct. The evidence of these witnesses, examined on the touchstone of the statutory provision, is rendered inadmissible. Even otherwise, even if the appellant had resided with Sohal for some time in the disputed flat, may be as a friend or otherwise, it does not even remotely establish her possession over the flat.
The evidence of the official witnesses, PWs 9 and 10, does not even remotely establish the appellant's possession over the flat in question. Sohal had led the police party to the disputed flat. The keys of the main door latch and the cupboards were with him. He applied those keys and opened the cupboards and produced the contrabands and the fire arms as is alleged by the prosecution. They admit that the appellant was not present when the search and seizure was conducted. If the appellant was present, this fact would have found a mention in the complaint, Ex. 44, lodged immediately after the search and seizure. Production of the keys by Sohal goes a long way in establishing the claim of the appellant that she was not in possession of the disputed flat. It makes her defence probable. The appellant in her statement recorded under Section 313 of the Criminal Procedure Code stated that she fell in love with Sohal and resided with him for some time and a month before the search and seizure, she had come to her parents' house. She had come to Pune on her own when she was apprehended. The prosecution evidence, in fact, has probabalised her defence version.
To us it appears that the version that the appellant was present at the time of the search and seizure, is a subsequent improvement made by the official witnesses. The evidence as brought on record does not establish that the appellant was in conscious and intelligent possession of the flat from where the contrabands and the fire arms were recovered. The prosecution was enjoined to establish the appellant's possession which it has miserably failed to do.
10. Statement of the appellant was recorded under Section 313, Cr.P.C. The statement reads thus :-
"I fell in love with Sohail Qureshi. He had then told me that his name was Sohail Qureshi and that he is a garment exporter and doing business with merchants from Dubai. I started living with him at Graficon Court, Pune. Sohail Qureshi named me as Rubyana and I came to be called by that name since before I started staying with him.
While I stayed with him the steel cupboards in the bedrooms were always locked and Sohail kept the keys of the always with him.
One month prior to my arrest I had left the flat at Graficon Court and had been to Bombay and I was staying with my father and since then I had not entered the said flat at Graficon Court, Pune. Since day I left for Bombay (i.e. 1 month prior to my arrest) the keys of the same flat were with Sohail Qureshi.
I came from Bombay to Pune on the evening of 24-10-1992. Before I could reach the flat, I was taken to the police station. I was thereafter taken in Jeep to Graficon Court building along with Sohail Qureshi (whose name is Phillu alias Bakhtiyar Ahmed Khan). However, I was not taken up to the said flat but I was made to sit in the vehicle and the panchanama and seizure was not done in my presence.
Till I was staying with Sohail Qureshi (i.e. till I left Graficon Court, one month prior to my arrest) the articles seized from the flat at Graficon Court under Panchanama dated 24-10-1992 were not there in the said flat. I am not aware and I have no knowledge as to who brought the said articles to the flat at Graficon Court or even when they were brought. They may have been brought to said flat after I had left Graficon Court.
I came to know that Sohail Qureshi's name was actually Phillu alias Bhaktiyar Ahmed Khan for the first time only in the Police Station on 24-10-1992.
I have not committed any offence and I have been falsely involved merely because I stayed with Sohail Qureshi whose actual name is Phillu alias Bhaktiyar Ahmed Khan.
The appellant in her statement under Section 313, Cr.P.C. has stated that the she fell in love with one Sohail Qureshi who represented that he was an exporter in garments and doing business with merchants from Dubai. He gave her the name Rubyana, although her name is Smita Sanjib Bali. She stated that during the period that she stayed with him, Sohail kept the keys of the bed-rooms and steel cupboards with him. She had left the flat one month prior to her arrest. She came to Pune from Bombay on Oct. 24, 1992. Before she could reach the flat, she was taken to the police station and thereafter she was taken in a jeep to Graphicon Court Building. She stayed in the jeep. She did not go up in the flat. She had no knowledge about the contrabands and the fire arms recovered from the flat.
The facts narrated by her in her statement receives corroboration from the panchanama, Ex. 23. It is stated therein that Sohail Qureshi took the police party to the flat; he unlatched the front door and took the police party in the bed rooms; and he opened the cupboards with the keys in his possession.
In addition, the prosecution has failed to establish that the appellant was with Sohail Qureshi inside the flat when the search and seizure was made. The appellant was not inside the flat. There is no evidence that immediately prior to the search and seizure, she was in occupation of the flat. The evidence is to the contrary. The appellant has probabilised her defence.
11. Furthermore, a perusal of the statement of the appellant under Section 313, Cr.P.C. reveals that the learned trial Judge did not put the circumstances relied upon by the prosecution to substantiate the charges, to the appellant. The circumstances relied upon by the prosecution have been discussed in the earlier part of the judgment. Since the circumstances were not put to the appellant in her statement under Section 313, Cr.P.C., these have to be excluded from consideration because the appellant did not have the chance to explain them. Reliance can be usefully placed on the decision of the Apex Court in Sharad v. State of Maharashtra, , held thus (Paras 142 to 144) :-
"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, this Court held thus (para 5) :
'The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.'
143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, where the following observations were made (para 2) :
'In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.'
144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration.
12. Looking to the matter from any angle, the prosecution has failed to estblish the charges levied against the appellant.
13. For the reasons aforestated, the appeal succeeds and is allowed, the convictions and sentences of the appellant under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also under Section 25 read with Section 7 of the Arms Act, 1959 are set aside. The appellant be set at liberty forthwith unless she is required in connection with any other case. The fine, if paid, be refunded to the appellant.
14. Appeal allowed.