Bombay High Court
Ramji Duda Makwana vs The State Of Maharashtra on 12 August, 1993
Equivalent citations: (1994)96BOMLR808, 1994CRILJ1987
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Saldanha, J.
1. In 1985 the Indian Parliament promulgated the Narcotic Drugs and Psychotropic Substances Act, a piece of legislation specifically aimed at combating offences relating to drugs. The Act provides for control and regulatory measures in and area which is fast attracting sensitive attention in our country. Drug addiction has become one of the curses in the dissolution of human personality, promoting conditions for various forms of human degradation, whose consequences spread to crime and lawlessness. One of its tragedies lies in its morbid assault on youth resulting, more often than not, in mental disorientation and emotional derangement, pushing the victim towards a fate from which there is seldom any hope of recovery. The evil is insidious and operates secretly, and it often comes to be known to others only after the addict has crossed the point of no return. The consequences are far-reaching, Because in attacking the younger generation of a country, it destroys the flower of a nation's future. History provides many examples of the wilful subversion of a nation's culture, its social values and its integrity by the systematic corruption of its young through smuggled drugs. The dangers following illicit traffic in narcotic drugs have been recognised worldwide, and so agitated is the conscience of the world community that they are now the subject of International Conventions.
2. In India, as the intimate bonds of traditional family closeness tend to weaken with economic pressures and social changes, the need for an appropriate legal structure to control and regulate the use of narcotic drugs and psychotropic substances is a matter of national concern. A legal structure, however, is not enough. The law must be supplemented by attitudinal values and educational perspectives which help in strengthening our social binding.
3. Universally, the approach to drug trafficking has been one of ruthlessness, the psychology being that no leniency of any type will be shown while dealing with this class of offences. Several countries have prescribed death sentences, the quantity or circumstances regardless, and in India, the punishments provided for the offences are extremely heavy. Undoubtedly, several safety features had to be grafted on to the Act in addition to the general provisions of law and in the short period of time, human engenuity being what it is, technical defences are involved interpretations have been canvassed and the Courts have had to deal with all of these situations. In interpreting the Act, the soul and the spirit of the legislation has to be the predominant loadstar and towards achieving that end, the objections and legal gymnastics will have to be subserved if the legislation is to have the desired effect and not get reduced to a dead letter.
4. The present appeal, is one more of the hotly contested litigations arising out of a conviction under the Narcotic Drugs & Psychotropic Substances Act. These offences and the convictions arising out of them are matters of some consequence in view of the heavy sentence and fine involved and this branch of litigation has also been the subject matter of several judicial decisions of this Court and of others. In the course of the hearing of the present appeal, the learned Counsel on both sides have invited the pointed attention of the Bench to many of the already decided cases and have canvassed certain submissions in relation thereto. We do consider it necessary that on many of the points concerned a resolution of the law is essential as the issues in question recurrently arise in proceeding after proceeding. To start with a narration of the brief facts :
5. This is a prosecution instituted by the Narcotics Control Bureau and to be precise the Narcotics Cell of the M.I.D.C. Unit having its office at Andheri at Bombay. It is alleged that on 6-1-1991, at about 11.00 a.m. an informant came to the Police Station and conveyed the information that one Ramji Duda Makwana who incidentially is the appellant in this case was going to put through a certain deal concerning Narcotic Drugs near the J.J. Hospital and that he would be accompanied by a companion of his. The informant further stated that the dealing would take place near the Casualty Gate of the J.J. Hospital. On receipt of this information, which was conveyed to PW 1 P.C. Thakare, the constable in question communicated the information to his superior officers, S.I. Salaskar, D.C.P. Sur as also S.I. Lubade and P.I. Ghuge. D.C.P. Sur instructed his subordinate officers to proceed to the place in question and to take steps according to law. The raiding party sent for two panchas and after the usual preliminary searches of each other namely the Police Officers and the panchas, in order to ensure that none of them were carrying any contraband on their person, the party proceeded along with the sealing material, weighing scale and surprisingly enough also a typewriter. the raiding party proceeded in two vehicles and went to the Casualty Gate of J.J. Hospital.
6. It is rather unfortunate that such a spot was chosen for a deal of this type but in any event the raiding party kept a watch on the hospital gate. It is apparent that drug peddlers do not spare even medical centres or places of worship but on the other hand probably prefer these places of their dealings on the assumption that they are more secure, the police being unlikely to watch those areas. The informant pointed out a person with a beard and identified him as Ramji Duda Makwana. There was a second person along with Makwana and the raiding party which consisted of several persons pounced on the two of them and prevented them from running away. The prosecution maintains that after following the requisite procedure, a search was taken of Makwana and of his companion but no drugs were found on their person. It is significant however to note that a cash amount of Rs. 2,500/- was recovered from the right Pant Pocket of Makwana. Thereafter, a polythene bag which Makwana was holding in his hand was examined and it was found to contain a cloth bag and after going through several layers of packaging material, the Police Officers found 1 Kg. of Powder which when examined with the testing kit was found positive for Heroin. The Officer thereupon drew two representative samples each weighing 5 grams, and sealed those sample packets separately. The main bulk of the powder was sealed separately from the sample packets. The requisite signatures of the panchas were obtained on the sealed packets and a panchanama was drawn up and the signatures of the panchas were obtained on the panchanama in question. Thereafter the raiding party along with the two accused persons came back to the Police Station at which place the complaint of Police Constable Thakare was taken down and treated as the First Information Report. The Investigating Officer Sawant, also made requisite entries in the records and a report was also made to D.C.P. Sur with regard to what had transpired. This report incidentally was conveyed over the Telephone and was not in writing and we are referring to this aspect of the matter because Mr. Barday, learned Counsel, appearing on behalf of the appellant has seriously contended that this is a breach of some consequence and that it is grave enough to vitiate the prosecution. On completion of the investigation, the two accused were put up for trial before the learned Special Judge, Greater Bombay, in Special Case No. 280 of 1991. The two accused were charged with having committed offences punishable under section s 21 read with Section 8(c) of the N.D.P.S. Act. The learned Special Judge, acquitted accused No. 2 and convicted accused No. 1 holding that the prosecution evidence only justified such a course of action. Accused No. 1 Makwana was awarded a sentence of rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- in default rigorous imprisonment for six months more, and it is against this conviction and sentence, that the present appeal has been directed.
7. We have heard Mr. Barday, the learned Counsel appearing on behalf of the appellant as also Mr. D. A. Nalawade, the learned A.P.P. who represents the State. The two learned Counsel have canvassed several submissions both on points of fact and law which do require serious consideration, to start with, Mr. Barday has drawn our attention to the fact that this is a case in which the prosecution has examined both the panchas because the first of the two did not support the prosecution case and was declared hostile. We do not consider it necessary to refer to the evidence of the two panchas who are P.Ws. 2 and 3 in so far as they have completely summersaulted and even though they have been declared hostile and cross-examined, their evidence would not be of any assistance to the prosecution. Having regard to this position, Mr. Barday, learned Counsel appearing for the appellants raised the contention that even if the evidence of the remaining prosecution witnesses all of whom essentially belong to the prosecution agency namely the Police Department of the Narcotics Cell to be precise, were to be accepted, that there is no independent evidence whatsoever in this case and that having regard to the gravity of the charge, the rule of prudence would require that the conviction cannot be sustained, no such "interested" material. The learned Counsel contended that howsoever reliable the prosecution evidence may appear that the Police are bound to stand-by each other and in these circumstances, it would be hazardous to sustain the conviction in the absence of any independent material.
8. With regard to this aspect of the matter, this Court has had occasion to express its strong disapproval with regard to the relatively loose practice that is being adopted of indiscriminately picking up persons of straw and using them as panchas in important cases. On the other hand, this Court has also had occasion in the recent past to record that in several similar cases of this type that the prosecuting authorities have been careful to pick panchas who are of such a status and caliber that they would be available when required for evidence and that they would also not be amenable to pressures or influences from the other side. We need to take a serious view of the matter because the picking of panchas who are habitually used in all sorts of petty cases and whose performance is of the type as has been evident in this case, is extremely damaging to the prosecution, and provides often times a situation whereby virtually by default, a prosecution fails and ultimately results in a failure of justice. We, therefore, find it imperative to lay down in no uncertain terms that as far as this class of prosecutions are concerned, be it the Customs authorities, Narcotics Control Authorities, Narcotics Control Bureau or the Police authorities, that they will take cognizance of the fact that these are very grave offences, that every stage of the procedure prescribed must be complied with having in mind a full sense of responsibility to the task and that consequently persons of some standing and status will be utilised for the important job of being witnesses to seizure. This Court has had occasion to observe in a case decided in the recent past where the Police authorities had taken the trouble of contacting a Special Executive Magistrate who was available close-by and requesting her to act as a pancha, that this was a very correct procedure that was followed and the authorities will take serious note of our directions in all proceedings hereinafter.
9. As regards the submission canvassed by Mr. Barday, the learned Counsel appearing on behalf of the Appellant that since the panchas have turned hostile, the benefit must go to the accused, we must express our total disapproval in no uncertain terms of sanctioning any such consequence. The prosecution has summoned both the panchas with the sole objective of establishing its case and it was expected of the panchas to admit that their signatures are there on the panchanamas and other documents and to have been truthful when they have given evidence on oath.
10. We do not need to speculate as to how and under what circumstances this unfortunate situation of panchas turning hostile has been arising in not only this but in several other cases because we are not prepared to accept the contention that the Police have been guilty of wholesale fabrication of documents and that the pancha when he has turned hostile and given evidence to the effect that he was asked to sign blank documents is telling the truth. It is quite obvious that something has happened and it is not difficult for us to conclude what this is, because of the simple inference that there can be only one beneficiary from the pancha turning hostile or disappearing. There will have to be some serious corrective steps taken in cases of this type and as a starter, it will be necessary to take appropriate action as provided by law against PWs 2 and 3 who have obviously given false evidence on oath. Unless the Court adopts such drastic and corrective steps the unfortunate drama that has been enacted in this case will continue unabated. The Registrar of this Court shall accordingly issue notice to the two Panchas, returnable after 15 days, to show-cause as to why they should not be prosecuted for perjury and giving false evidence on oath. The trial Courts shall not hesitate to take action along similar lines so that these corrupt practices are stopped and not permitted to make a mockery of serious judicial proceedings.
11. Mr. Barday, the learned Counsel appearing on behalf of the appellant has taken us through the evidence of PW 1 P.C. Thakare. He has deposed to the effect that the informant conveyed the information to him that the dealing in respect of contraband drugs is to take place at J.J. Hospital Casualty Gate on that day and further more that he had also disclosed the name of the accused and mentioned that he would be accompanied by a companion. Thakare has thereafter indicated that after communicating this information to his superiors that the panchas were called, that the panchas were thereafter searched and they in turn checked up whether the members of the raiding party had any contraband in their possession and that thereafter the entire party proceeded from the M.I.D.C. Police Station at Andheri all the way to the J.J. Hospital Gate at Byculla. Thackare also states that the informant pointed out the accused Makwana who was holding a polythene bag in his hand and that accused No. 2 was standing near Makwana. He states that the two of them were apprehended. He has also deposed to the manner in which their search was conducted, the contraband found in the polythene bag was tested, the samples were drawn and sealed and thereafter the panchanama was drawn up and thereafter how the accused were taken to the Police Station where Thakare lodged his complaint in the form of an F.I.R. Thackare has been cross-examined at considerable length and we have scrutinised this cross-examination carefully for the purposes of ascertaining as to whether the submission canvassed by Mr. Barday, learned Counsel appearing on behalf of the appellant that the informant may have conveyed the information to the Police but that the police have wrongly foisted the liability on the present appellant is of any substance.
12. We do find that though Thakare is an ordinary Police Constable, that the detailed cross-examination to which he has been subjected indicates that his evidence has come through unshaken. This evidence thus establishes that on the date in question, pursuant to the information, the raid was conducted and that in the course of that raid, the contraband was seized from the possession of the accused No. 1 who is the present appellant. Mr. Barday has contended that as far as this evidence is concerned, that Thackare has not mentioned the all important fact that the accused was afforded an opportunity of being searched in the presence of a Gazetted Officer or a Special Executive Magistrate. Secondly Mr. Barday, points out that this witness was the person who called the panchas and that he admits in so many words that he is a complainant in several other similar cases and that these very same panchas have been used in those proceedings. As regards this last aspect of the matter, we have already made our observations earlier and even in Thakare did commit the error of picking up of the present to panchas, who are obviously persons of no credibility; that lapse, in our considered view is not sufficient to impeach his truthfulness. For this purpose, it will have to be further demonstrated that Thackare has some sort of animus some sort of motive in falsely implicating the present accused and it is significant that this has not even been suggested to him and it would be too far fetched to conclude that with the amount of documentary evidence that we have on record in this case that the entire proceeding is a fabrication. There is nothing even suggested by the defence as to why the raiding party located at the M.I.D.C., Police Station in another part of town would travel all the way, come to the J.J. Hospital Gate at Byculla, catch-hold of two persons virtually and thereafter fabricate the case and allege that a huge quantity of one Kg. of contraband was recovered from them. This Court credits the law enforcement authorities with the credibility which Section 114(e) of the Evidence Act prescribe and the defence will have to assail that position effectively and successfully and not through some loose allegations in the air of which this Court can take little cognisance.
13. We need to refer only in passing to the evidence of P.I. Singh who is P.W. 4, S.I. Sawant who is the Investigating Officer, PW 5 and PW 6 P.I. Ghuge. These three Officers have narrated in some detail that they were the members of the raiding party, they have indicated the manner in which they proceeded to Byculla and their evidence is significantly on the lines of PW 1 P.C. Thackare and therefore does not require to be reproduced once again. It is of some relevance to point out that with regard to the all important aspect namely the question as to veracity and truthfulness of the panchanama which assumes great importance having regard to the fact that both the panchas have turned hostile, that the defence has virtually grilled the three Police Officers particularly S.I. Sawant on the question as to whether at all this Panchanama was drawn up on the spot or whether it was drawn up at the Police Station. It has emerged, strangely enough in cross-examination, that the Police Officers who had carried a typewriter with them sat in the rear portion in the Maruti Gypsy Jeep and typed out the panchanama at that spot. Mr. Barday had submitted that it is too much to accept that the Police Officers would be able to physically type out a detailed panchanama at a crowded side walk and that this itself would be indicative of the fact that the documents had been prepared at the Police Station. Unfortunately, the cross-examination itself provides an answer and to our mind an acceptable answer, which conclusively establishes that the panchanama was drawn up on the spot. At the time of drawing up of the panchanama, the bulk of the contraband was sealed separately and the signatures of the panchas were taken on the labels, similarly two sample packets and the cash amount were all taken charge of separately under the same procedure. The evidence of all the Police Officers further indicates that after return to the Police Station, steps were taken to forward the three packets namely the one containing the bulk of the contraband, one of the samples and the cash amount to the head quarters of the Narcotics Control Bureau situated at South Bombay, where the same were kept in the muddemal room. P.I. Ghuge, admits that as far as the sample which was to be sent to the Chemical Analyser is concerned, that he retained the same with him that he prepared covering letter on 8-1-1991 a copy of which has been produced by him, addressed to the Chemical Analyser and that he forwarded the sample along with the covering letter through Police Constable Nail to the Chemical Analyser. The C.A. Report had been produced and the defence has not challenged this report which clearly establishes two things, the first of them being that when the sample reached the C.A. it was on the same day i.e. 8-1-1991, that the seals on the same were intact and secondly the analysis report indicates that the contraband comes within the definition of Section 2(16)(e) of the Narcotic Drugs and Psychotropic Substances Act.
14. As regards this aspect of the matter Mr. Barday, was extremely severe in his criticism because he submitted that there is a fladgrant breach of the provisions of Section 56 (Sic. - Section 55-Ed.) of the N.D.P.S. Act in so far as the law requires that all contraband which include the samples, must be kept in safe custody in charge of the Officer of the Local Police Station within whose jurisdiction the seizure was effected. He submits that there is no warrant for the Police Officer from the M.I.D.C. Police Station at Andheri who effected the seizure within the jurisdiction of Byculla Police Station, to have carried the contraband all the way back with them or for that matter to have deposited the same with the Narcotics Control Bureau. Mr. Barday's real challenge is with regard to the retention of the sample by P.I. Ghuge. He contends that this action is indefensible because it is a requirement of law that the samples in question must be kept in safe custody with the designated authority and that further if it is demonstrated that the sample was retained by any of the officers and that too persons connected with the raiding party, that immediate suspicion is case que apart from its being a breach of Section 56 (Sic. - Section 55-Ed.), and the must therefore dis-regard everything that follows. The sequetor of Mr. Barday's argument is that there is no guarantee that the sample retained by P.I. Ghuge was not tampered with and that consequently the C.A. Report is of no consequence and therefore as of necessity the prosecution must fail. The learned A.P.P. has countered this submission by contending that the officers have acted correctly in so far as they have deposited all the remaining material in safe custody at the Narcotics Control Bureau head quarters and that P.I. Ghuge was fully justified in retaining the one sample with him for a very short period of time as he desired to forthwith, without any delay, forward it to the Chemical Analyser.
15. We do need to observe here that the provisions of Section 56 (Sic Section 55-Ed.) necessarily imply, and for good reason, that at the earliest point of time, all material seized in an action under this Act must be deposited with the Officer in charge of a local Police Station because he is an authority of sufficient rank and he is also invested with the requisite facilities and the records to ensure that all the material is kept in safe custody and that there is no scope of its being lost or tampered with. This provision is a reasonable and necessary one in so far as since the consequences of a prosecution under this Act are serious, it is equally incumbent that safeguards be taken to ensure that there is no scope for any accident or for that matter negligence or even tampering. It does not however mean that where a specialised authority conducts a raid such as the Narcotics Control Bureau or for that matter the Customs, Central Excise etc. that they would be precluded from retaining the contraband in safe custody at their own headquarters. In the present case, the prosecuting authority was not the Byculla Police Station by the Narcotics Control Bureau which was of necessity entrusted with the task of completing the investigation and thereafter assisting at the time of the trial. For this purpose, therefore, it was only essential that all material that was concerned in this case be retained within the custody of their officers and they have acted very rightly in sending the material without any delay to the Headquarters and we are satisfied from the Muddemal Register produced that it was in fact deposited in safe custody at the Head quarters.
16. The short question that arises is, as to whether Mr. Barday's contention that P.I. Ghuge ought not to have retained the sample in this possession is sufficient to either cast doubt or for that matter to vitiate the present prosecution. For this purpose, we have taken note of certain special factors in this case, the first of them being the fact that P.I. Ghuge, is an Inspector of Police and Officer of sufficient Seniority and rank. In his capacity as Inspector of Police, even under section 56 (Sic Section 55 Ed.) he would be a designated authority to whom the contraband would have been handed in normal course. It is not as though the defence has been able to establish in cross-examination that even during the short period of time of one and half days when the samples remained in his custody that he acted irresponsibly or for that matter that he tampered with it or allowed anything of that sort to happen. There is not even a suggestion along these lines. More importantly, we have been impressed by the caliber of the evidence of P.I. Ghuge who has given a very valid and correct reasons for his having retained the samples namely that the headquarters where the remaining material was deposited was in an entirely different part of the town and that it involves an elaborate procedure for the deposit of material in the safe custody and an equally elaborate procedure for taking out the material from safe custody. Where the samples were to be forwarded to the Chemical Analyser and where P.I. Ghuge has in fact done so without the loss of any unreasonable time namely within virtually one day, we see no fault whatsoever that can be attributed to the prosecuting authorities. On the state of this record, therefore, it would be totally impermissible to hold that the retention of the sample by P.I. Ghuge from the evening of 6th January, 1991 when he returned to the Police Station to 8th January, 1991 when he dispatched it to the Chemical Analyser constitutes a breach of provisions of Section 56 (Sic Section 55-Ed.) which in any case has been held to be directory.
17. We need to observe in passing that Mr. Barday has put forward a general challenge to the non-observance of certain requirements that are prescribed under the provisions of this Act which we shall deal with subsequently at the stage of considering the various authorities. One of the breaches, complained of was a breach of Section 56 (Sic Section 55-Ed.) and we have given our views and findings with regard to that aspect of the matter.
18. Mr. Barday has thereafter pointed out to us that the Investigation Officer, S.I. Savant as also P.W. 4 P.I. Singh and P.W. 6 P.I. Ghuge have admitted that when they originally received the information through P.C. Thakare that they did not make any written record of this. It is their case that they conveyed the information to their superior officers including the D.C.P. Sur who is the Head of the Department, but they admit that they have not made any written record. Mr. Barday has submitted that the provisions of Sections 42 and 43 of Act, the emphasis being on Section 42, requires that the officer must record the information in writing. Mr. Barday relies on the admission made by P.I. Ghuge that some amount of time had lapsed between the receipt of information, arrival of the panchas and the departure of the raiding party and that therefore, there was sufficient time for such recording to have been done. We do fine from the evidence of P.W. 5 S.I. Savant that on his return to the Police Station, he has made the necessary entries in the information book, Station diary etc. but admittedly no written record was made prior to their departure. Mr. Barday submits that this is of crucial importance because it would indicate the nature of the information that was received and the all important question as to whether at all the version put forward by the prosecution is the correct one or whether the Police Officers took off on a raid that they finally picked up the two accused and they have foisted the liability on them. According to Mr. Barday, therefore, the recording of the information would provide the all important key to the correctness or otherwise as also the aspect of the reliability of the prosecution version.
19. As perusal of the provisions of Section 42 will indicate that it is a misnomer to contend that it is compulsory on the part of the Police Officer receiving the information to take it down in writing. There is undoubtedly a passing reference in the Section to a situation in which a Police Officer who has received information and has taken it down in writing should act. The learned A.P.P. has however pointed out to us that this section applies to a situation relating to searches of buildings and situation where search warrants would normally have to be applied for and therefore that a requisite record has to be maintained for such action. He points out to us, and perhaps rightly, that Section 42 would not apply to cases where the raid is confined to a public place and does not involve a search of a building or dwelling house. Quite apart from this, we need to observe that neither Section 42 nor 43 makes it either compulsory or incumbent for the authority who receives the information to make a written record of it. In the majority of cases, the information may be received while the authority concerned is on patrol or out on a raid. In several other cases where the information is in fact conveyed at the Police Station as in the present one there may be limitations of time. We do concede that it would be desirable if the note of the same is made, but there is no compulsion whatsoever cast by law on such written noting. In our considered view, therefore, the submission canvassed on behalf of the appellant that the absence of the written record of the information conveyed to P.C. Thakare in the present case would vitiate the present prosecution is unfounded. Quite apart from the fact that there is no such obligation cast on the prosecuting authorities, before the defence can contend that a prosecution is vitiated it will have to be indicated that the breach that is complained of is so gross or so manifest and so fundamental that it virtually shatters the very foundation of the prosecution case. It is impossible in our considered view to expect, given the handicaps under which the Department works and several other attendant factors including the lack of facilities, the time factors etc. for computer like precision and 100% accuracy to be forthcoming in each and every case. We do recommend that an effort be made in this direction but if there are lapses which are of no consequences these would not be sufficient to vitiate an otherwise satisfactory investigation prosecution.
20. Mr. Barday has thereafter pointed out to us that there is a direct contradiction in the record of this case between the evidence of the P.C. Thakare and that of P.I. Ghuge, on the point whether the accused was afforded an opportunity of being searched in the presence of a Gazetted Officer or a Magistrate. Mr. Barday alleges that there is a total breach of the provisions of Section 50 of the N.D.P.S. Act. Dealing first with the evidence, we need to point out that P.C. Thakare does not refer to this aspect at all in his evidence. It is not as though the defence has brought on record through him that the accused was never informed about his right to be searched before a Gazetted Officer or a Magistrate. On the contrary. P.I. Ghuge is quite categorical in his evidence about the fact that he was aware of this provision and that he informed the accused that he had a right to be searched in the presence of a Gazetted Officer and that he himself was such a Gazetted Officer. According to him, the accused did not ask to be taken before any other authority. To our mind, this controversy on facts is totally inconsequential because a careful consideration of the provisions of Section 50 of the N.D.P.S. Act will indicate that a broad and definite line will have to be drawn between the cases where the contraband is recovered from spots other than on the person of the accused and cases where the contraband is alleged to have been concealed on the person. The present case falls in the former category where admittedly the accused was holding a polythene bag in his hand and it was from that bag that the contraband was recovered. Nothing was recovered from his person on the basis of which he is sought to be implicated. The applicability of Section 50 therefore would not arise in the present case in so far as Section 50 is in law and in spirit confined to that category of cases where the authorities are required to carry out a body search. In the present case the record clearly indicates that even the search referred to by the Police Officer was only a cursory search of the outer garments from which the sum of Rs. 2500/- was taken of charge from the Trouser pocket. Under these circumstances, to our mind the controversy is really academic but since the point has been argued and since the issue is one of some importance, as it is canvassed in almost every proceeding under the N.D.P.S. Act we feel it incumbent that the law on the point be clarified and clearly stated.
21. Further more, we need to observe that Mr. Barday, contended that the term Gazetted Officer must be read in relation to the term Magistrate as appears in Section 50 and that the Court must construe the Section as meaning some sufficiently senior authority of this rank other than the members of the raiding party. Mr. Barday submitted that it would be totally worthless if the prosecution were to be allowed to contend and to get away with a situation whereby a member of raiding party himself is a Gazetted Officer, and since he is interested in the success of the prosecution, for him to contend that Section 50 of the N.D.P.S. Act was complied with in so far as the search was conducted in his presence. In this regard we are unable to accept the contention canvassed by the learned Counsel for the reason that it is undoubtedly open in a given case where the law so requires, for the prosecuting authorities to take the accused before the Gazetted Officer or a Magistrate for the purpose of carrying out the search. It is obvious that the consequences of contraband being found on the body of the accused person are extremely grave because the nexus is extremely close and a conviction would possibly result almost as a matter of course in the light of such evidence, apart from which it is also an invasion on the privacy of the individual which is why the Legislature has provided that such an activity should be carried out with a sense of responsibility and in order to ensure that it is so done that it must be done in the presence of an Officer of sufficient rank. Consequently where an Officer of sufficient rank namely a Gazetted Officer is present, there can be no presumption, as the defence seeks to contend in this case, that the Officer is hell bent upon to see that the accused is convicted and that he will therefore support the prosecution even in the face of a false record. A degree of trust has to be imposed at some level and at some stages and we are fortified in recording that as far as this position in law is concerned, that Section 114 of the Evidence Act very clearly provides that the Court shall presume that official acts that have been carried out are acts that have been carried out legally and properly and that they are in order unless the contrary is established. The onus would, therefore, lie on the prosecution to establish that the officer is motivated that he lacks credibility or for that matter his evidence ought not be accepted. We are unable to accept the criticism of Mr. Barday that even if a Gazetted Officer who is a member of the raiding party is a gazetted officer that he belongs to the establishment, his interest in the prosecution is something that would taint the evidence for the simple reason that this criticism could equally apply to any other officer or for that matter to a Magistrate and it would be carrying the argument to absurd limits.
22. In support of his submissions, Mr. Barday has drawn our attention to a few of the decisions which are referred to from time to time, which we need to deal with in passing. With regard to the basic submission that the breach of any of the provisions of the Act would vitiate the prosecution, Mr. Barday has relied on a Division Bench decision of this Court reported in 1991 Cri LJ 232 in the case of Usman Haidarkhan Shaikh v. The State of Maharashtra. It is true that in that case the Division Bench did set aside the conviction under the N.D.P.S. Act in the course of which certain observations were made with regard to the provisions of Section 42 as also Section 57 which requires that a report be submitted to the higher authorities. A breach of the provisions of Section 50 of the Act was also alleged in that case. We have carefully considered the observations made by the learned Judge, but we find that those observations were strictly confined to the facts of that particular case. Mr. Barday draws a similarity between that proceeding and the present one because the learned Judges in that case had observed that were the evidence of the panchas was of no consequence as in the present case that the Court would be required to fall back on the evidence of the Police Officers alone. What needs to be really noted is that the relevant provisions of the law which we have referred to were not pointed out to the learned Judges in detail and in the manner in which it has been done in the course of the hearing before us. Furthermore the learned Judges themselves had set aside the conviction essentially because the calibre of the evidence before the Court in that case was not sufficiently good enough to sustain the conviction. The decision is clearly distinguishable both on facts and in law. The learned Judges had taken special cognizance of the fact that there was a breach at every stage virtually and in these circumstances had observed that it would be impossible to sustain the conviction in question. That however is not the position as far as the present record is concerned.
23. Mr. Barday, has thereafter drawn our attention to another Division Bench decision of this Court reported in 1992 Cri LJ 3034 in the case of Shanker Raju Bangloker v. State of Goa. In this case the Court had occasion to observe that the provisions of Sections 52(1), 52(3) and 55 had not been complied with. Mr. Barday submits that this decision very clearly indicates that the non-compliance of the requisite provisions of the Act would vitiate a prosecution. We are unable to accept this submission because a careful reading of the judgment in question indicates to us that inconsistencies in the evidence of the prosecution on vital aspects was that really resulted in the failure of the prosecution, in that proceeding. The decision once again was confined to the facts of that case and therefore would not be an authority for the proposition that some breaches or any breach of the provisions of the Act would be good enough to vitiate the prosecution under the N.D.P.S. Act.
24. Mr. Barday has thereafter placed reliance another Division Bench decision of this Court in the case of Mainuddin Kasin Mulla v. The State of Maharashtra wherein there is a reference to a breach of Sections 41(2) and 42(1) of the Act. The facts of that case clearly indicated that the information concerned the storage of the contraband in a near-by building which was why the provisions of Section 42 were invoked and the question of taking down the information in writing came to be canvassed. On the facts itself, the decision in question is distinguishable quite apart from the aspect that the Court had taken note of two very important facts the first of them being that the evidence disclosed various flaws in the prosecution case and the second one being that one of the accused was in Police custody in another proceeding at the time when he is alleged to have committed this offence. In that face of such material, the conviction came to be set aside and in our considered view the ratio laid down in that proceeding would not have any bearing on the present case.
25. Mr. Barday again placed reliance on the Division Bench decision of this Court in the case of Shankar Raju Banglorkar v. State of Goa, which is a decision of the Panaji Bench. In that proceeding one of the submissions canvassed was that the possession of charas was from the house of the accused that there were material contradictions between the oral evidence and the panchanamas and certain breaches had been alleged namely that the copy of the panchanama was not given to the accused. The Division Bench had occasion to observe in that matter that even though the provisions of Sections 52 and 55 are directory that an omission on the part of the investigators to comply with these provisions ought to be explained if the benefit of such omission is to be denied to the accused. We are wholly in agreement with the proposition laid down by the Division Bench in so far as if for any reason there is valid justification for the non-observance of the provisions of Sections 42 to 56 of the Act, the prosecution must be fair and honest with the Court and come forward with those reasons at the time of the trial. In the instant case the Division Bench did set aside the conviction principally because there were contradictions on very material points between the oral evidence and the panchanama. The panchanama being a piece of documentary evidence and virtually the foundation of the prosecution, if it is contradicted by the oral evidence, inevitably, the prosecution must fail. That is not the position in the proceeding before us and the case is therefore distinguishable on facts. Lastly Mr. Barday, relied on a Division Bench decision of the Nagpur Bench of this Court, reported in (1992) 3 CCR 2460 in the case of Najukrao Ramchandra Kale v. The State of Maharashtra. In that case the conviction was based on the sole testimony of a Head Constable and certain provisions of the Act had not been complied with. The prosecution had for some strange reasons relied on the solitary testimony of a Head Constable. The record indicated that there was a consistent breach of several provisions of the Act and the Division Bench observed that it would be unsafe to sustain the conviction in these circumstances. What needs to be noted is that the basic evidence on the strength of which the prosecution sought to sustain the conviction was itself weak and not of sufficient credibility and it was in the light of this situation that the Division Bench also took cognizance of the fact that non-compliance of the requisite provisions would be fatal to the prosecution.
26. The learned A.P.P. has drawn our attention to a Division Bench decision of this Court reported in 1990 Cri LJ 1034, in the case of Wilfred Joseph Dawood Lema v. State of Maharashtra. The learned Judges in this case were divided with regard to the question as to whether the provisions of Sections 41 to 56 breached, would be fatal to prosecution. Consequently, the matter was referred to a third Judge and Kurdukar, J. concurred with the view originally expressed by Kantharia, J. in the decision referred to supra, and in substance held that the provisions of Section 42 to 56 of the N.D.P.S. Act are directory and not mandatory. Consequently a technical argument would no longer be available to the defence that if any of these provisions are breached ipso facto the prosecution is vitiated.
27. In this context we need to observe that the provisions of Sections 42 to 56 of the Act essentially prescribe a procedure that is required to be followed. Several High Courts have in terms held that these provisions have been put on the statute book for good reason and that the authorities are obliged to company with them. There can be no dispute about this position in law that the provisions in question are required to be observed but they are essentially rules of procedure. While dealing with the procedural aspects a Court needs to make a broad distinction between a breach that may be inconsequential and a breach that would be fatal. It is for this reasons, on an analogy we make a reference to Sections 460 and 461 of the Cr.P.C. wherein again a distinction has been drawn between those of the breaches of the provisions which would render proceedings irregular and those which are serious enough to vitiate the prosecution. In a given case it may be true that if it is demonstrated that there has been wholesale and wanton disregard for the provisions of law that the prosecution may fail. But what we need to point out with some emphasis is the fact that if there are a few omissions or some breaches that can either be explained or that are not of a serious consequence in the sense that they do not otherwise nullify the effect of credible cogent evidence which can on its own sustain the prosecution that such breaches cannot and would not be treated as fatal or good enough to vitiate the proceeding. In this regard we need to draw attention Bench decision of the Nagpur Bench of this Court in the case of Hemant Vyankatesh Agwan v. The State of Maharashtra, wherein Deshpande, J. as he then was, on behalf of the Bench, had occasion to analyse these very provisions and to hold in terms that they were directory and not mandatory. A Division Bench of this Court at Panaji in the case of Shakal Abdul Gaffor v. Union of India, reported in 1991 (1) Bom CR 270 had occasion to consider in some depth the requirements of Section 50 of the Act. The learned Judges had observed in that decision that where a Gazetted Officer accompanies the raiding party, that a search conducted in the presence of such a Gazetted Officer would constitute due compliance with the provisions of Section 50. We need to observe that the Courts are required to take a very clear and practical view of the situation in which the prosecuting authorities are placed particularly when raids are conducted. These raids may be conducted in remote places, in public places, often times on crowded streets and at different hours of the day and night. One cannot expect the impossible from the prosecuting authorities and these circumstances, where the spirit of Section 50 is complied with, it would not be open to the defence to contend that there is a breach on the strength of mere technicalities. We have had occasion to observe earlier that the spirit of Section 50 is that a search must be carried out in the presence of a responsible officer namely one of sufficient rank. Where, as in the present case, a raiding party consists of such an Officer, to our mind the view expounded by the Division Bench in the decision referred to supra is the correct one and would constitute due compliance with the provisions of Section 50.
28. We had occasion in the earlier part of this judgment to observe that this Court cannot close its eyes or continue to be a mere spectator in a situation where in case after case the panchas are either tampered with, disappear or turn hostile. In such a situation, to our mind, unless stringent action is taken, the position would go from bad to worse. The Legislature has made specific provisions for rigorous punishment in order to curb the social menace of drug possession and drug trafficking and it is the equal duty of the Courts to enforce with a very strong hand the provisions of law. Under these circumstances, it would be very essential that in those of the cases where panchas are found to retract from their statements and if they are bold enough to give false evidence on oath, show cause notice be served forthwith on them to show cause as to why they should not be prosecuted for perjury. In the present case, PWs 2 and 4 have been bold enough to come forward and give false evidence on oath. If they have been influenced or if they have done so in order to oblige the defence, they will have to face the consequences of the same. We, therefore, direct that the Trial Courts shall in all such cases hereinafter where the material so warrants take appropriate action according to law including a prosecution for perjury against persons indulging in conduct of this type. There can be little doubt that wherever this happens it is at the instance of the accused, and the action shall therefore include the accused and such other persons who may come to the notice of the Court for having indulged in or abetted such a corrupt practice.
29. Mr. Barday in conclusion, made a forceful plea about the heavy sentence that has been awarded to the accused. He advanced the usual argument to the effect that the accused is a young man with no antecedents and that the sentence is so harsh that the greater part of his productive life would be spent behind bars while it is obvious that he was only an intermediary in the movement of 1 Kg. of heroin. We are unmoved by the pleas for leniency canvassed in this and other identical cases under the N.D.P.S. Act for we need to record that this is a class of offences where there is no question of showing even an iota of sympathy. Traffickers in drugs have aptly been described as 'merchants of death and destruction' and it only needs to be questioned as to how many young lives and how many families can be ruined with just 1 Kg. of this poison. It is undoubtedly a very lucrative business and those who decide to short-circuit their way to riches oblivious of the destruction to humanity by their activity, cannot be heard in the matter of mercy. The law has prescribed a minimum sentence of ten years' rigorous imprisonment and a fine of Rs. 1 lakh but the legislature itself was conscious of the fact that the very nature of these offences would often deserve much heavier punishments. Since the trading has its genesis in economic gain, it is in the matter of fines that the Courts will have to be for more practical, not to mention much heavier jail sentences where the facts so justify. The Trial Courts ought not to be shy in the matter of imposing fines that are so heavy as to make drug peddling and drug smuggling wholly uneconomical.
30. Section 22 of the Act empowers the Trial Court to impose a sentence of up to 20 years rigorous imprisonment and a fine which may extend to Rs. 2 lakhs but which could be for higher in cases where the facts so justify. We have come across instances where anything from 5 to 50 kgs. of contraband is involved, the market value of which extends from 5 to 50 lakhs and we do not see the justification behind the Trial Court not imposing a fine that is at least double the market value. This is a piece of legislation which is required to be implemented with an exceptional degree of firmness that will send out the message loud and clear that the business of drug trafficking on any scale will not pay. The effectiveness with which the law has been applied in South-East Asia is something that our Courts must take cognizance of. The organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances in India due to its geographic location between the 'golden triangle' and 'golden crescent' have led to drug addiction among sizable sections of society and drug trafficking has been on the increase. These are danger signals and the law that has been enacted to check the epidemic must be made to have its desired effect.
31. On an over all consideration of the material before us and on a careful appraisal of the submissions canvassed by the learned counsel both on points of fact and of law, in our considered judgment, the conviction as also the sentence awarded to the present appellant deserve to be upheld. We see no reason to interfere with the findings and conclusions recorded by the learned Special Judge. The appeal accordingly fails and stands dismissed.
32. Appeal dismissed.