Bombay High Court
Mohd. Hussain Babamiyan Ramzan vs State Of Maharashtra on 1 December, 1993
Equivalent citations: 1994CRILJ1020
JUDGMENT Shah, J.
1. These two appeals are filed by the original accused Nos. 1 and 2 against their conviction of the offence punishable under S. 21 read with 8(c) and the sentence of rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- each, in default further rigorous imprisonment for six months each.
2. Briefly stated, facts giving rise to the present appeals are as under :
Constable Bhosale (P.W. 1), S.I. Singh (P.W. 3) and P.I. Ghuge (P.W. 4), at the relevant time, were attached to the M.I.D.C. Unit at Andheri of Narcotic Cell of C.B., C.I.D. Prosecution alleged that on 31-7-1990, while constable Bhosale (P.W. 1), was present in the Unit office at about 10.30 a.m. he received information from an informant that one person was doing business of brown-sugar in a rickshaw at the eastern side of the B.E.S.T. Bus Depot, Bandra (West), Bombay. He immediately conveyed the said information to S.I. Singh (P.W. 3), who, in turn, conveyed the said information to P.I. Ghuge (P.W. 4). S.I. Singh reduced the said information to writing. P.I. Ghuge (P.W. 4), after learning from S.I. Singh, informed D.C.P. Sur on telephone about the said information and on being instructed by the D.C.P., P.I. Ghuge directed Bhosale (P.W. 1), the constable, to bring panch witnesses. The panch witnesses were explained the facts and they consented to act as Panch witnesses. Thereafter, initial panchanama was drawn in the officer and then the raiding party, consisting of Police Constable Bhosale (P.W. 1), S.I. Singh (P.W. 3), P.I. Ghuge (P.W. 4), two constables and the two drivers of the vehicles through which they went. They then proceeded and parked their vehicles opposite Bandra Railway Station and then they went towards the spot of incident. They noticed on rickshaw, which was parked in front of Hassan General Store. They noticed that some persons were going to the rickshaw and taking something from the person sitting in the rickshaw and thereafter they were going away. Immediately, the raiding party rushed towards the rickshaw. The accused No. 1, on noticing the raiding party, is alleged to have tried to run away but he was nabbed by S.I. Salaskar at a short distance. Thereafter, the search of the rickshaw was taken and in that search a plastic carry bag containing powder, which ultimately was found to be brown sugar, was found. The said powder was weighed and it was found that it was about 80 grams. They also recovered other articles from the rickshaw, like a small weighing scale, weights of different denominations, a bunch of small empty polythene bags, a spoon and a scissor. All these articles were seized under panchanama after drawing samples. The bulk packet was marked as 'A', the two samples packets containing 5 grams of powder each, were marked as 'A1' and 'A2'. They are the article Nos. 2 and 3 before the Court. The other articles were packed in a packet which was marked as 'A3' (Article 5). All these articles were seized on the spot and were pasted with labels bearing signatures of the panch witnesses. Thereafter, the person of the accused No. 1, who was nabbed, was searched. Cash of Rs. 1,234/- (Article 4) were seized from him. The rickshaw and the papers of registration of the rickshaw, which were found lying in the rickshaw, were also seized by the police. A detailed panchanama of all that had happened was drawn on the spot.
3. It is also alleged by the prosecution that on interrogation of the accused No. 1 police learnt that Pandit Hiralal Sharma was to come to Khardanda at 3.00 p.m. and it is he who had supplied the brown-sugar to the accused No. 1. Therefore, the raiding party decided to go to Khardanda, but before that they went to the house of the accused No. 1 and searched his house but nothing incriminating was recovered.
4. Subsequently, the raiding party, with the accused No. 1, went to Khardanda and the accused No. 1 is alleged to have pointed out the accused No. 2 who was coming on a scooter. The police apprehended the accused No. 2 and searched his person. In the said search, from the left hand shirt packet, four packets containing powder like substance, were found in the said four packets. On examination it was found that the said four packets were containing brown powder. Each packet contained 5 grams of brown-sugar. The four packets, after taking out the samples, were marked as 'B' and the sample packets were marked as 'B1' and 'B2'. Search of the scooter was taken but except the registration documents of the scooter nothing else was found. The said papers were also seized by the police. Thereafter, the house of the accused No. 2 was also searched but nothing incriminating was found.
5. The raiding party thereafter took the two accused and the seized property to their Unit office at Andheri. Constable Bhosale (P.W. 1) lodged the complaint which was recorded by S.I. Singh and on the basis of the said complaint an offence under C.R. No. 37 of 1990 came to be registered. Both the accused were arrested. The Muddemal property which was seized was handed over to P.I. Ghuge. Thereafter, as per directions of P.I. Ghuge, S.I. Singh carried the entire Muddemal property, except the sample packets 'A1' and 'B1' to the head office and deposited the same thereafter making entry in Muddemal register. However, the prosecution claims that the sample packets 'A1' and 'B1' were kept by P.I. Ghuge in his safe custody. P.I. Ghuge is alleged to have handed over the two samples on 3-8-1990 to S.I. Singh who, in turn, handed them over to constable Thakaray (P.W. 2) for being carried to Chemical Analyser along with a forwarding letter duly signed by P.I. Ghuge with a specimen seal affixed on it. Constable Thakaray (P.W. 2) is alleged to have carried the said two packets 'A1' and 'B2' to Chemical Analyser and delivered them at the Chemical Analyser's office and obtained necessary acknowledgment on the copy of the forwarding letter. Later on, Chemical Analyser's report was received and the same indicated that both the samples contained heroin (diacetyl morphine) along with other alkaloids and, therefore, were covered under S. 2(xiv) of Narcotic Drugs and Psychotropic Substances Act, 1985 and on completion of investigation P.I. Ghuge filed charge-sheet against the two accused in the Special Court of Narcotic cases for Greater Bombay on 30-10-1990. On the strength of evidence led before the learned Special Judge, he found that the prosecution had established that accused Nos. 1 and 2 were found in possession of brown-sugar in contravention of the provisions of the N.D.P.S. Act and, therefore, convicted both the accused of the offence punishable under S. 21 read with S. 8(c) of the N.D.P.S. Act and sentenced them as stated above. Being aggrieved by the said order of conviction and sentence, both the accused have come in appeal before us.
6. On behalf of the accused No. 1 it is tried to be contended by Shri Tewari that the entire prosecution case is not free from doubt. He tried to contend that the prosecution has not led evidence of independent panch witnesses and has relied upon only on the evidence of Police Constable Bhosale (P.W. 1), S.I. Singh (P.W. 3) and P.I. Ghuge (P.W. 4) in respect of the actual raid and, therefore, in the absence of any independent evidence, the evidence of these police witnesses, if does not inspire confidence, the prosecution must be considered to have failed to prove the case in respect of the actual incident itself. To substantiate this contention Mr. Tewari pointed out that there is discrepancy in the evidence of Police Constable Bhosale (P.W. 1) and S.I. Singh (P.W. 3) in respect of the fact as to whether the informant actually went with the raiding party from the Unit Office after giving the information to Police Constable Bhosale when the raiding party started for the raid. According to Police Constable Bhosale (P.W. 1) the informant had accompanied them, while according to S.I. Singh (P.W. 3) the informant had gone away from the Unit office and had not accompanied the raiding party. The learned Special Judge has considered the said discrepancy and come to a conclusion that the said discrepancy is not material as ultimately both the witnesses have stated that when the raiding party reached the spot near the rickshaw from which the contraband articles were seized and the accused No. 1 was apprehended, the informant had pointed out the rickshaw. The learned Special Judge, No doubt, has accepted that there is discrepancy in the evidence of the police witnesses relied upon by the prosecution. There are some other discrepancies also which are pointed out which were also relied upon before the trial Judge. The learned Special Judge, however, on consideration felt that the said discrepancies were not material discrepancies and, therefore, did not affect the value of the evidence of the police witnesses relied upon by the prosecution. Though, it does appear that the evidence of police witnesses relied upon by the prosecution does contain some discrepancies, it cannot be said that the view taken by the learned Special Judge that the said discrepancies are not material and would not affect the value of the said witnesses, does not appear to be untenable completely and, therefore, we do not propose to consider those discrepancies in detail. We feel that the view taken by the learned Special Judge, in this respect, is not such that we should interfere with the same.
7. However, it is pointed out that in the present case, though two panch witnesses were taken for the raid and the panchanama was also drawn, none of the panch witnesses are examined. The prosecution has tried to explain non-examination of the panch witnesses on the ground that one of the panch witnesses is dead and, therefore, could not be examined at the trial and the second panch witness was not traceable at the address given by him, at the time of the trial, and, therefore, could not be examined. The learned Special Judge came to the conclusion that mere non-examination of the two panch witnesses, who normally are considered as independent witnesses, would not be sufficient to discard the evidence of the police witnesses, if their evidence is otherwise found trustworthy. The learned Special Judge has relied upon the observations made by this Court in "Dilip Pandurang Kolekar v. The state of Maharashtra" reported in (1992) 2 CCR 1322 (DB) : Now, it is true that, in the said case, the panch witnesses were examined, and they had turned hostile and did not support the prosecution case and this Court observed that merely because the panch witnesses had turned hostile the accused would not be entitled to an acquittal only on that ground if there was sufficient trustworthy evidence of the police witnesses. On behalf of the appellants it is tried to the contended before us that there is no quarrel with the said proposition but, in the present case, at least one panch witness was available and merely because evidence is brought on record to show that the panch witness, who is still alive, could not be traced, it would not be possible to conclude that he was not traceable. As a matter of fact, it was tried to be urged before us that the said witness, who is alleged to be untraceable for the purposes of this case, was actually examined by the prosecution in another case on the very day on which the judgment of this case was announced. However, unfortunately for the defence, there is no material on record to substantiate this contention. May be, at the relevant time, the defence was not aware of the fact that the said witness was being examined in another case of the same Unit, in a different Court on the day judgment in this case was announced. But, in the absence of any material on record, it would not be possible for us to consider that the said witness was available to the prosecution for the purpose of this case and still he was not examined.
8. However, the matter does not rest there. On behalf of the appellants it is contended that, according to S.I. Singh (P.W. 3) he had made enquiry with the panch witnesses, when they were called, to whether they had acted as panch witnesses previously and they had informed him that they had never acted as panch witnesses. But, unfortunately for the prosecution, S.I. Singh in his cross-examination, in para 32, has in clear terms, admitted that he is attached to the M.I.D.C. Unit since 1-6-1990 and it was correct that on 10-6-1990 when the two panchas were called in the case against Anthony Fernandis and others he was present and it was also correct that he was present at the time the panchanama which was drawn on 6-6-1990 in the case against Ikbal Niyamatkhan and others in C.R. No. 32/1990 and that at the time of that panchanama, the second Panch Uttam Devare (in the present case) had acted as panch. He also admitted that the offence registered at C.R. No. 21/90 was registered on 20-4-1990 against Abdul Aziz and others and in that case also Uttam Devare has acted as a Panch and the said case was investigated by the M.I.D.C. Unit. This evidence clearly makes out that on 6-6-1990 when a panchanama was drawn, the said witness S.I. Singh was attached to M.I.D.C. Unit and he was also present when the panchas were called and that Uttam Devare, who is the witness in the present case, and who is shown as untraceable, had acted as a panch. Therefore, when he claims, in his deposition earlier that he had inquired with the panch witnesses as to whether they had acted as panch witnesses previously and they had declined, he ought to have known at least in respect of the panch witness Uttam Devare that he had acted as a panch witness earlier. The said panch witness has clearly acted as a panch witness three times with the same M.I.D.C. Unit as per the admission of S.I. Singh and, therefore, the said panch witness cannot be considered as an independent witness and must be considered as a pliable witness in the hands of the said police officers. If S.I. Singh knowing the said fact has used the said witness as a panch in this case also, it would definitely reflect on the entire investigation as such. The other panch witness, who is dead, also admittedly has acted as a panch witness earlier at-least once in the case of the same M.I.D.C. Unit. Therefore, it is clear that while taking the two panch witnesses the said S.I. Singh was aware that they were the witnesses who were used earlier by the same M.I.D.C. Unit as panch witnesses and inspite of that if the said two panch witnesses were taken it wound not lie in the mouth of the prosecution to contend that S.I. Singh did not know that the said panch witnesses were taken as panch witnesses previously also. In view of this if the said panch witnesses, even if they were available for examination, their evidence would be required to be discarded on the ground that they were pliable witnesses. Therefore, it does not mean, now, that prosecution can contend that as the two panch witnesses were not available, the evidence of the police witnesses should be accepted, if on security the same is found to be trustworthy. Normally, it is excepted that the investigating officer will take independent panch witnesses and if knowingly he has taken pliable witnesses as panch witnesses the entire raid would become suspect and in such a case it would not be possible to hold that the evidence of police witnesses by themselves would be sufficient to base a conviction. Therefore, really speaking, on this ground itself the conviction cannot be sustained.
9. Apart from this, it is pointed out that, there is no satisfactory evidence also in respect of samples 'A1' and 'B1' being sent to Chemical Analyser. The argument is that, according to the prosecution, the entire Muddemal consisting of the bulk powders which were seized and the other articles, except the sample marked 'A1' and 'B1', were deposited with the head office of M.I.D.C. The contention is that sample 'A1' and 'B1' remained with S.I. Singh and he had handed over the same to P.I. Ghuge for safe custody as normally the samples are not deposited with the head office of M.I.D.C. The head office is situated at Picket Road in Bombay city. The Muddemal register entry No. 56, however, shows that sample packets marked 'A1' and 'B1' also were deposited with the head office. Evidence is led to show that normally the entry in respect of such samples also is made in the Muddemal Register maintained by the head office but opposite to the sample packets normally it is stated "C.A." meaning thereby that the said sample are directly sent to Chemical Analyser and not actually deposited with the Muddemal. It is difficult to understand as to how such entries could be made which are factually incorrect. If a Muddemal is deposited with the head office then normally it should be clearly mentioned that it is deposited and if it is given back for being sent to Chemical Analyser there would be something stated in that respect opposite the said articles which were returned for being sent to Chemical Analyser. In the present case, admittedly, even the letters "C.A." are not mentioned in the Muddemal Register against the samples marked 'A1' and 'B1'. S.I. Singh has tried to come out with an explanation that he inadvertently appears to have not written the said letters. It is difficult to accept this evidence of S.I. Singh. He claims, thereafter, that the said samples were given by him to P.I. Ghuge and they remained with P.I. Ghuge for safe custody in the M.I.D.C. unit office. Admittedly, there is no register maintained in the Unit Office in respect of Muddemal. The said sample were seized on 31-7-1990. The Muddemal is sent to head office on 31-7-1990 itself. S.I. Singh claims to have give the said samples 'A1' and 'B1' to P.I. Ghuge on 31-7-1990 itself and, thereafter, the said samples have been sent through a constable to Chemical Analyser on 3-8-1990 with a forwarding letter. Therefore, it is atleast clear that from 31-7-1990 till 3-8-1990, i.e. till they reached Chemical Analyser's office, they remained with P. I Ghuge, without being noted down anywhere in the office of M.I.D.C. Unit. The forwarding letter bears a specimen seal which is to be compared by the Chemical Analyser when the receives the articles which are forwarded with the forwarding letter. Admittedly, the specimen seal on the forwarding letter, which is produced before the Court, is not readable and, therefore, one does not know as to how the said specimen seal could be compared with the seal on the sample packets which were received in the office of Chemical Analyser. No doubt, there is a statement in the Chemical Analyser's report that the speciman seal was compared with the seals on the samples which were received. But, in the face of evidence which is on record that the speciman seal on the forwarding letter is unreadable makes it difficult to understand this remark in the Chemical Analyser's report. At any rate, it is clear that the samples remained with P.I. Ghuge, even according to his own evidence, between the period of 31-7-1990 to 3-8-1990 without being noted down anywhere in the records that they were with him. Even the record of the head office does not show that they were with P.I. Ghuge. Under these circumstances, it is difficult to explain as to how the said samples remained with P.I. Ghuge and for what purpose. On behalf of the defence it was tried to be contended at least possibility of tampering with the said samples during this period of three days, in which the samples remained with P.I. Ghuge, without being noted down in the records, is not excluded. There is some force in this contention. We, by no chance, want to say that P.I. Ghuge had tampered with the said samples, but possibility of the said samples being tampered with in this period is not excluded by the prosecution by leading satisfactory evidence and that by itself is sufficient to discard the certificate of the Chemical Analyser certifying that the said samples which were examined by him contained heroin. The prosecution, therefore, has failed to establish, by good and reliable evidence, that the samples which were taken out from the material which was seized from the two accused contained heroin.
10. In the result, the trial Court was in error in holding that the prosecution has established the guilt of the accused of the offence punishable under S. 21 read with 8(c) of the N.D.P.S. Act. The conviction of the two accused, therefore, of the said offence, will have to be set aside and consequently the sentence awarded to them also will have to be set aside.
11. The appeals are, therefore, allowed. The impugned order of conviction of the two accused i.e. the present appellants, of the offence punishable under S. 21 read with 8(c) of N.D.P.S. Act and the sentences awarded thereunder are set aside. They be set at liberty forthwith if not required in any other offence.
12. Appeals allowed.