Bombay High Court
Deepak Ghanshyam Naik vs State Of Maharashtra on 24 November, 1988
Equivalent citations: 1989(1)BOMCR574, (1989)1991BOMLR35, 1989MHLJ276
JUDGMENT H.H. Kantharia, J.
1. This is an appeal by the appellant-accused who was convicted by the learned Additional Sessions Judge, Thane, in Session Case No. 605 of 1986 under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of rupees one lakh, in default to suffer simple imprisonment for two years and six months, by his judgment and order dt. November 26, 1987.
2. The relevant facts giving rise to the appeal are as under :
On October 2, 1986, Police Constable Premanand Gopal Kalgutkar (P.W. 1) along with Police Head Constable Thakur and Police Constables Shimpi, Thosar and Karande of the Bazarpeth Police Station, Kalyan was on a patrolling duty. Near Valipeer Naka, they noticed the appellant behaving in a suspicious manner and, therefore, proceeded towards him when he tried to run away but was ultimately apprehended. Immediately thereafter, two panch witnesses, including Arun Madhav Zankar (P.W. 2), were called and his personal search was taken which revealed that there were four packets of gard in the left side pocket of his shirt. The said packets were put in a plastic box and were sealed, labelled and attached under a panchanama. The appellant along with the seized property was taken to Bazarpeth Police Station where Police Constable Kalgutkar filed a complaint (Exh. 9). Police Sub-Inspector Ashok Shankarrao Surveganth (P.W. 3) registered the crime and handed over further investigation to Police Head Constable Govind Sitaram Satardekar (P.W. 4) who upon completion of the investigation charge-sheeted the appellant in the court of the Judicial Magistrate, First Class, on October 13, 1986. During pendency of the proceedings, the seized property was sent to the Chemical Analyser, Bombay. The learned Magistrate committed the case to the Court of Session, Thane.
3. The learned Additional Sessions Judge, Thane, framed a charge as per Exh. 4 which clearly stated that on or about October 2, 1986 at about 1.15 p.m. at Valipeer Naka, opposite Swagat Lunch Hotel at Kalyan, Tal. Kalyan in Thane District, the appellant was found in found in possession of four packets of gard (heroin), in contravention of the Act and the rules and orders made thereunder. But, it was wrongly mentioned in the charge that the appellant committed offences punishable under S. 17 read with S. 22 of the Act. However, the charge was properly understood by the appellant who pleaded not guilty to it. His defence was that he was residing at Ambernath and came to Kalyan for work but as he missed the person with whom he was supposed to work he was passing by the road when he was apprehended in the chowk and taken to Police Station and that the entire prosecution case was false. He adduced no evidence in defence.
4. At the trial, the prosecution examined four witnesses and also relied upon documentary evidence. On appreciation of the evidence adduced before him, the learned Additional Sessions Judge came to the conclusion that the charge against the appellant was proved beyond reasonable doubt and convicted him under S. 17 of the Act (mention of S. 17 in the judgment appears to be incorrect which we shall point out later) and sentenced him as stated above.
5. Being aggrieved, the appellant filed the present appeal through jail. As the appellant was unrepresented, this Court appointed Mr. K. M. Sangani, Advocate, to assist the Court for and on behalf of the appellant under the legal aid scheme.
6. Now, the main ocular evidence in this case is that of Premanand Gopal Kalgutkar (P.W. 1) who deposed that on October 2, 1986, he was attached to Bazarpeth Police Station of Kalyan. He along with other Police Constables, including Police Head Constable Thakur, was patrolling at Valipeer Naka. At that time, they saw the appellant in suspicious circumstances in front of Swagat Lunch Hotel. On seeing them he tried to hide himself and was therefore apprehended. Two panchas were thereafter called and his personal search was taken which revealed that he was in possession of four packets of gard in the left side shirt pocket. All the four packets were then packed in a plastic box which was sealed, labelled and seized under a panchanama. The appellant and the said property were then taken to Bazarpeth Police Station where he lodged first information report (Exh. 9). A perusal of Exh. 9 shows that the averments made therein completely corroborates the oral testimony of this witness. Mr. Sangani, learned Advocate appearing on behalf of the appellant, criticized this evidence that although the witness deposed that before starting for the patrolling duty they had taken with them a plastic box and a seal and other materials but no such entry was made in the police station diary. We feel that even if no such entry was made at the police station, there is nothing on the record to discredit this testimony of the witness. Mr. Sangani also submitted that at the relevant time there was traffic on the road and therefore there was no reason for the patrolling party to have called panch witnesses from a place called Parnaka. There is no substance in this submission of Mr. Sangani because Parnaka is a place at a distance of about half a kilometre from the place of the incident and the police did nothing illegal in calling the panch witnesses from there, for no-one expects motorist to wait for a Panchanama. What is required under S. 100(4) of the Cri.P.C. 1973, while taking search of a person in such a situation, is to call upon two or more independent and respectable inhabitants of the locality in which the place or the person is to be searched and request them to see what transpires during search. We have carefully perused the entire cross-examination directed to this witness and we noticed that he has reiterated all that he stated in the examination-in-chief. He has not at all been shaken in the cross-examination. We find no material whatsoever to hold that the witness was in any way motivated to falsely involve the appellant. His evidence, therefore, is trustworthy and reliable and was rightly accepted by the learned trial Judge.
7. Panch witness Arun Madhav Zankar (P.W. 2) deposed that at about 1.00 p.m. on the day in question he was called by the police at Valipeer Naka where they had apprehended the appellant whose personal search resulted into recovery of four packets from the shirt pocket. He further deposed that the said four packets were kept in one plastic box which was sealed and labelled in his presence and the property was taken charge of under a panchanama (Exh. 11). This witness has been attacked by Mr. Sangani calling him a professional panch. It is no doubt true that the witness did admit in the cross-examination that he had acted as a panch once or twice. But we are not able to persuade ourselves to agree with the submission of Mr. Sangani that he is a professional panch because he is not a person doing nothing and under the police obligation to act as a panch witness. In fact, he has fruit business at Parnaka. No questions were put to him in the cross-exmaination to elicit information about the circumstances in which he happened to act as a panch witness once or twice earlier. In the absence of any questions put to him in the cross-examination to seek such an explanation, it is not possible to guess in what circumstances he became a panch witness on one or two prior occasions. It was incumbent upon the appellant to have questioned him in this regard and in that case the witness could have, in all probability, explained as to how he happened to be a panch witness in a couple of cases and depending upon his answers it would have been possible for the Court either to accept his explanation or to discard the same and discredit him. As stated above, he is not an idle person or a man without means. He is in fact a businessman and there was no necessity for him to comply with the requests of the police either for a consideration or otherwise or to be in the good books of the police. Such was the view taken by a division bench of this Court, Goa Bench, of which one of us (Kamat, J.) was a member, while deciding Criminal Appeal No. 5 of 1987 on June 23, 1987 (Reported in (1987) 3 Crimes 12) in case of Amarjit Singh Cheema v. State.
8. A perusal of the panchanama (Exh. 11) shows that four small white paper packets containing gard (drug) powder were found from the left side shirt pocket of the appellant and the same were taken charge of in a small plastic box which was sealed and labelled in the presence of the panch witnesses which corroborates the oral testimony of the panch witness. Mr. Sangani found fault with the panchanama that according to Police Constable Kalgutkar the appellant was apprehended at about 1.00 p.m. whereas the first information report (Exh. 9) shows that he was chased and apprehended at about 1.15 p.m. and the panch witness Arun Zankar stated that he was called by the police at about 1.00 p.m. whereas the panchanama shows that it was started at 1.15 p.m. and completed at 1.30 p.m. and in the cross-examination panch witness Arun Zankar stated that police went to call him at about 12.30 p.m. to 1.00 p.m. All these minor discrepancies about the timings do not go to the root of the matter and have to be ignored. No-one expects everyone to speak in terms of exact hours, minutes and seconds. Variations in timings, here and there, in such cases, are bound to be there. If theses variations were such that two different timings could not co-exist then one could legitimately infer that either investigation was faulty or witnesses were not truthful. Here, the variations in timings are so negligible that no importance can be attached to them otherwise justice is bound to be miscarried.
9. Police Sub-Inspector Ashok Shankarrao Surveganth (P.W. 3) was on the day in question working as police station Officer at Bazarpeth Police Station. He recorded the complaint and registered the offence and took charge of the panchanama and the property which was sealed under the name of Police Head Constable Thakur. His cross-examination reveals that Police Head Constable Thakur carries with him the seal of his name about which Mr. Sangani submitted that the seized property produced in the Court did not show that it had the seal of Head Constable Thakur on it and the same was of the police station. This submission of Mr. Sangani is also meritless in the sense that when the property was seized, it was done under the seal of Police Head Constable Thakur but when sent to Bombay for the report of the Chemical Analyser it must have been sent under the seal of the police station and thereafter produced in the Court and that is how it bears the seal of the police station which is not unusual.
10. And the last witness of the prosecution is Police Head Constable Govind Sitaram Satardekar (P.W. 4) who was handed over investigation by Police Sub-Inspector Survekanth on October 2, 1986. He submitted the charge-sheet against the appellant after carrying out further investigation and sent the seized property to Chemical Analyser at Bombay on July 20, 1987. He produced and proved the Chemical Analyser's Report (Exh. 15) a perusal of which shows that the sealed plastic bags containing drug powder were received and analysed by the Assistant Chemical Analyser to the Government Forensic Science Laboratory, Bombay and it was found that the same was heroin. The grievance of Mr. Sangani in this regard is that the property was seized on October 2, 1986 but was sent to Chemical Analyser as late as on July 20, 1987. There is an explanation to this grievance of Mr. Sangani in the evidence of the witness when he stated to a question put by the Court as to way the property was sent so late as on July 20, 1987 that it was a practice to send samples only in ten crimes per month to the Chemical Analyser. There is no reason to disbelieve this explanation. At any rate, Mr. Sangani has not been able to point out as to what prejudice was caused to the defence by late analysis of the drug in question. Mr. Sangani also urged that there is nothing on the record to show that what was sent to the Chemical Analyser was the same property which was seized from the appellant. The submission of Mr. Sangani holds no water as the letter Dt. July 20, 1987 bearing outward No. 3499/86 of the Bazarpeth Police Station (Exh. 14) clearly shows that this was the property seized from the possession of the appellant in C.R. No. III 470/1986 and sent to the Chemical Analyser at Bombay with Police Sub-Inspector G. R. Gavande. The reported (Exh. 15) send by the Assistant Chemical Analyser to the police Inspector of Bazarpeth Police Station, shows that it was in connection with the Bazarpeth Police Station letter No. 3499/86 dt. 20-7-87 regarding one sealed plastic container seized in C.R. No. III-470/86 of the said police station, which was intact with the description there on that there were four articles in the box which contained brown powder in small paper chits and the same was analysed and found to be heroin. Therefore, there is absolutely on mistake in the identification of the property seized from the appellant and chemically analysed and produced in the Court.
11. Further submission of Mr. Sangani is that the property alleged to have been recovered from the appellant was worth only Rs. 20/- which shows that it was a small quantity and, therefore, the appellant could have been convicted under 27 of the Act for which the punishment may extend only up to one year or with fine or with both. The submission of Mr. Sangani is to be stated to be rejected inasmuch as the quantity of the heroin seized from the appellant does appear to be small regard being had to its value mentioned in the charge-sheet but if it was the case of the appellant that he was found in possession of the small quantity of narcotic drug or psychotropic substance, the burden was on him to prove that it was intended for his personal consumption and in that event he would have got benefit under S. 27 of the Act in respect of punishment. In fact, it was never his defence in the trial court that he was carrying narcotic drug or psychotropic substance for his personal consumption. Therefore, the argument now advanced by Mr. Sangani is not available to him. The very fact that four packets were found in the shirt pocket of the appellant shows that they were not for personal consumption. In such a situation it would be reasonable to presume that the same were for sale. And once it is established that the appellant was found in possession of narcotic drug for sale or otherwise and for the purpose other than his personal consumption, the minimum sentence of ten years imprisonment and a fine of rupees one lakh has got to be inflicted on him.
12. Mr. Sangani lastly submitted that the appellant could not have been apprehended and searched by any one of the Constables because they were not so authorised under the Act to seize the narcotic drug and arrest a person from a public place as envisaged under S. 43 of the Act. Here it may be stated that one of the members of the patrolling party was Police Head Constable Thakur. The notification issued by the Home Department of the Government of Maharashtra and published in the Government Gazette of December 19, 1985 at page 1160 shows that all Police Officers of and above the rank of Head Constable in the State of Maharashtra are empowered for the purposes of sub-section (1) of Section 42 of the Act. Section 43 provides that any Officer of any of the Department mentioned in S. 42 may seize, in any public place or in transit, nay narcotic drug or Psychotropic substance and detain and search any person whom he has a reason to believe to have committed an offence punishable under Chap. IV of the Act. Therefore, in this case Police Head Constable Thakur was an officer properly empowered and authorised by the State Government to detain and search the appellant and seize the property in question from his possession.
13. We thus find that the evidence on the record proved beyond all reasonable doubt that the appellant was found in possession of narcotic drug viz. heroin and, therefore, his conviction and the minimum sentence of ten years rigorous imprisonment and a fine of rupees one lakh inflicted on him are correct and in accordance with law. Giving our anxious thought to the matter, the punishment being very heavy, we find absolutely no infirmity in the impugned judgment and order passed by the learned trial Judge. We may, however, point out that the charge as framed by the learned trial Judge mentioning contravention of S. 17 read with S. 22 of the Act, as stated above, was not correct. That, however, has caused no prejudice to the appellant. We further find that the learned trial Judge also recorded in his final order that the appellant was convicted for an offence punishable under S. 17 of the Act which again is incorrect. But that also has not prejudiced the appellant in any manner. It is pertinent to note here that S. 2(xi)(a) of the Act defines "manufactured drug" as all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate. And S. 2(xiv) of the Act defines "narcotic drug" meaning coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs. Further, S. 2(xiv)(d) defines "Opium derivative" as diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts. Now, S. 8(c) of the Act prescribes that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance. And S. 21 reads as under :
"21. Punishment for contravention in relation to manufactured drugs and preparations :- Whosoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
Hence, the learned trial Judge should have mentioned in the charge that the appellant contravened the provisions of S. 21 read with S. 8(c) of the Act and in the operative part of the judgment he should have recorded that the appellant was convicted for the offences punishable under these Sections.
14. Before parting with the judgment, we may also point out that the Chemical Analyser's report in the case does not show at all as to under what definition of S. 2 of the Act the analysed drug would fall. It is pertinent to note here that there are large number of drugs and substances covered under the Narcotic Drugs and Psychotropic Substances Act, 1985. Again, some substances and drugs undergo changes after certain processes and come under different definitions. Section 2 of the Act defines several substances and drugs. Many a time, it is not possible for the police and the Courts to bring the seized item under a particular definition even when the said item is analysed by a Chemical Analyser and named. It is our ardent desire that in future the Chemical Analysers on analysing a particular drug or substance do spell out as to under what definition of S. 2 of the Act the drug or substance falls so that the trial Courts may be able to lay their hands on appropriate sections while framing charges and awarding appropriate punishments. Office is, therefore, directed to send a copy of this judgment to the Secretary, Public Health Department, Government of Maharashtra, so that he may circulate it to all the Chemical Analysers in the State of Maharashtra to follow the guidelines indicated hereinabove.
15. In the result, the conviction recorded against the appellant by the trial Court is confirmed. However, it is clarified that instead of S. 17, the appellant stands convicted for an offence punishable under S. 21 read with S. 8(c) of the Act. The sentence inflicted on him is also confirmed. Appeal is accordingly dismissed.
16. Appeal dismissed.