Bombay High Court
Mr. Rashidi Ally Chigale And Mr. Faru ... vs The State Of Maharashtra on 28 August, 2002
Equivalent citations: 2003(2)ALD(CRI)117, 2003BOMCR(CRI)~
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. Shri Tiwari, for the appellants. Shri Shringapure, A.P.P. for the prosecution. Both of them have been heard at length in context with evidence on record at the time of final hearing in deciding this appeal. Whereby the appellants are assailing correctness, propriety and legality of the judgment, order of conviction and sentence embodied in the judgment passed by the Special Judge for Greater Bombay in N.D.P.S. Case No. 88 of 1995.
2. Few facts need to be mentioned for unfolding the prosecution case and the allegations which were made against the appellants which initiated the trial. On 18/3/1995 at about 11 P.M. P.W.2 V.N. Godbole was doing his duty at Sahar Airport and at that time Pakistan Airline Staff Members pointed out one passenger, who was to board flight P.K.-277 for Karachi and was to fly at 11.50 P.M. At that time Godbole's superior Officers, A.C.P. Bodhawade and Sr. P.I. Gaikwad who were gazetted officers were with him. The person who was pointed out by the Pakistan Airlines Staff members was, as per prosecution case, appellant No. 1. P.W. Godbole and those police officers apprehended appellant No. 1 by coming to Hold No. 6. He was detained there. P.W. Godbole and those police officers decided to take his search and therefore, two panch witnesses were called. P.W. Godbole introduced himself, A.C.P. Shri Bodhawade, Sr. P.I. Shri Gaikwad as gazetted officers to appellant No. 1 and Godbole asked about his personal search before panchas and such gazetted officers. At the same time appellant No. 1 was also informed, whether he wished to have a search to be taken before a Magistrate. The appellant No. 1 did not insist for his search before a Magistrate but agreed for his search before said two police officers. His person was searched. He was asked whether any other person was accompanying him in the journey and at that time appellant No. 1 disclosed about appellant No. 2, who had already boarded the flight. He was asked to board out from the flight and was detained in Hold No. 6.
3. The appellant No. 1 was wearing Jeans Pant which was thoroughly examined by P.W. Godbole and he found that around the waist lining under the belt of the said jeans pant there was concealed a packet stitched with both the sides of frontal portion. The said lining was got opened from it two packets containing brown coloured powder were found. The said powder was packed in two polythene packets and it was surrounded by brown tape for sealing. Both polythene bags were opened and the powder was tested by test kit. It answered positively and P.W. Godbole was satisfied that it was a narcotic drug.
4. The person of appellant No. 2 was also examined and searched. At that time appellant No. 2 was informed that, those two police officers were gazetted officers and P.W. Godbole asked him, whether he wished to be searched before a Magistrate or gazetted officer to which he declined and agreed for being searched before A.C.P. Bodhwade and Sr. P.I. Gaikwad. He was wearing a pant and similar type of concealed packet was found in inner lining near belt portion of the pant. The said concealed packet was also wrapped and sealed by tape of brown colour. It was got opened and the powder, which was found was collected and was tested by test kit. It gave positive result and Godbole was satisfied that it was a narcotic drug.
5. The brown powder which was found in possession of both the appellants was separately collected in sample packets. Six sample packets, three from each of 5 gram were prepared in context with each of the appellants in presence of panch witnesses. The cutting of lining and secret packets, collection of the brown powder, testing of it and sealing was all done in presence of panch witnesses, who were called and were present. Panchanamas were prepared, which were signed by panch witnesses. The appellant No. 1 was possessing 200 grams of said powder (which was later on detected to be heroin.) The appellant No. 2 was found in possession of 180 grams of said brown powder (It was later on detected to be heroin) Both the appellants, said sample packets, panchanama and forwarding letter bearing signature and seal were handed over by P.W. Godbole and his officers to P.W. No. 4 Patil, who was Officer in-charge of Kalina Police Station for custody and forwarding it to Chemical Analyser. At that time the complaint was also lodged by P.W. Godbole. Those sample packets were carried by P.W.3 to Chemical Analyser in the same sealed condition in which it was handed over to him. The concerned Chemical Analyser from F.S.L. examined it and certified that it was heroinnarcotic drug. The appellant faced the trial before the trial Judge, which ended in the judgment and order of conviction and sentence. It has been challenged by this appeal.
6. Shri Tiwari, Counsel appearing for the appellants placed a reliance on the judgments of Supreme Court in the matter of (1) State of Punjab v. Baldev Singh etc. etc., and (2) K. Mohanan v. State of Kerala, reported in 2000 Supreme Court Cases (Cri) 1228 and submitted that in the present case, there is no compliance of Section 50 of Narcotic Drug and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act for convenient) and therefore, the evidence, which has been collected by the investigating agency during that illegal search cannot be used against the appellants for conviction. But in the present case that has been done by the trial Court and therefore, the trial Court has landed in error of recording a conviction and sentence against the appellants. He further submitted that in the present case, there is no compliance of Section 55 of N.D.P.S. Act because the Officer-in-charge of Kalina Police Station did not affix his own seal on the said samples which were to be dispatched to F.S.L. and on the remaining samples, which were to be produced before the Court. Shri Tiwari submitted that on account of noncompliance of these two provisions of N.D.P.S. Act, prosecution has totally failed to establish the guilt of the appellants and the trial Court should have acquitted them and as it is not done, this Court be pleased to allow this appeal and set aside the order of conviction and sentence passed by the trial Court.
7. Shri Shringarpure, Counsel appearing for the prosecution submitted that there has been compliance of Section 50, in the present case because the appellants were asked whether they wanted to be searched before any other gazetted officer or a magistrate. Thus, an offer was given to them and they were informed of their right in view of Section 50 of N.D.P.S. Act. He submitted that non compliance of provisions of Section 50 is not shattering the prosecution case as the said provision is not mandatary. He justified the order of conviction and sentence and prayed for dismissal of the appeal.
8. While drawing the final conclusion, the Supreme Court pointed out in Baldev Singh's case (Supra) in paragraph No. 55, sub-para 5 that:
"Whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal."
In sub-para 4 of para 55 in that case Supreme Court further observed that:
"there is indeed need to protect society from criminal. The societal intent in safety will suffer if person who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every cases the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone act of lawlessness conducted by the investigating agency during search operation and may also undermine respect of law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (emphasis provided)"
9. The trial Court has dealt with this aspect in paragraphs No. 24 to 29. When the point of compliance of Section 50 of N.D.P.S. Act was urged before it, the trial Court agreed that there is no mention of appraisal of the right to the appellants in view of Section 50 of N.D.P.S. Act in panchanama and in the evidence of P.W. Godbole. However, the learned Judge formed the opinion that the sum and substance of the evidence of P.w. Godbole, P.w. Pavanan Variyath panch witness and recitals of panchanama is that Section 50 of N.D.P.S. Act was complied with. He has also indicated that as P.W. Godbole, A.C.P. Bodhawade and Sr.P.I. Gaikwad were not acting in view of provisions of Section 42, 43 of N.D.P.S. Act, they were not obliged to comply with the provision of Section 50 of N.D.P.S. Act. The trial Court was wrong in this context because, Section 43 provides that any officer of any of the departments mentioned in Section 42 may:-
"(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, etc.
(b) provides that any officer of any of the departments mentioned in Section 42 may detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company."
Section 50 Sub-section (1) provides that:
"When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."
When, appellant No. 1 was pointed out by the staff members of Pakistan Airlines and when P.W. Godbole, A.C.P. Bodhawade and Sr.P.I. Gaikwad decided to call the panch witnesses, to witness the said search and seizure, it has to be concluded that they had reason to believe that appellant No. 1 was possessing some contraband. Thereafter when they informed him as it has been stated by P.W. Godbole and P.W. Variyath and as it has been mentioned in panchanama, they had reason to believe that appellant No. 1 was possessing a narcotic drug which was amounting to an offence and therefore, compliance of Section 50 was very much necessary before appellant No. 1 was to be searched. It is to be noted that thereafter appellant No. 1 was interrogated and on information given by him it was noticed that appellant No. 2 had boarded the flight. Thereafter, he was asked to alight from the said flight and his person was also searched in presence of panch witnesses by informing him in the same fashion, in which the appellant No. 1 was informed.
10. In the present case, as the evidence of P.W.2 Godbole shows that, "I introduced myself, A.C.P. Bodhawade and Sr. P.I. Gaikwad as Gazetted Officers to accused No. 1 (appellant No. 1). I also asked him about his personal search and he agreed to take his personal search before the panchas and the said Gazetted Officer. At the same time accused was also informed, whether he wish to have a search to be taken before other Magistrate. He did not insist for his search before a Magistrate but agreed for his search before the said two police officers". The evidence on the same point needs to be compared at verbatim with the evidence of the panch witness P.W.1 Pavanan Variyath, "I say that facts of the case and police introduced these two Nigro persons as passengers. Police wanted to take their personal search. Police asked the accused for their personal search on suspicion of the narcotic drug with them by informing both of them that they can ask for their personal search in presence of a Magistrate or Gazetted Officer and also told that the police officer was Gazetted Officer. However, those two passengers instead of asking for the presence of a Magistrate has suggested they were ready for their personal search of police officer present."
11. The recitals from the panchanama also needs to be pointed out as it is.
"Here the other officer present were A.C.P. Shri V.A. Bodhawade, Sr. P.I. D.M. Gaikwad, A.P.I. L.N. Nadaf, P.S.I. Tawade, Nikam, Pawar, H.C.-14738, PN 17788, P.C. 22301, WPC 668, also present was an African National. The officers explained to us that they were received an information from one of the security staff of the Pakistani airline to the effect that the said African National, who was suspected in the process boarding Pakistan Airline Flight No. PK-277 dated 18/3/1995 ETD 23.55 hours is suspected to be carrying something on the waist belt area of his black coloured jeans pant which he was wearing. The officers suspected that he was carrying some contraband concealed therein and therefore, they would like to carry the search of the said African National as well as his baggage for which they were duly empowered. The officers disclosed their identifies and the identities of we the panchas to the said African National, and they asked for his identity. Said African National gave his name as Daniel Emanuel Erick, Keniyan National, resident of 16, Likoni Street, Mombasa, Kenyan. On being asked he produced the following travel documents."
"The officers disclosed their suspicion to the said Daniel @ Chagile and asked him to submit himself for personal search and search of his cabin baggage and checked in baggage to which he agreed". He was also informed that if he so desired he may be taken to a Magistrate or gazetted Officer for the personal search. He was also informed that Shri V.A. Bodhawade - A.C.P. Shri Gaikwad, Sr. P.I. were Gazetted Officers, said Daniel @ Chagile denied the offer and agreed to the search before the officers".
"The officers asked Eric @ Tahim to submit for personal search. He was also informed that if he so desired, he can be taken to a Magistrate or a Gazetted Officer for his personal search. He was also informed that V.A. Bodhawade A.C.P., Shri Gaikwad, Sr.P.I. were Gazetted Officer. Eric Tahin declined offer and submitted for personal search. Officers took the personal search of Eric @ Tahin."
12. The Supreme Court has observed in Baldev Singh's case, (Supra) that it is the right of the person to be searched in view of provision of Section 42 or 43 that he should be informed of his right in view of Section 50 of N.D.P.S. Act that he has right to be searched before nearest Gazetted Officer of any of the Departments mentioned in Section 42 or before a nearest Magistrate. As this Court interprets, the Supreme Court has not overruled the observations made by the Supreme Court in Baldev Singh's case but has interpreted its bearing and effect and has held that non compliance of provision of Section of 50 in its spirit causes a prejudice to the accused. In Baldev Singh's case (Supra) sub-para 3 of paragraph 55 the Supreme Court held that:
"That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act".
13. Here in this case, it cannot be said that the Officers, namely P.W. Godbole, A.C.P. Bodhawade, Sr. P.I. Gaikwad and other staff members did not have the information that both the appellants were in possession of contraband articles. The sum and substance of the evidence of P.W. Godbole, P.W. Variyath and recitals in the panchanama make it clear that, staff members of Pakistan Airlines had given said information to them and therefore, they had called the panch witnesses and they had decided to search the person of both the appellants. The officers did not comply with the provisions of Section 50 in its real spirit because, before giving offer, as the evidence of P.W. Godbole shows, the appellant No. 1 was informed that A.C.P. Bodhawade and P.I. Gaikwad were Gazetted Officers. It means indirectly that, his right of option was polluted, vitiated. As this Court interprets Section 50 does not mean that, such Gazetted Officers should be those officers who are members of raiding party. They should not be partisan Gazetted Officers interested in getting the conviction against accused, because it is to be noted that they are very much likely to get a reward in case of conviction. Therefore, that interestness gets strengthened by allurement of said reward or desire of getting such reward or possibility of getting such reward. For the purpose of complying with Section 50 in its real spirit, the members of raiding party should inform the person to be searched that he has a right to be searched before a nearest gazetted officers or a nearest Magistrate and his option of getting searched before such Gazetted Officer or a Magistrate should not be polluted or vitiated by showing any inducement, allurement or informing him the presence of such Gazetted Officers among the raiding party itself. That is not befitting the safeguards rendered by provisions of Section 50 of N.D.P.S. Act. Such a safeguard has been provided because sentence is severe. Whenever sentence is severe, the Courts are watchful to see that the important provisions of law are followed by the investigating agency before the material or the evidence is collected at the time of collecting such material of evidence. The Investigating agency and the persons concerned should be above board and should be law abiding. They should not behave in such a way which would be frustrating such an important right guaranteed by the Legislature. If the investigating agency or persons engaged in investigation are following a dubious method, their evidence would not be above suspicion and would be always vulnerable. It would not create confidence in judicial mind.
14. As it has been held in Baldev Singh's case (Supra) the evidence collected by such method cannot be the basis of conviction, if the conviction is vesting on it alone. Shri Shringarpure has submitted that in addition to the evidence of P.W. Godbole, the prosecution has adduced the evidence of P.W. Variyath. Shri Shringapure called him as independent witness and submitted that there is corroboration to the evidence of P.W. Godbole by the evidence of P.W. Variyath. This Court cannot agree with him because, panch witness Variyath and other panch witnesses were also the members of said squad, which collected the evidence against the appellants by not following the necessary requirements of important provisions of Section 50 in its real spirit. He is also a party to the process which collected such evidence against the appellants. Therefore, he cannot be called as an independent witness. A lame person cannot support another lame person. The prosecution has to stand on its own feet for bidding a conviction by collecting evidence against the accused by scrupulously following important provisions of law and if the evidence is collected by making go-by to important safeguards created by statute, such evidence cannot be the basis for conviction.
15. Therefore, in this context, this Court would be examining the prosecution evidence for the purpose of ascertaining whether it is free of any infirmities on other aspects. Section 55 of N.D.P.S. Act provides that the officer in-charge of the police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal on such articles or to take samples and from all samples to taken shall also be sealed by affixing a seal of the officer-in-charge of the police station. In the present case there is no evidence coming from the mouth of P.W. 2 Godbole or P.W. No. 4, Patil the officer-in-charge of Kalina Police Station, to show that P.I. Patil affixed the seal of his police station over the samples. Those samples were without seal of Officer-in-charge of Kalina Police Station and after they were kept in his custody, they were taken by P.W.3 to F.S.L. for examination. In N.D.P.S. Act cases, the sentence is severe and therefore, it is obligatory on the prosecution to comply with all necessary provisions provided by the enactment. No go-by can be permitted; otherwise it would frustrate the intention of Legislature to enact those provisions Provision has been made of affixing the seal of such officer-in-charge of the Police station to prevent tampering with the samples before they are dispatched to F.S.L. for chemical analysis. On this point the prosecution evidence gets further infirmed.
16. Besides this, there is no evidence adduced by the prosecution against the appellants for proving their guilt. The learned trial Judge has not discussed the evidence as he should have while dealing with it as he has dealt with as indicated in paragraphs No. 24 to 29 of his judgment. Firstly, the trial Judge committed the error of coming to the conclusion that it was a chance case and the prosecution witnesses were not required to act in view of provisions of Section 43 of N.D.P.S. Act and therefore, they were not obliged to comply with the provisions of Section 50 of N.D.P.S. Act. Thus, the trial Court allowed it to be misled while dealing with evidence in context with relevant provisions of law. The final result was that he landed in error of reading the order of conviction and resultant sentence against the appellants.
17. The Supreme Court in the matter of K. Mohanan v. State of Kerala (Supra) held that:
"where before conducting the search the police officer concerned merely asking the accused-appellant whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search but not informing him about his right in that behalf under the law. It cannot be held that mandatary requirement of Section 50 of N.D.P.S. Act were satisfied."
In that judgment the Supreme Court also observed that, had he been informed about his right in true spirit of Section 50, there would have been on record his answer. In that judgment Supreme Court pointed that if the accused is not properly informed about his right of being searched before a nearest Gazetted Officer or nearest Magistrate, and he is not properly asked about it, his likely answer would be gauged, when he is persistently raising the point of non compliance of Section 50 of N.D.P.S. Act. The observations of the Supreme Court in K. Mohanan's case would apply to the facts of the present case. In this case also the appellants persistently raised the point of noncompliance of the provisions of Section 50 of N.D.P.S. In this case also without informing the appellants about their right of being searched before a nearest Gazetted Officer or a Magistrate in view of provisions of Section 50 of N.D.P.S. Act, their option was indirectly foreclosed by informing them that the Gazetted Officers were already present in the raiding squad.
18. The judgment of conviction and sentence passed against the appellants is studded with infirmities of improper appreciation of evidence and misdirecting the Court itself. It is studded with infirmities of misappropriation of evidence. Thus the said judgment of conviction and sentence cannot be treated to be correct, proper and legal. Hence, the appeal will have to be allowed and the said order of conviction and sentence will have to be set aside and the appellants would have to be acquitted of the charge levelled against them. Hence, the appeal is allowed. The order of conviction and sentence is set aside and the appellants are acquitted of the charge levelled against them. They be set at liberty, if not required for any enquiry, investigation, proceeding or trial. They be also not released if they are undergoing any sentence for any other offence punishable under the provisions of law or N.D.P.S. Act The concerned police officers are entitled to deal with travel documents in accordance with the provisions of law. The money seized from the appellants can be returned to them in view of the provisions of relevant law. For that purpose the police have to move an application to trial Court and trial Court should hold the enquiry in that context by giving appropriate opportunity to the prosecution.
The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.