Bombay High Court
Wessel Van Beelan vs State Of Goa on 4 March, 1999
Equivalent citations: 1999(5)BOMCR575, 2000CRILJ271
Author: R.K. Batta
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.K. Batta, J.
1. The appellant/accused was tried for possession of 45 grains of charas in contravention of section 8 of the Narocotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the said 'Act'), which is punishable under section 20(b)(ii) of the said Act. The appellant pleaded not guilty. The prosecution had examined 4 witnesses in support of the said charge. The appellant examined two witnesses in his defence. By impugned judgment dated 20-8-1998, which is subject matter of the appeal, the appellant was held guilty of possession of 45 grams of charas and was sentenced to R.I. for 10 years and fine of Rs. 1,00,000/-, in default, S.I. for one year under section 20(b)(ii) of the said Act. The period of detention, during which the appellant/accused was in custody from 4-12-97 till the date of judgment, was set off in terms of section 428 Cr. P.C.
2. The prosecution case, as revealed by P.I. Lavu Mamletdar of Anti Narcotic Cell, Police Station, Panaji who is the officer, who conducted the raid and carried out investigation, is that on 4-12-1997 at about 7.15 a.m., he received specific and reliable information through his sources that one foreigner, tall, fair, strong built, having beard wearing grey colour T-Shirt and blue colour half jean pant, would come to sell charas at Arambol beach between 9 a.m. to 12 noon. This information was reducted into writing by P.W. 4, who sent a copy of the said information to Superintendent of Police for information. Thereafter, the sent Police Constable Devidas Gauns to call panch witnessess. P.W. 4 had given names of the panchas who were called through Devidas Gauns. The panchas, including panch P.W. 3, Rupesh Samant, who is a Journalist working in the Navhind Times, reached the Police Station at about 7.50 a.m.. P.W. 4, informed the panchas of the information received by him and the fact of having forwarded the same to the Superintendent of Police, Anti Narcotic Cell. The raiding party consisting of the two panchas P.S.I. Uday Naik, Constables, Devidas Gauns, Sandeep Shirvoikar, Vaman Naik, Shetgaonkar, headed by P.I. P.W. 4 left for Arambol bench in a private Maruti Van and two motor cycles. The kit box containing weighing, packing and sealing material was taken by the raiding party. 'Seal of Anti Narcotic Cell, Panaji Goa number 1, with Ashoka emblem was also taken. The raiding party reached Arambol at about 9.30 a.m. and the vehicles were parked at the end of the tar road, after which the raiding party went towards the beach. The raiding party waited for some time and at about 9.45 a.m. P.I. P.W. 4 noticed a person of the description given by the informant, who was walking towards the beach. As description of the person tallied, including the clothes he was wearing, P.I. P.W. 4 informed of the same to the panchas and the raiding party and all of them rushed towards the said person and surrounded him. P.W. 4 disclosed his identity to the person, namely the accused/appellant that he had received information that he was possessing charas and he wanted to search him for charas. P.W. 4 P.I. informed the accused/appellant that he had right to get searched in presence of Magistrate or a Gazetted Officer. He also offered his search and that of the raiding party and the panchas. However, both these offers were declined by the accused/appellant. During the search, P.W. 4 found a black colour polythene bag in the right side jean pocket of half pant of the accused appellant. He removed the said black colour polythene bag and found some blackish coloured substance in it. The same were removed from the polythene bag. In all 12 black coloured pieces were found, out of which 10 pieces were found wrapped individually in cellophane papers and two pieces were found to be unwrapped. The said pieces were weighted together along with their wrappers and the total weight was found to be 45 grams. All these pieces were put in an envelope which was packed and sealed. This envelope was signed by P.W. 4 and panchas, including panch P.W. 3. The accused/appellant refused to sign the said envelope. The black colour polythene bag in which the said 12 pieces were found was separately put in an envelope which envelope was also packed and sealed. This envelope was signed by P.I. P.W. 4, panchas, including panch P.W. 3, but the accused/appellant refused to sign the said envelope. The seal which was used for sealing both these envelopes, was the one which the raiding party had carried with it. The clothes of the accused/appellant, namely half jean pant from where the said 12 pieces were recovered, was not attached as the accused did not have other clothes. The weighing and sealing was done by Police Constable Shri Devidas Gauns. Panchanama and seizure report were prepared and the accused/appellant refused to sign the same. The police parry returned to Panaji and on the way P.W. 3 was dropped at Canca -Parra, near Mapusa.
3. The sealed envelope containing charas was forwarded by P.I. P.W. 4 to the Scientific Assistant in Crime Branch, C.I.D. Panaji on the same day, that is to say, on 4-12-1997 itself along with covering letter Exh. P.W. 2/A. Along with this, another letter addressed to the Director of Food and Drugs Administration, upon which the seal impression of Anti Narcotic Cell, Panaji Goa (1), had been, was also sent to Scientific Assistant, Shri Joshi, P.W. 2.
These letters and the sealed sample containing charas were received by Manohar Joshi from H.C. K.T. Naik, Buckle No. 1537 of A.N.C. on 4-12-1997 itself. P.W. 2, Shri Manohar Joshi kept the sealed cover containing charas in a steel cupbord and on the next day, that is to say, 5-12-1997, he forwarded letter addressed by P.I. P.W. 4 to the Director of Food and Drugs Administration, Panaji on which the seal impression of Anti Narcotic Cell Panaji Goa (1) was affixed, as well as the sealed envelope containing charas with a forwarding letter signed by P.W. 2 Manohar Joshi.
4. The seated envelope containing charas as well as the letter addressed by P.W. 4 to the Director, Food and Drugs Administration, Panaji on which specimen seal of Anti Narcotic Cell, Panaji Goa (1), was affixed, were sent through Police Constable S.T. Kavthankar, Buckle No. 3994 to the Director, Food and Drugs Administration, Panaji, Goa. The same were received by the Directorate of Food and Drugs Administration on 5th December itself and the Junior Scientific Officer, P.W. 1 Shri Mahesh Kaissare received the same on the same day from the Directorate of Food and Drugs Administration. The Junior Scientific Officer Shri Mahesh Kaissare P.W.1 found the seals on the envelope duly intact and the said seals tallied with the specimen seal impression sent separately along with the reference letter. Shri Kaissare P.W.1 opened the sealed envelope on 15-12-97 and weighed its contents on a Meteller balance. According to him, the envelope was containing in all 15 pieces of dark brown colour elongated substance which were flatten as well as cylindrical in shape. Most of the pieces were wrapped in transparent polythene colourless paper. Six of these pieces were wrapped in pairs of two. Weight of the pieces along with wrappings, was 44.95 grams and the weight of the pieces without the wrappings was 43.97 grams. Shri Kaissare, P.W.1 analysed 5 of the said 15 pieces, weighing 2.76 grams, 3.12 grains, 3.94 grams, 4.3 grams and 4 grams, individually, after taking on an average 0.75 gram from the said 5 pieces. In respect of the remaining 10 pieces, he prepared a composite sample by adopting standard sampling procedure and a quantity of 1 gram was taken from this composite sample, after thoroughly mixing of the pieces to a powder for the purpose of analysis. He had explained the standard sampling procedure, stating that if there are 10 sticks in a sample, all 10 sticks are analysed individually; upto 30 sticks half of the sticks selected at random are analysed individually and if there are more than 30 sticks, then 2% of the substances selected at random are analysed individually taking it as a representative sample. After analysing 5 pieces individually and the composite sample prepared from the remaining 10 pieces, Shri Kaissare P.W. 1 found that the substance was dark brown in colour and was having characteristic odour of charas; microscopic examination carried out on the substance, after treating with 10% Sodium Hydroxide and a drop of this solution taken on a glass slide and observed under microscope, showed hair resembling charas hair; the identification test for charas carried on the extract, after extracting the substance with petroleum ether, was positive for charas. The tests applied for the said purpose are Beam's Acid Test, Neagam's Test, as well as fast Blue B Salt Test, details of which have been given by him in his deposition as well as in the report. On the basis of the above mentioned findings, P.W. 1 Mahesh Kaissaire, Junior Scientific Officer came to the conclusion that the sticks analysed which were found in the sealed envelope contained charas The envelope containing charas as well as the sticks inside have been identified by panch P.W.3, P.I. P.W. 4 and Mahesh Kaissare P.W. 1.
5. P.W. 4, P.I. Lavu Mamletdar, in his deposition in the Court explained that out of 12 pieces, which were found in black polythene bag in the right side pant pocket of half pant of the accused appellant, three pieces of substances were in twin form which were fused together and wrapped together in one polythene and he had taken these twin pieces as one piece each. He further stated that while counting the said pieces, he counted the twin pieces as one piece and that is how the total number of pieces shown were 12 in number. Panch P.W. 3 has stated in this respect that 12 cylindrical shape black substances were found inside black colour plastic packet, which was found in right side half pant pocket of the accused/appellant. Ten of the said pieces were found wrapped in cellophane papers and two pieces were found unwrapped. During the cross-examination, he confirmed that he was sure that the pieces were 12 in number, but he added that he did not open 10 pieces which were wrapped in cellophane paper and P.I, Mamletdar also did not open the wrappings. He has given other details of the raid. According to him, the conversation between P.I. Mamletdar and the accused/appellant took place in English and P.I. Mamletdar had informed the panchas in Konkani regarding the offer of search before a Gazetted Officer or a Magistrate as well as the offer to the accused/appellant to search the raiding party, including the panchas.
6. The accused/appellant in his statement under section 313 Cr.P.C. had denied the prosecution case in toto, including the recovery of charas from his person. He filed statement in writing at the end his statement under section 313 Cr. P.C. and sought to examine defence witnesses. The defence case is that he was falsely implicated; that the police entered his house where he was staying along with his long standing friend Margaretha de Ruig, but he objected to the search, as they had no warrant. According to the accused/appellant, he was given a blow on his eye and after catching him, hit him on his ears. Thereafter, he was forcibly taken to the police station. He also stated in this statement in writing that he is user of charas and has been using it since many years as the same is allowed in his country, namely Holland and that he contained to use charas during his holidays in Goa. He further stated that he had never sold or distributed charas or that he was dealer in charas.
7. The two witnesses examined by the accused/appellant are D.W.1, Menino F. Monteiro, Marine Engineer and Margarette Christine de Ruig, D.W. 2, who claims that the accused/appellant is her husband, though the accused in his statement in writing at the end of 313 statement, had stated that she was his long standing friend. Both of them have stated that the police came to the house where the accused and D.W. 2 were residing and from there, the police took him away. D.W. 1 admitted that the wife of accused/appellant was staying in his house for two weeks during the Christmas Season after the arrest of the accused/appellant. D.W.2 has stated that the accused used to take charas sometimes in Holland and also in Goa.
8. The learned Special Judge, N.D.P.S. Court has accepted the prosecution case, as revealed by P.W.1 to P.W. 4 and convicted the accused/appellant, who has challenged the conviction and sentence imposed on him in this appeal. The learned Special Judge rejected the various contentions put before him by the defence, which include discrepancy in number of pieces;
the continuance of the specimen seal with the Investigating Officer after completion of raid; non-examination of carriers of the sealed envelopes; suppression of the injuries on the person of the accused by the Investigating Officer; that the prosecution case was highly improbable; violation of mandatory provisions of section 50 of the said Act and the plea of the accused/ appellant under section 27 of the said Act that at the most only small quantity of charas can be said to be in possession of the accused/appellant which was meant for his personal consumption.
9. Learned Senior Counsel Shri Lalit Chari, argued the appeal on behalf of the appellant and learned P.P. Shri A.P. Lawande argued on behalf of the State.
10. The submissions made by learned Senior Counsel Shri Chari are, in brief, as under:
(I) There is no cogent proof that the mandatory requirements of section 50 of the said Act have been complied with in the case under consideration;
(II) The prosecution case on recovery of charas from the accused/ appellant on the beach, is inherently unbelievable and the Special Judge had wrongly discarded the defence evidence;
(III) The recovery of charas is doubtful, in view of the discrepancy in the description as well as the number of pieces stated to have been recovered from the accused/appellant;
(IV) The availability of the specimen seal which was affixed on the envelope in which the charas was sealed, with the Investigating Officer, after the raid till the sealed sample was sent to P.W. 2, Manohar Joshi;
(V) Suppression of injuries suffered by the accused/appellant, by the Investigating Officer, P.W. 4 and disclosure during the cross-examination, which probabalises the defence case of assault;
(VI) Prejudice caused to the accused/appellant on account of omission to put material question under section 313 Cr. P.C. relating to recovery of number of sticks; discription thereof and details on analysis carried out by the Junior Scientific Officer Shri Kaissare P.W.1;
(VII) On the basis of the evidence, at the most what can be said is that the accused was in possession of charas less than 25 grams, as a result of which, the case, in question, would fall within the scope and ambit of section 27 of the said Act, in respect of which the accused/appellant has not been given any opportunity to discharge the burden cast on him. The contention of learned Senior Counsel is that the substantive provision dealing with the offence of possession of charas in contravention of section 8 of the said Act is section 20 of the said Act and section 27 regulates sentence in cases where a person is shown to have been in possession of a small quantity in respect of which the burden of proving that, in fact, it was for personal consumption and not for sale or distribution, lies on the person in possession of small quantity. According to him, it does not create a separate offence, but it is an exception to section 20 and until and unless, it is shown that the accused is in possession of a small quantity, there is no burden on the accused to show that the same was meant for personal consumption. It is further urged that only after it is held that the accused is in possession of a small quantity, the charge is required to be altered under section 27 and upon alteration of charge alone, the burden is cast on the accused to discharge the same.
Reliance was placed on a number of judgments in support of the above submissions, with which we shall deal at the time of discussion on merit on the submissions made by learned Advocate for the appellant.
11. On the other hand, learned P.P. Shri Lawande has argued that the prosecution evidence has to be examined in the light of the defence taken by the accused/appellant that he is user of charas, which, in the light of the evidence adduced by the prosecution, establishes the possession of charas by the accused/appellant. Regarding the submission relating to compliance of requirements of section 50, it is urged that the police has prepared contemporaneous record, namely the panchanama, which proves that the requirements of section 50 have been complied with. On the question of discrepancy in the number of the pieces and the discription, it is urged that there is no material to come to the conclusion that the sealed envelope containing charas was tampered with and the discripancy in the number of pieces has been duly explained by the Investigating Officer. Besides, this, the weight of the substance seized from the accused and the substance analysed by the Junior Scientific Officer, tallies, which will rule out any tampering of the seals on the envelope which were found to be intact by the Junior Scientific Officer. The discripancy in the number of pieces and the discription is, therefore, immaterial under the circumstances of this case. Regarding availability of the specimen seal, it is urged that the sealed sample was promptly sent by the Investigating Officer to the Scientific Assistance Shri Manohar Joshi P.W. 2, on the date of raid itself and, as such, nothing material turns out, in so far as this submission is concerned. In respect of the submission relating to suppression of injuries, it is urged by him, the same does not affect the prosecution case. Regarding omission to put some incriminating circumstances, the matter can either be remanded for the said purpose or this Court can give opportunity to the appellant/ accused to explain the said incriminating circumstances. On the question of alternative defence, namely that the case of the appellant/accused is covered under section 27 of the said Act and the allegation relating to the prejudice caused to the accused/appellant in not giving the opportunity to discharge the burden, it has been urged that all defences available to the accused are required to be taken during the course of trial itself, burden of which has to be discharged during the trial and no further opportunity can be given after conclusion of the trial to the accused/appellant. According to him, the plea of personal consumption is substantive defence and it cannot be equated to section 245(2) Cr.P.C. which provides for opportunity to lead evidence on the point of sentence alone. Moreover, it is pointed out that the burden to be discharged by the accused is that the substance found in possession is meant for personal consumption and it cannot be discharged by merely taking a plea that the accused/appellant is user of charas. In support of his submissions, P.P. Shri Lawande has placed reliance on a number of judgments, with which we shall deal while dealing with the matter on merits. According to learned P.P. the appeal should be dismissed.
12. We have perused the records in the light of rival contentions and we shall now deal with the same. Coming to the non compliance of mandatory requirements of section 50 of the said Act, the learned Senior Counsel for the appellant drew our attention to the evidence of panch witness P.W. 3, as well as the panchanama Exhibit P.W. 3/A. It was submitted that according to the evidence of panch P.W. 3, the writing of the panchanama Exhibit P.W. 3/A started only after the recovery had been effected and it is only in the said panchanama, which was started after the recovery, that it is mentioned that P.I. P.W. 4 had told the accused/appellant that he could be taken for search before the Magistrate or Gazetted Officer and that he could search the raiding party, including the panchas before he was searched. According to Shri Chari, the learned Senior Counsel for the appellant, no contemporary record was prepared prior to the panchanama was drawn to prove that the said offers, were in fact made to the accused. Besides this it was argued by him that the panch P.W. 3 was not able to repeat the exact words used by P.I. P.W. 4, by which the offer to search before the Gazetted Officer or the Magistrate was conveyed, if was further pointed out that making of the said offer was not explained to the panchas immediately after the offer was made, but it was explained only when the contents of the panchanama were explained to them in Konkani.
13. It is how well settled by catena of the judgments of the Apex Court that the provisions of section 50 are mandatory and non-compliance of the said provisions is fatal to the prosecution cast Panch P.W. 3, as well as P.I. P.W. 4 have stated that the writing of the panchanama commenced after the recovery was made and it is only in this panchanama which was started after the recovery was made that the twin offer of being searched before the Magistrate or the Gazetted Officer and the search of raiding party, including the panchas is found to be incorporated. There is no prior contemporary record prepared by P.W. 4 antecedent to the recovery to show that the said offer had, in fact, been made prior to the recovery. Admittedly, the conversation between P.I. P.W. 4 and the accused took place in English and this fact is stated by both the witnesses, panch P.W. 3 and P.I. P.W. 4. There is nothing on record to show that the panchas including the panch P.W. 3. knew English even though panch P.W. 3 is said to be Staff Reporter of English daily, the Navhind Times and prior to that he was Staff Reporter of English daily 'O Haraldo'. On the contrary pancha P.W. 3 has stated that P.I. Mamletdar P.W. 4 had told them in Konkani that he had informed the accused that his search can be taken in presence of Gazetted Officer or a Magistrate, He further states that P.I. Mamletdar P.W. 4 did not immediately translate the offer given to the accused to be searched before a Magistrate or a Gazetted Officer, but he translated to them while explaining the contents of the panchanama in Konkani. This means that even to the panchas, the P.I. Mamletdar P.W. 4 had not explained in Konkani about the said offer immediately after the same was made, but P.I. Mamletdar told them about it only after the panchanama was recorded and the P.I. Mamletdar P.W. 4 translated to them the contents of the panchanama in Konkani. Therefore, it follows from the evidence of panch P.W. 3 that P.I. Mamletdar P.W. 4 told them about the said offer at the time after the panchanama was completed and the contents of which were translated to them in Konkani. He has categorically stated that P.I. P.W. 4 did not immediately translate the offer made to the accused/ appellant to be searched before a Magistrate or a Gazetted Officer, after the offer was made and/or before the search was carried out. There is, thus, neither any antecedent contemporary record of the said offer having been made by the P.I. P.W. 4 to the accused, nor there is evidence to prove that such offer in fact was made prior to the recovery, after which only the panchanama was drawn, wherein the fact of having made the offer is recorded. It is in this context that the punch P.W. 3 had stated that he is not able to repeat the exact words used by P.I. Mamletdar while giving the offer to be searched before the Gazetted Officer or a Magistrate, which may perhaps be on account of the fact that the panch P.W. 3 was not probably well versed in English and that is why the panchanama had to be explained to the panchas including P.W. 3 in Konkani. It is no doubt true that P.I. P.W. 4 had acted on specific information received by him, which also included the description of the clothes which the accused would be wearing. The information was that the accused would be wearing blue colour jean half pant and light grey colour T-Shirt. It is in this context that the attachment of the said clothes which the accused was wearing at the time of recovery would assume importance. The explanation given by the I.O. for not attaching the clothes is rather unsatisfactory. The P.I. could have made arrangement to provide him other clothes or could have got the same from the house of the accused, which is said to be not far of from the beach. The attachment of the clothes would have lent credibility to the prior information and in the absence of the same, it is rather too much to accept that the informant will know in advance of the clothes the accused would be wearing when he will come to the beach. Besides this, the prior information was that the accused would come to sell the charas on the beach, but no scale or weights were found in possession of the accused/ appellant for effecting sale of contraband. In the absence of proof of compliance of the mandatory provisions of section 50 of the said Act, the recovery becomes suspect.
14. We shall now pass on to the fourth submission made by learned Senior Counsel for the appellant, which relates to the availability of specimen seal with the P.I. P.W. 4 after the contraband was sealed with the same, till the envelope containing the contraband charas was sent to the Scientific Assistant Shri M.D. Joshi. The police had carried with them specimen seal 'Anti Narcotic Cell, Panaji Goa (1)', which was used for sealing the contraband charas recovered from the accused/appellant. In this respect, reliance was placed by learned Senior Counsel for the appellant on a judgment of Division Bench of this Court in Andrea Siddi v. State of Goa, Cri. Appeal No. 42/1997 decided on 17/18th December, 1997. P.P. Shri Lawande had drawn our attention to a judgment of Division Bench of this Court in Hirayama Shingo v. State of Goa, Criminal Appeal No. 1/1998.
15. In Andrea Siddi v. State of Goa (supra), to which one of us (Batta, J.,) was party, it was pointed out that it is of utmost importance that there must be very cogent and trustworthy evidence on the part of the prosecution that the contraband seized is the same which is ultimately analysed by the Junior Scientific Officer and found to be contraband within the meaning of the N.D.P.S. Act and in order to ensure the same, the specimen seal assumes importance and it has great sanctity and value. It was further pointed out in the said judgment that the prosecution has to ensure that once the specimen seal which has been used for affixing on the contraband recovered and seal impression of the same was taken by the Search Officer, the seal should not be available with the Search Officer and there should be positive evidence on the record that the said specimen seal was not within the reach of the Search Officer after the search and seizure formalities are completed and the impression of the specimen seal is taken. In that case, the evidence on this aspect was lacking since the sealed samples as well as the specimen seal were admittedly available with the search officer, P.I. Jadhav and as such, the possibility of tampering with the contraband recovered and the one which was ultimately analysed by the Junior Scientific Officer could not be ruled out. Of course, in that case, the contraband was recovered by the Search Officer on 10-5-1996 and the contraband sample as well as the specimen seal used in sealing, remained in the custody of Search Officer, P.I. Jadhav during the intervening night of 10th and 11th May, 1996 before the same was forwarded to S.P. C.I.D. Though it was the prosecution case that the sealed sample in the said case was forwarded to S.P. C.I.D. on 11-5-1996, yet the inward entry in respect of the same was made only on 13-5-1996, for which no explanation was offered. The seal impression of the specimen seal which is required to be forwarded along with the contraband recovered, was affixed on letter dated 11-5-1996, which means that the specimen seal continued in possession of P.I. Jadhav till 11-5-96 and there was no evidence that the specimen seal had been deposited by P.I. Jadhav either with 'Malkhana' or with any other officer after the said seal had been affixed on the contraband recovered.
16. The sanctity of the sealing process was emphasized by the Division Bench of this Court in Brown Nicholas William Jonathan, British National v. State of Goa, 1993(1) Crimes 508, wherein it was held that the sanctity of sealing process has to be preserved. In that case, it was found that some of the seals on the envelope containing contraband were found to be broken/ dislodged completely and in view of the said position, it was pointed out that the police had resorted to the process of sealing as an empty formality in a very casual and careless manner. It was further held therein that the integrity of the sealing process was seriously in doubt and the sanctity of sealing process had not been preserved.
17. In Sunder Giri v. State of Goa, 1998(11) C.C.R. 165, to which one of us (Batta, J.,) was party, it was pointed out that admittedly, the specimen of seal was not affixed at the time of search and seizure operation and even though the search officer had handed over the seal oh return to A.N.C. Police Station to P.I. Jadhav, yet he procured the seal from P.I. Jadhav for affixing the specimen seal on the forwarding letter. Thus, it was found that the seal was freely available and even the contraband was taken back by the search officer after the same was handed over to P.I. Jadhav. In these circumstances, it was held that this creates a serious suspicion whether the substance recovered from the accused was the same substance which was sent for chemical analysis. In this connection, it was observed as under :
"... The very purpose and sanctity of the procedure that after the search and seizure operation is complete, the seal must be returned to the concerned in-charge of the Police Station is that the said seal is not misused and the contents in the sealed envelopes are not tampered with. If P.W. 4 could procure the seal from P.I. Jadhav as and when he desired and also could procure the sealed envelope containing the suspected substance, what was the guarantee that the said substance has not been tampered with. In any case, from this evidence the prosecution cannot be said to have ruled out the possibility of tampering with the substances allegedly recovered from the accused which were packed and sealed in the envelope. As a matter of property and to some extent, legal caution, the prosecution ought to have the specimen seal affixed at the time and place of search and seizure operation. In the present case, not only specimen seal was not affixed at the time and place of seizure, but also after the envelope containing the seized substance was handed over to the concerned Police Inspector and in-charge of Police Station and similarly the seal was also handed over to the concerned in-charge of the Police Station, the said envelope and the seal were procured by P.W. 4, purportedly for affixing specimen of the seal on the forwarding letter and for sending the same to the Chemical Analyser. These circumstances definitely make the prosecution case suspect and in any case, do not rule out the possibility of tampering with the substances in the envelope, particularly viewed from the fact that the envelope does not bear the signature of the accused. The prosecution case further becomes suspect from the fact that there is different version about the shape of the substance seized from the accused, packed and sealed in the envelope. P.W. 3 in his examination-in-chief deposed that there were many small pieces of substances brownish in colour and of different shapes, individually wrapped in cellophane papers. In his cross-examination he deposed that most of charas pieces were round in shape, namely, cylindrical in shape. On further cross examination, he admitted that all charas pieces were cylindrical in shape. Confronted with the contents of the envelope M.O. 2/A, P.W. 3 admitted that one piece was flat in shape, one piece in cylindrical shape and yet another piece in cylindrical shape. P.W. 4, on the other hand, in his examination-in-chief deposed that there were some substances which were cylindrical in shape and were individually wrapped in cellophane papers. In cross-examination, however, he admitted that 5 pieces were cylindrical in shape, some pieces flat in shape and some irregular. On the other hand, P.W. 1 has deposed that the envelope contained 12 small pieces of dark colour substances mostly in the form of small strips individually wrapped in transparent colourless polythene paper. Thus, we find that there is substantial and material inconsistency in the depositions of P.W. 1, P.W. 3 and P.W. 4 about the shape of the contraband recovered and sent for analysis and that further strengthens the suspicion about the prosecution case whether substances recovered from the accused were sent for chemical analysis or not. The prosecution evidence therefore, is not cogent and beyond suspicion about the substances recovered from the accused and the substances sent for chemical analysis..."
18. The availability and accessibility of the specimen seal, with which the contraband is sealed, with the I.O. after the sealing of the contraband may throw doubt of tampering with the sealed contraband and this doubt may be reinforced in a given case when the description of the contraband sealed does not tally with the description of the contraband received by the Chemical Analyser. This doubt may be further reinforced in cases where the accused refuses to sign the sealed envelope containing contraband. In cases where the accused signs the sealed envelope containing contraband, it may not be possible to tamper with the said envelope or its seals, but where the accused refuses to sign sealed envelope containing contraband, there may be possibility of tampering with the contents of the sealed envelope with the help of the panchas. The normal procedure which the police should adopt, so as to remove any doubt regarding availability and accessibility of the specimen seal, after the envelop containing contraband is sealed with such specimen seal, should be that at the time when the envelope containing contraband is seated, the raiding officer should simultaneously take the specimen impression of the said seal on a letter which could be simultaneously prepared for sending the same to the Chemical Analyser. Once the impression of the specimen seal is so obtained, the specimen seal should be deposited immediately on return to the Police Station, so as to ensure that the said specimen seal is not available to the raiding officer. A full-proof method in this regard could be devised by the police, which would ensure that the specimen seal would not be available to the raiding officer afterwards.
19. In the case under consideration, the specimen seal on letter Exhibit P.W. 1/A, written by P.I. P.W. 4 to the Director of Food and Drugs Administration was affixed on the said letter after P.I. P.W, 4 returned to the Police Station with the sealed envelope containing contraband and after getting the said letter typed. In order to give more credibility, it is desirable that such letter like Exhibit P.W. 1/A is written simultaneously at the time of sealing the envelop containing contraband with the specimen seal and on such letter, the seal impression of the specimen seal is taken in presence of the panchas and their signatures are obtained below the said specimen seal. This would not only ensure use of a particular seal on the sealed envelope containing contraband, but would also ensure that the specimen seal is deposited with the appropriate authority in the Police Station, as soon as the raiding officer comes back to the Police Station after which the specimen seal is not available to him at all. In the case under consideration, the raiding officer had returned to the A.N.C. Police Station at about 2.15. p.m. and the sealed envelope containing contraband as well as the said letter Exhibit P.W. 1/A containing seal impression of the specimen seal were sent by P.I. P.W. 4 to the Scientific Assistant Shri M.D. Joshi of C.I.D. Crime Branch, Panaji on the same day, that is to say 4-12-1997, but it is not known at what time the said sealed envelope containing the contraband and the said letter Exhibit P.W. 1/A were actually forwarded and received by the Scientific Assistant Shri M.D. Joshi. It is in this context that the variation in the number of pieces recovered and sealed in the envelope containing contraband and the number of pieces found by the Junior Scientific Officer, P.W. 1 assumes importance. We shall, therefore, now deal with the third submission of learned Senior Counsel for the appellant, wherein he has urged that the recovery of charas is doubtful in view of the discrepancy in the description as well as in the number of pieces said to have been recovered from the accused/appellant.
20. P.W. 3, panch has stated that in the black colour plastic packet found in the right side half pant pocket of the accused, there were 12 cylindrical shape black colour substances inside. Ten pieces of the substances, were found wrapped in cellophane papers and two pieces of substances were found un-wrapped. P.I. Mamletdar took smell of the said substance and after Observing them, told the panchas that they were charas pieces. All the 12 substances were weighed collectively and the weight was 45 grams. The panch, P.W. 3 was not able to give details relating to the denomination of weights used for weighting the contraband. He also stated that he was sure that the number of the pieces of the substances were 12 and it was correctly recorded in the panchanama that on counting these pieces, the same were found to be 12 in numbers, of which 10 were individually wrapped in transparent cellophane papers and two were unwrapped. He, however, stated that he did not open the 10 pieces of substances, which were wrapped in cellophane papers and P.I. Mamletdar also did not open the wrappings. Panchanama Exhibit P.W. 3/A shows that P.I. Mamletdar on minutely observing the said pieces, and after smelling, told the panchas that it was charas. We have already pointed out that the panch, P.W. 3 has stated that P.I. Mamletdar took smell of the pieces of substances and after observing them, told them that they were charas pieces. However, the deposition of Junior Scientific Officer, P.W. 1 shows that the sealed envelope contained in all 15 pieces of dark brown colour elongated substance and were flatten as well as cylindrical in shape. Most of the pieces were wrapped in a transparent polythene colourless papers. Junior Scientific Officer, P.W. 1 found that 6 of the pieces were wrapped in pairs of two and the weight of all the pieces along with the wrappings was 44.95 grams, which, of course tallies with the weight given in the panchanama and the weight of the pieces without wrappings was found to be 43.97 grams by the Junior Scientific Officer, P.W. 1. P.W. 1 had used Meteller balance. Thus, whereas the panchanama and the deposition of P.W. 3 show that the number of pieces were 12 and they were all cylindrical in shape, yet, the Junior Scientific officer, P.W. 1 found 15 pieces of dark brown colour elongated substance which was flatten as well as cylindrical in shape. Thus, not only the number of pieces, but also the shape of the some of the pieces differs. Of course, six of the pieces were found wrapped in pairs of two. The raiding officer, cum the Investigating Officer, P.W. 4 tried to explain the discrepancy by stating that out of 10 pieces, which were found wrapped individually in cellophane papers, three pieces of substances were found in twin forms. He counted the twin pieces, which according to him, were fused together as one piece as they were wrapped together. We have already pointed out that the pancha P.W. 3 has stated that P.I. Mamletdar took smell of the said pieces of substances and after observing them, told them that they were charas pieces. The panchanama Exhibit P.W. 3/A also states that after minute observation and after smelling, P.I. Mamletdar told the panchas that it was charas and on counting these pieces, found 12 in numbers, of which 10 were individually wrapped in transparent cellophane papers and two were unwrapped. The explanation given by P.I. P.W. 4 regarding the discreancy in the number of pieces is not only unsatisfactory, but it shows total negligence/ carelessness on his part in examining the pieces and recording the number of pieces correctly in the panchanama. His statement that he had counted three twin pieces which were fused together as three and not as six, does not get support from the evidence of Junior Scientific Officer, P.W. 1 in the sense that the Junior Scientific Officer, P.W. 1 has stated that he found 6 pieces wrapped in pairs of two. He, nowhere states that the twin pieces were fused together, which seems to have been invented by P.I. P.W. 4, so as to explain the carelessness and negligence on his part in recording the exact number of pieces in the panchanama. There is no doubt that the weight as recorded in the panchanama and the weight as recorded by the Junior Scientific Officer, P.W. 1 on Meteller balance more or less tallies and minor difference in weight can be due to the scientific balance used by the Junior Scientific Officer in relation to the balance used by the Police. Nevertheless, the discrepancy in the number of pieces, the shape of some of the pieces, which was stated to be flattened, does not tally with the description in the panchanama and the description given by P.W. 3 and P.W. 4, who have stated that all the pieces were cylindrical in shape. These discrepancies, in the fight of availability of specimen seal with the Investigating Officer, P.I. P.W. 4 till the samples were forwarded to the Scientific Assistant Shri M.D. Joshi, P.W. 2 and the fact that the sealed envelope containing contraband did not bear the signature of the accused, who had refused to sign the same, do assume importance throwing doubt on the sanctity of the sealing process.
21. Minor description or mis-description may not be fatal in all cases, but the effect of the same would depend upon the facts and circumstances of each case since minor variations can be on account of power of observation and perception, which varies from person to person. It is, therefore, not necessary to deal with the authorities referred to by learned Senior Counsel for the appellant and the P.P. on this aspect and it would suffice to mention the authorities upon which reliance was placed by them, wherein the question of variation has been dealt with on the facts and circumstances of each case. In this respect, P.P. Shri Lawande had relied upon a judgment of this Court in Austin Gladwin Roy v. State of Goa, Criminal Appeal No. 3/1998 which is a decision of Division Bench, to which one of us (Batta, J,,) was a party. Learned Senior Counsel for the appellant had, in this respect, relied upon Miss. Revital Grich v. State of Goa, 1998(11) C.C. R. 619, to which one of us, (Batta, J.,) was party and Sunder Giri v. State of Goa (supra), to which one of us (Batta, J.,) was party.
22. We shall now deal with the sixth submission of learned Senior Counsel for the appellant relating to the prejudice caused to the appellant on account of omission to put material questions under section 313 Cr. P.C. relating to the recovery of number of sticks, description thereof and the details in respect of the analysis carried out by the Junior Scientific Officer, P.W. 1. We have no hesitation in stating that the examination of the accused under section 313 Cr.P.C. especially referred to in this submission, is totally unsatisfactory. Every incriminating circumstance, which can be used against the accused, has to be put to him separately. The learned Special Judge, has put only two questions, namely Question No. 2 and Question No. 15 on this aspect. The various details relating to number of sticks found at the time of recovery, the number of sticks found in the sealed envelope by the Junior Scientific Officer, P.W. 1, variation in the description of some of the sticks, the report of Junior Scientific Officer with reference to the analysis of 5 sticks individually and on a representative sample in respect of the remaining 10 sticks and many other facts disclosed in the report and the deposition of the Junior Scientific Officer P.W. 1, have not been put to the accused/appellant. This has certainly caused prejudice to the appellant/ accused especially with reference to the plea of personal consumption, which the accused is entitled to take on the basis of available material, inspite of total denial of any recovery from his possession. It must be emphasized that putting of incriminating circumstances to the accused is not an empty formality, but it is with a view to give opportunity to the accused to explain the circumstances appearing against him in the evidence and the answers given by the accused can be taken into consideration in such trial. The courts are under a duty to put specific questions with regard to each circumstance which can be used against the accused. The omission to put incriminating circumstances in the facts and circumstances of this case, has caused prejudice to the accused/appellant, especially in his alternative defence of personal consumption in the light of the report of the Junior Scientific Officer, P.W. 1.
23. Though it is not necessary, but we shall briefly deal with the seventh submission made by learned Senior-Counsel for the appellant, wherein it is urged by him, after placing reliance on section 27 and the Explanation 2 appended thereunder that unless the accused is shown to have been in possession of small quantity of a narcotic drug or phychotropic substance, the accused is not in a position to discharge the burden cast on him., to prove that the contraband, in question, was intended for personal consumption and was not for sale or distribution. In this connection, it has also been urged that it is only after it is held that the accused is in possession of the small quantity, that the charge is required to be altered under section 27 and upon alteration of charge, the burden is cast upon the accused to discharge the same. The contention of learned Senior Counsel for the appellant further is that section 27 only regulates sentence and does not create any substantive offence and it is only when it is shown that the accused is in possession of a small quantity, that the burden would shift on him, for which he should be given opportunity to lead evidence, after it is held that the accused is in possession of a small quantity and that the same was meant for his personal consumption and not for sale or distribution.
24. We are unable to agree with the submission of learned Senior Counsel for the appellant on this aspect in toto. Section 20 of the said Act provides for punishment for possession of substances in contravention of section 8 of the said Act. Under section 54 of the said Act, there is a presumption that in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of the substances for the possession of which, he fails to account satisfactorily.
25. Section 35 of the said Act provides that in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state which respect to the act charged as an offence in that prosecution. The explanation to section 35 provides that "culpable mental state", includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact. Sub-section (2) of section 35 lays down that a fact is said to be proved only when the Court, believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
26. The possession of even small quantity is an offence under section 20 of the said Act and charge has to be framed in respect of the same under section 20 of the said Act. No charge is required to be framed under section 27 of the said Act. The effect of section 27 is that when it is shown that a small quantity in possession of the accused is meant for personal consumption and not for sale or distribution, then the sentence to be imposed is governed by section 27 of the said Act which provides for lesser terms of sentence due to the contraband being meant for personal consumption. The burden to prove that the small quantity is meant for personal consumption and not for sale or distribution has been shifted on the accused under section 27 of the said Act, since it is a plea in defence. In case the accused fails to prove the same, the conviction has to be recorded under section 20 of the said Act. Even in case where the accused succeeds in proving the said plea, the conviction has to be under section 20 of the said Act, but the sentence to be imposed is as provided by section 27 of the said Act. Section 27 in the opening words itself starts that whosoever, in contravention of any provision of this Act or any Rule or Order made or permit issued thereunder, possesses any small quantity of any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, shall be punishable with imprisonment of lesser duration notwithstanding anything contained in Chapter IV. Explanation (2) to section 27 deals with shifting of burden of proof on the accused. Thus section 27 does not create any substantive offence, but it only regulates sentence in cases of possession of small quantity, meant for personal consumption and not for sale or distribution. The burden to prove that the contraband was meant for personal consumption has to be discharged during the course of trial itself and not afterwards when the accused is heard on the point of sentence. The defence in the nature of possession of small quantity of the substance is, therefore, required to be taken during the course of the trial in the light of the incriminating evidence on record which is put to the accused under section 313 Cr. P.C. We cannot agree with the learned Senior Counsel for the appellant that the Court has to first come to the conclusion that the accused was in possession of small quantity and then alter the charge under section 27 of the said Act and then give an opportunity to him to discharge the burden cast on him. The substantive defence relating to possession for personal consumption has, thus, to be taken in the trial itself. If the accused is able to discharge the burden, then he will be entitled to lesser sentence prescribed under section 27 of the said Act. This burden can be discharged by the accused on the basis of the evidence on record or by adducing defence evidence during the trial that the contraband which recovered from him meant for his personal consumption and not for sale or distribution. General evidence that the accused is in the habit of consuming charas or that he is the user of charas cannot discharge the burden that the contraband which was recovered, was meant for his personal use.
27. We may also point out that there may be cases where the charge is for possession of quantity which may fall within the scope and ambit of small quantity and charge where it may not fall thereunder. If the contention of learned Senior Counsel for the appellant is accepted, then in a case where the charge is in respect of a quantity which may qualify as a small quantity, the accused may have to put the defence in the trial itself, but in cases where the charge is in relation to quantity which may not qualify as a small quantity, then, according to learned Senior Counsel, the accused would be required to be given an opportunity to prove that he was in possession of small quantity after the conclusion of the trial and once the Court comes to the conclusion that the accused is in possession of such small quantity. There cannot be two tier system of trial, depending upon the charge of possession of quantity below the small quantity and above such small quantity.
28. Another disturbing feature which we have noticed in a number of cases, is the course adopted by the Junior Scientific Officers/Chemical Analysers while analysing the substances, in question, which are in large quantity. Five of the pieces in the case under consideration were individually analysed and they were found to contain charas. In so far as analysis of these 5 pieces is concerned, there is no difficulty. However, in respect of 10 other pieces, the Junior Scientific Officer is reported to have followed the standard sampling procedure, which has been explained by him as: when there are 10 sticks in a sample, all the 10 sticks are analysed individually; upto 30 sticks, half of the sticks selected at random are analysed individually and if there are more than 30 sticks, then 2% of the substances selected at random are analysed individually, taking it as a representative sample. In the case under consideration, the Junior Scientific Officer analysed 5 pieces individually and the remaining 10 were examined as per the standard sampling procedure by taking representative sample. However, even as per the standard sampling procedure, referred to by him, he should have atleast examined half of the sticks selected at random individually, that is to say, he should have examined atleast 8 sticks, but he examined only 5. Moreover, he was not able to state how much sample he had taken from each of the 10 remaining substances for the purpose of representative sample. He agreed that if one of the pieces out of the ten, was charas while the nine were not charas, the net result of his analysis of one gram of representative powder sample, would give positive indication for charas and the report would read that the representative sample contained charas. He could not say anything to the suggestion that 9 of the sticks, out of 10 analysed by him are not charas. The same type of situation has arisen in Shri Premnath v. The State of Goa, Criminal Appeal No. 4/1997, to which one of us (Batta J.,) was party, wherein the representative sample was analysed by the Junior Scientific Officer. In the said case, the Junior Scientific Officer had taken individual samples from two charas pieces, but he did not carry out individual tests on the said samples. He could not state as to how much portion was taken from each piece. He further stated that even a small percentage of active constituents of charas would have given positive test for charas in the representative sample. In these circumstances, it was held that in the absence of evidence as to how much sample was individually taken from each of the said two pieces and having not conducted the test individually on the said samples and in view of the evidence of the Junior Scientific Officer that even a small percentage of active constituents of charas would have given positive test of charas, in the representative sample, it would be difficult to hold that the entire contraband of two pieces, namely 15.69 grams was charas. In the light of the evidence on record, it was held that it would be hazardous to reach such conclusion and example in that respect was given to illustrate the same, namely that assuming for a moment that the samples are taken from two sticks, one of which contains charas and the other does not at all contain charas and when the samples are taken from both sticks which are mixed and are collectively tested, then, the entire sample would be positive for charas, even though one stick out of which sample had been taken, did not at all contain charas. There would have been no difficulty if all the pieces were individually analysed.
29. In view of this state of affairs and the evidence, it would be advisable in such cases that all the pieces are individually analysed in order to prove that each piece did contain charas. The Junior Scientific Officers/Chemical Analysers shall, therefore, take necessary and appropriate precautions in analysing the samples in the light of the observation made above.
30. For the aforesaid reasons, we are of the opinion, that the prosecution has not been able to establish the charge against the accused/appellant beyond reasonable doubt and the benefit of doubt is given to the accused/ appellant. The accused/appellant is, therefore, acquitted of the charges. The conviction and the sentence are set aside. He shall be set at liberty forthwith, in case he is not required in any other case.
31. Appeal allowed.