Bombay High Court
Smt. Radha Tekbahadur Thapa vs The State Of Maharashtra on 14 December, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:38139
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.781 OF 1998
Smt.Radha Tekbahadur Thapa .. Appellant
Versus
The State of Maharashtra .. Respondent
...
Mr.Ali Abbas Delhiwala, Appointed Advocate, for the
Appellant.
Mr.S.R.Agarkar, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
RESERVED ON: 19th OCTOBER, 2023
PRONOUNCED ON : 14th DECEMBER, 2023
JUDGMENT:-
1. Smt.Radha Tekbahadur Thapa was tried in NDPS Sessions Case No.62 of 1993, for committing an offence punishable under Section 21 of the Narcotic and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and by judgment dated 07/09/1998, she is sentenced to undergo rigorous imprisonment (R.I.) for ten years and to pay fne of Rs.1,00,000/-, in default to undergo R.I. for two years.
She was directed to surrender the bail bond for undergoing the sentence, as she was on bail.
Being aggrieved, she fled an Appeal against conviction and imposition of sentence and while admitting the Appeal on M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 2/15 J APEAL-781-98.odt 18/11/1998, she was directed to be released on bail, by furnishing fresh bond.
Since then the Appeal is pending before this Court for hearing and the position as on today is, the Appellant is not traceable.
2. The order dated 07/08/2017 record that when the matter was taken up for hearing, none appeared for the Appellant and even the court notice could not be served, as the Appellant was not found on her usual address. Expressing that the Appeal is ripe for hearing, but the notice could not be served, as she was not found on her usual address. Expressing that the Appeal is ripe for hearing, but the same could not be heard in absence of the Appellant, non-bailable warrant was issued against her as well as a notice was issued to her surety. The non-bailable warrant returned un-executed, as the Appellant was not found on the address.
On 17/08/2021, notice was issued to the surety alongwith the non-bailable warrant against the Appellant, but the Police Inspector, Crime Branch, Pune, reported that the Court that the Accused was not found at the given address and even the address of the sureties is not traced out and notice could not be served to them.
Thereafter, once again a fresh non-bailable warrant was issued on 23/09/2022, but since it could not be executed, Senior Inspector of Yerwada Police Station, Pune was directed to continue with his efforts to execute the non-bailable warrant. On 19/06/2023, the same direction was reiterated.
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3. When the Appeal was listed before me on 05/09/2023, on noticing that neither the Appellant nor the sureties are traceable, and hence, I deemed it appropriate to proceed with the hearing of the Appeal, by appointing Advocate Ali Abbas Delhiwala, to represent the Appellant through the Legal Services Authority. He was furnished with the copy of the paper-book and the Appeal was heard fnally.
4. It is the case of the prosecution that on 26/03/1993, at about 9.00 p.m. or thereabout, the Appellant was found loitering near public latrine, opposite Popular Hair Dressers, Laxmi Nagar, Yerwada, Pune, being in possession of 3 gms of Gard (heroin) powder and a cash amount of Rs.125/- as the sale proceeds. On the information received to that effect, she was apprehended for committing an offence punishable under Section 21 of the NDPS Act and the contraband was seized. On carrying out the necessary procedural formalities, she was shown to be arrested and charged under the NDPS Act. She claimed innocence and chose to be tried and as a consequence, she was subjected to NDPS Sessions Case No.62 of 1993.
5. In support of the prosecution case, four witnesses are examined, being Mr.Bhagwat Vithal Raut (PW 1), the carrier of sealed packets of the crime property to Chemical Analyser, Mr.Ravindra Shravan Gaikwad (PW 2), the panch witness, Mr.Murlidhar Ramchandra Koshti (PW 3), the Muddemal Clerk and Mr.Pradip Bhanudas Babar (PW 4), the Investigating Offcer.
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I must now turn to the key witness of the prosecution i.e. PW 4, the PSI attached to Vigilance branch at Pune.
PW 4 deposed in the trial that on 26/03/1993, at about 7.05 p.m., he received an information that one lady named Radha Thapa, wearing white colour saree with fair complexion, is selling Gard powder near Popular Hair Dressers near Laxmi Nagar, Yerwada, Pune. On receipt of this information, he took an entry of the same in the Information Register and produced the xerox copy of the said Register (Exh.21). After transmitting the information to his superior offcer, the Police Inspector, he sought permission to conduct a raid and, the requisite permission was received by him (Exh.22). Thereafter, the two panchas were fetched, one of them was a lady panch, whereas the other is Ravindra Gaikwad. While proceeding on raid, PW 4 carried with him the weighing balance, measures, stationary and chemical kit box.
As per PW 4, at around 8.10 p.m., he alongwith the police staff and panchas proceeded to Yerwada Police Station and he prepared a report of proceeding for the raid, which was handed over to the PSI of Yerwada Police Station and a Station Diary entry (Exh.23) was taken. The raiding team headed by PW 4 started at 8.45 p.m. from Yerwada Police Station to approach the spot of the incident. On reaching the spot, they found a lady as per the description given in the information and she was apprehended. She disclosed her name and on being told the purpose of raid and search for the alleged possession of Gard powder, she was informed that she was having right to be searched in the presence of the Magistrate or the gazetted Offcer, which she declined.
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As per PW 4, lady panch alongwith lady constable took her search and discovered one ash coloured purse, which further led to one plastic bag in which 13 small packets were kept. On opening the packets, it was revealed that they contained Gard powder and, thereafter, they were again packed and all the packets were kept in a plastic bag. The plastic pouch was then placed in one envelope and the weight of the 13 packets was found to be 3 gms. Thereafter, envelope was sealed and the signatures of the panchas and the Investigating Offcer were placed thereupon. The envelope containing plastic pouch with 13 packets was described as Article 1, whereas the packet in which the purse of the suspect was kept, was marked as Article 2.
6. PW 4, in the witness box, was confronted with Articles 1 and 2 and he confrmed the same. He also confrmed the panchnama (Exh.14), which according to him, concluded at 10.10 p.m. and, according to PW 4, the property seized from the Accused and the Accused herself were taken to Yerwada Police Station, when he fled a report to register an offence punishable under the NDPS Act (Exh.24).
On the report, Crime No.220 of 1998 was registered.
7. As per PW 4, the muddemal was deposited with Muddemal Clerk of the police station alongwith copy of panchnama and on the second day morning, he gave completion report of the raid to his superior. He obtained the report of the Chemcial Analysis (Exh.27) and fled a charge-sheet in the Court.
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8. The case of the prosecution, which has surfaced through the Investigating Offcer need to be tested with the deposition of the other three witnesses and specifcally the panch witness, as the testimony of the Investigating Offcer deserve a corroboration.
PW 2, is the panch witness and according to him, it is around 6 to 6.30 p.m. in the evening, when he was present at the pan shop near the Commissioner Offce, two police approached him and informed him that one lady is selling narcotic drug and he should act as panch. He was asked to accompany them to the Vigilance situated back side premises of the Commissioner Offce and he abided by the request, where one lady panch and PSI alongwith police staff were present. He accompanied PSI Babar and the team that was formed by him and by jeep, they reached Yerwada Police Station, where a report was written and on reaching the spot, one lady was found near the public toilet and PSI Babar indicated that she was the same lady and they all went near her.
Thereafter, as directed, the lady constable took search of the lady and she was carrying one purse in her hand and from the purse, one plastic bag containing 13 small pudies (packets) wrapped in the paper were found. One of the pudies was opened by PSI Babar and on smelling it, he told that it was brown sugar. All the packets were weighed and found to be between 2.5 to 3 gms. All the pudies were then put in an envelope, which was packed and sealed with lac seal. As per PW 2, the 13 packets were wrapped in plain papers of white colour and on being confronted with the packet in which the 13 M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 7/15 J APEAL-781-98.odt small packets were kept, he identifed the same alongwith plastic bag containing 13 packets of the drug.
On being subjected to cross-examination, PW 2 state that he was called by the police constables to conduct a raid on a lady dealing in brown sugar and according to him, both the constables were in dress (uniform). He admit that search of the Accused was taken by police constable in his presence. He also admit that all the police offcers were in dress at the time of raid. PW 2, however, could not give the number of signatures that were put by him on different papers. He also admit that the panchnama does not mention that PSI Babar smelled the powder, which was seized.
9. Pointing out to this set of witnesses, there is huge discrepancy and several contradictions and Mr.Ali Abbas Delhiwala has submitted before me that this makes the case of the prosecution doubtful and the presence of the panch witness at the site suspicious.
I have taken note of these discrepancies in form of contradictions and omissions, which have been brought on record through these two witnesses.
The frst discrepancy is about the time of incident.
As per PW 4, he received information at around 19.05 hours from his informer that one lady is selling drug by standing near Popular Hair Dressers, Yerwada, Pune. Accordingly, he recorded the information in the Narcotic Register and placed it before his superior.
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As per Exh.22, he was granted permission at 19.20 hrs. and what is interesting is the endorsement of the superior, which reads as below :-
"Permission is granted to visit the site and raid the house of the described woman."
It is thus obvious that only after the information is registered and permission is obtained, the panchas are fetched, but as per PW 2, on 26/03/1993 at about 6 to 6.30 p.m., the constable approached him to act as panch. This indicate that PW 2 was informed about the incident even before the same was reported to the superior by PW 4. The inference can be that the entire recovery was staged.
Further, according to PW 2, PSI Babar (PW 4) on reaching the spot, pointed towards the Accused and told that she was the lady and the raiding team approached her. This statement, however, does not fnd corroboration in the evidence of PW 4. Another contradiction is about who took search of the Accused.
PW 2 has deposed that a lady constable searched the Accused in his presence, whereas PW 4 deposed that lady panch and lady constable took her search. There is also contradiction, whether the police party was in uniform or not, as PW 2 state that the constables, who approached him and the police party were in uniform, whereas as per PW 4, none of them were in uniform. There also exist a discrepancy about the purse in which the contraband is alleged to have been found, as according to PW 2, the Accused was holding the M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 9/15 J APEAL-781-98.odt purse in her hand, whereas as per PW 4, when a search was taken, a small purse was found with her.
10. Apart from the aforesaid omissions and contradictions, what is of utmost signifcance is the compliance of Section 50 of the NDPS Act.
As per PW 2, PSI Babar asked the Accused to take search of panchas and police staff to which she declined and he asked her, whether she wants her search to be taken in presence of any Offcer or Magistrate, to which she declined. PW 4, however, has deposed by stating that he informed the Accused that, she is having right to get her search in presence of Magistrate or gazetted offcer and whether she wants her search to be taken in their presence, to which she declined.
The panchnama at Exh.14 proved through PW 2 record that, she was apprised about her right to demand her search in presence of the gazetted offcer or Magistrate and when she declined such a search, she was searched by the lady panch and a small money purse was recovered, which contained the contraband.
I will come to the aspect of non-compliance of Section 50 a little later, but in the narration, I must complete the deposition of other two witnesses about the receipt of the contraband by the Muddemal Clerk and it's carrier.
11. PW 1, the Police Naik attached to Yerwada Police Station has told the Court that PW 3, the Muddemal Clerk at Yerwada Police Station gave him a sealed packet of the crime property, M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 10/15 J APEAL-781-98.odt with one letter in the name of the Chemical Analyser and he took it to the offce of the Chemical Analyser and handed it over, by obtaining the signature on the offce copy of the letter. In the cross-examination, he admit that he did not sign on the Muddemal Register for receipt of Muddemal. According to him, he received the packet on 29/03/1993 i.e. three days after the incident.
As per PW 3, the Muddemal Clerk, at 11.00 p.m. in the night of 26/03/1993, PW 4 gave him one sealed packet as Muddemal with copy of panchnama and he made an entry of the same in the Muddemal Register. He produced the xerox copy of the said Entry Register (Exh.17) and was confronted with the packet at Articles 1 and 2 and he confrmed before the Court that it is the same property, which was handed over to him by PSI Babar.
What is relevant to note is, PW 3 deposed that he kept the property seized in one envelope and put the seal of the police station and put it in the cupboard and these two envelopes are Articles 1 and 2 before the Court. He admit that the Muddemal was kept in cupboard for two days and on 29/03/1993, the sealed packet was sent to the offce of the Chemical Analyser through PW 1. In the cross-examination, he admit that he did not take entry in the Muddemal Register about sending the same to the Chemical Analyser's offce and this had happened due to oversight.
In this background what is important to note is the Chemical Analyser's Report forwarded to Yerwada Police Station on 30/04/1993 by the Regional Forensic Science Laboratory, Pune. It refer to one intact sealed packet and the M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 11/15 J APEAL-781-98.odt description of the Articles in the parcels at Exhibit (1) to Exhibit (13) is given as brown coloured powder wrapped in paper, separately put in a plastic bag, wrapped in paper labelled C.R.No.197 of 1993, again put in a packet labelled C.R.No.220 of 1993. On analysis of the 13 exhibits, the result given is, "Heroin (diacetyl morphin)".
The analysis report state Exhibit Nos.(1) to (13) fall under Section 2(xvi)(e) of the NDPS Act.
12. The above circumstance creates a serious doubt, as to whether the Forensic Laboratory has analysed the same packets, which were seized during search of the Accused, as neither PW 2 nor PW 4 in their deposition, have deposed that the 13 packets, which were wrapped in a plastic pouch, after opening one of them by PW 4, were allotted numbers. Apart from this, on the spot, PW 4, who had carried the testing kit with him did not test it at the site. Since there were no numbers given to the packets as exhibits, there is discrepancy in the report of the analysis, which has analysed Exhibits (1) to (13) and found it to be heroin. The above circumstance affect the credibility of the case of the prosecution apart from the fact that the lady constable and lady panch, who had allegedly searched the Accused, are not examined.
Apart from this, there is also violation of Section 50(4) of the Act, which contemplate that the Accused must be examined by a lady constable in a secluded place, but it is deposed by PW 2 and PW 4 that Accused was searched in their presence and, hence, the prosecution has even failed to M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 12/15 J APEAL-781-98.odt safeguard the right of the Accused conferred under the statute, as it is violative of the basic right of a female, who deserved to be treated with decency and proper dignity.
13. Since it is the case of the prosecution and, in particular, PW 4 that the Accused was searched by lady constable and lady panch and was found carrying a small purse with her, the recovery was from the person of the Accused, as the purse is found upon the search. There is a discrepancy in what was informed to her, as according to PW 2, PSI Babar asked her whether she wants her search to be taken in presence of an offcer or a Magistrate to which she declined, but as per PW 4, he informed her that she has a right to get her searched in presence of the Magistrate.
Compliance of Section 50 of the NDPS Act is mandatory and it is imperative to follow the requirement of the statute strictly, failing which the conviction cannot be sustained. The Accused is required to be informed of his/her right of seeking a search in presence of the Magistrate or the gazetted offcer and the law on this point is well settled by the Constitution Bench decision of the Apex Court in the case of State of Punjab Vs. Baldev Singh1, where it is categorically held that it is imperative for the Investigating Offcer to inform the suspect, orally or in writing, about his right to be searched before a gazetted offcer or a Magistrate and failure to apprise about such a right would not vitiate the trial, but render the recovery of illicit article illegal and vitiate the conviction and sentence, if recorded only on the basis of possession of such illicit article/substance.
1 (1999) 6 SCC 172
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It has been held that Section 50 casts an obligation on the empowered offcer and it is his duty before conducting the search of the person of a suspect about his right to require his search being conducted in the presence of the gazetted offcer or the Magistrate. Failure to discharge this obligation has been held to be causing prejudice to the Accused and rendering the search illegal and the conviction and sentence liable to be set aside.
14. In the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat 2, another Constitution Bench has held it mandatory to make the suspect aware of the existence of his right to be searched before a gazetted offcer or a Magistrate and if so required by him, to ensure the compliance of the mandate. The strict compliance of the statutory provision like Section 50 of the NDPS Act has been held to be necessary in order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered offcers and, hence, the safeguards provided by the legislature must be observed strictly. It is held that object of Section 50(1) of the NDPS Act is to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies.
15. The learned counsel Mr.Abbas Delhiwala has also placed before me the decision of the Apex Court in the case of Arif Khan alias Agha Khan Vs. State of Uttarakhand 3, which has 2 (2011) 1 SCC 609 3 (2018) 18 SCC 380 M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 14/15 J APEAL-781-98.odt held that non-compliance of mandatory procedure under Section 50 is fatal to the prosecution case.
16. In the present case, since the prosecution has failed to establish conclusively that the Accused/Appellant was apprised of her right under Section 50 of the NDPS Act and, since, there is no intimation in writing furnished to the Accused for ascertaining compliance of Section 50, reliance has to be placed only upon the version of the panch witness and the Investigating Offcer, who are not consistent about the manner in which the Accused was apprised of her right. It is also not clear as to in what language, she was apprised of her right and whether she had followed what was conveyed to her and specially about the right of she being entitled to be searched before the Magistrate or gazetted offcer.
17. The case of the prosecution, on various counts, is suspicious and doubtful. There is a time gap of two days between the seizure of the contraband, which was deposited in the Malkhana and after two days, it was reached to the Regional Forensic Science Laboratory by PW 1, but there is no entry to that effect in the Register of sending the Muddemal for chemical analysis. It was necessary for the prosecution to prove that the CFSL form containing the specimen seals were duly flled at the spot when the sample was taken and that it remained intact until it is reached to the offce of the Chemical Analyser and, since the contemporaneous documentary evidence has not been produced by the prosecution, one has to M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 ::: 15/15 J APEAL-781-98.odt only rely upon the oral testimony of the witnesses, which suffer from glaring contradictions. The vital link between the contraband seized and the report of the chemical analysis is missing and leaves a scope of possibility of tampering with the sample and false implication of the Accused. Hence, the beneft must therefore yield in favour of the Accused/Appellant, as the prosecution has not conclusively established that the alleged substance obtained from the Accused was sent for analysis.
The impugned judgment fails to consider this important aspect and the glaring lacunae that are noticed in the case of the prosecution. The conviction and the sentence imposed hence cannot be sustained and the impugned judgment dated 07/09/1998 passed by the NDPS Special Court in NDPS Sessions Case No.62 of 1993, convicting the Appellant deserve it's conversion into that of acquittal, by quashing and setting aside the same.
Resultantly, the Appellant deserve an acquittal from the charge under Section 21 of the NDPS Act and she stand acquitted. Her bail bond stands cancelled.
18. Before parting with the judgment, I would like to place on record the words of appreciation for Advocate Ali Abbas Delhiwala, who on being appointed, has effectively represented the case of the Appellant. The Legal Services Authority is directed to release the legal remuneration due and payable to him within a period of six weeks from today.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 18/12/2023 ::: Downloaded on - 01/03/2024 02:15:02 :::