Bombay High Court
Shri Bhagwatsingh Gaud vs State Of Goa on 1 December, 1997
Equivalent citations: 1998BOMCR(CRI)~
Author: R.M. Lodha
Bench: R.M. Lodha, R.K. Batta
ORDER R.M. Lodha, J.
1. The accused/appellant Shri Bhagwatsingh Gaud has come in appeal before this Court challenging his conviction and sentence. The Special Judge, N.D.P.S. Court, Mapusa, vide his judgment dated 31st October, 1996 convicted the accused/appellant for the offence punishable under section 20(b)(ii) of the N.D.P.S. Act 1985 and sentenced him to suffer Rigourous Imprisonment for ten years and to pay a fine of Rupees one lakh and in default to suffer Rigorous Imprisonment for two years.
2. Briefly stated, the prosecution case is that on 28-11-95 at 10.00 a.m. an information was received that a North Indian person slaying in Room No. 6 of hotel Anjuna Beach Resort at D'Mello Waddo, Anjuna, was dealing in charas. Shri Gopal Jadhav (P.W. 4) who was officer-in-charge of A.N.C. Police Station accordingly recorded the information in writing and sent the same to the Deputy Superintendent of Police. P.W. 4 decided to raid the said premises and accordingly secured the presence of Mr. Leo D'Cruz (P.W. 3) and Shri Ashok Johare to act as panchas. P.W. 4 along with panchas, P.S.I. Thorat, lady P.S.I. Pangam and other head constables and police constables proceeded towards Anjuna in jeep and went on motor cycle. The vehicle was parked near the said hotel and then the raiding party entered the hotel. Near the place of the hotel they saw one person wearing blue jeans and multicoloured T Shirt and he was carrying a travellers bag. The said person appeared to be the person for which the information was given. The said person is accused/appellant. He was asked whether he was staying in Room No. 6 of the hotel to which his reply was in the affirmative. P.W. 4 told him that he had information that he (accused) was dealing in charas and that he had come to search him. The accused was informed by P.W. 4 that he has a right to get himself searched in the presence of a Gazetted Officer or Magistrate. The accused was also told that before his search was taken, he could search the raiding party. The accused however, declined both the offers. P.W. 4 thereafter took the bag carried by the accused which was having 4 zippers. In one of the compartments was the cloth bundle containing polythene bag inside which was found to be charas in the form of sticks of various sizes. The charas was weighed and found to be 1 kg. and 800 grams. One piece of charas weighing 30 grams was taken from the entire quantity of charas seized from the accused/appellant and put in an auto pressed polythene bag which was then put in an envelope and the envelope was packed and sealed. Balance quantity of charas was put back in the same polythene bag which was put in an envelope and the envelope was packed and sealed. P.W. 4 also found that inside one of the compartments there was a weighing scale and certain weights of denominations of 1 gm., 2gms., 5 grams and 10 grams. Driving licence of the accused/appellant was found in one of the compartments and the entire bag was put in an envelope and sealed. The accused/appellant was personally searched but no contraband was found. The panchanama and the seizure report were prepared. Copies of the panchanama and seizure report were given to the accused. After completing the panchanama, P.W. 4 along with the raiding party went to Room No. 6 where the accused/appellant was staying. In the room a lady, who was wife of the accused and two children were found. The lady P.S.I. took the search of the wife of the accused, but from her person no contraband was found. The substances recovered from the accused/appellant were sent for 'chemical analysis. Ultimately, the N.D.P.S. Court, Mapusa charged the accused/appellant for the offence committed by him under section 20(b)(ii) of the N.D.P.S. Act, 1985. To prove its case, the prosecution examined Mahesh Kaissare (P.W. 1), Manohar Joshi (P.W. 2), Leo D'Cruz (P.W. 3) and Shri Gopal Jadhav (P.W. 4) and also various documents including Chemical Analyser's report (P.W. 1/C), search panchanama (P.W. 3/A), seizure report (P.W. 3/B) and the complaint (P.W. 4/B). The prosecution also exhibited intimation under section 57 of N.D.P.S. Act (P.W. 4/G). The accused submitted his written statement denying the allegations and also examined one Jayatan Thanksali (D.W. 1).
3. Mr. Chari, the learned senior Counsel, appearing for the accused/appellant raised diverse contentions challenging the correctness of the conviction and the sentence awarded by the N.D.P.S. Court, The first and foremost contention raised by Mr. Chari, and that has impressed us and appears to be of substance, is that the search officer (P.W. 4) knowingly fully well mat the panch witness Leo D'Cruz (P.W. 3) had acted as panch in other cases took him to act as Panch. According to him P.W. 3 pliable witness and therefore the entire raid would become suspect and therefore there was no sufficient evidence to convict the accused for the offence punishable under section 20(b)(ii) of the N.D.P.S. Act. We have found this argument raised by Mr. Chari, the learned Senior Counsel impressive and of substance after considering the depositions of P.W. 3 and P.W. 4 minutely and the submissions of Mr. Bharne, learned Public Prosecutor, for the reasons which we shall state hereafter.
4. The raid conducted by P.W. 4 was admittedly sequel to the information received by him that the accused Bhagwatsingh who was staying in Room No. 6 at Anjuna Beach Resort at D'Mello Vaddo, was dealing in charas. P.W. 4 upon receipt of the said information, decided to raid the said premises and accordingly secured the presence of two persons namely Leo D'Cruz (P.W. 3) and Ashok Johare to act as panchas in the search and seizure operation. Leo D'Cruz (P.W. 3) has been known to P.W. 4 for about 20 years. P.W. 4 the search officer was also fully knowing that only 20 days before, in another search operation on 8-11-95 he secured the presence of P.W. 3 Leo D'Cruz, to act as panch. He did not, as is expected from a reasonable prudent Police Inspector, make any inquiry from P.W. 3 as to in how many cases he has acted as panch, nor did he make efforts to secure the presence of any panch from the locality where the raid was to be conducted. P.W. 3 though in the beginning of his cross-examination stated before the Court that he was appearing in the Court for the first time as panch witness and has never deposed in the Court except the present case, on further cross-examination could not conceal the fact of his having acted as panch witness in other cases. Upon incisive questioning, P.W. 3 admitted that he started acting as panch witness in connection with customs cases about four or five years ago. He also could not specifically deny the fact that he has acted as panch in other cases and stated that he might have acted as panch in some cases connected with the police besides the customs cases and those of Anti Narcotic, Cell. He also admitted that in the raid conducted on 8-11-95 by P.W. 4 P.I. Jadhav, he was one of the panchas. The cross-examination of P.W. 3 leaves no manner of doubt that he is a stock witness and it would not be incorrect if he is termed as pliable witness. He appears to have acquired professionalism in acting as a panch in various criminal cases from customs offences to anti narcotic offences to other crimes. This being the affairs of the conduct of P.W. 3 who was also known to P.W. 4 for the last 20 years and acted as panch in search and seizure operation conducted by P.W. 4 in some other case only 20 days before the present incident, it does cast serious doubt and creates serious suspicion about the entire raid operation conducted by P.W. 4. The minimum care expected of a search officer of P.I. level is that he takes independent panch witnesses to witness the search and seizure transaction and if such search officer does not act with reasonable prudence, the entire search and seizure operation may become doubtful. In the present case, as we have noted above P.W. 3 was known to P.W. 4 for the last 20 years and P.W. 3 had acted as a panch witness just 20 days before the present incident in the raid conducted by P.W. 4 and despite these facts, P.W. 4 did not take independent panch witnesses nor there is any evidence to show that despite his efforts, he could not get other panch witnesses. The shocking part is that Mr. Johare, the other panch witness has not been examined by the prosecution which, if examined, would have enabled the Court to evaluate whether the other panch witness was independent witness or he also was a pliable witness. The evidence of P.W. 3, therefore, cannot be relied upon, he being a pliable witness and who has even tried to conceal the true facts about his having acted as panch in other cases initially from the Court and it is only after persistent cross-examination that he could not withstand it and had to admit in unequivocal terms that he had been acting as panch and in fact has acted as panch in number of cases. The act on the part of P.W. 4 in not taking independent panch witnesses and of course knowing the conduct of P.W. 3, renders the entire raid shrouded by suspicion. 5. Mr. Bharne, the learned Public Prosecutor, sought to urged that even if the evidence of P.W. 3 is discarded, the evidence of P.W. 4 is trustworthy and merely because he happens to be a police officer, his evidence should not be totally discarded. The learned Public Prosecutor urged that if the evidence of P.W. 4 is unshaken and could be relied upon which, according to him, should be relied upon in the facts and circumstances, the conviction of the accused cannot be faulted. We would not say nor do we know of the abstract proposition of law that in no case the evidence of Police Officer or police official could be relied upon, if not corroborated by independent evidence. The evidence of a police officer or police official if unimpeachable and does not suffer from any suspicion or doubt in any manner, in the absence of corroboration by an independent witness, in suitable cases, may justify conviction of an accused. But the rule of prudence would require such evidence to be scrutinised with care and caution and to find out whether such evidence is not shaken on any count whatsoever. Present is the case and we are concerned with the facts and circumstances of the present case only where the search officer decides to conduct the raid after receipt of the information that the accused was dealing in charas. Upon receipt of such information when he decided to conduct the raid, P.W. 4 was expected to take independent panch witnesses. However, P.W. 4 took P.W. 3 as panch witness who was known to him for 20 years and had acted as panch just 20 days before the present incident in the search conducted by him only under N.D.P.S. Act. He even did not make any inquiry from P.W. 3 as to in how many cases he had acted as panch earlier to the present case. May be the inquiry was not made by him because P.W. 4 knew that P.W. 3 has acted as panch only recently in the raid conducted by him and that he has been acting as panch in number of cases. The facts and circumstances which have come on record clearly show that P.W. 3 was not an independent witness and that he was pliable witness was not unknown to P.W. 4. In this background, when the deposition of P.W. 4 is examined, we find serious infirmities. P.W. 4 has admitted in his cross-examination that he did not meet the owner of the Anjuna Beach Resort on the day of the search. He met the son of the owner of the said hotel whose name was Joseph D'Souza. However, he did not record the statement of Joseph D'Souza on the day of the raid. His explanation is that the statement of Joseph D'Souza on the day of the raid could not be recorded because it was late could hardly be believed. The raid was completed by 14.30 hours in the afternoon and therefore the statement of Joseph D'Souza could have been easily recorded if P.W. 4 so desired. Not only that, P.W. 4 also admitted in his cross-examination that in the intimation sent by him under section 57 of the N.D.P.S. Act there is no mention whatsoever about the bag and the driving licence of the accused. In the intimation under section 57 sent by P.W. 4, it is not even stated the accused was arrested in the hotel. Intimation under section 57 is P.W. 4 /G on record. In the said intimation it is not at all mentioned that the accused was arrested in the hotel Anjuna Beach Resort or that recovery was made in the hotel. Besides that, the very fact that he did not make any effort in securing independent panch witnesses, does not make his deposition unimpeachable. In the facts and circumstances of the case, we do not find deposition of police officer of such sterling worth that we can safely rely upon his deposition in sustaining the conviction of the accused for the offence under section 20(b)(ii) of the N.D.P.S. Act. There is no independent witness to corroborate his deposition, as we have already held that P.W. 3 is highly unreliable and he cannot be acted upon at all.
6. In view of our foregoing discussion, we find ourselves in disagreement with the judgment and order of conviction and sentence accorded to the accused/appellant by the Special Judge. N.D.P.S. Court and have no hesitation in setting aside the said judgment and order of conviction and sentence.
7. Accordingly, this Criminal Appeal is allowed, judgment and order of conviction and sentence passed by the Special Judge, N.D.P.S. Court, Mapusa on 31-10-1996 in Special Criminal Case No. 3/96 in State v. Bhagwatsingh convicting and sentencing the accused for the offence under section 20(b)(ii) of the N.D.P.S. Act is quashed and set aside. The accused be released if not required in any other case.
8. Appeal allowed.