Bombay High Court
Bhaskar Aayyar Kaunder vs The State Of Maharashtra on 18 February, 1993
Equivalent citations: AIR1993BOM110, 1993CRILJ2761, 1993(2)MHLJ1261
JUDGMENT Saldanha, J.
1. A new facet touching the aspects of expediency and safe custody that are pre-requisites of the procedure prescribed under Section 52 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") has been thrown open for consideration in this appeal. Briefly stated, it has been demonstrated that a sealed sample, which was in the custody of the officer incharge of the Palton Road Police Station, was taken out of safe custody and as per the entry in the outward register, put in transit for being delivered to the Chemical Analyser on 6-2-1987 as per the outward register entry of the Police Station. The certificate of the Chemical Analyser indicates that it was received by hand-delivery in Bombay after a gap of as many as five days, that is to say, on 11-2-1987. There is no explanation whatsoever on record as to what happened to the packet during this period of five days. The question that is posed is as to whether this delay constitutes a fatal infirmity to the prosecution or, whether in the light of the explanation tendered at the appellant stage, this Court can condone the lacuna. We shall first outline a few brief facts that are essential.
2. The appellant-accused, a resident of a hut near the 'C' Ware House, P. D'Mello Road at Bombay, was alleged to have been in possession of ten grams of brown-sugar. The prosecution alleges that the Police Party, while on patrol duty, received information that the Accused was dealing in brown-sugar and, therefore, proceeded to that place. Two panch witnesses were secured and the Accused, who was seen outside his hut, was apprehended. It is alleged that on a search, a plastic bag was found in his pyjama pocket and that the bag contained 42 visle, each of which had a small quantity of powder in it. On examination, the powder was found to be brown-sugar and it was, therefore, collected in a single paper and found to weight ten grams. Eight grams of the brown-sugar were separately packed-and sealed and a sample of two grams was also separately packed and sealed for purposes of being sent for analysis. The Accused was brought to the Police Station and the two packets were handed over to the authorities at the Police Station and duly kept under safe custody by the Muddemal Authorities. On completion of the investigations, the Accused came to be prosecuted before the learned Special Judge, Greater Bombay, who accepted the prosecution evidence and convicted him for an offence under section 8(c) read with Section 31 of the N.D.P.S. Act and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default, to suffer rigorous imprisonment for one year. The Accused has challenged the validity of this conviction and sentence through the present appeal.
3. Shri Dukhande, learned Counsel appearing on behalf of the Accused, has taken us through the evidence of Laxman Wagre (P.W. 1), Baburao Yadav (P.W. 2), the Police Head Constable, the First Information Report (Exhibit 10), which is at page 25 of the paper-book, and the evidence of Police Sub-Inspector Suresh Sawant (P.W. 3), who was the officer incharge of the raid and the investigations. Learned Counsel advanced several submissions with regard to the challenge to the independence of the Panchas and their veracity as also the procedure required to be followed by the authorities in relation to a raid of this type and the infirmities in the evidence inter se on such points as to the question of how the Police, who had been on normal patrol duty, secured the requisite material for testing, weighing, sealing, etc. In sum and substance, learned Counsel contended that the totality of the prosecution evidence does not inspire sufficient confidence to sustain the present conviction.
4. Shri Patil, the learned A.P.P., countered his argument by pointing out that the Panch witness has supported the prosecution, that the Police Head Constable, Baburao Yadav (P.W. 2), has narrated very cogently as to how the information was received, the raid was conducted and the drug was recovered from the possession of the Accused. He has thereafter submitted that the First Information Report (Exhibit 10), which was lodged on 15-1-1987 itself at 7.30 p.m. in the evening, fully corroborates the aforesaid evidence and, furthermore, that Police Sub-Inspector Suresh Sawant (P.W. 3) has observed the requisite procedural safeguards that are prescribed under the provisions of the N.D.P.S. Act. Shri Patil has also pointed out to us that the analysis report of the Chemical Analyser, which is dated 1-6-1987 (Exhibit 13), indicates that herein was detected in the sample sent for analysis and that, in these circumstances, he contended that the trial Court was fully justified in recording a conviction.
5. We do not propose to reproduce in detail the submission canvassed by learned Counsel for the Accused with regard to the so-called infirmities and inconsistencies in the evidence because these are minor, trivial and inconsequential. On a scrutiny of the evidence, we do not find anything that is substantial enough to either shake the credibility or to create any serious doubt in the mind of the Court with regard to this evidence.
6. In the course of his arguments, Shri Dukhande thereafter pointed out to us that there is one serious infirmity as far as the present case is concerned which, in his submission, is so very grave and substantial that it is sufficient to virtually blow the prosecution case to pieces. He submitted that the gravemen of the charge is that the Accused was found in possession of certain contraband and it is, therefore, the character of that material which is crucial for purpose of securing the conviction. In the present case, the Accused was defended by a Counsel appointed by the State who apparently consented to the Chemical Analyser's Report being taken on record by consent. No representative of the Chemical Analyser was examined nor were the contents of the Chemical Analyser's Report disputed. Shri Dukhande is, therefore, precluded from raising any serious challenge with regard to the findings in this report and the only challenge projected by him is in relation to what he terms as "a serious indiscretion on the part of the authorities incharge of the investigation". He has pointed out to us from the evidence of Police Sub-Inspector Suresh Sawant (P.W. 3) that the sample, which was forwarded to the Chemical Analyser, was taken out from the custody of the Police Station on 6-2-1987 when the covering letter of that date was prepared by Police Sub-Inspector Suresh Sawant. The outward register also indicates that the sample was despatched from the Police Station vide the entry dated 6-2-1987. In cross-examination, Police Sub-Inspector Suresh Sawant (P.W. 3) was asked to produced the register and, after taking time from the Court, he produced the same, which conclusively establishes that the sample did, in fact, leave the Police Station on 6-2-1987. Learned Counsel has drawn our attention to the Chemical Analyser's Report, which conclusively indicates that the sample was sent by hand-delivery through the Police Head Constable No. 4833 and was duly received in the office of the Chemical Analyser, which is located at Vidyanagari, Bombay-400 098, that is to say, in the same city, on 11-2-1987. Learned Counsel contended that the N.D.P.S. Act prescribes a rigorous procedure and that there is a clear reference in Section 52 of the N.D.P.S. Act to the requirement that the authorities have to act with expediency at all stage. In fact, the mandate is that they must act "without unnecessary delay" - the accent being on a degree of speed. He advanced the further submission that there has been same delay in the transmission of the sample to the Chemical Analyser, but that in the present case, to our mind, is not of much significance because it cannot be contended that the sample was such which has changed character or that as a result of such delay, any prejudice would be caused to the Accused. The raid was on 15-1-1987 and the sample was despatched on 6-2-1987, which was after about three weeks, and to our mind this cannot really be construed as any undue delay.
7. The main contention of learned Counsel stems from the argument that there is no sanction for any authority other than the Inspector incharge of the Police Station to remain in custody of the material that has been seized in narcotics cases. He pointed out to us that an examination of the N.D.P.S. Act would clearly indicate that there are specific provisions requiring that regardless of whosoever is the authority that effects the seizure, that it still should be with the Inspector incharge of the local Police Station that the contraband has to be deposited. Undoubtedly, there is a valid reason for this in so far as the objective is to avoid any possibility of tampering. By the same standard, learned Counsel contended that when a sample is to be sent to the Chemical Analyser that this must be done in such a manner as to obviate any undue delay. He submitted that if there is any such long delay and there is no explanation for the delay, it will have to be held that there was every possibility that the sample has been tampered with. In the present case, if the sample was despatched from the Police Station on 6-2-1987, it ought to have reached the Chemical Analyser, who is also in Bombay and to whom it was transmitted by hand delivery, on the same day. There is no warrant for the sample to be retained in the custody of any person even if he happens to be a member of the Police Force while the same is in transit for any unduly long period of time and in the present case the gap of five days has not been explained by the prosecution.
8. The learned A.P.P. pointed out to us that there was a week-end intervening and that the Saturday and Sunday ought to be excluded. Such an argument only worsens matters. It is unthinkable that the law would sanction a situation where the members of the Police force spend their weekends with "muddemal" property in their pockets or some such places. He further submitted that the office of the Chemical Analyser is located at the other end of town and he contended that there was every possibility that the Head Constable to whom the sample was handed over was engaged in several other duties which resulted in some delay on his part in going to Vakole and handing over the same at the office of the Chemical Analyser, Shri Patil, however, vehemently contended that this Court should not, under any circumstances, upheld a challenge of this type because there is intrinsic material on record from which it can be conclusively established that the possibility of any tampering in completely ruled out. For this purposes, Shri Patil demonstration to us that the covering letter dated 6-2-1987 does, in fact, refer to the specimen of the seal being forwarded to the Chemical Analyser. The report of the Chemical Analyser dated 1-6-1987 indicates that the seals on the packet that was delivered for analysis were intact. Shri Patil, therefore, submitted that even if the packet might have been retained or that there was some delay in its being handed over to the office of the Chemical Analyser that this Court could only come down heavily if it is demonstrated that some tampering has taken place, it would at the highest only be a question of some delay in transit and this, according to Shri Patil, cannot vitiate the conviction.
9. We have carefully considered the arguments of learned Counsel on both sides. We have also taken stock of the fact that some reasonable time-period will have to be made available for the transmission of samples even if they are sent by hand delivery. The difficulty that arises is in cases where that time-period is grossly extended. In a given case, even if a situation of that type arises, it is essential for the prosecution to point out to the Court that there were valid and genuine reasons for the time-lag or that there were unavoidable circumstances that occasioned it, in which case the Court will consider the explanation on merits. In the present case, however, there is no such explanation forthcoming and we, therefore, have a gaping void of this long dark period of five days during which the sample packet had left the Police Station and not reached the office of the Chemical Analyser. The reference in the Chemical Analyser's Certificate that the seals were intact does not inspire complete confidence in our mind for the reason that we have taken meticulous care to look at the packet that has been received back from the Chemical Analyser and we find that the seals in question that are referred to are no other than the ordinary lac seals on which the impression of the stamp of the Police Station is affixed. The principal ground of challenge is that the law prescribe for the safe custody of the contraband and the solitary reason behind this is to totally rule out any possibility of substitution, tampering, etc. It is this aspect of the law that we are concerned with, namely, the fact that the packet was not in the authorized custody during the period of five days and this, in our considered view, would constitute a very serious breach. What this Court is required to rule out is the aspect of any possibility of tampering and if it is demonstrated that the packet has been taken out from the custody of the Police Station, there is no explanation as to where it was for a long period of five days and it thereafter appears before the Chemical Analyser, undoubtedly, with some seals on it, in our considered view, there would certainly be a breach of the requirements in respect of safe custody and we cannot, in these circumstances, rule out the possibility of tampering or substitution. It is in these circumstances that we are impelled to give the benefit of doubt to the appellant-accused in the present case.
10. Learned Counsel appearing on behalf of the appellant-accused has down our attention to two of the Division Bench decisions of this Court, the first of them being in the case of Pradeep Kumar Acharya v. The State of Maharashtra, (1992) 2 CCR 1524; and the second of them being a Division Bench decision of this Court in the case of Shaukat Alisab Barmare v. The state of Maharashtra (Criminal Appeal No. 878 of 1998) decided on 6-3-1992. Shri Dukhande relied on the observations of the Division Bench in those two judgments, to which one of us (Saldanha, J.) was a party, and contended that this Court has, in some of the cases under the N.D.P.S. Act, held that the non-examination of the carrier, who took the sample to the Chemical Analyser, would be fatal to the prosecution. A reading of these two judgments will indicate that on the special facts of those cases, the Division Bench did uphold this contention. Undoubtedly, the circumstances under which the sample is transmitted to the Chemical Analyser is one important phase and, in our considered view, it would certainly be useful that this should not be left either to chance or conjecture and that the prosecution should, as far as possible, examine the carrier. On the facts of the present case, we would not regard the non-examination of the carrier as a circumstance by itself being fatal to the prosecution because there is sufficient and cogent evidence on record to establish the charges, apart from this aspect. What has been upheld by us is the fact that neither has the carrier been examined nor, more importantly, has a valid explanation been put forward for the dark question as to where the sample was lying for the long period of five days. It is this letter aspect that has been held to be fatal to the prosecution. We do not hesitate to point out, as indicated earlier, that it was certainly open for the prosecution to have satisfied the Court that even if there was some delay in transmission that the sample packet was neither in wrong custody nor was there may possibility of tampering. On the peculiar facts of this case, since there is no explanation, we are constrained to hold against the prosecution.
11. Shri Patil, the learned A.P.P., has submitted that the Division Bench of the Gujarat High Court in the case of Surajmal Kanaiyalal Soni v. State of Gujarat, 1991 Cri LJ 1483, held that non-observance of procedural formalities or breaches thereof would not ipso facto be fatal to the prosecution. The point before the Division Bench of the Gujarat High Court was entirely different to the one before us. That case is distinguishable on facts. It is true that in a given case, it may be possible to argue that breaches, if they are not substantial or if there are explanations for them, would not be fatal, but, in the present case, that unfortunately is not the position.
12. Having regard to the aforesaid, the appeal succeeds. The conviction and sentence awarded to the a appellant are set aside. Fine, if paid, is directed to be refunded. The appellant, who is in custody, is directed to be released forthwith, if not required in connection with any other case. The appeal is allowed accordingly.
13. Appeal allowed.