1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 16 OF 2005 Shri Susai Raju S/o Tambu Raju, 62 years old, R/o House No.115/3, Mangor Hill, Vasco, Goa. ... Appellant versus State through P.I. attached to Calangute Police Station. ... Respondent Mr. M. D'Souza, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 7TH OCTOBER, 2006. ORAL JUDGMENT The accused is before this Court impugning the conviction and sentence imposed upon him under Section 20(b) 2 (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985(Act, for short). 2. The accused was charged and tried with an allegation that on 30­11­2002 at about 7.30 p.m. near Hotel Paradise village, at Tiwaiwaddo, Calangute, was found in illegal possession of 280 gms. of charas for which the accused could not lawfully account for. To support the charge prosecution examined six witnesses and produced several documents. On the other hand, it was the case of the accused that he was not arrested as stated by the prosecution. When he was examined under Section 313 of the Code of Criminal Procedure, 1973, the accused stated that he was stopped at about 11.30 a.m. near the football ground at Calangute when he was on his M­80 scooter, and when he was stopped, he asked for the identity of the persons who had stopped him and at that time he told P.I. Gundu Naik/PW4 that he could be searched by him at which he slapped him and took his search and took his money purse, identity card, credit card, ration card, etc. The accused did not examine any witness in support of his defence. 3 3. The learned Special Judge after assessing the evidence produced by the prosecution came to the conclusion that the accused was indeed found with 280 gms. of charas from the bag which was carried by him on his said scooter for which the accused could not lawfully account for. The learned Special Judge also held that the provisions of Section 50 of the Act were also complied with and so also the provisions of Section 57 of the Act and the seized article was established by the prosecution to be charas, through the evidence of Kaissare/PW1 and therefore the prosecution had proved its case beyond reasonable doubt against the accused. 4. The case of the prosecution could be considered in two aspects. The first in relation to seizure of the narcotic drug from the possession of the accused which according to the prosecution was in a white colour cloth bag hanging on the left side of the said scooter driven by the accused. To prove this part of the case of the prosecution, prosecution examined the Seizing Officer P.I. Naik/PW4, a panch witness Vinod Sharma/PW3 and Dy. S. P. De Sa/PW5. 4 5. As per P.I. Naik/PW4, on 30­11­2002 he was the Officer in charge of Calangute Police Station, when around 6.30 p.m. he received specific and reliable information that a South Indian person aged about 55­58 years wearing white half sleeve shirt and black pant would be coming on his M­80 two wheeler near Hotel Village Paradise with a consignment of charas at 7.15 p.m. to deliver the same to his customer and therefore he reduced the said information in writing and submitted a copy to the S.D.P.O. Shri De Sa/PW5 along with the covering letter and also telephonically conveyed the said message to him. He produced the information sent by him along with the covering letter at Exh.43. A grievance was made on behalf of the accused that the letter Exh.43 did not contain the signature of Dy. S. P. De Sa/PW5. The said letter Exh.43 could not have contained the acknowledgment of Dy.S.P. De Sa/PW5 for according to P.I. Naik/PW4 the same was sent by a bearer, and, that apart Dy. S. P. De Sa/PW5 has confirmed having received the said letter. Dy. S. P. De Sa/PW5 produced the original of the said letter sent to him by P.I. Naik/PW4 at Exh.55 and not only that after having received the said intimation he ordered a raid to be conducted by him. Dy. S. P. De Sa/PW5 also confirmed having received 5 subsequently the intimation sent by P.I. Naik/PW4 under Section 57 of the Act and produced the same at Exh.56. 6. P.I. Naik/PW4 further stated that he then secured the presence of two panchas namely Vinod Sharma/PW3 and Prashant Goswami, who was not examined and thereafter with the raiding party left the Police Station at about 6.45 p.m. in Police jeep bearing No.GA­01­G­0419 carrying the seal of the Police Station bearing the inscription "Police Station Calangute" and the kit box which was carried by Constable Naik. P.I. Naik/PW4 further stated that they reached near the said Hotel at about 7.00 p.m. and parked their jeep in a lane leading to N V Beach Resorts and they concealed in the nearby area and about 17.20 p.m. they noticed a person whose description matched with the information received by him and as such intercepted him and the said person got confused and he disclosed his identity as Police Inspector and showed his identity card to him. P.I. Naik/PW4 further stated that he introduced the panchas and the other raiding party to the accused and asked his name and particulars which he disclosed as "Mr. Susai Tambu Raju, resident of H.No.115/3, Mangor Hill, 6 Vasco and then told him about the information he had received and told him that he wanted to take his search and that of the scooter for charas and then the accused was taken to the side of the road and the accused stated that the white colour cloth bag hanging on the left side of the scooter, with red colour printed letters belonged to him. P.I.Naik/PW4 then stated that he informed the accused about his right to be searched before a Magistrate or a Gazetted Officer of his choice which offer the accused declined whereupon he told the accused to take the search of the panchas and the members of the raiding party which the accused also declined, and, thereafter he stated that he asked the accused to remove the cloth bag from the handle of the scooter and to show its contents and then the accused got down from the scooter and removed the white colour cloth bag and kept the same on the seat of the scooter and removed the things from inside and there was in it a parcel wrapped in an English newspaper and a khaki polythene wrapper besides a ration card, identity card, election card, etc. and then he opened the wrappers of the parcel and found a blackish brown slab and two pieces of similar colour substances emitting a particular odour and therefore he suspected it to be charas and when the 7 said substance was weighed after the wrappers were removed, it was found to be 280 gms and thereafter he put the substance in a transparent polythene bag, heat­sealed and then put it in a light green colour envelope having cloth inside and then packed and sealed with 7 seals of the Police Station and the relevant particulars were written on the sealed envelopes and signed by both the panchas, himself and the accused. He further stated that the ration card and other identity cards, etc. were similarly packed and sealed having cloth lining and signed as aforesaid after the relevant particulars were written on the same. He further stated that the wrappers were put in a cloth bag, the bag was folded and put in an envelope and was packed and sealed and signed as before. P.I.Naik/PW4 further stated that the personal search of the accused was taken and the accused was found with a brown colour leather wallet in his pant hip pocket which contained cash of Rs.1027/­ in denomination of 8 x 100, 3 x 50, 1 x 20, 5 x 10, 1 x 5 and 1 x 2 besides, a note of U. S. Dollar, 3 foreign coins, HDFC Credit Card in the name of the accused, his driving license which articles were put back in the wallet which in turn was put in an envelope, packed, sealed and signed, as before, after writing the relevant details. 8 P.I.Naik/PW4 stated that he asked the accused if he had any valid legal documents to possess the charas but he replied in the negative and the scooter M­80 on which the accused was going was taken over for investigations. He stated that a seizure report was prepared at the spot and given to the accused under his acknowledgment, a panchanama was drawn and a copy of which was given to the accused, under acknowledgment and all the properties including suspected charas and the said scooter were attached under panchanama and thereafter he returned to the Police Station along with the accused and lodged his complaint on behalf of the State and prepared a Memo of Arrest of which a copy was given to the accused under his acknowledgment and then he immediately handed over the attached property to Writer Constable Umesh Xete, P.C. Buckle No.4203 for safe custody and prepared a note and obtained the acknowledgment of the said Writer Constable and produced the said note at Exh.46. He stated that he sent the intimation under Section 57 of the Act to Dy. S. P. De Sa and produced a copy of the same at Exh.47. He then stated that he prepared a forwarding letter to the Director of Food and Drug Administration under his signature and bearing specimen 9 impression and also prepared a letter to S.P., CID, CB, for forwarding the exhibits to the Office of DFDA. The copy of the letter to the Superintendent was produced at Exh.49 and that addressed to the Drugs Controller was produced at Exh.48. 7. To support the version of P.I.Naik/PW4 the prosecution examined Vinod Sharma/PW3. As per Vinod Sharma/PW3 on 30­11­2002 he was at his shop near the Tourist Hostel Complex and at about 6.30 p.m. one constable came to him and told him to come to Calangute Police Station where he was called by P.I.Naik/PW4 and accordingly he went to Calangute Police Station where P.I. G.G. Naik and another person was present and P.I. Naik told them of the receipt of reliable information that a person from South India, aged about 55­58 years wearing a white shirt, black pant of dark complexion was going to come on M­80 two wheeler at Paradise Village Hotel at Calangute to deal in drugs probably charas. He stated that P.I. Naik also told them that they had sent the information to Dy. S. P. but he did not know how it was sent, and he agreed to act as a panch witness to the said raid and he then left the Police Station in a Gypsy along with P.I.Naik/PW4, another 10 person and three other policemen. He stated that one constable was carrying a bag containing weighing articles, candle, match box while P.I. Naik had personally carried the seal in his pocket. He stated that he did not know what was the inscription of the said seal. He stated that at about 7.00 p.m. they reached near the spot and parked their vehicle in one corner and they then concealed their presence in the vicinity and at about 7.20 p.m. they noticed one M­80 scooter coming from Calangute side and one constable stopped the two wheeler since the description of the person matched with the information and thereafter P.I. Naik showed his identity card and disclosed his designation to the said person and introduced all of them to the rider of the said scooter M­80 and then the Police surrounded the rider. He stated that P.I. Naik asked the rider his name which he disclosed as Susai Raju and identified the accused as the said Susai Raju. He stated that P.I.Naik wanted to take his search for charas and also told the accused that the search could be taken before a Gazetted Officer or a Dandaadhikari if he so desired and the accused replied that there was no need to take him before the Officer and that his search could be taken before P.I. Naik himself whereupon P.I.Naik also told the accused that he could 11 take the search of the raiding party, including the panchas which the accused also declined. He stated that the talk between P.I.Naik and the accused was in Hindi. Vinod Sharma/PW3 further stated that there was a white colour bag on the left handle bar of the scooter M­80 and P.I. Naik asked the accused as to whom it belonged to and the accused replied that it belonged to him whereupon P.I.Naik told the accused to remove the cloth bag and which was kept on the seat of the said scooter and thereafter the accused opened the bag and removed some blackish colour substance in the form of a slab and two small black colour substances also in a slab shape which were found wrapped in polythene. Vinod Sharma/PW3 further stated that besides the said blackish colour substance, the accused also removed a ration card, a credit card and some other cards, all in the name of the accused. He stated that P.I.Naik told them that the said substances were giving a peculiar odour and were suspected to be charas and the said substances were wrapped in newspaper which was in English and thereafter he took the weight of the said blackish substance which was found to be 280 gms. and which black substances were put in a polythene bag and then in a green colour envelope which was thereafter packed 12 and sealed with 7 seals of the Police Station. He stated that the said envelope was signed by him, the second pancha, P.I. Naik and the accused. He also stated that the ration card, identity card, other cards and raybon glasses were put in an envelope and packed, sealed and signed by them as before. He stated that P.I. Naik took personal search of the accused and during this search a brown colour leather wallet was found in the pant pocket of the accused and upon opening the same it was found to contain notes of the following description:­ 8 x 100, 3 x 50, 1 x 20 and some other notes and one U.S. Dollar, besides a driving license and which articles were put in the leather wallet which was then put in an envelope packed, sealed and signed as before. Vinod Sharma/PW3 also stated that the scooter M­80 was also attached and further stated that he did not recall its registration number. Vinod/PW3 stated that P.I.Naik had asked the accused if he had any documents to possess charas and the accused had replied in the negative. Vinod/PW3 then stated that a panchanama was drawn by P.I.Naik which was signed by him, the second panch, P.I.Naik and the accused and copy of which was given to the accused and his signature was taken in acknowledgment. In cross­examination he stated that his shop is 13 located in the Tourist Hotel building at Umtawaddo, which is at a distance of half a kilometer from Paradise Hotel. In further cross­examination he stated that he was not frequenting the Calangute Police Station but sometimes he went to the Police Station but further stated that he did not know P.I.Naik prior to the date of the raid. He denied the suggestion that P.I.Naik was his friend and further stated that P.I.Naik did not come to his shop. In further cross­examination he stated that he assisted the Police by acting as a panch witness but had not given such assistance at any time earlier. A specific suggestion that he had acted as a panch witness at least 10 to 12 times was denied by him. In further cross­examination he stated that he went to the Police Station on his scooter and had reached there within 5 minutes and on reaching there he went and met P.I.Naik where there was one person and policeman by name Pawaskar and there were also 3 to 4 policemen and they were there at the Police Station for about 15 to 20 minutes till they left for the raid. In further cross­examination he stated that he did not know the registration number of the said M­80 scooter or the registration number of the Maruti Gypsy in which they had gone for the raid. He also stated that the contents of the kit box were 14 shown to them before they had proceeded for the raid and they included a weighing scale, candles, weights etc. In further cross­ examination he gave the description as to how the seized article was weighed. He also stated that he recalled that carbon paper was put by P.I.Naik whilst writing the panchanama but did not recall how many carbon papers were taken by P.I.Naik. In further cross­examination Vinod/PW3 stated that P.I.Naik had stopped the accused with his two wheeler. His earlier statement was brought to his notice, that earlier he had stated that a Police Constable had stopped the two wheeler and he replied that both the statements were correct. In further cross­examination he confirmed that the accused spoke in Hindi but denied the suggestion that the accused had not understood the talk of P.I.Naik. He further stated that the accused had disclosed his name as Susai Raju and that he did not know any other details of his name but admitted that in the panchanama the name of the accused might have been recorded as "Susai Tambu Raju". As regards the English newspaper which was wrapped to the substance, he stated that he did not know what P.I.Naik/PW4 did with it. 15 8. There can be no dispute that the accused was searched and arrested by P.I.Naik as this fact has been admitted by the accused in his statement recorded under Section 313 of the Code. On behalf of the accused reliance has been placed on the case of Vikram Reddy v. State of Goa(2002(1) GLT 116) to support a submission that the evidence of P.I.Naik/PW4 is unreliable. It is not necessary to refer in detail to the observations of this Court in that case. This Court in the case of Vikram Reddy v. State of Goa(supra) observed that a witness who is shown to have stated a falsehood to prove a part of the prosecution story cannot be relied upon. There can be no quarrel with the said proposition, but on the facts and circumstances of this case the said observations are inapplicable. There is nothing inconsistent in the version given by PW4, and as far as the first part of the version given by him, the same stands sufficiently corroborated by Dy. S. P. De Sa/PW5. Police Officers are also to be relied upon and not in every case, they can be treated as unworthy of credit. On behalf of the accused, it has been submitted that Sharma/PW3 was not at all present for the said raid and his evidence cannot be accepted by way of corroboration to the evidence of P.I. Naik/PW4. In that regard, a 16 number of inconsistencies have been brought to light. As per the learned Counsel on behalf of the accused if Sharma/PW3 was present, he would have known the complete name and the address of the accused as described by P.I.Naik/PW4 and would not have merely stated that the name of the accused was given by him as Susai Raju. It is further pointed out on behalf of the accused that Sharma/PW3 has not been able to give the complete inscription of the seal; complete details of the notes found with the accused; did not know the registration number of the scooter used by the accused as well as the raiding party and also forgot to mention about the coins and the five rupee notes and these facts are indicative of the fact that he was not at all present for the said raid. In my view none of the aforesaid circumstances can be taken to discredit the evidence of Sharma/PW3. Powers of observation retention and reproduction differ from person to person and minor variations are always found in the evidence of even truthful witnesses. In this case, Sharma/PW3 has substantially corroborated the version of P.I.Naik/PW4. Sharma/PW3 is a person who runs business of a shop which is situated in Tourist Hostel complex at Calangute and this is the first time he stood as a panch witness at the 17 request of P.I.Naik/PW4 when he was called by a constable, to come to the Police Station. The entire cross­examination of Sharma/PW3 shows that he has stood well the test of cross­ examination, the said minor discrepancy notwithstanding. It is true that P.I.Naik/PW4 stated that they reached the spot at about 6.35 p.m. while Sharma/PW3 stated that they reached at about 6.55 p.m. but the said difference in timing cannot be taken into consideration to arrive at a conclusion that Sharma/PW3 was not at all present when the accused was intercepted and the search of his scooter and person was taken. It could not certainly be expected of a person when he was deposing after almost two years to exactly remember the timing at which the accused reached the place. It is not expected of witnesses that timings would be mentioned with mathematical precision in all cases and also because of slight variation in time the evidence of Sharma/PW3 could not be discarded as of a person who was not present. The discrepancies in his evidence noted herein above in relation to the evidence of P.I.Naik/PW4 are only minor in nature and they do not affect the core of his version or substance of his evidence so as to make his version unreliable. It is quite natural that minor variations in the 18 evidence of even truthful witnesses appear in their evidence and on that count alone the evidence of Sharma/PW3 cannot be discarded. Sharma/PW3 is an independent witness having his own business and there is no reason why he would falsely depose to support a case of P.I.Naik/PW4 unless he was present for the raid. The trial Court has rightly accepted his evidence and I have no reason not to accept the same. 9. It has been stated by P.I.Naik/PW4 as well as by Sharma/PW3 that the conversation between P.I.Naik/PW4 and the accused took place in Hindi. The learned Counsel on behalf of the accused therefore submits that the panchanama also ought to have been written in hindi and in support of this submission the learned Counsel has placed reliance on the case of Hasan I. Inamdar v. State of Maharashtra(2003 ALL M R(Cri) 1889) wherein this Court observed as follows:­ "When the appellant himself told the members of the raiding party more particularly P.S.I. Vaigankar that he was an illiterate person and was not knowing any English other than Marathi and Hindi, it was obligatory on the part of the 19 Investigating Officer to draw panchanama in Marathi which is the language of the State. In fact all panchanamas should be drawn in Marathi in Maharashtra. This Court is at a loss to understand the reason behind drawing the panchanama in English. Unless the accused insists for drawing the panchanama in English by showing the cause that he does not know any English than only, panchanamas are not to be drawn in English. It is a matter of experience that even non Marathi speaking persons do understand Hindi may be in good form. In such cases drawing panchanama in Hindi and Marathi is permissible but otherwise the Investigating Officers draw the panchanamas in Marathi in Maharashtra which would enable the accused to know the said panchanama and understand the same". 10. In my view, the said observations are not at all applicable to the facts of the case at hand. All that the evidence