1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 57 OF 2008 Kamal s/o Madan Pun, R/o Ward No.7, Village-Sewar, Post Ghorchi, Dist-Dang, Thribhuvannagar, Nagar Palika, Nepal. ... Appellant versus State of Goa ... Respondent Shri T. George John, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 22ND SEPTEMBER, 2009. ORAL JUDGMENT The appellant herein is the accused in Special Criminal Case No. 12 of 2005 who takes exception to the Judgment dated 30-8-2006 of the learned Special Judge, Mapusa, convicting and sentencing him under Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985. 2 2. The accused was arrested on 21-3-2005 on the basis of prior information received, and thereafter was charged and tried with the allegation that on the said date at about 14.30 hours near the banyan tree opposite Fusion Restaurant, Small Vagator, Baga, he was found in possession of 60gms. of charas on his person and 1.825 kgs. of charas in the bag carried by him. In support of the charge, prosecution examined seven witnesses. 3. The case of the accused was of denial. The accused stated that he was falsely implicated in the case, and he was called from his shop and arrested. 4. The learned Special Judge after considering the evidence produced came to the conclusion that the discrepancies which were pointed out in the evidence of prosecution witnesses were minor and were bound to occur when such witnesses were natural and independent. Learned Special Judge further held that the evidence of PW7/P.I. Lawrence D'Souza and PW3/ Gaspar Braganza wholly supported the version of the prosecution with regard to the aspect of the narcotic raid and recovery of contraband articles in the possession of the accused, and the evidence of other witnesses supported the version as regards to the procedural aspects i.e. safe custody of the seized property as well as the examination report of the Chemical Analyzer, and further held that from all accounts the case of the prosecution was proved, and 3 there was no doubt as regards the involvement of the accused, and proceeded to hold the accused guilty as aforesaid, and sentenced him under Section 20(b) (ii)(C) of the N.D.P.S. Act, 1985, to suffer R.I. for a period of ten years, and to pay a fine of Rs.1,00,000/-, and in default to undergo S.I. for a period of six months. 5. I have heard Shri T. George John, the learned Counsel appearing on behalf of the appellant/accused, and Ms. Winnie Coutinho, the learned Public Prosecutor appearing on behalf of the Complainant/State. 6. As can be seen from the version given by PW7/P.I. D'Souza, on 21-3-2005 at about 12.00 hours he received reliable information on the telephone of the Police Station that the person of the stated description would come at Small Vagator to deliver the consignment of charas near the banyan tree opposite Fusion Restaurant between 14.30 to 15.00 hours, which information he received into writing and informed the S.D.P.O., Mapusa i.e. PW4/Allen D'Sa by a confidential letter sent through a special messenger. He further stated that he also made a station diary entry regarding the receipt of the said information, and then secured the presence of two panch witnesses, namely PW3/Gaspar Braganza, and one Uday Lingutkar, both residents of Mazal Wada, Anjuna, through Police Constable Buckle No. 4377, and when they came near the Police Station at about 1.15 p.m. he made an entry on the 4 station diary and arranged for the raiding party, and at about 14.00 hours left the Police Station in Police jeep along with the members of the raiding party and with the kit box containing weighing, writing, sealing and packing materials, and personally carried the seal of Anjuna Police Station with Ashoka Emblem and at about 14.10 hours they reached near the football ground at Small Vagator, and the driver parked the jeep by the side of the road near the bushes as per his instructions, and while the driver remained in the jeep, they along with the members of the raiding party got down and walked towards the banyan tree opposite Fusion Restaurant, and concealed their presence behind the compound wall, and at about 14.30 hours they noticed a person of the stated description coming near the banyan tree and waiting there, and he was wearing a red colour T shirt with logo Italia and a blue colour pant, and was carrying a shoulder bag on the left shoulder. He stated that he informed the panchas and the other members of the raiding party, and thereafter they surrounded him, and on seeing them the said person got nervous and said “kya hua, kya bhat hai”. He further stated that he introduced himself as a Police Officer and identified himself with his identity card and asked for the identity of the accused, which he disclosed and then told him about the specific information he had received regarding the drugs and that he intended to conduct the search of his person as well as the bag, and further told the accused that he had a right to be searched in the presence of a Gazetted Officer of his choice which he declined, and he also informed him that he had 5 a right to take a search of the raiding party members and the panchas which the accused declined, and told him in Hindi that his personal search could be taken, and thereafter he conducted the search of the blue colour pant which the accused was wearing, and he found in the front left side pocket a transparent polythene bag having black substances which he removed and smelt and suspected it to be charas, and upon weighing the same he found it to be 60 gms., and the said substance was then put in an envelope with cloth lining, was packed and sealed with eight seals of Anjuna Police Station with Ashoka Emblem and he wrote the relevant details, and then the said envelope was signed by him, the panchas and the accused, and was marked as Exh. 'A'. PW7/P.I. Shri D'Souza further stated that he then checked the right rear pocket and found a wallet containing cash of Rs.630/- in different denominations and one US dollar currency note, and also found a yellow colour paper of Modern Lodge and one pocket note book with telephone numbers written on it, and then asked the accused about the contents of the black colour bag which was handed over to him and after opening, he found in the middle compartment a transparent polythene bag containing black substances, having shape like chappati, and pieces were stuck to each other which substances he suspected to be charas, and after weighing it he found it to be 1.825 kgs., and thereafter the said substances along with the polythene bag was placed in an envelope which was packed and sealed in the same manner as was done by him earlier, and it was signed by himself, the panchas and the accused, as well. 6 7. PW7/P.I. D'Souza then gave details as to how he seized, packed and sealed the T shirt worn by the accused, the pant and the sandals. He stated that the weighing and sealing of the said substances was done by him whereas the packing was done by Head Constable Padloskar, and the panchanama and the seizure report were prepared. The panchanama commenced at 14.45 hours and concluded at 17.00 hours, and thereafter he handed over the copies of the seizure report and the panchanama to the accused and obtained acknowledgement from the accused, and he also prepared a sketch of the scene where the panchanama was written, and a copy of it was given to the accused. He stated that a letter was prepared on the spot addressed to the Director, Food and Drugs Administration for the purpose of conducting the examination of the substances. He stated that a specimen seal impression was placed on the said letter, and thereafter all of them along with the accused and the exhibits, came to the Police Station and handed over the exhibits to the Writer Head Constable under letter No.305 and obtained his acknowledgement of receiving the exhibits. He stated that the seal had remained with him, and thereafter he lodged the complaint on behalf of the State against the accused for possessing illegally the said charas of 1.885 kgs. He produced a copy of the complaint and identified his signature. He also stated that the letters addressed to the SP. CID Crime Branch and the Director of Food and Drugs Administration were also handed over to the Writer Head Constable along with the exhibits, and the said letters were forwarded on the next date i.e. on 7 22-3-2005, and the acknowledgements were obtained from the concerned Office on the said letters. He stated that he effected the station diary entries regarding the said two letters and forwarded them along with the muddemal through Constable Buckle No.4707 Shri R. P. Shet and after his return to the Police Station he again made an entry. He stated that he recorded the statements of the witnesses and after the receipt of report on 4-5-2005 along with the balance quantity the same was placed in the muddemal room after making the necessary station diary entry, and after completing the investigations he filed a charge-sheet on 31-5-2005. 8. Prosecution also examined PW5/Head Constable Shetgaonkar who is the Writer Head Constable of the said Anjuna Police Station, and who has stated that on 21-3-2005 PW7/P. I. D'Souza handed over to him seven sealed envelopes along with a note and two letters, one addressed to the Superintendent of Police, CID Crime Branch, Panaji, and the other to the Director of Food and Drugs Administration, Panaji, both in duplicates for safe custody, and later to forward the same to the Office of SP, CID for onward transmission to the laboratory. He stated that he made an entry in the muddemal register vide serial no.15/2005 on the same day and kept the sealed envelope in safe custody. He produced extracts of the muddemal register which were taken on record and marked Exh.40, and further stated that he had signed the muddemal register. He further stated that since it was late in the 8 evening he did not forward the said sealed envelopes Exhs. 'A' and 'C' in the Office of SP, CID, Panaji, and kept them in his custody but on the next date i.e. on 22-3-2005 he sent both the envelopes to the Director, Food and Drugs Administration through Constable R. P. Shet, during morning time and he made necessary record in the muddemal register to that effect. 9. PW2/Sushant Naik has stated that he works as a Scientific Assistant and is attached to the Office of SP, CID, CB, Panaji. He stated that on 22-3-2005 he received a letter No.2214 dated 21-3-2005 of P. I. Anjuna Police Station addressed to SP, CID CB, Panaji, and letter No.2215 dated 21-3-2005 from P.I. Anjuna Police Station addressed to the Director, Food and Drugs Administration, Panaji, in duplicate, and bearing the specimen seal impression “Anjuna Police Station with Ashoka Emblem” and one sealed small size light green colour envelope bearing eight seals marked Exh. A and one sealed big size light green envelope marked Exh.C, sealed with eight seals of the same inscription stated to contain 60 gms. of suspected charas and 1.825 kgs. of suspected charas, respectively, in Anjuna Police Station Crime No.47/2005 under Section 20(b)(ii)(C) of the N.D.P.S. Act from Constable R. P. Shet of Anjuna Police Station, and he found the seals intact, duly covered individually with cello tape and tallying with specimen seal impressions. He stated that he kept the two sealed exhibits in his safe custody under lock and key on the same day vide letter No.300, he carried the same to the Office of 9 F & DA, Panaji, under the signature of Shri Borkar, and on 7-4-2005 he received a letter No.100 dated 5-4-2005 along with a report and a request to collect the balance quantity, and on 3-5-2005 the balance quantity was collected by A.S.I. Chowgule and handed over to him which he kept under safe custody, and he informed the P.I., Anjuna Police Station, thereafter. 10. PW1/Mahesh Kaissare who works as a Junior Scientific Officer in the Office of F & DA has stated that on 22-3-2005 two sealed light greenish colour paper envelopes marked as Exhs. 'A' and 'C' were received from the Office of Superintendent of Police, CID, CB, Panaji, along with the letter of SP, Crime, and the forwarding note of P.I. Anjuna Police Station. He stated that both the envelopes were bearing eight seals which were intact and individually covered with cello tape and tallied with the specimen sealed impressions on the letter of P.I. Anjuna Police Station, and he opened the two envelopes on 24-3-2005 and Exh.'A' was found containing dark brown colour substances in the form of single irregular shape piece, placed in transparent colourless polythene carry bag tied at the mouth with self knot and weighed 59.93 gms. and Exh. 'C' contained a dark brown coloured substance in the form of squarish, rectangular shaped piece without any wrappings placed in a colourless transparent polythene bag tied at the mouth with a self knot. He stated that the weight of the total substance with polythene carry bag was 1.835 kgs., and without the carry bag it was 1.83 kgs. He stated that from 10 Exh. 'A' he took about a gram of substance as a representative sample and from Exh. 'C' he selected at random a representative sample weighing about 555 gms., and after conducting various tests, as stated by him, he stated that the substances analyzed by him contained charas. He submitted his report which was taken on record and marked Exh.15. 11. PW3/Gaspar Braganza is a panch witness and PW6/Bablo Pednekar is the Head Constable who took over from PW5/Head Constable Shetgaonkar, and who had received the sealed cloth parcel from the Office of Scientific Assistant along with the covering letter and the report brought by Tapal Constable and according to him, he made an entry in the muddemal register against entry No.15/2005. 12. Shri T. George John, the learned Counsel appearing on behalf of the appellant/accused has tried to jerk and jolt the evidence of PW3/Gaspar Braganza by submitting that he could not be considered to be an independent witness as he had earlier stood as a panch witness in another drugs case, and was otherwise a member of a Committee known as “Thana” Committee. Learned Counsel has further submitted that PW3/Gaspar Braganza could not reproduce the actual words in Hindi spoken to by PW7/P.I. D'Souza whilst giving an offer to the accused that he had a right to be searched before a Gazetted Officer or a Magistrate. Learned Counsel further submits that 11 PW3/Gaspar Braganza who described himself as a driver whilst giving his evidence had earlier stated that his occupation was business, in the panchanama drawn at the time of seizure. Learned Counsel therefore submits that PW3/Gaspar Braganza could not be relied upon. 13. The evidence given by PW3/Gaspar Braganza has been perused with the assistance of the learned Counsel. True, PW3/Gaspar Braganza stated that his occupation was driver, before the Court, and in the panchanama it is recorded that his occupation was business but no cross-examination on that aspect was carried out, on behalf of the accused. As stated by him, he knew PW7/P.I. D'Souza, and he used to go for his personal work as well as for submitting C-forms, which in a way shows that besides being a driver PW3/Gaspar Braganza was also carrying on some business. Neither learned Counsel on behalf of the accused nor the learned Public Prosecutor has been able to throw any light as to the nature of the Committee of which PW3/Gaspar Braganza was a member, known as “Thana” Committee and the fact that he was made a member of such a Committee would tend to show that he was otherwise a respectable person. The fact that he stood as a panch witness in another drug raid carried out by PW7/P.I. D'Souza would not make him a person who was pliable in the hands of Police. The evidence of PW3/Gaspar Braganza shows that he was employed as a driver and otherwise was carrying on business, and therefore was not a person who was at the back 12 and call of the police. His evidence read as a whole shows that he was present at the time of the raid and otherwise his evidence does inspire confidence. In fact, there is nothing in his evidence to doubt his presence or to show that he was unreliable. He has deposed all material details as regards the said raid which have otherwise been narrated by PW7/P.I. D'Souza. PW3/Gaspar Braganza might have not been very fluent in Hindi and that count was unable, with passage of time, to reproduce the exact Hindi words used by PW7/P.I. D'Souza but that cannot be taken as a ground either to doubt his presence or veracity of his version. He has maintained, like PW7/P.I. D'Souza, that the accused was explained both in English and Hindi, that he had a right to be searched before a Gazetted Officer or a Magistrate. In fact, it appears that PW3/Gaspar Braganza had studied upto standard X and had taken Hindi as one of his subjects, and only because he could not reproduce equivalent words of a Gazetted Officer or a Magistrate which were otherwise explained to the accused by PW7/P.I. D'Souza it also cannot be said that the provisions of Section 50 of the Act were not complied with by PW7/P.I. D'Souza, and on that count prejudice was caused to the accused. The Apex Court in Krishna Kanwar v. State of Rajasthan((2004) 2 SCC 608) with reference to Section 50 of the Act has stated that it is only a procedure required to protect the rights of an accused(suspect) and there is no specific form prescribed or intended for conveying the information required to be given under Section 50, and what is necessary is that the accused(suspect) should be made aware of the existence 13 of his right to be searched in the presence of one of the officers named in the Section. The evidence of PW7/P.I. D'Souza as well as PW3/Gaspar Braganza when read as a whole clearly shows that the accused was informed of his right to be searched before a Gazetted Officer or a Magistrate which offer the accused had declined. In State of U.P. v. M. K. Anthony(AIR 1985 SC 48) the Apex Court has stated that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out out in the evidence as a whole and evaluate them to find out whether they are against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals and cross-examination is an unequal duel between a rustic and refined lawyer. 14 14. Learned Counsel then submits that the accused was a person who knew only Nepali and 313 Statement recorded by the learned Special Judge, was not explained to him in a language known by the accused. However, this submission does not appear to have been made before the learned trial Court. The evidence shows that the accused was conversant both in English as well as in Hindi, and the 313 Statement otherwise shows from the certificate recorded by the learned Special Judge that it was explained to the accused. It is probable that it was explained to the accused either in Hindi or in English since otherwise the learned Special Judge would not have recorded that the said statement was explained to the accused by him and certify the same. 15. Learned Counsel next submits that PW7/P.I. D'Souza did not know the other panch witness. This submission cannot be accepted for the panch was brought by sending a Constable. There is no requirement that a person who is called to witness a panchanama should be known to the I.O. Nothing turns out from the said submission. Only PW3/Gaspar Braganza was known to him. Learned Counsel then points out that PW7/P.I. D'Souza did not give an offer to the accused to enable him to search the members of the raiding party. This submission also cannot be accepted for it has been stated consistently by PW7/P.I. D'Souza, as well as PW3/Gaspar Braganza that such an offer was made before the search had started as well after it was completed. 15 16. Next, learned Counsel submits that the specific information received by PW7/P.I. D'Souza and put in writing by him, was not shown to the panch witness particularly PW3/Gaspar Braganza. No requirement of law has been shown that such an information produced in writing was required to be shown to the panch witness. However, the fact remains that this position was explained to the panch witness as stated by PW3/Gaspar Braganza. Learned Counsel then submits that Section 57 of the Act was not complied with. As regards this aspect, PW4/Dy.S.P. Allen D'Sa has stated that the information Exh.32 was sent to him by PW7/P.I. D'Souza, and he produced a copy of the same. Moreover, he stated that he instructed PW7/P.I. D'Souza to proceed with the raid, and then he received the intimation under Section 57 of the Act on the same night which was inwarded in his Office under No.2951 on 21-3-2005, and which he had acknowledged in writing. The submission that Section 57 which is otherwise directory and not mandatory was not complied with, needs to be rejected. 17. In my view, the version given by PW7/P.I. D'Souza has been substantially corroborated by PW3/Gaspar Braganza who is an independent witness. Their versions are consistent and convincing and have been rightly relied upon. The other procedures followed leave no room for doubt that the seized article was properly retained with another Officer till the time it was sent to the laboratory for analysis. The learned Special Judge has rightly 16 assessed the evidence led by the prosecution and convicted the accused and sentenced him accordingly. 18. I find there is no merit in this appeal, and accordingly the same is hereby dismissed. A copy of this Judgment be sent to the accused. N. A. BRITTO, J. RD