-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 55 OF 2004. Usman Mohammad Hanif Shaik, presently lodged in Central Jail, Aguada, Sinquerim, Bardez, Goa. ...... Appellant V e r s u s Union of India Through Shri Menon Vaz, Supdt. of Customs & Central Excise Anti Smuggling Unit, Margao, Goa. ...... Respondent Mr. J.P. D'Souza with Mr. K. Poulekar, Advocate for the Appellant. Mr. J. Vaz, Spl. P. P. for the Respondent. CORAM : N. A. BRITTO, J. DATE : 27th April, 2006. JUDGMENT The appellant herein is an accused, who questions the correctness of the Judgment convicting and sentencing him under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, ('Act' -2- for short), by the learned Special Judge, N.D.P.S. Court at Mapusa, Goa. 2. The accused was prosecuted upon a complaint filed by Shri M. P. Vaz, Superintendent of Customs and Central Excise with the allegation that on 21.08.2000 at about 17.00 hours, the accused was found in possession of 1.630 grams of Methylmorphine, (which is a chemical name for Codeine), while he was travelling on grey colour Vespa Scooter bearing registration no. KA­30­H­9487, thereby committing an offence under Section 21(c) of the Act. 3. The case of the accused was that the Complainant had filed a false case against him and made him a scape goat as the real accused had escaped during a raid conducted by him and therefore, the Complainant found him safe to be booked in this case. 4. In support of the complaint, the Complainant examined himself/P.w.5 and four more witnesses, which included P.w.1/Kaissare, the Junior Scientific Officer, P.w.2/Fatima Noronha, the Warehouse Officer, P.w.3/Francisco Rebello, the panch witness and P.w.4/John Cruz, an Inspector of Customs and Central Excise, the latter having received prior -3- information about the accused coming to Goa with morphine in the glove box (referred to as dicky) of the said scooter. 5. The accused examined equal number of witnesses in support of his defence and to show that he was picked up by the Complainant from the KTC Bus stand at Margao, where he was waiting, after having missed the bus to go to Karwar. 6. The learned Special Judge, after assessing the evidence, came to the conclusion that the evidence of the Complainant Shri Vaz and that of Inspector Shri Cruz, was corroborated by the independent panch witness, Shri Rebello. The learned Special Judge also observed that the accused had failed to create any semblance of doubt by his plea of alibi about his presence at Margao on the stated date and time, and therefore, proceeded to convict and sentence the accused as aforesaid. 7. In order to appreciate the facts of the case of the Complainant and the issues of law raised, it is necessary to refer to the evidence of the Complainant, but without much minor details. -4- 8. As stated by the Complainant, he was working as Superintendent of Customs and Central Excise, at Margao, and that his Inspector Shri J. Cruz/P.w.4, had received reliable information at about 11.00 hours on 21.08.2000, that one person of stated description by name Usman Shaik, would be coming from Karwar to Goa at about 16.00 hours and, accordingly, the said Shri Cruz, had come to Margao and submitted the information in writing in form DRI­I at around 12.00 noon and had handed over a sealed cover along with copies of the information addressed to the Deputy Director, DRI­Mumbai, Assistant Director, DRI­Goa and the Commissioner of Customs and Central Excise, Goa. The Complainant stated that he passed on the information to his Superior Officer namely Assistant Director, Customs and Central Excise, Panaji, and obtained instructions from him and along with the staff and two panch witnesses, proceeded to Pollem. He told the panchas about the gist of information and maintained surveillance at the spot and at about 17.00 hours, a person matching the description came and he was signaled to stop and then he identified himself and asked the accused for his name, which he gave as Usman Hanif Shaik and told him about the receipt of the reliable information and then directed the accused to proceed to the Customs office at Pollem, on his own scooter, which office was at a distance of 250 metres from Lumina Bar and -5- Restaurant. He stated that the accused was asked to follow the Departmental motorcycle driven by Shri Cruz/P.w.4, while they followed them along with panchas in the jeep and, on reaching the customs office, the accused was introduced to the raiding party and the panchas and was told that he had an option to search the members of the raiding party and the panchas, to which, the accused declined. The accused was also told about the option to be searched before the Executive Magistrate or an independent Gazetted Officer, which the accused also declined and offered to be searched before them and then P.w.4/Cruz, searched the accused personally and found cash of Rs.900/­, which was returned and then the accused was asked to open the box (dicky), which the accused opened with the key from the steering and in the dicky (glove box), there was a cloth bag with handles. Inside the cloth bag, there was a black polythene bag and inside it, there was a transparent polythene bag containing white powder and when the accused was asked about the same, the accused replied that it was Morphine, which he had brought to be sold to prospective buyers in Goa and that P.w.4/Cruz took a pinch of the said white powder and tested with the field testing kit, which showed positive for Morphine and the said white powder along with the polythene bag, was weighed and found to be 1.630 kilos and then the said white powder was emptied in a white -6- polythene bag, thoroughly mixed and two representative samples of 10 grams each were taken, put in separate bags, which were heat sealed and then put in separate white coloured envelopes and pasted with gum and were sealed and marked as S1 and S2 and, thereafter, the remaining quantity was heat sealed and was put in a brown corrugated box and the box was tied with jute thread and sealed and marked Exhibit A. The brown coloured cloth bag, the black polythene bag and the transparent polythene bag and the jute thread were put in brown coloured envelope and pasted with gum and sealed and on further search of the dicky (glove box), they found the registration certificate in Form 23 and one tax certificate. Summons to the accused were issued and his statement was recorded under Section 67 of the Act and in the said statement, the accused had stated that he was working for his uncle Zahid Hussain/D.w.5 on a Chicken Shop and the said scooter belonged to his uncle who had come along with him but got down before the check post and had told him to proceed to Mashem and wait for him there and he would come there with the prospective buyer but he was stopped by the Officers of Customs and Central Excise, near Lumina Bar. The accused was then placed under arrest. 9. There is substantial corroboration in the evidence of the -7- Complainant/P.w.5 and the Inspector of Customs of Central Excise/P.w.4. Their evidence has been further corroborated by the independent witness namely, P.w.3/Francisco Rebello, and in fact the defence, inspite of his extensive cross examination, has not been able to punch a single hole into his evidence. The evidence of P.w.3/Rebello, therefore, is convincing and shows that the seizure took place in a manner stated by the Complainant/P.w.5 and Inspector Shri Cruz/P.w.4. The very case set up by the accused appears to be highly improbable and fabricated. The accused has not even stated as to what was the timing of the last bus he was supposed to catch at Margao, in order to go to Karwar, as if to say otherwise, there were no buses going to Karwar from Vasco da Gama where he claimed he had gone to visit an ailing relative. Again, the plea of the accused that it is the Complainant who went to collect persons who had missed the bus to go to Karwar and asked him to come in his jeep, appears to be highly improbable. In case the accused had at all missed the bus, it was probable that he would be waiting on the road to seek a lift rather than at the bus stand where no bus would be available to go to Karwar. From what has been stated by the accused and his two uncles namely Murad Hussain/D.w.4 and Zahid Hussain/D.w.5, it is impossible to know as to which of the relative of the accused and the said uncles was sick at Vasco. -8- D.w.4/Murad Hussain, has clearly admitted in his cross examination that his statement was recorded by the Complainant and the same was shown to him, at exhibit 41, and he admitted that the said statement was in his handwriting and it was correctly recorded as per his say. The version given in the said statement is contrary to what Murad Hussain/D.w.4 stated before the Court and, therefore, his subsequent version before the Court in the light of the said statement exhibit 41, could not be accepted. Zahid Hussain/D.w.5, initially stated that his statement exhibit 45, was not made by him to the Customs but subsequently admitted that he had signed the said statement. Likewise, he also denied about the agreement exhibit 50, but later admitted that he was a party to the said agreement and identified his signature. It is obvious that both the said witnesses namely D.w.4/Murad Hussain and D.w.5/Zahiud Hussain, being closely related to the accused have deposed falsely only to help the accused from the case filed against him. It is the evidence of the Complainant/P.w.5 and the witnesses examined on his behalf, that is consistent, convincing and plausible while that produced on behalf of the defence, appears to be fabricated. As already stated, the case of the Complainant that the accused was arrested in a manner stated by the Complainant, that has got to be believed. There is nothing to doubt the fact that the accused was asked -9- to proceed towards the Customs Check Post, which was at a distance of about 750 metres from the Lumina Bar, where the accused was asked to stop, without the Complainant having asked any person from his group to accompany the accused by sitting on his motorcycle. This was probably thought unnecessary because the accused was asked to follow P.w.4/Cruz, who was on his motorcycle along with a sepoy and the Complainant with others were following him in their jeep and, therefore, there was hardly any chance for the accused to run away, even in case he wanted to do the same, as they travelled the said distance within a range of 15 metres from one another. As far as the search being carried at a place different from the place of seizure, this controversy appears to be well settled. In the case of Khet Singh v. Union of India [(2002) 4 S.C.C. 380], a search was carried out at the spot contrary to standing instructions. The Supreme Court held that if the accused was present at such a place where the search is carried out, in the absence of an allegation regarding tampering or interpolation, no prejudice could be caused to the accused and evidence thus collected was held to be admissible. In the case of M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence [(2003) 8 S.C.C. 449], the search and seizure were also faulted for the reason that the same had not taken place on the spot but in the Customs Office and the Apex Court referred to the -10- case of Khet Singh v. Union of India (supra) as well as to Pooran Mal v. Director of Inspection (Investigation) [(1974) 1 S.C.C. 345] and held that Courts in India and England have consistently refused to exclude the relevant evidence merely on the ground that it is obtained by illegal search or seizure and the Court found that there were no allegations about the meddling with the contraband, and therefore, there was no illegality in the seizure of the contraband either on account of non­examination of the independent witnesses or by effecting the seizure at the office of the Customs Department, the appellants having failed to establish that any prejudice was caused to them. The same is the case at hand. 10. That should take us to the prior information recorded by P.w.4/Cruz under Section 42 (1) of the Act and produced at exhibit 20. The contention is that the Complainant has not proved that it was recorded in a manner stated by them. In my view, once the evidence of the Complainant/P.w.5 and the Inspector Cruz/P.w.4 is accepted, there is no room for doubting the same. In fact, whether the accused was arrested under Section 42(1) or 43 or 49 of the Act, is one of only academic interest. As far as the information exhibit 20 having been received and recorded by Inspector Cruz/P.w.4, the Complainant/P.w.5 has stated that -11- the same was submitted to him in writing around 12.00 noon and besides P.w.4/Cruz had handed over to him a sealed cover along with copies of the information addressed to the Deputy Director, Directorate of Revenue Intelligence, Mumbai, etc. The contention raised on behalf of the accused is that in order to believe P.w.5/ Complainant Menon Vaz, and/or for that matter, P.w.4/John Cruz, the information sent to the Deputy Director, DRI, Mumbai, had to be produced or the said Dy. Director had to be examined. In my view, there was no need for such a production or examination at all. As stated by the Apex Court, in M. Prabhulal (supra), a Gazetted Officer, like the Complainant in this case, has been differently dealt with and more trust has been reposed in him and, therefore, there is no reason why the Complainant and his Inspector cannot be believed on the facts stated by them in relation to the receipt and recording of the said information, exhibit 20. Moreover, this is a case where the seizure was made from the scooter driven by the accused at a public place and not from any building, conveyance or enclosed place as contemplated by sub­Section (1) of Section 42 of the Act. The words, 'buildings, conveyance and enclosed place', used in Section 42, have been used for the specific purpose of protecting the persons who are living in the buildings, conveyance and enclosed place. The Legislature in its wisdom considered it proper to draw a line between a -12- building, conveyance and enclosed place on one side and public place on the other, on the assumption that if a search is taken by a junior most officer of a building, conveyance and enclosed place, there might be possibility of harassment. Even a private open place does not fall within the purview of Section 42 unless it is enclosed and this has been done to prevent harassment which could be certainly more in a case of a building, conveyance or enclosed place, than in a public place or a private place, which is not enclosed. Section 43 of the Act empowers any of the Officers of any of the Departments mentioned in Section 42, to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance and to detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, etc. Section 43 of the Act does not contemplate taking down in writing the information given by any person relating to any offence punishable under Chapter IV of the Act. Such a requirement is contemplated only under -13- Section 42 . The Supreme Court in Narayanswami Ravishankar (2002(8) SCC 7) has held that if search and seizure is conducted in public place it is Section 43 of the Act that is attracted and not Section 42 of the Act and therefore the provisions of Section 42 would be irrelevant. The same view is reiterated in State of Haryana Versus Jernai Singh (2004 (5) SCC 188). Moreover, the seizure and search in this case was done by the Complainant in his presence and in this context, reference could be made again to the case of M. Prabhulal (supra), wherein the Supreme Court has stated that it is clear from the language of sub­section (2) of Section 42 that it applies to an officer contemplated by sub­section (1) thereof and not to a Gazetted Officer contemplated by sub­section (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. The Supreme Court further observed that, it would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been -14- reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer and, therefore, the High Court was right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42 of the Act. That being the position in law, nothing turns out on the said information recorded under Section 42 (1) and produced at exhibit 20. Even otherwise, there are no cogent grounds made out to disbelieve the Complainant/P.w.5 and Inspector Cruz/P.w.4. If at all Inspector Wanare actually carried out the search of the accused, the same was done under instructions and in the presence of the Complainant, who was a Gazetted Officer. 11. Lastly, it is contented on behalf of the accused, that the accused could at the most be convicted and sentenced for small quantity i.e. for 10 grams and not for commercial quantity of one kg., as prescribed by notification S.O. 1055(E) dated 19.10.2001. As stated by the Complainant/P.w.5, what was found with the accused in the dicky (glove box), was 1.63 kgs., out of which, two samples of 10 grams of each were -15- taken and put in two separate polythene bags and marked S1 and S2 and the remnant quantity of 1.61 kgs was sealed in a corrugated box exhibit A. P.w.2/Fatima Noronha, has stated that on 22.08.2000 at about 11.10 a.m., the Complainant/P.w.5, came along with Inspector Wanare and deposited the three parcels and on the same day at about 4.00 p.m., the Complainant brought the scooter along with the keys and handed over the same along with a letter. According to her, all the three parcels were sealed and intact and she gave a receipt for the same. She has produced the letter of the Complainant at exhibit P.w.2/A and the Godown receipt at exhibit P.w.2/B, issued by her, amongst other documents. P.w.1/Kaissare stated that on 22.08.2000 the office of the Foods and Drugs Administration had received from the Complainant one sealed white paper envelope marked as S1 and the seals fixed on the envelope were intact and which envelope showed that it contained approximately 10 grams of white powder purported to be of morphine seized from the possession of one Usman Hanif Sheikh on 22.08.2000 and inside it, he found 9.36 grams of white powder of which he took three grams and after carrying our necessary tests, came to the conclusion that it was Codeine containing 48% w/w of Codeine, which is chemically known as Methylmorphine. It is submitted that there is a serious lacuna in the opinion of the Complainant and that of P.w.1/Kaissare, the -16- former having named the substance as morphine while the latter having found it to be Codeine, the chemical name of which is methylmorphine. There has been no cross examination on this aspect at all. The Complainant as well as P.w.4 have stated that the accused on being asked about the contents stated that it was morphine. There has been no cross examination as to the nature of test carried out by the Complainant by his Field Testing Kit, when he found upon analysis that the substance found with the accused was morphine, which is chemically different from Codeine or Methylmorphine. Admittedly, both morphine and methylmorphine are derivatives of opium and one of the most important, out of several alkaloids of opium, is morphine and next in importance is Codeine. (See page 639 of Modi's Textbook of Medical Jurisprudence and Toxicology.) P.w.1/Kaissare found that the sample S1 was positive for alkaloids and it is quite probable that on that basis that the Complainant/P.w.5 opined that the substance found with the accused was morphine but ultimately what should carry real weight is the opinion given by P.w.1/Kaisarre, who is an expert witness and who found that the sample S1 contained Codeine, which is chemically methylmorphine. The test for phosphates was also found to be positive. Nevertheless, the fact remains that the accused was charged for having been found in possession of methylmorphine and that is the charge which has -17- been proved against the accused. The evidence of P.w.2/Fatima shows that the sample S2 and the remnant sample exhibit A, had remained in her custody till they were collected by the Complainant against receipt on the date the complaint was filed against the accused before the Court i.e. on 09.11.2000. Therefore, I do not find that the accused can derive any benefit from the fact that initially the Complainant had found the substance to be morphine and later by the expert, to be methylmorphine. It is quite probable, as stated by the accused himself to the Complainant, that the substance methylmorphine is sold in the market as morphine. The Act came to be amended w.e.f. 02.10.2001 and prior to that, the evidence of P.w.1/Kaisarre and P.w.2/Fatima, was recorded. P.w.3/Francis Rebello was examined on 22.10.2001 and he identified the corrugated box­exhibit A, which was opened and he also identified the white coloured powder in transparent bag which was in heat sealed condition. On 22.10.2001, there is no note made by the Court about the re­packing and re­sealing of the corrugated box­exhibit A, but there is a note made about the re­sealing of samples of S1 and S2 after the same were scrutinised by Advocate of the defendant. Nevertheless, there is a note made by the Court on the next date i.e. on 14.02.2002, that all the envelopes and packings were repacked and resealed after the perusal by the advocate of defence. No grievance was -18- made on that date about any tampering with bulk quantity Exhibit A. On that day P.w.4/Cruz also identified the seals and no questions were put to him as regards the impression of the seals. The Complainant filed an application dated 15.02.2002, requesting the Court to send the remnant quantity for chemical analysis and by order dated 21.08.2003, the learned Special Judge,