1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 10 OF 2008 Vincy Pereira, Presently lodged in Central Jail – Aguada, Sinquerim, Bardez, Goa. .. Appellant V/s. State of Goa, as represented by Officer-In-Charge, Anti Narcotic Cell P.S, Panaji, Goa. .. Respondent. Mr. S.B. Keswani, Senior Counsel with Mr. J.P. D'Souza, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the respondent. CORAM : N. A. BRITTO, J. DATE : 7TH SEPTEMBER, 2009 JUDGMENT 1. This appeal is filed by the accused who has been convicted and sentenced under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and is directed against Judgment 2 dated 16.1.2008 of the Learned Special Judge, N.D.P.S. Court, Mapusa. 2. As per the case of the prosecution, the accused was searched on the basis of prior information on 21.12.2006. The accused was charged and tried with the allegation that on 21.12.2006 at about 11.45 hours to 14.45 hours near football ground at Aradi, Parra, the accused was found in illegal possession of 5.200 grams of charas, the possession of which he had failed to account. 3. To support the charge prosecution examined seven witnesses including Suraj Halarnkar/Pw7 who had carried out the raid and seizure of charas from the possession of the accused. 4. The case of the accused was that he was falsely implicated. The accused did not examine any witnesses. 5. The Learned Special Judge, upon considering and appreciating the evidence produced on behalf of the prosecution, came to the conclusion that the evidence produced of the prosecution witnesses and 3 more specifically of Pw3/Vilarsha Viegas and Pw7/Suraj Halarnkar proved that the accused was found in possession of charas and there was contemporaneous record/evidence to prove the same. Learned Special Judge further held that prosecution had also proved that the seal was not available with the raiding officer as it was forwarded to Pw4/Dy.S.P. Allen D'Sa and even otherwise the prosecution had prove that the seized article was forwarded within half an hour from the time of the registration of the offence. The Learned Special Judge further held that the report of Pw1/Mahesh Kaisare showed that the seized article examined by him contained charas which was a narcotic drug and as such the prosecution was entitled to claim the benefit of Section 35 read with Section 54 of the N.D.P.S. Act, 1985. The Learned Special Judge also held that the provision of Section 42 of the said Act was strictly not applicable to the case at hand and the provisions of Section 50 of the said Act were duly complied with and therefore proceeded to convict and sentence the accused under Section 20(b)(ii)(C) to rigorous imprisonment for a term of ten years and fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of one year. 6. The facts stated by Pw7/Suraj Halarnkar show that he was 4 attached to A.N.C. Police Station as Police Inspector and that on 21.12.2006 at about 09.20 hours he had received information through his source that a male person aged between 25 to 30 years of average height and of medium built having long hair wearing red coloured T-shirt and blue coloured jeans would be coming on a Hero Honda Passion motorcycle bearing no. GA-03-B-3618 at the football ground at Aradi, Parra, Bardez, on 21.12.06 between 11.30 hours to 12.00 hours to deliver the consignment of narcotic drug i.e. charas to his prospective customers which information he reduced into writing and sent a copy of it to Pw4/ Shri Allen D'Sa alongwith a covering letter through Head Constable 3413 by name Albert Fernandes. Thereafter he directed Constables Parab and Warang of A.N.C. Police Station to secure two panch witnesses for the purpose of raid and at about 10.50 hours Constable Parab came to the police station alongwith panch witness by name Vilarsha Viegas resident of Porvorim and at about 10.30 hours Constable Warang came to the police station alongwith panch witness Kiran Naik and thereafter he organized a team consisting of himself, P.I. Serafin Dias and others whose names he stated including, the said Constables Parab and Warang and then briefed panch witnesses about the information and left for the 5 raid in a police jeep at about 10.35 hours alongwith the seal bearing impression Anti Narcotic Cell, Police Station, Goa 7 with Ashoka Emblem, kit box containing weighing, packing and sealing material and typewriter and Constable Warang followed them on his private motorcycle and thereafter on reaching at Parra, they parked the jeep and the motorcycle in a lane and then concealed their presence near the football ground amongst bushes and trees and at about 11.40 hours they saw a male person of stated description and he informed the panchas about the same and the person came on motorcycle on the football ground and parked his motorcycle at the corner of the said football ground and alighted therefrom and the said person was carrying a shoulder bag over his shoulder and they all surrounded him and he identified himself to the said person and introduced the members of the raiding party and the panch witnesses and on asking his name the accused disclosed that his name was Vincy Pereira son of Agnelo, aged 27 years resident of Marra, Siolim and told him about the information he had received and of his desire to conduct his search and the search of the bag for charas and before doing that he informed the accused that he had a right to be searched before a Gazetted Officer or a Magistrate of his 6 choice but the accused declined the said offer. He also stated that he also informed the accused that he had a right to search the members of the raiding party and the panch witnesses but the accused declined the said offer, and, then he requested the accused to hand over the shoulder bag carried by him and the said shoulder bag was of cotton and was multi colour which had a string tied at the mouth and and he removed the knot, opened the bag and found five packets of black coloured substance in flat rectangular shape, wrapped in transparent polythene and after he opened one of the packets he found it to contain black coloured sticky substance which he suspected to be charas and then he opened the remaining four packets which were also found to contain black coloured sticky substance suspected to be charas, which upon weighing were found to be 5.206 kgs and that thereafter he put all five packets in the said bag and tied the mouth portion with the said string and then the said bag was wrapped in a white cloth, tied with jute string and sealed at seven places with the seal carried by him and then he put a label recording the details of the packet and the same was signed by himself, two panch witnesses but the accused refused to sign the label and then he conducted personal search of the accused and found cash of Rs.7,000/- in the right hand side front pocket 7 of his jeans which he put in a light green coloured envelope and which was also packed and sealed in the presence of panch witnesses and he wrote the details on the said envelope which he signed and so did both the panch witnesses but the accused refused to sign the same. He stated that nothing incriminating was found in the motorcycle and he attached it alongwith the key and he placed a label on the said motorcycle which was signed by him, two panch witnesses but the accused refused to sign the same which label he pasted on the tank of the said motorcycle and then he prepared a Seizure Memo in respect of the attached Exhibit which was signed by him and both panchas but the accused refused to sign the same and although a copy was handed over to the accused, the accused refused to sign the acknowledgment. He further stated that he told the accused that the possession of charas was an offence and he was liable to be arrested. He stated that he told the accused to conduct a search of the raiding party and the panchas which he declined. He also stated that the accused was wearing a red coloured T-shirt and blue coloured jeans which were retained on the person of the accused. He also stated that the wrapping and packing was done by Constable Parab as per his direction on the spot. The hot wax was poured by Constable Parab 8 whereas the seal impression was affixed by him and the conversation between him and the accused was in Konkani language which language the panchas were also conversant. 7. He further stated that he prepared the panchanama and got a letter typed from Head Constable Patil addressed to the Director of Food and Drugs Administration, Panaji and a seal was affixed on it. Thereafter a letter was written addressed to Dy.S.P., A.N.C., requesting to take over the seal used for the raid, and the said letter was handed over to Constable Warang for handing it over to the Dy.S.P., Anti Narcotic Cell Police Station. He also stated that the jeep was brought to the spot after the accused was surrounded and the said Constable Warang left the spot alongwith the seal and the letter on his motorcycle and thereafter they returned to the police station where he lodged a complaint on behalf of the State against the accused for possessing drugs which was registered under crime no.21/2006. He stated that the attached property was handed over to the Police Inspector, Serafin Dias of A.N.C Police Station with a covering letter for safe custody and to forward the same for analysis. He stated that he forwarded a report under Section 57 of the Act to the higher officers and he produced a copy of it at Exhibit 30. He 9 further stated that he submitted a copy of the F.I.R and the Seizure Memo to the Superintendent as well as to the Magistrate and then requested the P.W.D. Office to prepare a plan of scene of raid. He stated that he recorded the statements of the witnesses and since he was transferred, the balance quantity and the report of analysis were received by Police Inspector Serafin Dias who filed the charge sheet. 8. In cross examination he stated that the “Property Seizure Memo” is a document in a format given by National Crime Record Bureau and the station diary refers to the preparation of the said Property Seizure Memo in the format as prescribed by N.C.R.B. He further stated that the said format require the signatures of both the panch witnesses as well as the specimen of seal impression. He stated that the said Property Seizure Memo was prepared on the spot after completing Seizure Memo – Exhibit 21. When he was asked whether there was any mention of the said Property Seizure Memo in the panchanama, complaint or any other document, except station diary, he stated that he had referred in the panchanama to the hand written memo and also the format of property. In further cross examination, he stated that the copy of “Property Seizure 10 Memo” in the format was not handed over to the accused and further stated that the said 'Property Seizure Memo” was prepared only for record purpose of sending it to the computer cell and was not relied for the purpose of charge sheet. He denied the suggestion that he had falsely deposed about the preparation of the said Property Seizure Memo on the spot, and further denied the suggestion that the said Property Seizure Memo was prepared at the police station. In further cross examination he admitted that the complaint did not disclose the names of the Constables who were deputed to secure panch witnesses. He further admitted that Pw3/Viegas, after he came to the police station, he came to know that he was the son of a retired police officer. He also admitted that the panchanama did not disclose the description or make of the motorcycle used by Constable Warang for the said raid. As regards the accused entering the football ground, he stated that the accused entered from the northern corner of the football ground and not from the opening of the gate. He further stated that there was no record to show that the jeep was brought back to the place of the raid from the place where it was parked. He also admitted that there is no reference about the fixing of cello tape on the spot on the seals, on the seized article (Exhibit I) and on the 11 envelope (Exhibit II). 9. The prosecution examined Pw3/Vilarsha Viegas, the panch witness who corroborated the version of Pw7/Suraj Halarnkar. Pw5/ Police Inspector Serafin Dias, who was alongwith the Police Inspector Suraj Halarnkar at the time of the raid, was examined particularly to show that after the seizure of the articles, they were handed over to him in his custody with a forwarding letter and to show that he had made necessary entry on the muddemal register, and then he had handed over the same to Head Constable Patil to be forwarded to the Scientific Assistant in the office of the Superintendent of Police (C.I.D), to be forwarded to the Director of Food and Drugs Administration, Panaji, and further to show that he had received the balance quantity alongwith the report of analysis from the said F.D.A. on 23.2.2007 regarding which he also had made entries on the muddemal register and the balance quantity was then kept in safe custody. He also stated that after the transfer of Pw7/Suraj on 29.1.2007, he had taken over the investigation and on 14.3.07 he had filed the charge sheet. 12 10. Prosecution had also examined Pw6/Constable Rajesh Warang to prove that after the seizure, he had returned to Panaji alongwith the seal used for the sealing of the seized article and handed over the seal to Pw4/Shri Allen D'Sa at about 16.40 hours, and, Pw4/Dy.S.P. Allen D' Sa was also examined to corroborate the said version and some other facts in relation to the case. Pw2 Constable Naik was examined to prove that he had received the letter and the seized article at about 17.25 hours from H.C. Patil to be transmitted to the Directorate of Food and Drugs Administration. He had also confirmed that the seals on the cloth parcel were intact and individually covered with cello tape and tallied with the specimen seal provided, facts which were further confirmed by the Senior Scientific Officer Pw1/Shri Kaisare who also found the seven seals on the seized article – Exhibit 1 intact and individually covered with cello tape. The weight of the sealed article was found by him to be 5.200 kgs and after he carried out several tests he came to the conclusion that the seized article contained charas. 11. Pw3/Vilarsha Viegas who is a panch witness is a businessman and happened to be the son of a former Superintendent of Police and 13 who has corroborated the version of Pw7/Suraj Halarnkar in all material particulars and regarding whom the Learned Special Judge observed as follows:- “Pw3 Viegas claimed hat he was called to act as a pancha witness and he acted as a pancha only on second occasion and earlier he acted as a pancha witness with regard to an inquest panchanama of a dead body in vehicular accident about 2 years back. There is nothing on record to show that he is in any way influenced by the police officers or acted under some pressure or assurance. No doubt this witness has admitted that his father was working in the police department and retired as Senior Police officer however the said Pw4 Shri Viegas is a businessman by profession and he has absolutely no interest or connection with the police department. Only because his father was a Senior Officer, his integrity and independence cannot be questioned without showing any material on record. The said Pw3 Shri Viegas has to be, therefore, considered as independent and respectable person of the society. The testimony of this witness, even though cross examined a length, has not been shaken at all. There are minor discrepancies which are bound to occur due due to the said discrepancy credibility of this witness cannot be reduced. The cross examination of Pw3 Shri Viegas gives in detail entire procedure followed right from the time he was called at the police station till the completion of the raid and returning 14 back to the police station. During such cross examination he has given in detail the description of the accused as well as the place of raid and sated that the accused was found riding the said motorcycle who came at the foot ball ground and stopped the motorcycle. Further on page no.12 he has clarified that after the accused was surrounded, the jeep was brought at the spot of raid as per the direction of Pw7 Suraj Halarnkar. He admits that there is no such record mentioned in the panchanama however the witness himself has clarified that the jeep was brought to the spot of raid and writing of panchanama as well as weighing, packing and sealing was carried out by keeping the papers and other materials on the bonnet of the motorcycle (sic. jeep). It is also brought on record that no one entered the jeep after it was brought at the spot of raid. It is to be noted here that while concealing the presence of raiding party members, it is necessary or mandatory to carry the kit box and other material and at that stage it is only required for the raiding officer to locate suspected person and surround him. The kit box and other items are required to be brought at the spot of raid for the purpose of conducting such raid and in that process if the jeep is brought subsequently at the spot of raid, it cannot be considered as discrepancy even if nothing is mentioned in the panchanama”. 12. It is not necessary, to reproduce herein the entire version given 15 by Pw3/Viegas and burden the record. The Learned Senior Counsel on behalf of the accused submits that Pw3/Viegas is not a truthful witness and that is because he stated that he was not knowing the members of the raiding party prior to the date while Pw5/Shri Dias has stated that he knew Pw3/Shri Viegas prior to the date of the raid as he is the son of a retired police officer. I am afraid such a submission cannot be accepted. Pw5/Shri Dias, knowing the son of a his former superior is quite probable but certainly it was not expected of Pw3/Viegas to know the subordinates of his father while he was working as Superintendent of Police. Another submission made is that Pw3/Viegas stated that the accused entered from the opening of the wall while Pw7/Shri Halarnkar stated that the accused entered from the northern corner of the football ground and not from the opening of the wall. This discrepancy, in my opinion, is too insignificant to be taken note of, to doubt his presence or to discard the entire evidence of Pw3/Shri Viegas. I am entirely in agreement with the observations made by the Learned Special Judge regarding this witness. Pw3/Shri Viegas is an independent and respectable person and his evidence, to my mind when read as a whole has an air of truth, and is very clear, consistent and convincing and can be relied upon fully as 16 evidence which corroborates the version given by Pw7/P.I. Halarnkar. The deficiencies pointed out on behalf of defence are not at all sufficient to doubt his presence. Both these witnesses have also confirmed that the jeep was brought to the spot, from the place it was parked, upon instructions given by Pw7/Halarnkar, through Constable Albert. In view of corroborative evidence on that aspect, the solitary statement of Pw6/Constable Warang that after the raid, they went back to the place where the jeep was parked, can be ignored. It must be remembered that in the heat and hurry of a trial, witnesses do make mistakes. Capacity to accurately observe varies from witness to witness and so also to remember and then to reproduce. A prosecution case perfect in every way can be so only by tailored evidence and even then it is doubtful whether it can be so. In my opinion, therefore, it can be safely concluded that the accused was arrested in the manner as described by Pw7/P.I. Halarnkar whose evidence is independently corroborated in all material particulars by Pw3/Shri Viegas. 13. Learned Senior Counsel then submits that that there are serious lacunae in the case of the prosecution on account of which, the story of 17 the prosecution needs to be rejected. Elaborating further, Learned Senior Counsel points out that there are lacunae with reference to the cello tape put over the seals, the disappearance of the string which was not found by Pw1/Shri Kaisare, the manner the paper label was put on the seized article as well as the movement of the seal. Learned Senior Counsel has submitted that on account of these lacunae the case of prosecution ought not to have been accepted and the accused deserved to be acquitted. Learned Senior Counsel has placed reliance on the case of Vikram Reddy V/s. State of Goa {2002 (1) Goa L.T. 116, Rajendra Prasad V/s. The Narcotic Cell through its officer-in-charge, Delhi (1999 Drugs Cases 139) and Stefano Mora V/s. State of Goa (unreported Judgment of this Court dated 3rd/4th May, 2007 in Criminal Appeal No.39 of 2005). 14. As regards the cello tape, Pw2/Shri Naik as well as Pw1/Shri Kaisare have stated that the seven seals on the seized article were intact and were individually covered with cello tape. Learned Senior Counsel submits that if cello tape was required to be put for the seals, it could have been put in the course of the panchanama and not in the quietness of 18 the police station. Learned Counsel submits that finding of the cello tape on the seals creates a suspicion that the seals have been interfered with. He further submits that a serious offence like in this case was required to be investigated more seriously. Learned Senior Counsel therefore submits that the possibility that the seized article was interfered with cannot be ruled out. In my view, the Learned Senior Counsel may be partly right in contending that the cello tape could have been put after the seized article was sealed and could have been mentioned in the panchanama. Pw7/ Shri Halarnkar is silent on the aspect of the seals being covered with the cello tape and the only probability is that the cello tape was indeed put after the sealed article was received by Pw5/Shri Dias and before it was being taken to Pw2/Shri Naik. However, the fact remains that the said tape was put innocently and bonafidely with a view to ensure that the seals put on the seized article were not destroyed in the process of the seized article being sent to the laboratory of the Food and Drugs Administration and it does appear that it was well intended act on the part of some police officer and only because prosecution has not explained as to who actually put the cello tape on the seals, cannot lead to any inference that there was an attempt 19 to interfere with the seals of the seized article. The evidence shows that the seized article had continued to remain properly secured and sealed till it reached the laboratory of D.F.A. 15. The next submission is as regards the string. It must be noted that Pw7/Shri Halarnkar had stated that he had put back the five packets in the bag and tied the mouth