-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 18 OF 2005 Vassudeo Chandrakant Joshi, S/o. Chandrakant Joshi, aged 51 years, Sorabag – 6, Morang, Nepal, presently undergoing sentence of imprisonment at Central Jail Aguada. ...... Appellant V e r s u s STATE (Through the Public Prosecutor) ...... Respondent Mr. Rohit Bras De Sa, Advocate U/LAS for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CORAM: N. A. BRITTO, J. DATE: 15 th November, 2006. ORAL JUDGMENT This appeal is by the accused, who has been convicted and sentenced under Section 20 (b) (ii)(B) of N.D.P.S., Act, 1985, ('Act' for short), to undergo RI for ten years and to pay a fine of Rs.1,00,000/- and in default to undergo SI for one year. 2. The accused was charged and tried with the allegation that on 30.09.2001, at about 16.30 hours, he was found in illegal possession -2- of charas weighing about 2.025 kgs, near Shantadurga Temple at Candolim and without any legal documents. In support of the charge, the prosecution examined seven witnesses. Though the case of the accused was one of denial simpliciter, the accused examined two witnesses and belatedly took a plea of alibi without taking the same even in his statement recorded under Section 313 of the Code of Cr.P.C., 1973. The learned trial Court has held the said plea of the accused as not proved, and in my view rightly. It appears that an attempt was made by the accused to show that he was gainfully employed with M/s. Agnelo Security Services but neither S. A. Krishna/D.w.1 nor Anil Robin Cholachgud/D.w.2, were in a position to say where the accused was on 30.09.2001, when as per the case of the prosecution, he was caught near Shantagurga temple at Candolim, with the said charas. 3. The raid was conducted by PSI Naik/P.w.4 who at the relevant time was attached to Calangute Police Station upon receipt of reliable information. As stated by him, he had received specific and reliable information through his sources that one person aged 50 years of stated description would come near Shantadurga Temple at Candolim at about 4.30 p.m. with consignment of charas which he had to deliver to his customer and he reduced the said information in writing and submitted a copy of the same to Dy.S.P. Gawas/P.w.5, under a covering letter through P.I. Banaulikar/P.w.6 and he also requested PI -3- Banaulikar/P.w.6 to accompany him for the raid with the seal of the Police Station and thereafter, he secured the presence of two panch witnesses, namely one Sachit and Santosh/P.w.3, both from Chapora and, thereafter, with the raiding party, proceeded to Candolim in a private car of PI Banaulikar/P.w.6. As per him, ASI Dessai carried the kit box containing the writing, weighing, packing and sealing materials while PI Banaulikar/P.w.6, carried the seal and upon reaching the said temple at Candolim, at about 4.00 p.m., they waited there near the compound of the said temple when about 4.30 p.m., they saw one person having the stated description coming walking from the side of Nerul beach and standing near the gate of the temple and the said person was carrying a silver colour bag held in his left hand, as a student would carry his books. PSI Gundu Naik/P.w.4 further stated that after confirming the identity of the said person, PI Banaulikar started his vehicle and drove towards the accused and stopped the same in front of him and they got down and surrounded the accused and he introduced himself as a Police Officer and showed his identity card to him and then he introduced both the panchas and the members of the other raiding party to the accused who upon inquiry told his name and address and then the accused was informed about the specific reliable information and told of his search being taken for drugs, which he was carrying. PSI Naik/P.w.4 further stated that the accused was informed about his right to be searched before a Magistrate or a Gazetted Officer if he so desired and which however the accused -4- declined and that he also informed the accused to take the search of the raiding party including the panchas before his search could be taken and which the accused declined. Whereupon he asked the accused to open the bag which he was carrying and to show to them the contents and he unfolded the bag and opened the mouth of the bag and he saw a transparent plastic bag of white colour having some heavy substance inside it and upon removal of the bag, he found that the transparent bag had a self knot at the mouth, which he untied and removed the substance from the bag. As per him, there were two flat rectangular shape pieces of black substance wrapped in transparent polythene and seven irregular shaped pieces of black substance wrapped in individually in transparent polythene wrappers and besides there were small pieces of black colour substances in cylindrical shape some with wrappers and some without and the substances were emanating some kind of smell from which he suspected that the substance to be charas, which fact the accused also confirmed and stated that he had brought the same from his native place. PSI Naik/P.w.4 further stated that upon weighing the total substance along with the transparent polythene bag, he found the same to weigh 2.025 kgs. and then he inserted the said substance in another transparent polythene bag and sealed the same and then inserted it in a big size light green colour envelope having cloth lining inside and packed and sealed with seven seals of Calangute Police Station and wrote down the relevant particulars on the sealed envelope and then the same was signed by him -5- and the panchas and the accused. He also stated that he took personal search of the accused and found Rs. 80/- in the right hand side shirt pocket of the accused, a Nepali passport, Citizenship card, two property documents and a bus ticket all in the name of the accused, in his right side knee pocket. He stated that the silver colour bag in which the accused was carrying the charas was also put in an envelope and packed and sealed and signed by him, the two panchas and the accused and this envelope was also sealed like the earlier envelope with seven seals of Calangute Police Station and signed by him, the two panchas and the accused and, thereafter, he asked the accused to produce the documents, if any, to support such possession but the accused replied in the negative. He stated that the seizure report was prepared and the copy was given to the accused under his acknowledgment. He stated that the weighing of the substance was done with the assistance of K. G. Dessai, who had packed and sealed the envelope while PI Banaulikar had put the seals. He stated that the panchanama of the search and seizure then was drawn and a copy of the same was handed over to the accused under his acknowledgment and the seizure report was also signed by him and the accused while the panchanama was signed by me, the panchas and the accused. He stated that upon his return to the Police Station, he handed over the exhibits to writer Police Constable Umesh/P.w.7. He also stated that he drafted the complaint on behalf of the State against the accused and registered the same under crime no. 87/01 and then prepared a -6- forwarding letter with a view to send the contraband for analysis but it was not sent on the same day as it was late night and it being Sunday, it was forwarded on the next day by writer Constable Umesh Shet/P.w.7. He stated that he submitted intimation under Section 57 of the Act, to his superior, under his signature and on the next day, he recorded the statements of the members of the raiding party and upon receipts of the reports of the Scientific Officer/P.w.1, he filed the chargesheet against the accused. 4. In cross examination, he stated that the panchas were secured at his instance by Constable Bukle no. 4218 and that he did not know the said panchas earlier. He, in further cross examination stated that he did not know whether Santosh/P.w.3, had acted as panch witness in another case involving one Nelson Mathew. He stated that PI Banaulikar was in charge of Calangute Police Station and he had accompanied the raiding party and being in charge, he was also in charge of the seal. Regarding the car, he stated that its number was GA-01/7746 of which he did not recall the middle alphabet and that it was parked on the left hand side of the road and any passersby could see the vehicle and as it had tinted glasses, passersby, could not see the persons sitting inside. As regards weighing, he stated that a common balance with two pans were carried in the kitbox, each pan having the diameter of 6-8 inches and maximum weighing capacity was five kilos and that he had weighed -7- the entire substance at one time. As regards explaining the contents of the panchanama, he stated that the same were read over in English and explained to the accused in Hindi and to the panchas in Konkani but a record of the same was not made in the panchanama. 5. Govekar/P.w.3 stated that he was proceeding from Saligao towards Calangute on 30.09.2001, when he was called by one Constable of Calangute Police Station to the Calangute Police Station and he went there at about 3.30 p.m. and met PSI Naik/P.w.4, who was along with the second pancha and who told them that there was information that one person aged about 50-51 years of stated description would come at 16.30 hours at Shantadurga Temple at Candolim to deliver a consignment of charas to his customer and whereupon they left the Police Station in a car belonging to PI Banaulikar/P.w.6 and after reaching at the temple around 4.00 p.m., the vehicle was parked near a tree which is in the vicinity of the temple and then remained inside the car which had tinted glasses. Govekar/P.w.3 further stated that at about 16.30 hours, one person matching the description was seen coming towards Nerul side and who came and stood near the main gate of the said temple with a silver colour bag which was folded and carried like books in the left hand. Thereupon, PI Banaulikar immediately started the car after they found his movement was suspicious and took it towards the accused and stopped it, and, then they got down from the car and surrounded the accused who became -8- nervous, whereupon Gundu Naik/P.w.4, showed his identity card to the accused and introduced the panchas, PI Banaulikar and other members of the raiding party to the accused and told him of the receipt of specific reliable information and the search to be taken of the bag he was carrying for charas and asked the accused for his name which he disclosed and before taking the personal search of the accused and the bag, PSI Naik/P.w.4 told the accused that he could take search of the persons of the raiding party including the panchas, which he declined and then PSI Naik/P.w.4 informed the accused of his right to be searched before a Gazetted Officer or a Magistrate, which again he declined and whereupon the accused was told to show the bag to him and thereafter the accused became little hesitant and then opened the bag and it was containing the white colour plastic bag inside with the mouth closed in a self knot and on opening the said bag, it was containing black colour substance wrapped in plastic, two large in size and rectangular in shape and others were smaller pieces and smaller in size and yet others broken pieces and all blackish in colour and PSI Naik/P.w.4, upon smelling informed them that it was charas and PSI Naik weighed the same along with the polythene bag and found to be 2.025 kgs, which was put in an envelope, packed and sealed and signed by him, the other pancha and the accused. He also stated that a personal search of the accused was taken. He has corroborated the facts stated by PSI Naik/P.w.4. -9- 6. In cross-examination, Govekar/PW3 admitted that he had acted as a panch witness a year before at the request of PSI Sunita Sawant in a case of Nelson Mathew. He stated that he was doing the business of plying motorcycle on hire at Shapora and Calangute and the distance between Shapora and Calangute Police Station would be about 8 kms. and he was stopped by the Police Constable whilst he was at a distance of half a kilometer from the Calangute Police Station and towards Calangute side. He stated that he did not know personally PSI Naik/PW4 and the Constable who had stopped him did not tell him for what purpose he was called but told him that he was called by P.I. Banaulikar. Regarding the information sent to Dy.S.P. Gawas/PW5, he stated that he did not know about the same. He was extensively cross-examined by the defence but there is nothing in his evidence which can make his evidence less credible and in terms he has corroborated substantially the version of PSI Naik/PW4. 7. Dy.S.P. Gawas/PW5 in his evidence has confirmed about the receipt of intimation sent by PSI Naik/PW4 and so also about the intimation sent under Section 57 of the Act and the copies received by him were produced by him. He was not cross-examined by the defence, except for a bare suggestion. -10- 8. P.I. Banaulikar/PW6 has also in terms corroborated the version of PSI Naik/PW4 and there is nothing in his evidence even to remotely suggest that he was not present when the raid was conducted by PSI Naik/PW4. 9. The learned Special Judge has rightly observed that the testimony of Govekar/PW3 had remained materially unshaken and he having been a panch witness in another drugs related case was insufficient to paint him with the brush of interestedness or being a panch witness of the Police. It does appear that Govekar/PW3 is a person who was gainfully employed as a pilot taking people on hire on his motorcycle and has otherwise stood well the test of cross- examination and there is nothing in his evidence to even remotely doubt that he had not witnessed the seizure of the charas from the accused. The evidence of PSI Naik/PW4, Govekar/PW3 and P.I.Banaulikar/PW6 as well as that of Gawas/PW5 which is well corroborated was more than sufficient to hold that the accused was found with charas in a manner as deposed to by the aforesaid witnesses particularly by PSI Naik/PW4 and Govekar/PW3. -11- 10. As far as the custody of the sample and its subsequent analysis is concerned there also appears to be no room for doubt. Constable Umesh Xete/PW7 has produced the copy of the muddemal register and stated that P.I. Banaulikar/PW6 had handed over to him a big size envelope stated to contain charas weighing 2 kgs. and which was having seals of Calangute Police Station. He has also stated about the other sealed envelopes given to him and all, along with a letter addressed to P.I. Banaulika/PW6 by P.S.I. Naik/PW4 and he entered the same on the muddemal register under serial no.33/2001. He further stated that since it was late in the evening, he kept the sealed envelopes in the safe locker of which the keys were in his exclusive custody. He also stated that on that day he did not leave the Police Station as being a writter constable he was at the Police Station for 24 hours on duty. He further stated that on the next day he took the first envelope, stated to have contained 2 kgs. of charas along with the letter of PSI Naik addressed to the Superintendent Crime Branch, Panaji and a letter addressed to the Director of Food and Drugs Administration, Panaji, and, handed over the same at the Office of the Crime Branch. Shetgaonkar/PW2 has confirmed having received on 1-10- 2001 the said letters addressed to the Superintendent of -12- Police and the Drugs Controller along with the sealed envelope stated to have contained 2.025 gms. of charas involved in Calangute Police Station No.87/2001 from the said Constable Umesh Xete which he kept and gave necessary an acknowledgment. He has stated that on 4-10-2001 he forwarded the letter addressed to the Drugs Controller and the sealed envelope vide letter dated 4-10-2001 signed by the Superintendent of Police(Crime). He also stated that on 7-11- 2001 he collected the balance quantity and sent the same to Calangute Police Station on the same day which was received by Constable Govekar, P.C. No.2324 under letter, copy of which was produced as Exh.13. 11. Kaissare/PW1 has further confirmed that on 4-10- 2001 the Office of Directorate of Food and Drugs Administration had received from the Superintendent of Police, one sealed paper envelope. He has further stated that the seals fixed were intact and tallied with the specimen seal impression separately sent vide letter dated 30-9-2001. He has given the details of the contents of the envelope and as per him the total weight of the substance along with the wrappings was 2.030 kgs. He stated that all the pieces were analyzed individually by him by taking about 1 gm. of the -13- substance from each as a representative sample and after carrying out several tests, as mentioned by him he came to the conclusion that the substances analyzed by him contained charas. He also stated that the balance quantity was collected by the officials of the Police Department. The evidence of Umesh Xete/PW7, Shetgaonkar/PW2 and Kaissare/PW1 sufficiently proves that the seized substance was kept in the custody of another Officer other than the seizing Officer, till it was tested by Kaissare/PW1 and whose opinion shows that it was tested positive for charas. There is no room to doubt the evidence of the aforesaid witnesses regarding proper retention of the seized article till it was analyzed by Kaissare/PW1. The difference in weight could be due to the fact that the seized article was weighed by PSI Naik/PW4 on an ordinary scale while the same was weighed by Kaissare/PW1 on a sophisticated scale and regarding which no grievance was made on behalf of the accused either before the trial Court or before this Court. 12. The prosecution had sufficiently established its case beyond reasonable doubt by examining 7 witnesses whose evidence was cogent and reliable. The accused belatedly took the plea of alibi in his defence evidence -14- without putting forward such a plea either through the cross- examination of prosecution witnesses or in his statement recorded under Section 313 of the Code and even then failed to prove the same through the witnesses examined by him. The conviction of the accused under Section 20(b)(ii)(C) could not be fauled since the accused was found with over 2 kgs. of charas, one kg. having been declared as commercial quantity and for which punishment provided is R.I. for a term which shall not be less than 10 years and which may extend to 20 years and fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.2,00,000/-. The accused has been awarded the minimum sentence of 10 years and fine of Rs.1,00,000/-. That being the case, there is no scope for further reduction of the sentence. 13. In view of the above, I find there is no substance in this appeal. Hence, the same is hereby dismissed. N. A. BRITTO, J. arp/*