-1- IN THE HIGH COURT OF BOMBAY AT PANAJI. CRIMINAL APPEAL NO.22 OF 2006 Ron Chayak, Presently lodged in Central Jail Aguada, Sinquerim, Bardez, Goa. ...... Appellant V e r s u s State of Goa, as represented by Officer in charge Anti Narcotic Cell P.S. Panaji, Goa. ...... Respondent Mr. J. P. D' Souza, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CORAM: N. A. BRITTO, J. DATE: 2 nd March, 2007 & 9 th March, 2007. ORAL JUDGMENT The appellant herein is an accused and shall be referred to as such, hereinafter. 2. The accused has been convicted and sentenced on a charge which reads as follows: -2- “That on or about 02.12.2002 between 17.30 to 21.30 hrs. at Sonnathwada, Anjuna, you were found in illegal possession of 10 grams of charas on your person and in possession of 1.31 kgs. of charas in the rented room of Maria Fernandes in your possession without any legal documents. You have thereby committed offence punishable under Section 20 (b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985, read with Section 20(b) (C) of Narcotic Drugs and Psychotropic Substances Act, 2001 and within my exclusive jurisdiction.” 3. The accused has challenged the conviction and sentence imposed upon him by the learned Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa, by Judgment/Order dated 08.03.2006. 4. The case of the prosecution, in brief, is that the raid was conducted by PI Uday Naik/Pw4 of ANC Police Station, upon receipt of prior information, in room no. 4 of Silver Moon Guest House, at Sorrontowadda, Anjuna, in the presence of PI Vincy Paes/Pw7, in charge of the said Police Station, and Dy.S.P. Shri Finton D' Souza/Pw5, being the next Superior Officer, and, in the presence of two panch witnesses, namely Vijay Surlekar/Pw3 and Mustaq A. Bengre, who was not examined. To support its case, the prosecution examined eleven witnesses. -3- 5. The case of the accused was that he was falsely implicated. The accused had also taken a plea that the said room was occupied by another Israeli National by name Ms. Maya Patt. 6. As per the version of PI Uday Naik/Pw4, the accused was staying in room no.4 of Silver Moon Guest House at Sorrontowadda, Anjuna and was selling charas in the said room, which information he reduced in writing and handed over personally to Shri D' Souza/Pw5, and thereafter, at about 15.30 hours, he secured the presence of the said two panch witnesses and told them about the receipt of the said reliable information and after introducing them to the members of the raiding party, proceeded to Sorrontowadda at Anjuna, and after alighting from the vehicle and confirming the location of the said room no.4, they all proceeded towards the said room at about 17.15 hours and on seeing room no.4, the number of which was written on the door frame, he knocked at the door, which was opened by the accused who matched the stated description, and thereafter introduced himself and the raiding party to him and told him that he wanted to take his personal search for charas after informing him that he had a right to be searched before a Gazetted Officer or Magistrate and that he also had a right to search the members of the raiding party including the panchas, which offers the accused declined and during the personal search, he found on his person 10 grams of charas, which he put in an envelope, packed and sealed and thereafter a search of the said room being -4- conducted, he found a polythene bag near the dressing table and which had 1.31 kgs of suspected charas which he also put in an envelope, packed and sealed and signed the same. As per him, during a further search of the said room, he had found 58 US dollars, Rs.400/-, etc., which were also put in an envelope, packed and sealed and signed, as before. He stated that the passport of the accused was also found and so also another red and blue colour resin bag beneath the cot and the clothes found in the room were put in the said bag. He also stated that he took away the key of the room to be handed over to the owner and prior to that he prepared two letters on the spot, one addressed to the Director, Food and Drugs Administration, Panaji, and the other addressed to the S.P., for handing over the seal. The first letter was marked exhibit 10 and the second letter was marked exhibit 32. He further stated that he returned to the Police Station at about 23.45 hours, where he registered an offence against the accused. He stated that he handed over the muddemal property to PI Shri Vincy Paes/Pw7 and the seal was handed over to Shri D' Souza/Pw5, and as on the next date, he had to proceed to Delhi, he handed the case papers to PI Shri Paes/Pw7 on 03.12.2002 and obtained the same, upon his return on 11.12.2002. 7. The first controversy raised on behalf of the accused by learned Counsel Shri D' Souza, is that both the witnesses taken by Shri Uday Naik/Pw4, were not independent witnesses and, therefore, no reliance could be placed on the -5- evidence of Shri Surlekar/Pw3, who has been examined. The learned trial Court after relying upon various decided cases, has come to the conclusion that Surlekar/Pw3 was an independent witness and reliance could be placed upon his evidence. It is only sustained and incisive cross examination which has ultimately brought out the fact that Surlekar/Pw3 had stood as a panch witness in four cases prior to this namely, crime nos. 3, 4, 10 and 12 of ANC Police Station, as admitted by PI Uday Naik/Pw4, on 15.03.2004. Surlekar/Pw3 also admitted that he had acted as a panch witness at the instance of the Panaji Police Station in two to three cases and had also admitted that he acted as a panch witness in another two cases in drug raids where there was no recovery. The evidence of Surlekar/Pw3 ultimately shows that he had stood as a panch witness atleast in about seven cases prior to the case at hand. However, what is to be noted is that there was a consistent effort made both by Surlekar/Pw3 as well as by PI Uday Naik/Pw4, to evade answers in that regard. It is only on 03.01.2005, that PI Uday Naik/Pw4 stated clearly that Surlekar/Pw3, had acted as a panch witness in about 18 drug cases in which he was either an I.O. or a member of the raiding party. Earlier, Surlekar/Pw3 on 08.01.2004 had admitted that he had acted as a panch witness in other cases of ANC Police Station but when it was specifically suggested to him that he had acted as panch witness in 13 cases of ANC Police Station, he had denied the suggestion. Again, Surlekar/Pw3 had stated that he had acted as a panch witness at the instance of ANC Police Station only in raids conducted in -6- North Goa, but he was compelled to admit that he had acted as a panch witness also in the case of B. Chandra Mohan, which was at Sancoale at South Goa. The case of B. Chandra Mohan was decided by this Court in Appeal no. 53/04 by Judgment dated 24.03.2006 (06(4) AIR Bom. R. 106). Surlekar/Pw3 also stated that he knew PI Uday Naik/Pw4 since his childhood i.e. for over thirty years and that they were both residing at Mala. If Surlekar/Pw3 made an attempt not to disclose that he had stood as a panch witness in 18 cases, PI Uday Naik/Pw4, did not lag behind. On 15.03.2004, when PI Uday Naik/Pw4 was questioned about that aspect, PI Uday Naik/Pw4 stated that Surlekar/Pw3 had acted as a panch witness in drugs cases but he did not recall the number. He also stated that he did not inquire with him as to the number of times he had acted as a panch witness in drugs case for no specific reason. If at all PI Uday Naik/Pw4 did not inquire from Surlekar/Pw3 as to in how many cases he acted as a panch, the reason is not very far to find and it is because he well knew that Surlekar/Pw3 was a regular and stock panch witness. On 25.02.2004 PI Uday Naik/Pw4 again stated that he did not recall in how many raids Surlekar/Pw3 had accompanied him for drug raids but to another question, he conceded that they were maintaining a FIR register which he was required to verify and depose on the next date. This was on 25.02.2004 and it is only on 15.03.2004, that in further cross examination, that PI Uday Naik/Pw4 admitted that Surlekar/Pw3, had stood as a panch witness in 18 cases relating to ANC Police Station and in four cases, as already stated, prior to the case -7- at hand, which fact he had again confirmed on 03.01.2005, by admitting that Surlekar/Pw3 had acted as a panch witness in about 18 drugs cases in which he was either an I.O. or member of the raiding party and this only shows that on 25.02.2004 PI Uday Naik/Pw4 was only feigning ignorance that he could not recall the number of cases in which Surlekar/Pw3, had stood as a panch witness in drugs cases. As far as the other panch witness Shri Bengre (Cw2), who was not examined, PI Uday Naik/Pw4 stated that he had not asked Shri Bengre, whether he had acted as a panch witness in narcotic raids prior to this case and yet PI Uday Naik/Pw4 stated that he had satisfied himself on the respectability of the panch witnesses. When further questioned and a suggestion was put that Shri Bengre (Cw2) had stood as a panch witness in drug raids numbering about five, he stated that he could not answer the suggestion for want of records and added that he could not correctly recall whether Shri Bengre was a panch witness in an earlier drug raid prior to this case. It was specifically suggested to him that the said Shri Bengre was involved in three criminal offences in relation to Calangute Police Station but PI Uday Naik/Pw4 stated that he could not say anything to that suggestion and further stated that he could not say anything to the suggestion that Bengre had acted as a panch witness in more than ten cases. Surlekar/Pw3, was a panch witness in the said case of B. Chandra Mohan (supra), wherein it was observed that he had stood as a panch witness twice prior to the raid in that case i.e. 29.01.2002 and thereafter, on 15 occasions and that fact was admitted by Shri -8- D' Souza/Pw5, in that case. Shri D' Souza, who is also Pw5 in this case, had admitted in that case that during most of the raids, where Pw3/Surlekar was a panch witness, he was present and in that context, the following observation was made by this Court : “I really fail to understand as to what sort of Superior Officer DySP D' Souza/Pw5 is so as to not have advised PI Paes/Pw4, (the I.O. in that case), that he should desist from engaging a panch witness in so many cases and this inspite of the Government having given instructions to call on Government servants to act as panchas.” Shri Bengre, (Cw2), was a panch witness in the case of Dansur Ghartimagar v. State of Goa, which was decided by this Court on 13.12.2006, in Criminal Appeal No.41/2005. The said Bengre was examined as Pw3 in that case and PI Shri Paes, was the Investigating Officer and the said Paes had admitted that the said Shri Bengre, had acted as a panch witness at his instance in about 4 to 5 cases. In that case, this Court had observed that the evidence of Bengre showed that he was arrested in one theft case along with another person and was released on bail and was acquitted in that case. It was also noted that Bengre had stated that he did not know if two theft cases were registered against him at Calangute Police Station and it was observed that the answers given by the said Shri Bengre, gave a clear impression that he was involved in more than one theft case of Calangute Police -9- Station. 8. The learned trial Court has relied on several Judgments to come to the conclusion that Surlekar/Pw3 could still be considered to be an independent witness. In fact, PI Uday Naik/Pw4 in his cross examination had admitted that he was aware about the Government Circular which required Government employees to be taken as panch witnesses. When questioned further on that aspect, PI Uday Naik/Pw4 stated that he could not make any affirmative statement about procuring or attempting to procure any Government employee as a panch witness because according to him, the relevant file in the office was misplaced. If PI Uday Naik/Pw4 was aware about the said Government Circular which required that Government employees be taken as panch witnesses, there has been no explanation from PI Uday Naik/Pw4 as to why he did not adhere to the said Government Circular and ensure that Government employees were called for as panch witnesses assuming he was otherwise unable to get independent witnesses to witness the raid which was conducted by him. His evidence shows that he had more than sufficient time to procure independent witnesses or Government employees to accompany him for the said raid but chose to ignore the Government Circular for reasons best known to him and took Surlekar/Pw3, a person who had acted as a panch witness on more than seven occasions, to accompany him for the raid. -10- 9. In Ramesh Kumar v. State of Himachal Pradesh (2002 Cr.L.J. 1880), the learned Division Bench had observed that merely because a witness had in the past appeared as a prosecution witness in two cases, would not render him to be labelled as a stock witness in the absence of any other evidence to show that he was a stock witness. That observation certainly could not have been imported to give any credibility to Surlekar/Pw3, being an independent witness. In the case of Joseph Fernandes v. State of Goa (2000 Cri. L.J. 3485), the facts do not show as to in how many occasions, the panch witness had stood as a panch witness and, therefore, the observation of the Hon'ble Supreme Court that if a person happened to witness other instances that would not denude him of his independent character, would not be of any significance to this case. In Mohammed Salim Mohammed Issak Shaikh v. State of Maharashtra (2000 Vol. 102(2) Bombay L. R. 243), the learned Division Bench observed that the circumstance that the public panch is a habitual panch would certainly weigh with the Court if it finds that the evidence of police witnesses is not free from blemish. In that situation the circumstance that the public panch was professional would certainly be an impediment in the way of the Court in confirming a conviction in a case under the N.D.P.S. Act. This observation could squarely apply to this case. In Deepak Ghanshyam Naik v. The State of Maharashtra (1989(1) Bom. C R. 574), the panch witness had admitted in cross examination that he had acted as a panch once or twice and on that count, he -11- was sought to be labelled as a professional panch witness but that contention was not accepted by the learned Division Bench by observing that he was not a person doing anything and was not under the police obligation to act as a panch witness as he had a fruit business in Karnataka. Lastly, reference could be made to State of Gujarat v. Kumuchandra Pranjivan Shah (1997 S.C.C. (Cri) 750), wherein the Apex Court observed thus: “On appeal preferred by the respondent before the High Court of Gujarat, the Division Bench of the Gujarat High Court, inter alia, came to the finding that the panch witness though initially tried to give a picture before the Court that he had not acted as a panch witness, it was established by cogent evidence that he had acted in a number of cases as a panch witness and there were good reasons to believe that he was a pliable witness not worthy of evidence. So far as the police witness is concerned, the High Court has also held by indicating that the police officer initially did not speak out the truth and tried to suppress that the said panch witness had acted as panch witness in earlier cases. Considering the aforesaid fact the High Court was of the view that the said witnesses did not appear to be reliable and reliance should not be placed on their deposition. Accordingly, the High Court was of the view that the prosecution had failed to establish the case beyond reasonable doubt and passed the -12- aforesaid Judgment acquitting the respondent.” The Judgment of the High Court was affirmed by the Supreme Court. 10. As already stated, PI Uday Naik/Pw4, inspite of knowing of clear Government instructions that he could take Government servant as panch witnesses, took, if at all, Surlekar/Pw3, who had acted as a panch witness on more than seven occasions. The fact that he had stood as a panch witness in about 18 cases was sought to be suppressed from the Court both by Surlekar/Pw3 as well as PI Uday Naik/Pw4 at the initial stages of their cross examination. In my view, the evidence of a person who stood as a panch witness on more than four or five occasions, cannot be said to carry any value. By no stretch of imagination, could Surlekar/Pw3, be considered as an independent witness and he was a pliable witness, being a stock panch witness, in the hands of PI Uday Naik/Pw4, as well as Shri Paes/Pw7, having accompanied them in about 18 cases in all both prior and after the present case. As observed by this Court in Aspaq N. Ahmed v. State of Goa (2006 (2) AIR Bombay Reporter 111), the fact that the panchanama and the seizure report was signed by the panchas is no guarantee that the panchas were really present at the scene. Such signatures can also be obtained from pliable witnesses and that could happen in the case of Surlekar/Pw3 as well. In this context, reference could also be made to the Judgment of the Division Bench of -13- this Court in the case of Bhagwatsingh Gaud v. State of Goa (Unreported Judgment dated 01.12.1997 in CRIA No. 43/1996), wherein this Court observed that the minimum care expected of a search office of a PI level is that he takes independent witnesses to witness the search and seizure transaction and if such officer does not act with reasonable prudence, the entire search may become doubtful. That is precisely the case at hand that PI Uday Naik/Pw4, inspite of knowing about the said Government Circular, and inspite of having had sufficient time, chose not to call upon any independent witness or for that matter, a Government servant as a panch witness and called upon two pliable witnesses to accompany him for the raid, which he conducted. This is not a case where the panch witness has turned out to be hostile to the case of the prosecution and the evidence of the PI Uday Naik/Pw4, inspires confidence. In the absence of an independent witness being taken, the entire raid as conducted by PI Uday Naik/Pw4, would not remain free from doubt. 11. The next aspect which requires to be considered is the possession of room no.4 of the said Silver Moon Guest House, situated at Sorrantowaddo, belonging to Maria Fernandes/Pw6. This is of utmost importance considering that major quantity of 1.31 kilos of charas was found in the said room. Whether the said quantity was found on the dressing table as stated by PI Vincy Paes/Pw7 or by the side of the dressing table as stated by other witnesses including PI Uday -14- Naik/Pw4, is a different matter. PI Uday Naik/Pw4 has admitted in his cross examination that he had investigated about 25 drugs cases during his posting at the ANC Police Station and that about a dozen such cases pertain to the foreigners. He also admitted that he was aware that whenever drugs are found in a room purportedly occupied by a foreigner, it is necessary to establish the nexus between the foreigner and the room and that the said room is in exclusive possession of the said foreigner. He also admitted that in respect of any foreigner, occupying a room or a house locally, the owner of the house had to submit a 'C' form in respect of the foreigner to the concerned Police Station, which is countersigned by the foreigner. 12. The chargesheet against the accused was filed by PI Uday Naik/Pw4 on 23.01.2003, and prior to that, on or about 17.12.2002, on behalf of the accused, an application was filed to obtain direction to Officer in Charge of ANC Police Station to produce 'C' form of Ms. Maya Patt, an Israeli National. It has been the case of the accused in the said application, that when the accused was arrested on 02.12.2002, the said room was occupied by the said Ms. Maya Patt, an Israeli National. In reply to the said application, PI Uday Naik/Pw4 had stated he was in no way connected with the 'C' form of the said Ms. Maya Patt, if at all she was residing in Goa, at the relevant time, to the best of his knowledge. Eventually, the said application filed on behalf of the accused dated 17.12.2002, was rejected by the learned Special Judge. The Records and Proceedings show that subsequently -15- on behalf of the accused, an application was filed dated 06.03.2003, producing a xerox copy of the 'C' form of the said Ms. Maya Patt, again stating that the room from which the accused was arrested, was occupied by the said Ms. Maya Patt, an Israeli National. However, it appears that both the prosecution as well as the defence lost sight of the said 'C' form of Ms. Maya Patt, as the trial progressed, (herein after referred to as exhibit 4, as it was filed along with it). Neither Maria Fernandes/Pw6 nor PI Uday Naik/Pw4 were shown by the defence the said 'C' form of Ms. Maya Patt. However, the fact remains that Maria Fernandes/Pw6 has stated, that she had submitted the 'C' form of Ms. Maya Patt, as well. According to PI Uday Naik/Pw4, the copy of the 'C' form of the accused was produced by Maria Fernandes/Pw6, when he recorded her statement on 12.12.2002. However, PI Uday Naik/Pw4 did not produce the said 'C' form when he was examined before the Court on 16.02.2004, 25.02.2004 or for that matter, on 15.03.2004. The said 'C' form being a carbon copy, retained by Maria Fernandes/Pw6, came to be produced by her for the first time on 28.07.2004. However, the learned Special Judge did not allow it to be produced and exhibited presumably because it was a carbon copy. In fact, the learned Special Judge, ought to have allowed its production, being a carbon copy since a carbon copy is made by one uniform process within the meaning of explanation 2 to Section 62 of the Evidence Act. If any authority to support such proposition is required, then reference could be made to Prithi Chand v. State of Himachal Pradesh (AIR 1989 S.C. 702). However, -16- the said carbon copy produced by Maria Fernandes/Pw6, is at page 189 of the paper book and it shows that it was given in relation to the accused. However, what is important to be noted is that there is no room number mentioned on it. There is also no name of the Guest House of Maria