1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 20 OF 2009 Yair Daniel Lavon Age 25 years, Israeli National, Native of Hasita, 23/7, Gila, Jerusalem, Israel. (At present undergoing sentence at Central Jail, Fort, Aguada). ... Appellant versus The State of Goa through Anti Narcotic Police Station, Panaji, Goa in C.R.No.01/2008. ... Respondent Shri J. P. D'Souza, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 16TH OCTOBER, 2009. JUDGMENT 1. This appeal has been filed by the accused who has been convicted and sentenced under Section 20(b)(ii)(C) of the N.D.P.S. Act, 2 1985 Act, for short) in Special Criminal Case No.8/2008 by Judgment dated 19-1-2009. 2. The raid in this case was conducted by Police Inspector Suraj Halarnkar/PW7 of ANC Police Station, Panaji on 8-1-2008 on the basis of prior information and the accused was arrested and subsequently a charge-sheet was filed against the accused. 3. The accused was charged and tried with the allegation that on 8-1-2008 between 10.45 to 13.45 hours behind Badem Church, Assagao, the accused was found in illegal possession of 1.765 gms of charas, possession of which he could not account, thereby committing an offence punishable under Section 8(c) r/w Section 20(b)(ii)(C) of the said Act. To prove its case, the prosecution examined seven witnesses. 4. The case of the accused was that a false case was filed against him and he was taken from his residence at 7.00 a.m. and nothing was attached from him. The accused did not examine any witnesses. 5. The learned Special Judge after considering and assessing 3 the evidence led by the prosecution came to the conclusion that the prosecution had proved its case against the accused beyond reasonable doubt for having found in possession of commercial quantity of charas, and the accused had failed to rebut the presumption available to the prosecution in terms of Sections 35 and 54 of the said Act. The learned Special Judge also found that the provision of Section 42 of the Act was inapplicable though otherwise it was complied with. Likewise, the learned Special Judge also held that the provision of Section 50 of the Act was also inapplicable, since the seized article was found in the bag carried by the accused though otherwise the said provision was also complied with. 6. The case of the prosecution, can be seen in greater detail from the version given by P.I. Suraj Halarnkar/PW7. According to him, on 8-1-2008 at about 8.00 hours, he received reliable and specific information through his source that an Israeli National of stated description would be coming behind Badem Church, under a banyan tree to deliver narcotic drugs at about 10.30 to 11.00 hours to his prospective customers whereupon he reduced the said information into writing, and copy of the same was forwarded to Dy. S. P. Dinraj Govekar/PW4 along 4 with a covering letter through Constable Divkar, and thereafter at about 9.15 hours he directed Constables S. Parab and S. Pokle to secure the presence of two panch witnesses and about 9.25 hours Constable Parab came to the Police Station along with panch witness Dilip Bhandari/PW3 and Constable Pokle came with other panch witness by name Swapnil Ghadi and he briefed both the panch witnesses about the information received and about the raid to be conducted, and thereafter introduced the members to the raiding party, including himself and thereafter he took with him the seal of Anti Narcotic Police Station having inscription Anti Narcotic Cell, Panaji Goa-7 with Ashoka Emblem and Constable Parab took with him the kit box containing weighing and sealing material and Constable Palyekar took the typewriter and they left in police jeep bearing No.GA-01-G-3128 while Constable Mandrekar and Bhanji followed the jeep on a private motor-cycle and then they reached near Badem Church, near the said banyan tree and parked their vehicles at a distance of 100 meters from the said Church and then they concealed their presence behind the Church near the banyan tree and waited for the person in respect of whom the information was received while the driver of the jeep and Constable Palyekar stayed in the jeep. He stated that at about 10.40 hours they saw the person coming, of the stated description, 5 and he informed the members of the raiding party and then surrounded the said person and then he disclosed his identity to the said person and then introduced the members of the raiding party to the said person i.e. the accused who disclosed his name as Yair Daniel Lavon, and then he told the accused about the information he had received and about his intention to take his personal search and that of the bag, and before commencing the search he informed the accused that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate but the accused declined the offer. He stated that he also requested the accused that he had a right to take the search of the raiding party but he declined and then the police jeep was brought to the spot through Police Constable Mandrekar, and then he told the accused to hand over the shoulder bag carried by him and after the shoulder bag was handed over he opened the zip of the main compartment and inside it there were three packets wrapped in transparent polythene containing black colour substances and then he opened the transparent polythene of the first packet and found to contain black colour sticky substances of spherical ball shape, and then he opened the second packet which was found to contain black colour sticky substances of spherical shape and then he opened the third packet which was auto pressed, having bean shaped black colour substance 6 individually wrapped in wrappers and after verification of the black colour substances from all the three packets he suspected them to be charas, and then he weighed the said three packets and found them to be 1.765 kgs. and then he inserted the three packets back in the main compartment of the said black bag and closed the compartment with zip and then wrapped the bag in white cloth and tied it with jute thread, and a label was prepared mentioning the details of contents of the parcel and was signed by the two panchas and by himself, and the accused refused to sign. He stated that the label was then affixed on the white cloth parcel and seven seals were put on the said cloth parcel out of which one was partly on the paper label, and partly on the cloth. He stated that the personal search yielded cash of Rs.1000/- and 100 US Dollars and a passport of the accused, and thereafter he inserted the cash in Rupees and Dollars into a light green envelope, packed and sealed it at seven places and then prepared the panchanama and the seizure report which was signed by him and the two panchas but the accused refused to sign. He stated that the weighing, packing and sealing was done by him with the assistance of Constable Parab and then a letter was typed addressed to the Director, F & DA for examination of the seized drugs and then he affixed the seal impression of the said letter and then he wrote a letter addressed to the 7 Dy. S. P. regarding handing over the seal and sent it along with the seal through Constable Mandrekar to be handed over to the Dy. S. P. and thereafter they returned back to the Police Station along with the accused and the attached property, and upon returning to the Police Station, he handed over the muddemal property along with the note to Writer Constable by name Ashwini Dessai/PW6. He stated that he also handed over the letter addressed to F & DA to the said Constable Dessai and then he lodged his complaint against the accused for possessing the said charas illegally which was registered under Crime No.1/2008 at about 15.45 hours, and thereafter he submitted the intimation under Section 57 of the said Act to his superior officer on the same day, and then he requested the Assistant Engineer, PWD to draw the sketch of the scene of offence which was prepared and sent to him vide letter Exh.40. He stated that he effected entries in the station diary regarding the raid and the investigations and copy of it was produced at Exh.41. In cross- examination he stated that the information was received by him outside the Police Station at around 7.55 hours which he immediately reduced to writing at about 8.00 hours. In further cross-examination he stated that Constable Mandrekar, while recording his statement had stated that the name of the other panch was Gajanan Chopdekar but the said name was 8 disclosed by Constable Mandrekar inadvertently. He denied the suggestion that the accused was picked up from his residence at Anjuna. He also denied the suggestion that he had filed a false charge-sheet against the accused. 7. The prosecution examined Pw3/Dilip Bhandari who was panch witness at the time of seizure. Pw3/Bhandari had been to the police station in connection with some work of his friend by name Ramdas Pujari, when he was requested by Pw7/Suraj Halarnkar through Constable Parab to act as a panch witness to which he agreed. Pw3/ Dilip Bhandari is a Sales Representative who has his own business and office situated at Patto, Panaji. The evidence of Pw3/D. Bhandari is consistent with the panchanama Exhibit-22 and otherwise he has corroborated the version given by Pw7/P.I. Suraj Halarnkar. There is nothing in his cross-examination to doubt either about his presence at the scene or the version given by him, and in fact nothing has been pointed out in that regard, by the Learned Counsel appearing on behalf of the accused. However, what is pointed out is that Pw5/Constable Dina Mandrekar in his statement earlier recorded as well as before the Court, had stated that the other pancha was one Gajanan V. Chopdekar and since Pw5/Constable Mandrekar is a pivot on which the entire case of the 9 prosecution rests, the version of Pw3/D. Bhandari needs to be rejected. This submission, in my view, cannot be accepted for the simple reason that Pw5/Constable Mandrekar, though had stated that the other pancha was Gajanan V. Chopdekar, he corrected himself in his re-examination and stated that the other person who acted as panch witness was one Swapnil Ghadi and this is in conformity with the case of the prosecution. Pw3/Dilip Bhandari is an independent witness and he as well as Pw7/P.I. Suraj Halarnkar have stated that the other panch was one Swapnil, and this is in conformity with the contemporaneous records maintained and produced in the case. Pw3/Dilip Bhandari, besides identifying his own signature on the panchanama and the seizure report has also identified the signature of the said Swapnil Ghadi, and besides that, that of the P.I. The station diary Exhibit-41 shows that Constable Pokle Buckle No. 6158 had returned to the police station along with Shri Swapnil Ghadi and that is at about 9.25 hours and in such a situation the inadvertent statement made by Pw5/Constable Mandrekar could certainly be ignored without giving much importance to it. I have concluded that Pw3/D. Bhandari is an independent witness and in that regard referring to certain observations of the Apex Court, would not be out of place. The Apex Court in Hazarilal V/s. Delhi Administration 10 (1980 (2) SCR 1053) has observed that every citizen of India must be presumed to be an independent witness until it is proved that he was dependent on the police or other officers for any purpose or whatsoever. Further, the Apex Court has stated that “the necessity for “independent witness' in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle”. 8. Another related submission made by the Learned Counsel, on 11 behalf of the accused, is that the accused was arrested not in the manner claimed by the prosecution, but on the previous day from his residence at about 7.00 p.m. As regards this aspect, the only solitary suggestion put on behalf of the accused, to Pw7/P.I. Halarnkar is that he had picked up the accused from his residence at Badem, Anjuna, and a false complaint was filed against him. In the suggestion neither the date nor the time was mentioned. In his statement recorded under section 313 of the Code, the accused has stated that he was taken from his residence, and we can proceed with the assumption that the time recorded therein is 7.00 p.m. Learned Counsel on behalf of the accused submits that in case the accused was arrested at about 14.45 hours on 8.1.08, the friend of the accused by name Leor along with Advocate Raju Poulekar could not have reached at the police station to assist the accused at 15.55 hours on the same date. I am not impressed with the said submission at all. Firstly, nothing prevented the accused from examining the said Leor in support of his plea that he was arrested earlier and not at the time and in the manner claimed by the prosecution or for that matter examining the said Raju Poulekar. By now it is common knowledge that some of these foreigners who visit this State are well aware through the internet about the facilities available here including the places where cheap and good 12 food is available or whom to approach in case of difficulties. The accused could have certainly examined the said two witnesses including Shri Poulekar and Shri Leor with a view to jerk or jolt the evidence of Pw7/ P.I. Halarnkar and Pw3/D. Bhandari whose evidence is otherwise convincing and reliable and can be accepted in support of the facts stated by them. There is no doubt at all that the accused was arrested and the property seized from his possession in the manner deposed to by the prosecution witnesses, and particularly by Pw7/P.I. S. Halarnkar and Pw3/D. Bhandari. The statement by the accused, recorded on remand application – Exhibit 41 was made after the accused had benefit of legal advice and therefore is not sufficient to displace consistent and corroborative evidence given by Pw7/P.I.Halarnkar and Pw3/D. Bhandari. 9. The second aspect is as regards the custody of the seized article and its subsequent analysis. As far as the seal used to seal the seized article is concerned, Pw3/D. Bhandari has stated that the seal was immediately forwarded from the spot and this has been confirmed not only by Pw7/P.I. S. Halarnkar but also by Pw5/Constable Mandrekar as well as Pw4/Dy.S.P. Govekar. According to Pw5/Constable Mandrekar, 13 after completion of weighing, packing and sealing, Pw7/P.I. S. Halarnkar handed over the seal to him along with the covering letter and directed to hand over the seal to Dy.S.P. Shri Govekar, and accordingly he left the spot on his motorcycle and went to the office of Dy.S.P. Shri Govekar at Panaji and handed over the seal and the letter at about 14.45 hours and obtained the acknowledgment from Dy.S.P. Shri Govekar and came back to the police station. Pw4/Dy.S.P. Govekar has in turn confirmed that he had not only received the copy of the information-Exhibit 25 sent to him but also the intimation sent under Section 57 of the Act-Exhibit 27 and has further confirmed that on the same date at about 14.45 hours he received the seal of A.N.C., Panaji Goa-7 with Ashoka Emblem along with the forwarding letter of Pw7/Suraj Halarnkar through Constable Dina Mandrekar. He produced the said letter at Exhibit-26 and identified his signature thereon. Pw4/Dy.S.P. Govekar also produced the Seal Movement Register-Exhibit 28 from which it can be seen that he had received the said seal on 8.1.2008 at about 14.45 hours. It is therefore obvious that there is consistent evidence supported by documentary evidence to say that the seal was not retained by Pw7/P.I. S. Halarnkar for a time more than required and was immediately sent to Pw4/Dy.S.P.Govekar. 14 10. As far as the seized article-Exhibit 1 is concerned, Pw7 P.I. Halarnkar stated that after returning to the police station along with the accused and the attached property, he handed over the attached property along with a note to writer Head Constable Ashwini Dessai of A.N.C. Police Station. It has come on record that at the relevant time, it is P.I. Shri A. Shirodkar who was the in charge of the police station and was also otherwise a member of the raiding party. Pw6 /L.H.C. Ashwini Dessai has confirmed that on 8.1.08 Pw7/P.I. S. Halarnkar had handed over to her one sealed cloth parcel containing one black and brown colour shoulder bag containing in it 1.765 kgs. of suspected charas, etc. and a light green colour envelope and a passport. She stated that the said articles were handed over to her along with a note and she acknowledged the same at 14.45 hours on 8.1.08. She produced the said note at Exhibit-31 and a copy of the muddemal property register at Exhibit-32 and further stated that she had personally made the entry in the muddemal register in Crime No.1/08. The evidence of Pw7/P.I. Halarnkar when considered along with the evidence of Pw6/L.H.C. Ashwini Dessai is more than sufficient to conclude that the seized article had changed hands from the hands of Pw7/P.I. S. Halarnkar and had gone 15 into the hands of Pw6/L.H.C. Ashwini Dessai who was then working under P.I. Shirodkar who was in charge of the police station. However, Counsel on behalf of the accused, submits that Pw6/Ashwini Dessai has stated in her evidence and the muddemal property register Exhibit-32 otherwise shows, that the seized article was sent with Constable Morajkar to be delivered to the Scientific Assistant/Pw2/Gaurish Mapari at 5.30 p.m. and if that be the case, Learned Counsel contends, that Pw2/Mapari could not have received it at Porvorim which is atleast at a distance of five kilometres from A.N.C. Police Station at 5.30 p.m. and according to the Learned Counsel this creates a doubt as regards the custody of the seized article on the intervening night of 8th and 9th January, 2008, when it was received in the office of the Directorate of Food and Drugs Administration, Panaji and therefore the accused deserves to be given benefit of doubt. Learned Counsel further submits that Constable Morajkar who is stated to have carried the seized article from A.N.C. Police Station to Pw2/Gaurish Mapari, the Scientific Assistant, has not been examined. 11. Learned Counsel is right that Constable Morajkar has not been examined. However, the fact remains that Pw2/Constable Mapari has 16 stated that in this case he had received letter No.60/08 on 8.1.08 at about 5.30 p.m. addressed to S.P., C.I.D. from L.H.C. Ashiwni Dessai of A.N.C. Police Station, Panaji and letter No.58 dated 8.1.08 from P.I. A.N.C. Police Station addressed to the Director, FDA, Panaji-Goa in duplicate bearing specimen seal impression Anti Narcotic Cell, Panaji Goa-7 with Ashoka Emblem on both the copies and one sealed cloth parcel tied with jute thread vertically and across having seven seals marked as exhibit-1 stated to contain 1.765 kgs. of suspected charas from Constable Narayan Morajkar, Buckle No.4994 of A.N.C. Police Station. This witness was cross examined at length but defence was not able to make any dent into his evidence by cross examination. The station diary of A.N.C. Police Station Exhibit-41 under entry at serial no.38 has recorded the time as 5.00 p.m. and the said recording has been done by none other than Pw6/Ashwini Dessai herself and in fact none drew her attention to the discrepancy of recording the timing at 5.30 p.m. on the muddemal register. The station diary also records the return of Constable Morajkar under serial no.39 at 18.10 hours having returned to the police station after handing over the muddemal property Exhibit-1 to the Scientific Assistant. In the light of the evidence of Pw2/Gaurish Mapari, the Scientific Assistant, which is supported by the entry in the station 17 diary, in my view, no much importance could be given to the mistake made by Pw6/Ashwini Dessai on the muddemal register. That little molehill, if I may use that expression, need not be made into a mountain, to throw down the case of prosecution. It is more than probable that the first entry made by her on the station diary is correct and it was made as the property left the police station and therefore the entry made by her on the muddemal register cannot be given undue importance so as to discard the evidence of Pw2 which is otherwise supported by the station diary entry-Exhibit 41. It is to be noted that both Pw2/Constable Mapari as well as Pw1/Mahesh Kaisare, Senior Scientific Assistant in the Directorate of Food and Drugs Administration have confirmed that the sealed parcel-Exhibit 1 was properly sealed and the seals were intact individually covered with cello tapes and the latter has further confirmed that the seals tallied with the specimen seal impression and there has been no discrepancy in the quantity which was dispatched and the quantity which was received and analyzed in this regard. Learned Public Prosecutor has placed reliance on para 15 of Ketil Mardal V/s. State of Goa (1997 CRI. L. J. 3581) to which, in my view, no reference is required to be made. Suffice it to say that as far as the facts of the case are concerned, the article was properly seized, sealed and thereafter it 18 was dispatched and all along it was in proper custody and there is no scope to doubt the evidence of the prosecution on that aspect of the case. In other words, there is no room to doubt that the article seized and sealed by Pw7/S. Halarnkar was not the article which was analyzed by Pw1/Kaisare. 12. Another submission made by the Learned Counsel on behalf of the accused is that the station diary entry at serial no.31( at page 163) made at 14.45 hours ought to have been treated as F.I.R. and not the F.I.R-Exh.38 which has been reproduced in entry at serial no.34 at 15.45 hours. Learned Public Prosecutor submits that the said entry at serial no. 31 at page 163 is only of return of the raiding team and at entry at serial no.34 (at page 165) is the complaint. Learned Public Prosecutor submits that the entry no.31 at page 163 itself mentions that the offence is being registered and further submits that the entry at serial no.34 at page 165 is regarding the complaint and although there is a gap of about one hour between both the said entries, the complaint itself was of four pages and certainly it would have taken some time to write it down and register the same and it is for this reason that it was registered at 15.45 hours. Learned Public Prosecutor therefore submits that the submission made on 19 behalf of the accused ought not be accepted. The