-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 42 OF 2004 Shri Satyawan Pagi, major of age, resident of House No. 443, Modewada, Palolem, Canacona, Goa. (Original Accused no.1)(presently lodged at the Central Jail, Aguada) ...... Appellant V e r s u s 1. Union of India, through Shri M. P. Vaz, Superintendent of Central Excise, Anti­Smuggling Unit, Margao, Goa. (Original Complainant) 2. Shri Vimal Singh, major of age, resident of House no. 304, Reprawado, Varca, Salcete, Goa, (And originally hailing from Ward 7, Randiri, Ballusrai, Bihar State) (Original Accused no.2) ...... Respondents Shri S. D. Lotlikar, Senior Advocate with Ms. Shreya S. Naik, Advocate for the Appellant/Accused no.1. Shri J. Vaz, Spl. P.P. for Respondent no.1. Shri J. P. D'Souza, Advocate for Respondent no.2. -2- A N D CRIMINAL APPEAL NO. 49 OF 2004 Vimal Singh, Presently lodged in Central Jail, Aguada, Sinquerim, Bardez, Goa. ...... Appellant V e r s u s Union of India, through Shri M. P. Vaz, Superintendent of Central Excise, Anti­Smuggling Unit, Margao, Goa. (Original Complainant) ...... Respondent Shri J. P. D'Souza, Advocate for Appellant/Accused no.2. Shri J. Vaz, Spl. P. P. for Respondent. CORAM : N. A. BRITTO, J. DATE : 2 nd March, 2006. JUDGMENT These appeals are filed by the accused who have been convicted and sentenced under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, ('Act' for short), by Judgment/Order dated 07.07.2004 of the Special Judge, Mapusa, Goa. The -3- said accused were prosecuted after a complaint was filed by Shri Vaz, Superintendent of Customs and Central Excise/P.w.4, with the allegation that on 23.02.2001, at about 18.30 hours, both of them while travelling on a motorcycle from Margao towards Panjim, were found in possession of 8.5 kgs hashish valued at about Rs.20,00,000. In the course of the trial, the Complainant examined himself/P.w.4 and five more witnesses. 2. The case of the accused was that they were falsely implicated. As per A1/Satyawan Pagi, in his statement separately filed after recording his statement under Section 313 of the Code of Criminal Procedure, A1/Satyawan Pagi, was in the precincts of the Margao bus stand, when some persons grabbed him, put him in a jeep and took him to a building in Margao, where he was questioned for hours and was threatened and assaulted and forced to put his signature on various documents. A1/Satyawan Pagi, denied having confessed to the possession of the charas and about knowing A2/Vimal Singh previously. As per A2/Vimal Singh, who chose to give his evidence as D.w.1, he stated that he was proceeding from Vasco da Gama to Margao, at about 10.00 hours and that there was mechanical failure to the bus he was travelling and since it was not known how much time would be taken for the repair of the said bus, he asked the -4- driver about the distance and was told that it was about three kilometres, which he thought, he would cover on foot and as he was walking towards Margao bus stand, with a view to keep his appointment at about 11.30 hours, he found that a private vehicle had stopped by his side, who caught hold of him on either side and forced him in the vehicle and then he was taken and confined to a room and was questioned about the persons to whom he had sold drugs and he told them that he did not know to which persons they were referring to nor did he know the persons who were referred to by them and, on the next morning, at about 10.00 hours, he was made to sign some blank papers upon a representation that the signatures were being taken to the effect that he would not come back to Goa. A2/Vimal Singh, stated that he had not given any statement to the said persons in connection with this case. When he was examined, he stated that he was not produced before any Magistrate until 27.02.2001. 3. Considering the evidence produced on behalf of the Complainant and that of A2/Vimal Singh, the learned Special Judge came to the conclusion that the evidence of the Complainant was duly corroborated by the panch witness and P.w.5/Inspector Cruz and the same established the Complainant's case as regards the recovery of the stated -5- quantity of hashish from the two accused. The learned Special Judge also came to the conclusion that the statements recorded under Section 67 of the Act, were voluntary and which come in aid to further establish the case against the accused and, by the examination of P.w.2/Fatima Noronha, Warehouse Officer, the Complainant had established safe deposit of the sealed packages on 24.02.2001, thereby ruling out any possibility of tampering and that by examination of P.w.6/Lillian Fernandes, it was established that the sealed packages were indeed deposited on 24.02.2001, being a Saturday, in view of the Circular issued by the Ministry of Finance, to keep the offices open till 31.03.2001, and last but not the least, by the examination of P.w.1/Mahesh Kaissare, the Scientific Officer, the Complainant had established that the representative sample as well as the remnant quantity was tested positive for hashish. 4. It would be advantageous to refer to the evidence of the Complainant Shri Vaz/P.w.4, without minor details, in order to appreciate the other evidence produced on behalf of the Complainant and the issues of law raised. 5. The Complainant Shri Vaz/P.w.4, in his evidence stated that on -6- 23.02.2001, at about 3.30 p.m., Inspector Shri Cruz/P.w.5, had received information at Margao that two persons of stated description, one by name Satyawan Pagi/A1 and the other Vimal Singh/A2, also of stated description, would be carrying substantial quantity of hashish and would be travelling on a maroon colour Yamaha motorcycle having no. GA­02/K­8510, and would arrive at Margao at about 18.00 hours, proceeding towards Panaji and the said information was reduced into writing in form DRI (exhibit 59) and submitted to him and copies of the same were sent to the Deputy Director, DRI, Mumbai, etc. and it was also conveyed to his next superior officer namely Shri Monteiro, Assistant Commissioner of Central Excise, Panaji, telephonically, who issued necessary instructions and directions and, thereafter, the team of officials set out for the raid and proceeded to KTC bus stand at about 17.30 hours and kept surveillance for the arrival of the said two persons. The two panchas were informed about the said reliable information and were introduced to the other raiding party members at the KTC bus stand and, at about 18.30 hours, they saw a motorcycle with two persons matching the description and he signalled the rider to stop the motorcycle and the motorcyclist/A1 started to speed the motorcycle but they managed to stop it and after stopping, he identified himself to the said two persons and the rider identified himself as Satyawan Pagi/A1, resident -7- of Palolem, Canacona, and the pillion rider as Vimal Singh/A2, resident of Varca, originally from Bihar and they also noticed that A1/Satyawan Pagi, was carrying a maroon colour air bag strapped to his shoulder and, thereafter, he informed both of them in the presence of panchas about the said reliable information and that they wanted to take their search as well as that of the shoulder bag and the motorcycle for hashish and they offered themselves to the accused to be searched, which the accused declined and since he found that the place was not safe for conducting the panchanama and the search, both the accused were asked to sit in the Departmental jeep and along with the Officers, were taken to their office at Margao, with the said two panchas and, while on the way, the maroon colour air bag remained strapped around the shoulder of A1/Satyawan Pagi, while the motorcycle was taken by two Officers. The Complainant has stated that on being asked at KTC bus stand, about the contents of the bag, both the accused disclosed that it was containing hashish. On reaching Margao, P.w.5/Shri Cruz, informed each of the accused that they had an option of being searched before a Magistrate or an independent Gazetted Officer, which they did not accept and, thereafter, P.w.5/Shri Cruz, searched A1/Satyawan Pagi and on his personal search, cash of Rs.200/­, a notarized copy of driving license was found and while the cash with wallet was -8- returned to A1/Satyawan Pagi, the notarized photo copy of the driving license was taken for further investigation and, on search of A2/Vimal Singh having been taken, an amount of Rs.500/­ was found which was returned and when the bag having inscription 'Tomy Hillfiger', being carried by A1/Satyawan Pagi was opened, it was found to contain 17 blackish substances in the form of cakes wrapped in transparent polythene material, were weighed and found to be 8.5 kgs and when tested with Field Testing Kit, were found positive for hashish and, then he took representative samples of 50 grams each and heat sealed in a polythene bag and then in brown colour envelopes and, thereafter, the envelopes were sealed with a brass seal and each of the said two samples were marked as S­1 and S­2. The polythene bag containing the remaining quantity of 8.4 kgs, was heat sealed, put in a corrugated box, wrapped in two papers, tied with jute thread and sealed the same with brass seal, etc. The Complainant stated that the panchanama of seizure ended at about 8.40 p.m. and it was signed by him, both the accused, both the panchas and the Seizing Officer Shri Pandey and, copies of the same were given, to both the accused under their signature and, thereafter, he issued summons to A1/Satyawan Pagi, which was duly received by him and pursuant to the said summons, he recorded his statement which was produced at exhibit 62 and in his said statement, -9- A1/Satyawan Pagi, admitted the possession and transportation of the said contraband hashish by his motorcycle No. GA­02/K­8510 and further disclosed that he had received the said contraband from A2/Vimal Singh and that both wanted to sell the same to a prospective foreigner at Verna at about 19.00 hours on 23.02.2001 and that he was a regular dealer in the sale of Narcotics and further disclosed that the said contraband was given to him by A2/Vimal Singh in the maroon colour air bag at his residence in Palolem; that summons were also issued to A2/Vimal Singh, which were acknowledged by him and his statement was recorded and produced at exhibit 64. The Complainant stated that A2/Vimal Singh, disclosed that the said contraband drugs were given by him to A1/Satyawan Pagi, on the morning of 23.02.2001 and that he had come with the same to the house of A1/Satyawan Pagi on a hired motorcycle and that he had accompanied A1/Satyawan Pagi on his said motorcycle to transport the said contraband in the said maroon colour air bag to a foreigner at Verna at 19.00 hours. Thereafter, arrest notices were issued individually to both of them and A1/Satyawan Pagi was arrested at 00.15 hours and A2/Vimal Singh at 00.20 hours on 24.02.2001 and were produced for remand before JMFC, Margao, at about 10.00 hours and, thereafter, were lodged in the Judicial Lock Up at Margao, at about 10.30 hours to be produced on 27.02.2001 -10- before the Special Judge, at Mapusa, and on the same day, he sent a report under Section 57 of the Act to the Assistant Commissioner Shri Monteiro, a copy of which, was produced at exhibit 66. The Complainant stated that since 24.02.2001 was not a working day, he sought permission of the Assistant Commissioner to order the Warehouse to be opened, and a copy of the letter was produced at exhibit 57. The Complainant stated that the seized articles namely the two samples S­1 and S­2 of 50 grams each and the remnant quantity of 8.4 kgs in a corrugated box, were taken to the Warehouse and were deposited by virtue of letter which was produced at exhibit 34 and the Warehouse Officer had issued a receipt which was produced at exhibit 35. The Complainant stated that on 26.02.2001, he made a letter to the said Warehouse Officer to hand over the sample S­1 to Inspector Shri Parrikar, to take the same for analysis to the laboratory of the Directorate of Food and Drugs Administration and, on the same day, sample S­1 was collected and handed over to the Directorate of Food and Drugs Administration. He stated that the motorcycle GA­01/K­8510, was deposited in the Warehouse by letter dated 02.04.2001. The Complainant stated that he had called the panchas from his office telephonically and, accordingly P.w.3/Arnold, had come to his office and then he told him to follow the Departmental jeep to the KTC bus stand, at Margao, and while -11- P.w.3/Arnold followed them, the other pancha went along with them in the jeep. The Complainant admitted that there was an error in the complaint in stating that P.w.3/Arnold Costa, had proceeded in the Departmental vehicle but the fact was that he had followed them separately on his motorcycle. In cross examination, the Complainant had stated that he had explained the purpose of the raid and the contents of information to P.w.3/Arnold Costa in the Customs Office at Margao, before he followed them to the KTC bus stand. He also stated that the Field Testing Kit is kept in his custody in a cupboard of which the keys are with him and the seal is also kept in the same cupboard. He stated that the attached property was kept in the different cupboard of which both the keys were with him from the conclusion of the raid on the night of 23.02.2001, till the sealed articles were taken to the laboratory in the afternoon of 24.02.2001. Later, he stated that he had removed the seal from the cupboard and had carried it to the Warehouse. He stated that the godown was closed on 24.02.2001, being a holiday. He stated that the statements came to be recorded by putting questions to the accused individually and recording their answers and that the questions to A1/Satyawan Pagi were put in Konkanni as well as in English and to A2/Vimal Singh, in Hindi and A1/Satyawan Pagi answered the questions in English and Konkanni, while A2/Vimal Singh, -12- answered the same in Hindi. He denied that the contents of the said statements were false. 6. P.w.2/Fatima Noronha, the Warehouse Officer, has substantially corroborated the Complainant/P.w.4 except to say that 24.02.2001 was a working day, which according to the Complainant/P.w.4, was not a working day. On behalf of the Complainant, to clear the said controversy, P.w.6/Lillian Fernandes, the Administrative Officer, was examined. According to P.w.2/Fatima Noronha, the Complainant/P.w.4, had come with four sealed packages on 24.02.2001 along with a letter and she had issued a receipt to him. The letter was produced at exhibit 34 and the receipt at exhibit 35. She confirmed the motorcycle having been brought on 24.02.2001. She produced the Warehouse register, copies of which, were taken and marked exhibit 39. She stated that on 26.02.2001, the Complainant/P.w.4, had sent a letter through Inspector Parrikar, calling for sealed packet of the sample S­1 to be sent to the Directorate of Food and Drugs Administration for analysis and she produced the said letter at exhibit 36. P.w.1/Mahesh Kaissare , the Junior Scientific Officer, confirmed that he had received on 26.02.2001, a sealed brown paper envelope and that the seals fixed on the envelope were intact and tallied with the specimen seal -13- impression separately sent and after he carried out the analysis of the said sample S­1 containing 50 grams of dark brown coloured substance, he found the same to be containing hashish and he prepared the report and sent to the Complainant. He also stated that on 07.03.2002, he had received the remnant sample from the Special Judge, Mapusa, along with the sample S­2 and the former he opened on 01.04.2002 and, after analysis, found that the same contained hashish. He stated that he did not analyze the sample S­2. P.w.3/Arnold D' Costa, substantially corroborated the version of the Complainant/P.w.4, except to say that he had come directly from his office at the Primary Health Centre, Curtorim, to the KTC bus stand, on his own two wheeler No. GA­02/M­3763 near the KTC bus stand, where the raiding party was present contrary to what the Complainant/P.w.4 stated, namely that P.w.3/Arnold being informed telephonically, had come to his office and then followed them, they having gone with the other pancha in the departmental jeep to the KTC bus stand, Margao. These are the main and basic features of the evidence produced on behalf of the Complainant. 7. First, I will deal with the submissions made by the learned Counsels on behalf of the accused in relation to the statements of the -14- accused recorded by the Complainant under Section 67 of the Act, which were produced at exhibit 62 and 64 respectively. There can be no dispute that the said statements were recorded by and before the Complainant/P.w.4, who was Gazetted Officer. Though what is stated in the said statements or for that matter by the Complainant/P.w.4, is that the said statements were recorded by Inspector Shri Pandey, actually what the Inspector Shri Pandey did, was to write down the said statements. The said statements were recorded after both the accused were issued with summons at about 21.00 hours on 23.02.2001. Shri Lotlikar, the learned Counsel on behalf of A1/Satyawan Pagi, has submitted that the statement of A1­exhibit 62, could not be relied upon because the contents of the said statement were not put to A1/Satyawan Pagi and once the said statement is left out, there would be no legal evidence to convict the said accused. On the other hand, Shri J. P. D'Souza, the learned Counsel on behalf of A2/Vimal Singh, has submitted that there is no legal evidence against A2/Vimal Singh, in as much as the prior information, exhibit 59, being hearsay, it could only justify the launching of the raid and to that extent, it may be admissible and relevant. Apart from the said statements recorded of both the accused, which have been produced at exhibit 62 and -15- 64 respectively, the Complainant in his evidence had stated that after stopping the accused at the KTC bus stand, they were told about the reliable information and asked about the contents of the bag to which, both the accused disclosed that it was containing hashish. It appears that the said statement of the Complainant was objected to, from being recorded, but it must be stated to the credit of the learned Special Judge, that the learned Special Judge did record the said statement though she was of the opinion that it ought not be recorded. She did not assign any reasons for upholding the objection. The said statement of the Complainant is amply corroborated by P.w.3/Arnold D' Costa, as well as P.w.5/Inspector Shri Cruz, and if the evidence of the said three witnesses is accepted, and there is no reason as to why the same should not be accepted, the same was sufficient to convict the accused. The said admission by both the accused that the bag contained hashish, is nothing but a confession that they were in possession of the said hashish, A1/Satyawan Pagi being in physical possession of the same and A2/Vimal Singh being in its constructive possession. It is well settled that an admission before Customs/Central Excise authorities, is not hit by Sections 25 and 26 of the Evidence Act (See Union of India v. Munna (2004 (7) SCC 178). It may be stated that possession is a polymorphous term which has different meanings in different contexts. Generally, it has -16- two aspects, one being less important namely 'corpus' and the other more important namely 'animus'. Once it is proved that there was 'animus', it does not matter whether the possession is mediate or immediate, direct or indirect or exclusive or joint, and from the said admission it could be gathered that both the accused were in joint possession of the said hashish. 8. As regards the submission of Shri Lotlikar, the learned Counsel on behalf of A1/Satyawan Pagi, it must be stated that A1/Satyawan Pagi, was specifically told by the learned Special Judge vide question no. 92 of his statement recorded under Section 313 of the Code of the Criminal Procedure 1973, that summons were issued to him vide exhibit 61 and his statement exhibit 62, was recorded and the accused replied that it was false. A1/Satyawan Pagi was further told that it was in the evidence of the Complainant that A1/Satyawan Pagi had admitted the possession and transportation of the said hashish by the said motorcycle no. GA­02/K­8510, disclosing that he received the same from A2/Vimal Singh and both wanted to sell the same to a prospective foreigner at Verna at about 19.00 hours on 23.02.2001 and A1/Satyawan Pagi also answered this question by stating that it was false. Question 59 was as regards the information received by P.w.5/Shri Cruz, that two persons by name Satyawan Pagi and Vimal Singh -17- would be carrying substantial quantity of hashish, etc. For this also, the accused answered that it was false. It is contended on behalf of A1/Satyawan Pagi that question no. 93 in the statement under Section 313 of the Code, refers to what the Complainant has stated and not what the statement disclosed but, I must hasten to say that, what the Complainant has stated is also what A1/Satyawan Pagi had stated in his said statement­ exhibit 62, and therefore, in my view, A1/Satyawan Pagi had sufficient opportunity to explain the said incriminating circumstance against him, which he chose not to explain except to say that it was false. It is pertinent to note here that the accused did not even say that his said statement exhibit 62 was recorded after being assaulted and threatened. There is no doubt that the provision of Section 313 of the Code is one of basic fairness of a criminal trial and in case any evidentiary material is not put to the accused, the Court is required ordinarily to leave out such material from consideration. As far as the accused is concerned, it gives him an opportunity to explain the said inculpatory material and in case of refusal to given an answer or plausible explanation, the Court is at liberty to assume that the accused has no answer or plausible answer to the inculpatory material to which his attention is drawn by the Court. The Apex Court in the case of State of Punjab v. Swaran Singh ((2005) 6 S.C.C. 101), has -18- stated that the questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and is given full opportunity to cross­examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial, the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution but, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the Court in evaluation the evidence properly, the Court should bring to the notice of the accused to enable him to give an explanation or answers for such adverse circumstances in the evidence. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. In the case at hand, question no. 92 makes it abundantly clear that