1 Cri-Appeal-493-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 493 OF 2007 Vinod Ramchandra Dhakad ) Age 22 years, Res: at village Khachrod ) Dist: Ujjain, Madhya Pradesh ) (at present lodged at Kolhapur Central ) Prison). ).. Appellant (Orig.accused No.1) Vs. 1) M.S.A. Khan ) Intelligence Officer, NCB, Mumbai. )..Rspondent No.1 (Ori. complainant). 2) The State of Maharashtra. ). Respondent No.2 Mr.Atul S. Sarpande, Advocate, for the appellant. Ms. Rebecca Consalvez, Advocate for the respondent No.1. Smt. S.V.Sonawane, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 6th September, 2011. JUDGMENT : 1. The appellant, who was original accused No.1 in NDPS Special Case No.107/2004, has preferred this Appeal against the Judgment and order passed by the learned Special Judge, NDPS Cases, Mumbai, whereby he was convicted for the offence punishable under Section 21(c) read with Section 8 of N.D.P.S. Act and was sentenced to undergo R.I. for ten years and to pay fine of Rs.1 lakh and 2 Cri-Appeal-493-07.sxw in default to suffer simple imprisonment for six months. 2. Prosecution case, in brief, is that on 7.4.2004, early in the morning, three Intelligence Officers of Narcotic Control Bureau, received an intelligence to the effect that one person by name Vinod, resident of Madhya Pradesh, was going to deliver substantial quantity of heroin to one Velamayil from Trichy, Tamil Nadu, outside the Hotel Lokesh situated at Plot No.8, Sector 1, Koparkhairane, Navi Mumbai between 8.00 to 9.00 a.m. The intelligence also revealed that the heroin would be received on behalf of one Selvam, who was the owner of Hotel Lokesh. The intelligence was reduced to writing and signed by all the three officers and it was placed before PW-9 Ajit Patil, Superintendent of the N.C.B. Immediately, the Superintendent directed the officers to take action and to proceed to the spot near Hotel Lokesh. PW-1 Sanjay Poojari, who was at the residence of his colleage Mr. Kedare, also got the message and accordingly both these officers also rushed to the spot. PW-9 Ajit Patil himself along with several other officers of his Department went to the spot and reached there at about 7.30 a.m. Two persons were called to act as panch witnesses and they were duly informed about the information received and the purpose of the raid. Thereafter, the team of officers of N.C.B. and the panch witnesses took positino near the Hotel Lokesh and kept a watch. At about 8.25 a.m., one person was seen coming 3 Cri-Appeal-493-07.sxw and standing near the Hotel Lokesh and after some time another person came from the Hotel Lokesh and received first one and took him inside the Hotel. The first person who had come to Hotel Lokesh was having a black colour shoulder bag. When he was about to hand over the said bag to the second person who had received him, they were intercepted and caught. Accused No.1 Vinod, who is appellant before this Court, was the person who had come there with a black colour shoulder bag. Accused No.2 - Subramanian Velmayil was the person who had received him and to whom accused No.1 was to hand over the bag. These persons were asked about their names and addresses. Both of them informed that the bag contained heroin. They were informed about their right to be searched before a Magistrate or a Gazetted Officer, but they declined the offer and agreed to give search in presence of the officers of N.C.B. and the panch witnesses. The bag was opened. In the bag Inside there was one scotch taped packet. Scotch taped packet was cut and then a polythene bag containing brown colour powder was found. PW-1 Sanjay Poojari cut open the corner of the polythene bag and a small quantity of brown powder was taken and tested it with the help of field testing kit and it confirmed the presence of heroin. The said polythene bag was emptied in another cleared bag and weighed it on weighing scale and it was found to be 3 kgs. Two representative samples of 5 grams each were taken from the said powder. The said samples were placed in two separate small polythene 4 Cri-Appeal-493-07.sxw sachets and were duly heat sealed. The sachets were put in two separate paper envelopes and pasted. The description was written on the paper envelopes and they were duly sealed with NCB Seal No.03. When the powder was being weighed, accused No.3 Selvam Pillai, who was said to be owner of Hotel Lokesh, also came there and accused No.2 informed as per the instructions from accused No.3 Selvam the consignment was brought. The container of 2.990 kgs. heroin was kept in the polythene bag, it was heat sealed and then put in a carton which was closed with scotch tape and the label with description of the contents was affixed on it. It was also sealed with NCB Seal No.03. The labels were also signed by the panchas as well as all the accused persons. The shoulder bag, scotch taped bag and empty polythene bag were kept in another carton, which was also closely sealed and labelled with the label. About all this proceeding a panchnama was prepared on the spot. Thereafter, house of the accused No.3 was searched. About that also a panchnama was prepared. The Railway tickets from accused Nos. 1 and 2 were also seized under a panchnama. Muddemal property was deposited with the concerned oficer on the same day. The statements of all the accused three persons were recorded under Section 67 of the NDPS Act. After recording the statements of the accused persons, they were arrested and arrest notes and arrest reports were submitted. The samples were forwarded to the Customs Laboratory as well as the State Forensic Science Laboratory. They 5 Cri-Appeal-493-07.sxw confirmed that the contents were heroin. After investigation, the case was filed by the CBI against all the three accused persons. The accused persons were put to trial for the offence punishable under Section 21(c) read with section 8(c) and under Section 29 read with Section 21(c) and Sec. 8(c) of the NDPS Act. They pleaded not guilty. 3. On behalf of the prosecution, in all 16 witnesses were examined and a large number of documents were placed on record. After trial, the learned Special Judge convicted the accused No.1 - Vinod alone and sentenced him as stated above. Accused Nos. 2 and 3 were acquitted of both the charges. Accused No.1 Vinod was also acquitted of charge under Sec. 29 read with Sec. 21(c). 4. Evidence led by the prosecution pertains to the role of the three accused persons, but as the accused Nos. 2 and 3 have been acquitted and this Appeal is only filed by accused No.1, it is not necessary to deal with all the evidence of the 16 witnesses. Only the evidence relevant for the decision of this appeal in respect of the accused No.1 will be scrutinized. 5. Heard the learned Counsel for the parties. Perused the record and proceedings of the trial Court. 6 Cri-Appeal-493-07.sxw 6. Mr. Sarpande, learned Counsel for the accused-appellant vehemently contended that the prosecution has not examined any of the panch witnesses and it relies on the sole testimony of PW-1 Sanjay Poojari. According to him, even the other officers of intelligence, particularly PW-2 Jitendra Dubey and PW-9 Ajit Patil, who claimed to have participated in the raid and the panchnama, did not depose anything in detail as to what had happened. He also contended that the entries in the documents also do not provide corroboration to the testimony of PW-1 Sanjay Poojari. According to him, it would be unsafe to place reliance and base conviction on the sole testimony of PW-1 Sanjay Poojari, who was an officer of the NCB. On the other hand, the learned Counsel for the NCB fully supported the impugned judgment and order of conviction and sentence. According to her, if the sole testimony of the police officer is found to be trustworthy and reliable, the conviction can be based on the same. According to her, evidence of PW-1 Sanjay Poojari does not suffer from any drawback. All the mandatory provisions of law have been duly complied. According to her, the evidence of other witnesses and the documents also provide corroboration to the testimony of PW-1 Sanjay Poojari. Both the learned Counsel placed reliance on certain authorities in support of their respective contentions. 7 Cri-Appeal-493-07.sxw 7. The prosecution evidence will have to be scanned and scrutinized in the light of the rival contentions advanced by the Counsel for the parties.Evidence on record reveals that PW-1 Sanjay Poojari, PW-2 Jitendra Dubey, Vipin Nair, P.S.Namboodri and one Kedare were the Intelligence Officers working with NCB. PW-9 Ajit Patil was the Superintendent of NCB at Mumbai. As per evidence of PW-2 Jitendra Dubey, early in the morning on 7.4.2004, he and other two Intelligence Officers Namboodri and Vipin Nair received intelligence from their informant that one Vinod, resident of Madhya Pradesh, was going to deliver substantial quantity of heroin to one Velamayil, resident of Trichy, Tamil Nadu, outside hotel Lokesh, situated at Plot N.8, Sector-I, Koarkhairane, New Mumbai between 8 and 9 a.m. on the same day. It was also revealed that the consignment of heroin was brought on behalf of one Selvam, who was the owner of hotel Lokesh. PW-2 Jitendra deposed that he immediately typed this information at about 5.30 a.m. and put his signature and date on the same. Other two officers Namboodri and Vipin Nair also signed the same. The said intelligence note Ex.15 was immediately placed before PW-9 Ajit Patil, who was also present in the office for some official work. He also endorsed and signed and put date on the said intelligence note. PW-9 Ajit Patil placed that information before his superior, Assistant Director K.J.Sanchis who also initialled and signed the same. The Superintendent Ajit Patil and the Assistant Director approved the proposed action 8 Cri-Appeal-493-07.sxw of surveillance, apprehending the culprits and to recover heroin. After its approval, PW-9 Ajit Patil called the officers for the raid. 8. Besides PW-2 Jietendra Dubey, P.S.Namboodri, Vipin Nair, C.A.Fernandis, B.S. Mulay and Inspector S.B.Gokhale joined the team. PW-9 also telephonically called Kedare, another Intelligence Officer to remain present at Koparkhairane. PW-1 who was also present and he was also instructed to remain present. Therefore, PW-1 Sanjay Poojari and Kedare joined the said team. These persons reached the spot near a small store which is at a distance of 100' from Hotel Lokesh. PW-9 Ajit Patil informed PW-1 Sanjay Poojari and other officers, who had directly come there, about the information and interception. PSI Namboodri had brought complete search kit consisting of field testing kit, weight balance, sealing material, stationery ,empty cartons etc. He handed over the kit to PW-1 Sanjay Poojari, who was directed to conduct the raid and complete the formalities. According to PW-1 Sanjay Poojari, he called two persons from near Kerala Stores at about 7.30 a.m. and requested to act as panch witnesses. Both these persons were informed about the purpose of the raid. 9. Evidence of PW-1 Sanjay Poojari reveals that at about 8.25 a.m. he noticed one person standing near the Hotel Lokesh. Accused No.1 Vinod is 9 Cri-Appeal-493-07.sxw identified as that person. He was having a black coloured shoulder bag. According to him, after some time, another person, who was identified as accused No.2 - Subramanian Velamayil, came from the Hotel and received accused No.1 and took him into the hotel premises. After entering into the hotel premises when accused No.1 was about to hand over the said bag to accused No.2, the raiding party immediately pounced upon and intercepted them. They were asked about their names and addresses and they disclosed. On enquiry, both of them admitted that the bag contained heroin. PW-1 Sanjay Poojari deposed in detail about the procedure followed. According to him, both the accused persons were informed about their right to be searched in presence of a Magistrate or a Gazetted Officer, if they so desired. However, both of them declined the offer and agreed to be searched by the Investigating Officer in presence of panchas. Therefore, PW-1 Sanjay took custody of the black coloured shoulder bag from accused No.1. It was opened and inside a scotch tape packet was found. The said scotch tape packet was cut and polythene bag containing brown colour powder was found in it. Firstly, PW-1 Sanjay cut a corner of that polythene bag and took small quantity of powder which was tested with the help of testing kit and it was confirmed that it was heroin. Thereafter the polythene bag was emptied into another empty polythene bag, which was carried by the NCB. It weighed 3 kgs. From the said powder, representative samples were taken. Each sample was put 10 Cri-Appeal-493-07.sxw in a separate sachet which was duly heat sealed. The said sachets were separately placed in separate paper envelopes which were pasted. Description of the contents was written on the said paper envelopes and each of them was sealed with NCB Seal No.03. He also deposed in detail about the enquiry from accused Nos. 2 and 3 and their involvement. However, it is not necessary to advert that part of the evidence. After completing search and seizure, a panchnama Ex.8 was prepared. The panchnama was signed by both the panch witnesses and by Sanjay Poojari. The copy of the said panchnama was given to each of the accused persons and they signed at the bottom of the same in acknowledgment of receipt of the said panchnama. 10. PW-2 Jitendra Dubey, who had initially received the information as well as PW-9 Ajit Patil, the Superintendent, after deposing about the receipt of intelligence, arrangements for raid etc., deposed that they participated along with a team of the officers and search and seizure carried out at the Hotel Lokesh. They also deposed that search was conducted in presence of two panch witnesses. According to them, 3 kg. heroin was recovered from the black coloured shoulder bag. According to them, panchnama was prepared and all the events were correctly mentioned in the panchnama. 11 Cri-Appeal-493-07.sxw 11. It may be noted that the panchas were not examined by the prosecution. On behalf of prosecution, PW-16 Narayan Panigrahi, who was working as Hawildar with NCB, was examined to prove that the said panch witnesses could not be traced out. In the panchnama, their local addresses as well as their permanent addresses were given. He searched for the said panch witnesses but the address given on the summons was not sufficient to locate and trace out. In the entire panchnama Ex.8 the addresses of the panch witnesses must have been noted on the basis of information given by the panch witnesses. If the addresses given by them were not complete or if they could not be traced out at the given addresses, it cannot be held that prosecution has kept back the witnesses. It appears that one of the panch witnesses Mahadev was shown to be permanent resident of District Hasan in Karnataka, while he was residing and working at Koparkhairane, New Bombay. Second panch witness Sami Chitravelu was also residing and working at Koparkhairane and he had given his local address. He had also given his permanent address of his village in District Viradar Kanyarity in Tamil Nadu. The panchnama was recorded on 7.4.2004, while the evidence was recorded before the trial Court from April 2006 onwards. As these two persons had come from two different States to work and earn livelihood at New Bombay, it is possible that they might have either shifted from there to any other place of work and therefore they could not be traced at the local address. A s they 12 Cri-Appeal-493-07.sxw had left their original place, it is possible that when the police officer reached at their permanent addressed they could not be traced out. In view of this, merely because the panch witnesses could not be examined, the prosecution case cannot be discarded. 12. Mr. Sarpande, learned Counsel for the accused/appellant vehemently contended that if the panch witnesses are not examined, it is not safe to place reliance on the sole testimony of the police officer and for this purpose, he placed reliance upon Noor Aga vs. state of Punjab and Anr. (2008) 16 SCC 417. In that case, two persons were called as panch witnesses, but neither of them was examined and there was nothing on record why they could not be examined at the time of trial. In para 110, the Supreme Court observed that although examination of independent witnesses in all situations may not be imperative, if they were material, in terms of Section 114 of the Evidence Act, an adverse inference can be drawn. As per illustration (g) to Section 114, the Court may presume that the evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. If the prosecution would have withheld the important panch witnesses without any valid reason, adverse inference could be drawn. However, in the present case, the prosecution has made serious attempts to find out panch witnesses and to bring them before the Court, 13 Cri-Appeal-493-07.sxw but it could not succeed and therefore adverse inference cannot be drawn against the prosecution. 13. Mr. Sarpande placed reliance upon Ramji Surjya and Anr. vs. State of Maharashtra AIR 1983 SC 810 wherein the Supreme Court held that where there is only a sole eye-witness of a crime, conviction can be recorded on the basis of the sole testimony of the witness provided the Court is satisfied that the witness is entirely truthful. However, Their Lordships also observed that prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness, particularly, where such witness also happens to be closely related to the deceased or if he has ill-will or motive against the accused. Similar view was taken by the Supreme Court in the State of U.P. vs. Satish Chandra & Ors. AIR 1986 SC 313. The learned Counsel also placed reliance upon Mohd. Hussain Babamiyan Ramzan vs. State of Maharashtra II (1994) CCR 1223, Tulashida Nemandas Dengara vs. State of Maharastra 1992 (3) Crimes 421 and Shaikh Nazre Alam Zahoor & Anr. vs. The State of Maharashtra 2001 (II) LJ 47. In these cases, the independent panch witnesses were available, but were not examined. It was held that in such cases, it was improper to hold that the offence was proved against the accused. 14 Cri-Appeal-493-07.sxw 14. On the other hand, the learned Counsel for the prosecution contended that if the sole testimony of the police officer is found to be trustworthy and reliable, it can be made basis for conviction and she finds support from Lopchand Naruji Jat & Anr. vs. State of Gujarat (2004) 7 SCC 566, Abdul Majid abdul Hak Ansari vs. State of Gujarat (2003) 10 SCC 198 and P.P. Beeran vs. State of Kerala (2001) 9 SCC 571. In view of the authorities referred to by the learned Counsel for both parties, the settled position of law is that conviction can be based on the testimony of solitary witness, even if he is a police officer, provided the court is of opinion that the witness is truthful and trustworthy. If the Court finds it necessary, it may look for some corroboration to the testimony of such witness. However, if the independent panch witnesses, particularly in serious cases, are available but are withheld and not examined by prosecution,adverse inference may be drawn against the prosecution. In the present case, for the reasons noted above, it is difficult to hold that the prosecution has intentionally withheld the panch witnesses and, therefore, no adverse inference can be drawn against the prosecution on that count. 15. As the prosecution mainly relied on the testimony of PW-1 Sanjay Poojari, his evidence has to be scrutinized to find out whether the mandatory 15 Cri-Appeal-493-07.sxw provisions of law have been followed in completing the proceedings, whether there was delay in respect of any part of the proceedings and whether any mandatory provisions of law was violated or not followed. 16. On scrutiny of evidence, it appears that as soon as PW-2 Jitendra Dubey got the information early in the morning on 7.4.2004, he and his companion officers prepared the intelligence note Ex.15, signed the same and placed the same before his immediate superior PW-9 Ajit Patil the Superintendent of NCB, who was also present in the office at that time. Ajit Patil not only endorsed and signed and approved the proposed action of surveillance and recovery of the contraband, he also without any loss of time placed that intelligence note before his superior Assistant Director, who also signed and approved the said note. Immediately, several officers of the Department were summoned and directed to proceed to the spot near Hotel Lokesh for the purpose of raid. PW-1 Sanjay Poojari and his companion officer Kedare received information at the house of Kedare and went to the spot of incident and reached there at about 7.30 a.m. PW-1 Sanjay Poojari called both the panch witnesses. As per the evidence, at 8.25 accused No.1 first appeared and thereafter the other events took place. Recording of panchnama was commenced immediately after the search and seizure, etc. and was completed by 12.30 hrs. The panchnama 16 Cri-Appeal-493-07.sxw was signed by both the panch witnesses and copy of the panchnama was supplied to each of the accused persons who signed at the bottom of the panchnama in acknowledgment of receipt of the copy thereof. There is nothing to show that the panch witnesses were not independent. The panchnama also shows that the accused persons were informed about their right of being searched in presence of the Magistrate or a Gazetted officer, but they declined that offer and agreed to be searched in presence of NCB Officers and panchas. After search and seizure was completed, PW-1 Sanjay Poojari submitted a note Ex.11 to the Superintendent that two representative were drawn from total quantity of 3 kg. heroin and were marked S-I and S-II and the balance quantity of heroin, which was duly sealed, was being deposited in safe custody. PW-4 Mohd. Shaif Ahmed Khan, who was also Intelligence Officer, deposed that on 7.4.2004, he was present in office. A team consisting of officers head by the Superintendent Patil came back to the office along with seized 3 kg. of heroin and three persons. He was informed that the seizure had taken place at Hotel Lokesh, Koparkhairane. All the three accused persons were introduced to him and the Superintendent Patil directed PW-4 Mohd. Khan to investigate the case. According to him, besides the statements of two other accused, he also recorded statements of accused No.1 Vinod vide Ex.21 wherein he admitted that he had brought consignment from Madhya Pradesh for handing over to accused No.2 at Hotel Lokesh. The evidence on record reveals 17 Cri-Appeal-493-07.sxw that after recording of the statement of accused No.1, which was completed by about 8 p.m., he was arrested as per the arrest memo Ex.22 by PW-4 Mohd. Khan. He also submitted the arrest report Ex.23 to the Superintendent, who in turn placed the same before his superior Assistant Director, NCB. All this was done on the same day almost immediately without loss of any time at any stage. 17. On 8.4.2004, PW-4 Mohd. Khan forwarded one envelope marked sample S-II to Forensic Science Laboratory, Kalina, Maharashtra State and one sample was sent to New Customs House Laboratory. Ex.33 is the Test Memo- cum-report- from Customs House Laboratory, which shows the presence of heroin. Exhibit 34 is the C.A. report from Forensic Science Laboratory, Maharashtra State, which reveals that one sealed envelope as per the copy sent and marked S-II was received on 13.4.2004 through one U.B.Darge. The C.A. report dated 8.6.2004 shows