1 apeal 534 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APP NO. 534 OF 2011 Aslam Baba Mehboob Shaikh, Indian Inhabitant, age: 54 years, residing at: Room of Rasid Rickshawala, Shanti Nagar, Near Macca Masjid Azad Nagar, Bhiwandi Thane .. Appellant. -versus State of Maharashtra .. Respondent. Mr. Dilip Mishra, for the Appellant. Mr. S. A. Shaikh, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 29th July, 2011 Judgment 1. This appeal is directed against conviction of the appellant, for the offence under Section 9 (C) read with 20(b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short called as,”N.D.P.S Act”), and sentence of R.I. for 3 years with fine of Rs.20,000/- or in default of payment of fine S.I. for 3 months, imposed on the appellant by the learned 2 apeal 534 of 2011 Special Judge under N.D.P.S. Act, at Mumbai. 2. Since the appellant has completed 2 years, 8 months and 8 days of imprisonment, out of his three years sentence, the appeal is taken up for hearing out of turn. 3. The facts which are material for deciding this appeal are as under:- On 20th November, 2008, an information was received by Police Sub Inspector Mane, that a person by name Akbar, was engaged in business of selling charas, through selling agent Aslam Baba, the present appellant. and that the present appellant was to visit BEST Bus stop of Route no.48, 64, 65 situated in front of Alexandra Cinema on Belasis Road for selling said charas. He therefore, recorded the information in station diary, conveyed the information to his superior Police Officer Mr.Aigal, Senior Police Inspector as also A.C.P and D.C.P and received instructions to work out the information under the supervision of Police Inspector Aigal. Accordingly police party assembled to conduct raid. Necessary permission and material for conducting raid including seal was obtained. Panchas were called. Pre-trap panchnama was drawn up and police party then left for the place where the appellant was expected to come. Police noticed the appellant coming from the direction of Alexandar Cinema and stopping at the BEST Bus stop, holding a plastic carry bag in his hand. Upon signal being given by Police 3 apeal 534 of 2011 Inspector Aigal, police party surrounded the appellant. The appellant was informed of the purpose of his search. He was also informed his rights under Section 50 of N. D. P. S. Act by Police Inspector Aigal, who also gave a written notice to that effect. The accused did not seek, to be searched before Magistrate or Gazetted Officer. Therefore, raiding party proceeded to search appellant and seized two slabs of blackish lump having strong odour. These slabs were found to be charas. It was tested and its weight was found to be 500 grams. Samples were taken and remaining property was also sealed. From the personal search of the accused, currency notes of R.100/- and Rs.10/- were seized. Panchnama was also drawn. Copy thereof was given to the accused. 4. The Police party returned to the office of Anti Narcotic Cell. The appellant and property was produced before Inspector Bhalerao, who is supposed to have put his signature on the labels and sealed the envelopes. An offence was registered and the property was deposited in Azad Maidan godown of the police department. Samples was sent to Forensic Science Laboratory for analysis, which reported that the sample was that of charas. On completion of investigation, chargesheet was sent up. 5. The learned Judge charged the appellant of offence 4 apeal 534 of 2011 under Section 20 (b)(ii) (B) read with section 8(c) of the N.D.P.S. Act to which the appellant pleaded not guilty and so put the appellant on trial. At the trial prosecution examined in all five witnesses in its attempt to bring home guilt of the appellants. After considering the prosecution evidence in the light of defence of denial raised, learned Special Judge, convicted and sentenced the appellant as mentioned earlier. Being aggrieved the appellant has preferred this appeal. 6. I have heard learned, counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel,. I have gone through record. P.W.1-Santosh Patil, is the person who carried sample from the godown under the control of P.W.3 -ASI Nimbalkar to Forensic Science Laboratory. P.W.-2 - Head Constable, Suresh Koyande was member of raiding party, who filed report after the raid was over and on whose report offence was registered. P.W. 4, Sandip Chetty, is the Assistant Chemical Analyser, Forensic Science Laboratory, who has analysed the sample received by him and states that sample was received in a sealed condition and he found the sample to be of charas. P.W.5 - Police Sub Inspector Mane, had conducted raid and stated elaborately about the information received, recorded the same in station diary, conveyed the information to Police Inspector Aigal. collected sealing, labeling, raiding material including brass 5 apeal 534 of 2011 seal, conducted the raid and reported the result to his superiors, Police Inspector Aigal, in whose leadership, raid was conducted has not been examined. 7. Learned counsel for the appellant submitted, first, that panchas in this case have not been examined and their non examination would result in casting doubt about the reliability of evidence about seizure. Learned Additional Public Prosecutor, for the State submitted that non examination of panchas is not material since it is not the case that the panchas were deliberately kept away by the prosecution. According to him, there is no rule of law which requires the evidence of police officer to be corroborated by an independent witness. He submitted that if the evidence of officer, who had participated in raid is found to be reliable, there should be no reason to discard such evidence merely because the panchas were not examined. There can be no doubt about the proposition that if the evidence of police officer, who conducted raid is found unimpeachable, it could not be rejected only because panchas were not examined. Hence non examination of panchas would not prejudicially affect the evidence about raid unless the appellant can show that the evidence of the officer who participated in the raid was not worthy of belief. 6 apeal 534 of 2011 8. Therefore, it would be necessary first to examine the evidence in respect of the raid. Only two witnesses have been examined on behalf of the prosecution, to state as to what happened at the time of alleged raid. They are P.W.2 Head Constable Suresh and P.W.5 Police Sub Inspector , Mane. As already recounted Police Inspector Aigal has not been examined. P.W.2, Head Constable Suresh states that P.W.5 Police Sub Inspector Mane, told him about the information received. He states that Police Sub Inspector Mane sent Head Constable Sonawane to bring panchas and necessary material for conducting raid. Accordingly Head Constable Sonawane brought panchas as well as material for raid like film testing kit, brass seal, writing material and raiding material etc. Brass seal was handed over to Police Sub Inspector Mane. He stated that pre-trap panchnama was recorded. It was signed by both panchas as well as Police Sub Inspector Mane. Thereafter according to him the members of raiding party, boarded a jeep and proceeded to the BEST stop, where the accused was expected to come. Accused was to come around 13.50 hrs and thereafter on receiving signal from Police Inspector- Aigal, accused was rounded up. Police Inspector - Aigal, showed the accused his identity card and sought personal details of the accused, told the accused of the information received, the purpose of search and also informed the accused that if he was desirous his personal 7 apeal 534 of 2011 search could be taken in presence of Magistrate or Gazetted Officer for which necessary arrangement could be made. Police Inspector- Aigal, gave him notice in writing explaining the provisions of Section 50 of N.D.P.S. Act under his signature. The appellant did not insist on such arrangement. 9. The evidence of P.W.5, Police Sub Inspector , Mane is also similar. He also states about his receipt of information, communicating the same to the superior, recording it in the station diary, preparation for the raid & pre-trap panchnama. He too states that on reaching spot and finding the accused, accused was rounded up after receiving signal from by Police Inspector -Aigal. He too stated that Police Inspector Aigal, sought personal information of the appellant and explained to the appellant that on such demand being made, necessary arrangement can be made, for conducting personal search in presence of Gazetted Officer or Magistrate. He also stated that this was communicated to the accused in writing by Police Inspector- Aigal. The said communication in writing is at exh. 37. 10. Learned counsel for the appellant first submits that this writing was in fact was already prepared and only name of the appellant was inserted thereafter. Further, according to learned counsel, writing does not show that the appellant had 8 apeal 534 of 2011 stated that he declined to be searched before Magistrate or Gazetted Officer. Therefore according to him, giving notice of this type would not be sufficient compliance of the provisions under Section 50 of the N.D. P. S. Act. Further according to learned counsel, both P.W.2 Head Constable Suresh and P.W. 5, Police Sub Inspector - Mane, do not state that Police Inspector- Aigal told to the accused that it was his right to have himself searched before Magistrate or Gazetted Officer and merely told him that if he so desired, he could have his search taken before Magistrate which was not sufficient compliance of section 50 of the N.D.P.S Act. For this purpose, he placed reliance on the judgment of Supreme Court, in K. Mohanan -vs- State of Kerala, reported in 2000 Supreme Court Cases (Cri) 1228, which had been followed by this Court in judgment in Writ Petition No.521 of 2000, decided on 5th May, 2004. In K. Mohanan, the officer concerned had asked accused as to whether he required to be produced before a Gazetted Officer or Magistrate for the purpose of search and the appellant answered in the negative. The Court held that what the officer was required to prove was to acquaint the person of his “right” under section 50 of the N.D.P. S. Act, to be taken to Gazetted Officer or Magistrate, and therefore found that merely asking whether he required himself to be searched in presence of Gazetted Officer or Magistrate could not be treated as communication of right. The Court, 9 apeal 534 of 2011 therefore, held that there was no sufficient compliance of the provisions of Section 50 of N.D.P.S. Act. 11. As rightly pointed out by the learned Additional Public Prosecutor that such are not the facts of the present case. Though P.W.2 Suresh and P.W.5-Police Sub Inspector, Mane, have not explicitly stated that the accused was told of his right, the written communication which was served upon the accused - Exhibit 37 clearly shows that the accused was told of his right. The Hindi word used in the communication is “Haq”. Therefore, the judgment in K. Mohanan or judgment of this Court, would not be applicable to the present case. 12. Learned Additional Public Prosecutor submitted that since contraband was found in a carry bag, which was in hand of the appellant. Proviso to section 50 were not at all attracted and for this purpose, he placed reliance on the latest judgment of Supreme Court in. Ajmer Singh -vs- State of Haryana, (2010) 2 Supreme Court Cases (Cri) 475. In that case Bench of two Judges of the Supreme Court had relied on earlier judgment of three judges Bench in, State of Himachal Pradesh -vs- Pawan Kumar (2005) 4 SCC 350. In Ajmer Singh’s case the appellant and another person were found by patrolling party. They were trying to run away, however, police over powered them. They were served with 10 apeal 534 of 2011 notice under Section 50 of the Act, giving an option to them to be searched either by the Gazetted officer or the Magistrate. They signed the memo by making choice to be searched by the Gazetted Officer and they were produced before then District Superintendent of Police, Pehowa, Shri. Paramjit Singh Ahalawat, who was Gazetted Officer. In his presence the bag carried by the appellant on his shoulder was searched and it found containing 500 grams of charas wrapped in wax paper. It was contended before Supreme Court that safeguards provided under Section 50 of the Act were not complied. The Court quoted, from the judgment of Constitution Bench of the Court in State of Punjab -vs- Baldev Singh, (1996) SCC p. 172, where it had held that failure to inform the accused of such right would cause prejudice to an accused. It was contended before the Court that provisions of Section 50 of the Act would also apply to searches of the bags/brief cases etc. carried by the person and its non compliance would be fatal to the proceedings initiated. The Court rejected this contention holding that Section 50 has no application where no search of the “person” is involved and recovery from bag, brief case, container etc does not attract provisions of section 50. The Court held that the issue was no more res integra in view of the observations in decision of Supreme Court in Madan Lal -vs- State of H. P., (2003) 7 SCC 465 including State of H.P. -vs- Pawan Kumar, (2005) 4 SCC 350, 11 apeal 534 of 2011 where the court had held that the provisions of section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container which he may be carrying. 13. Learned counsel for the appellant submitted that compliance to the provisions of section 50 could be avoided only if baggage in hands of the accused was to be searched and not for searching anything which accused carried on his person like a shoulder bags. For this purpose, learned counsel placed reliance on the judgment in case of Union of India - vs Shah Alam and anr reported in 2009 (2) Bom. C.R.(Cri) 782. He submits that this earlier judgment of the Supreme Court had not been noticed by the Bench deciding Ajmer -vs- State of Haryana, in Union of India -vs- Shah Alam, contraband was found on the shoulder bag carried by the accused. After noting and quoting from para Nos 10 and 11 of the judgment in Pawan Kumar’s case held that recovery of heoroin from the respondent was made in violation of provisions of section 50 of the Act. Therefore, according to learned counsel, merely because contraband articles were found in the carry bag in the hands of the appellant, compliance of section 50 was not obviated. He submitted that the appellant was subjected to body search and in fact sum of Rs.110/- was recovered from his pocket search, therefore, if 12 apeal 534 of 2011 the appellant was subjected to personal search, it was necessary to comply with the provisions of section 50 of the Act. 14. I have carefully considered these contentions. The judgment of three judge Bench in the case of State of Himachal Pradesh -vs- Pawan Kumar is very clear. Para 11 of the judgment which has been quoted in Union of India -vs- Shah Alam (supra), which reads thus: “A bag, briefcase or any such article or container, etc can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person”. (emphasis supplied) 15. It may be noted that article “hung on shoulder” or 13 apeal 534 of 2011 carried by hand have been specifically referred to in para 11 of the said judgment and have been excluded from the ambit of the word ‘person’ in section 50 of the NDPS Act. In face of this, it is thoroughly impermissible to argue that because in Shah Alam’s case goods were carried in shoulder bag they could be said to be carried on the person. The observations of the Supreme Court would have coherently and it may be that there was something peculiar to that case which is not necessarily reflected in the judgment. Therefore, it is clear that search of person is restricted to search of clothing which a person is required to wear and not anything which he carries in hand or in the bag on his shoulder. 16. Learned counsel for the appellant submitted that the police party searched the person of the appellant and recovered of Rs.110/- therefrom. This, is not relevant because no contraband was found in the personal search. Personal search was merely incidental and since no contraband was found it cannot be said that merely because the appellant was also searched, section 50 of the Act was violated. In any case the appellant had been informed in writing of his right and therefore, omission of the word, ‘right’ in the oral communication deposed to by P.W.2 and P.W.5, would be inconsequential. Hence I hold that there is no deviation from the requirement of compliance to section 50 of the Act. 14 apeal 534 of 2011 17. P.W.2 Head Constable Suresh stated about drawing samples and sealing. He also stated about the contraband article being tested on field testing kit as well. This evidence by P.W.2 Suresh is in conformity of the evidence tendered by P.W.5 Police Sub Inspector-Mane. Therefore, there is nothing to disbelieve in the evidence of about seizure of 500 grams Charas in the form of slabs from the appellant. P.W.2 Suresh stated that the panchnama was recorded and a copy was given to the appellant. The property was labelled before him and eventually lodged in Azad Maidan godown. 18. Learned counsel for the appellant submitted that Police Sub Inspector- Mane should have in fact deposited the property with the police station concerned where the officer In charge of the police station for “safe custody”. For this purpose he relied on the judgment in Mohammad Salim Bashir Shaikh -vs- State of Maharashtra, 2004 (2) Crimes 584, where the Court, among the other things, observed that the leader of raiding party should not be the officer in charge of the police station where such seized samples are kept for “safe custody”. 19. In this context it has to be noted that it is not that Police Sub Inspector- Mane, continue to have control over the 15 apeal 534 of 2011 property seized. It had been first produced before the superior officer in the Anti Narcotic Cell, and then deposited in godown in Azad Maidan under the control of P.W. 3 ASI Nimbalkar. ASI Nimbalkar has elaborately deposed about the receipt of property after being sent with an endorsement by Senior Police Inspector-Bhalerao. by a forwarding letter for depositing seized muddemal and its being sent to the Forensic Science Laboratory on the orders of Sr. Police Inspector -Bhalerao. He also had produced relevant extracts of Muddemal register. Sample had been carried by P.W.1- Santosh Patil from the Azad Maidan Godown to Forensic Science Laboratory and he had also stated that sample was carried by him in the same sealed condition. 20. Learned counsel for the appellant submits that evidence of P.W.2 Head Constable Suresh Koyande and P.W.5 Police Sub Inspector Mane about steps taken to acquire seal is discrepant. As rightly pointed out by the learned APP, this is not material since this part of evidence only shows that the raiding party had seal with them when they went for seizure of the property. It does not show that the seal was available to either Police Sub Inspector Mane or P.W.1 Police Constable Santosh Patil for being tampering with the property after seizure by using same seal. Such a possibility is ruled out since he was not in custody of the property after it was lodged 16 apeal 534 of 2011 with P.W.3 ASI Nimbalkar. Therefore, there is nothing to show that the property was tampered. 21. P.W.4 Assistant Chemical Analyser Sandeep states about receiving samples on 21st November, 2008. He stated that the sample was greenish brown lumps. Learned counsel for the appellant submitted that if the property seized was blackish in colour, it is not clear as to how in one day it changed its colour from greenish brown and therefore cast doubt on the sample being sent to the laboratory without being tampered with. Again as rightly submitted by the learned Additional Public Prosecutor, it is not that any of the witnesses had stated about colour of the property was exactly opposite of what raiding officer had stated. Raiding Officers stated that the property was blackish in colour whereas A.C.A states that it was greenish brown. It may be a question of perception of individual and the manner in which the property is seen. It is not that one of witness states that the property was yellow or red. Greenish brown and blackish are not shades of colours too far away in the spectrum. 22. Learned counsel for the appellant next submitted that P.W. 5 Police Sub Inspector Mane had identified packet containing 450 grams of charas which was produced before the Court. The packet was not opened and contents were not 17 apeal 534 of 2011 tallied. Therefore, learned counsel for the appellant placed reliance on the judgment of Division bench of this Court in Mr.Milan Sarcanski -vs- The State through its Special P.P. Adv. Bhobe, reported in 1997 All MR (Cri) 496, and submitted that the applicant could not be held to have been found in possession of 450 grams of charas. He also relied on judgment of learned Single Judge of this Court, in Mr. Madhukar Swami Pallerala -vs- The State of Maharashtra, delivered on 29th March, 2011, for this purpose. In that case the learned Judge observed that P.W.2 Tilakraj Uppal, had not identified the contents of rexine bag or contents of sample packets in course of his evidence. 23. There could be no doubt that it would have been ideal to open the packet and identify what it contained before the Court. But this does not mean that because packet was not opened, the contraband was not same which was produced in the Court. P.W. 5, Police Sub Inspector Mane, has stated in para 44 of this deposition that sealed paper packet bore a label signed by himself and panchas and also by the accused and that this packet contained 450 grams of charas. There were 3 lacs seals on the packet. There was no evidence or possibility its being tampered with. The contention of the learned counsel for the appellant that packet could contain something else than charas has to be ruled out 18 apeal 534 of 2011 since from two lumps samples were drawn and the samples were sealed in presence of panchas. Therefore though ideally packet should have been opened before the Court and