1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 29 OF 2007 Shri Sher Singh, presently lodged in Central Jail, Aguada, Bardez-Goa. ... Appellant versus State of Goa(Anti Narcotic Cell, Panaji). ... Respondent Shri J. P. D'Souza, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 17TH JUNE, 2009. JUDGMENT This appeal is by the accused who has been convicted, in Special Criminal Case No.8 of 2005, under Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985 to undergo Rigorous Imprisonment for a term of 12 years and to pay a fine of Rs.1,00,000/-, and in default to undergo Rigorous Imprisonment for a period of one year, by Judgment/Order of the N.D.P.S. Court, Mapusa dated 31-1-2006. 2 2. The accused was charged and tried with an allegation that on 11-2-2005 the accused was found in illegal possession of 18.76 kgs. of charas at Mapusa Bus Stand when the accused alighted from a Bombay bus. The raid was conducted on the basis of prior information. 3. The case of the accused was one of denial. Accused stated that a false case was filed against him. 4. In support of its case the prosecution examined five witnesses including the Police Inspector Shri Raut Dessai/PW5 who had seized the article and the panch witness who was present, namely Shekhar Mahadik/PW3. The seized article was thereafter forwarded for analysis to the Directorate, Food and Drugs Administration, through Sushant Naik/PW2 from the Office of Superintendent of Police and the seal used for sealing of the article was handed over to Dy.S.P. Shri Virnodkar/PW4. The seized article was analyzed by Shri Mahesh Kaissare/PW1, a Senior Scientific Officer of the said Directorate. He analyzed the substance taken from each of the polythene bags and found the same to be charas both on microscopic examination as well as by other tests carried out by him and he submitted his report. 5. The learned trial Court accepted the evidence produced by the prosecution and held that the prosecution had amply established that the raid was conducted by P. I. Dessai of A.N.C. Police Station on 11-2-2005 at Mapusa where 3 Bombay buses halt in the presence of panchas and the accused was accordingly detained while getting down from the Mumbai bus. P.I. Dessai had identified himself by his name and designation and asked the person about his details and duly appraised him of his right under Section 50 of the Act and the search of his person was taken followed by the search of the bag carried out by him which led to the recovery of 18.76 kgs. of charas. The learned trial Court also held that the prosecution had established that the contraband charas was duly packed and sealed and attached under a panchanama drawn on the spot and it was deposited in safe custody and transmitted to the Office of S.P., CID, CB, Panaji on the same afternoon and in turn delivered in the Office of the Director, Food and Drugs Administration, for analysis and the analysis had tested positive for charas. The learned trial Court also held that the requirements of Section 57 were complied with. The learned trial Court also observed that there was no explanation forthcoming from the accused as how the police came in possession of his wallet containing cash and driving license which also would go to show that the accused was detained at the said time, date and place, as stated. 6. On behalf of the accused, an application was filed, which was registered as Criminal Miscellaneous Application No.31/2009, and the said application was filed with view to obtain a remand of the case to the trial Court to take additional evidence, by recall for further cross-examining, the panch witness Shekhar/PW3 and the Investigating Officer, PI Raut Dessai/PW5. The said application came to be rejected by Order of this Court dated 4-4-2009 holding that 4 the defence had made no case for the recall for further cross-examination of either of the said two witnesses. 7. The facts stated by Shri Raut Dessai/PW5 show that when he was in charge of the ANC Police Station, Panaji on 11-2-2005 he had received specific and reliable information at around 00.10 hours that a North Indian person, of stated description had left Mumbai for Goa by bus on 10-2-2005 carrying with him a black colour bag stated to contain charas and that he would be reaching at Mapusa Bus Stand on the morning of 11-2-2005 at 07.00 hours to deliver the said charas to his customer which information he reduced in writing and sent a copy thereof to Shri Virnodkar, Dy. S. P. of A.N.C. at his residence through Constable S. Parab, under a covering letter, a copy of which along with the information he produced at Exh.31, and, Shri Virnodkar permitted him to conduct the said raid on the same day by making an endorsement on the covering letter, and, as he secured the presence of two panch witnesses at about 06.10 hours, namely Shekhar/PW3 and Francis Fernandes, and he told them about the reliable information received by him and a copy of which was forwarded to the said Dy. S. P. and requested them to act as panchas and effected a station diary entry in that respect, and both panchas agreed to act as panch whereupon they were introduced to the members of the raiding party and they left the ANC Police Station by jeep at about 06.20 hours and whilst leaving he personally carried the seal of the said Police Station with Ashoka Emblem; Constable S. Parab took the kit box containing weighing, packing and sealing material, etc. and Constable K. Parab carried a typewriter and 5 they reached the Mapusa Bus Stand at 06.45 hours and after alighting from the jeep concealed their presence. 8. Shri Raut Dessai/PW5 further stated that the bus stand was a bus stand from where passengers from Mumbai bus alighted and about 07.10 hours they saw a person of the stated description carrying black colour bag and he was searching for a motorcycle and on seeing him he informed the members of the raiding party and the panchas that the said person matched the information received earlier by him, and then he introduced himself to the accused and informed him about the information he had and that he wanted to take his personal search of the bag, for charas and on asking, the accused disclosed his name as Sher Singh, resident of Himachal Pradesh and before commencing the search, he told the accused that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate of his choice, which he declined, and he also told the accused that he had a right to search the members of the raiding party including the panchas which the accused also declined and when he carried out a personal search of the accused he found a brown colour leather wallet in his rear pant pocket containing cash of Rs.1,200/- and a driving license of the accused which was first returned to him as no incriminating articles were found. Shri Raut Dessai/PW5 further stated that he told the accused to hand over the black bag to him and the same was handed over and the said black bag had six compartments and upon opening the main compartment he found a blanket and on opening the blanket he found three knotted polythene bags containing black colour substances 6 and upon opening the heavier bag he found black colour cylindrical substances wrapped individually which he suspected to be charas and then the second bag was opened, it was found that it had flat chappati like substances and other substances and he suspected the same to be charas and then he opened the third bag which also had black substances in the shape of goat droppings which he also suspected to be charas and all the three bags were then weighed and found to be 18.76 kgs, and then they were put back in the blanket and thereafter in the black colour bag which was then wrapped in a white cloth, tied with twine and sealed with seven seals of Anti Narcotic Cell, Panaji, Goa-II with Ashoka Emblem, and a label was prepared and affixed to the cloth bundle and signed by him, the two panchas and the accused, and then the wallet was put in an envelope, packed, sealed and signed and the accused was further told that the possession of charas was an offence and the accused could not produce any document and the accused was then taken in custody and the grounds of arrest were explained to him. 9. Shri Raut Dessai/PW5 further stated that he once again offered the search of the raiding party and the panchas to the accused which he declined and a panchanama was prepared under his dictation to Constable K. Parab and a seizure report was also prepared and signed and copies of the same were given to the accused and in acknowledgment his signatures were taken. Shri Raut Dessai/PW5 further stated that a letter addressed to the Director of Food and Drugs Administration, Panaji was typed at the spot bearing the specimen seal impression, a copy of which was produced as Exh.10 bearing outward No.379. He 7 stated that he handed over the seal to Dy. S. P. Virnodkar under covering letter and took his acknowledgment of having received the seal, having outward No.380, on the same day. He stated that he handed over the said seal to Dy. S. P. Virnodkar along with the letter at the Police Station and thereafter he registered a complaint on behalf of the State under Crime No.6/2005. He also stated that the seized articles were kept by him in safe custody after making necessary entries in the muddemal register, copy of which was produced and marked Exh.35. He further stated that he had not signed the muddemal register at the time of taking the muddemal and thereafter the seized article containing charas was sent to the office of the Superintendent under covering letter with Head Constable B.No.3476 T. Patil and Constable Buckle No.5291 alongwith the letter to the Director, Food and Drugs Administration, and thereafter he prepared an intimation under Section 57 of the N.D.P.S. Act and sent the same to the Dy. S.P., ANC and to the Superintendent of Police, Crime Branch, Panaji, and an express report was also prepared and forwarded to the Office of Dy. S. P., A.B.C., and also to the Senior Superintendent of Police, under outward No.383, and inward number of the Office of Dy. S. P. ANC as 217 both dated 11-2-2005. He stated that he prepared an Arrest Card and submitted to the District Magistrate, recorded the statement of the witnesses and on 5-4-2005 received the balance quantity along with the report of the Scientific Assistant which was brought by Constable Parab and kept the same in his safe custody after making necessary entries on the muddemal register and thereafter he filed a charge-sheet and forwarded the seized articles along with the charge-sheet. In cross-examination, he admitted that he had not taken the signature 8 of Constable Parab on the muddemal register at the time of receiving the sealed article from the Scientific Assistant. He further stated that as per his information the accused was to carry drugs in his bag and not on his person including the wallet. In further cross-examination he stated that in most of the raids conducted by him a typewriter was carried to the spot but in this case although there was a typewriter, the panchanama was not typed but was handwritten. He admitted that he had not taken any particulars of the bus from which the accused had alighted and further stated that he had not recorded the statement of the driver, the cleaner or the conductor or any of the passengers travelling in the said bus. In further cross-examination he stated that he did not find the bus ticket and further stated that he had inquired with the accused about his bus ticket and who had told him that he had thrown it on the way. He admitted that the accused was not carrying any personal belongings except the bag with the contents identified by him in Court. In further cross-examination he stated that the accused was found bending on one side and appeared to be carrying a heavy weight. He denied the suggestion that the drugs recovered were found in three separate bags belonging to three different persons and because they could not be traced individually that he showed the possession as that of the accused. He also denied the suggestion that he had allowed the said three persons to take away the box containing the personal belongings of the accused. 10. Shekhar/PW3 who is a Reporter for Marathi Daily Gomantak, stated that at about 05.30 hours he was at his residence at Taleigao when a Constable 9 approached him and told him that his presence was required by Police Inspector Raut Dessai of ANC Police Station, Panaji to act as a panch witness in a raid case at Mapusa, and as such at 06.00 hours he went to the ANC Police Station, Panaji, and met P.I. Raut Dessai who requested him to act as a panch witness. He stated that there was another person present at the Police Station by name Francis Fernandes and P.I. Raut Dessai introduced the two of them and told them about the information received and about the same having been reduced into writing and also about the information having been sent to Dy. S. P. Virnodkar, through Constable Parab, at his residence, and both of them agreed to act as panchas. He stated that P.I. Raut had introduced them to the raiding party and further stated that P.I. Dessai had taken the seal of Anti Narcotic Cell, Panaji, Goa with Ashoka Emblem and Constable S. Parab had carried the kit box containing the weighing, packing and sealing materials while Constable K. Parab had carried the typewriter and all of them proceeded to Mapusa in a police jeep and reached near Mapusa Bus Stand at about 06.45 hours in the vicinity of the place where buses coming from Mumbai halt. He further stated that about 07.10 hours they saw the person of the stated description, as earlier informed, who had got down from a Mumbai bus and who was looking out for a motor-cycle and then P. I. Raut Dessai told them that the said person looked the same about whom the information was received and as such they crossed the road and went towards the said person whom he identified as the accused and thereafter P. I. Raut Dessai introduced himself to the accused and then introduced the panchas and members of the raiding party and told the 10 accused about specific and reliable information which he had received and that he wanted to take a personal search of the accused and the bag he was carrying and the accused on being asked gave his name as Sher Singh, native of Himachal Pradesh. 11. Shekhar/PW3 further stated that before taking the personal search of the accused, P.I. Dessai told the accused that he had a right to be searched before a Gazetted Officer or a Magistrate but he had declined the offer. He also stated that P.I. Raut Dessai had told the accused of his right to search the panchas and the members of the raiding party which the accused also declined and thereafter he started his personal search when a brown colour wallet was found containing cash of Rs.1,100/-, and a driving license of the accused. He further stated that P.I. Raut Dessai then told the accused to hand over the bag to him which had six compartments, and when the main compartment was opened there was a blanket with flower design in folded condition which was removed and when it was unfolded there were in it three polythene knotted bags and each of the said bags was opened and they found substances which were suspected to be charas. After giving further details, he further stated that the said black bag with the contents was then wrapped in a white cloth, tied with jute and sealed with seven seals of Anti Narcotic Cell, Panaji-II with Ashoka Emblem and a paper label bearing the details was fixed on the said sealed white cloth parcel and marked Exh.1 which was signed by him and the other panch as well as P.I. Raut Dessai and the accused. He further stated that the wallet was also packed, sealed and signed by all 11 of them. He stated that the weighing and packing was done by Constable Parab on the direction of P.I. Raut Dessai while the panchanama was recorded by Constable Parab at the directions of P.I. Dessai and the conversation between P.I. Dessai was in Hindi. He stated that a panchanama and a seizure report was also drawn which were signed, as before. He further stated that some typing work was done at the spot but he could not recall if any writing work was done and which was not signed by him and thereafter they returned to Panaji along with the raiding party and the accused and the attached property. He stated that he got down from the jeep at Panaji at the outskirts of ANC Police Station and left for his residence. In cross-examination he stated that he did not recall the registration number of the bus from which the accused had alighted. He also stated that since the accused was looking around after alighting from the bus he presumed that the accused was looking for a motor-cycle pilot. He admitted that the accused was not carrying any personal belongings such as clothes, shoes, etc. He further stated that he could not be in a position to state the dimension of the kit box or its shape or size and further stated that he did not know what was done with the remaining part of the cloth used for wrapping the substance. 12. Shri J. P. D'Souza, learned Counsel appearing on behalf of the accused has submitted that Shekhar/PW3 being a Reporter would have been a person whose observation was more than average but his presence at the spot at the time of seizure can certainly be doubted because he could not recall any details about the bus or the kit box. He further submits that he could also not recall 12 whether any writing work was done and which was not signed by him and therefore his presence at the time of seizure creates a doubt whether he was at all present. 13. On the other hand, Ms. Winnie Coutinho, learned Public Prosecutor has submitted that Shekhar/PW3 has corroborated the version of Raut Dessai/PW5 in all material particulars, and there is no reason why Shekhar/PW3 who is a well reputed person should falsely implicate the accused. 14. At the out-set, it may be stated that the Apex Court in Girdhari Lal Gupta and another v. D. N. Mehta and another(AIR 1971 SC 28) has stated that there is no general rule that the evidence of a Investigation Officer cannot be relied upon unless it is corroborated and the question would depend on facts of each case. Corroboration is not a rule of law but of prudence. 15. Admittedly, Shekhar/PW3 was invited to act as a panch and was taken along with the raiding party for the drug raid after he was informed that a person of stated description would be arriving from Bombay carrying a black colour bag containing charas. He has confirmed all the facts stated by Raut Dessai/PW5 in all material particulars. I do not think there could have been any particular reason for Shekhar/PW3 to notice the bus number in which the accused had arrived or to observe the minute details about the kit box. He has stated that typing work was done at the spot and the letter addressed to the Directorate of 13 Food and Drugs Administration – Exh.10 which is a type written document, which according to Raut Dessai was prepared at the spot, would support his statement that some typing work was done at the spot; his statement that he did not recall whether any writing work was done which was not signed by him cannot be used to discard his entire evidence. It may be stated here that the “property seizure memo” dealt by Order dated 4-4-2009 was a printed proforma which was signed by him, and according to the Investigating Officer the said document was prepared on the spot and only date, time, place and crime number were filled at the Police Station. Only because Shekhar/PW3 did not recall about the said document or for that matter that he was unable to mention the number of the bus or other details of the kit box his evidence cannot be discarded. The cross-examination of the witness shows that he has emerged as a truthful witness and has corroborated the version of P.I. Raut Dessai as regards the seizure of the black bag containing charas which the accused was carrying when he alighted from a bus coming from Mumbai. To my mind, there can be no acceptable reason whatsoever to doubt the veracity of the version given by Shekhar/PW3. The evidence of Shekhar/PW3 is consistent, convincing and reliable and his presence at the spot cannot be doubtful. 16. As far as the seizure of charas from the possession of accused, its storage for a short time, and its subsequent dispatch to the Laboratory of Food and Drugs Department, there is no scope for any suspicion or doubt to be raised. Shri Raut Dessai/PW5 has categorically stated that the black colour bag along with its contents was wrapped in a white cloth, tied with twine and sealed with 14 seven seals of the Anti Narcotic Cell. This fact is sufficiently corroborated not only by Shekhar/PW3 but also by Sushant/PW2 and M. Kaissare/PW1, the Senior Scientific Officer who subsequently found the seized articles duly sealed. In fact, the station diary produced by the prosecution shows that the raiding party returned to the Police Station at 12.00 hours of 11-2-2005. Sushant/PW2 has stated that he received the seized article duly sealed with seven seals at about 15.20 hours, with seals intact, a fact which has further been confirmed by Kaissare/PW1 when he stated that the seized article was received on 11-2-2005 with a covering letter from the Superintendent of Police and letter addressed to Directorate of Food and Drugs Administration. He has confirmed that the seized article and Exh.1 was sealed at seven places and the seals were intact, individually covered with cello tape and tallied with the specimen seal impression. 17. Shri D'Souza has next submitted that the case of Raut Dessai/PW5 that all the documents were prepared at the spot cannot be accepted on the face of the documents, and in case he has deposed falsely on crucial aspects, his evidence has got to be rejected, as a whole. On this aspect, Shri D'Souza has placed reliance on the case of Vikram Reddy v. State of Goa(2002(1) GLT 116) wherein it was observed that when a witness who is shown to have stated a falsehood to prove a part of the prosecution story, cannot be relied upon. He not only renders his testimony unworthy of acceptance but casts a shadow of doubt on the entire prosecution case. The Courts should never accept the testimony of a witness who is shown to have stated a falsehood and his testimony should be 15 discarded as a whole. Here, it may also be noted that we do not follow in this country the maxim “falsus inuno falsus in omnibus”. This maxim has no general acceptance to be followed as a rule of law. It is