Inamkhan S/O Abdul Latif Pathan vs The State Of Maharashtra
2002 Latest Caselaw 503 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellant Inamkhan S/O Abdul Latif Pathan is hereby assailing correctness, propriety and legality of the judgment and order passed by the Special Judge, N.D.P.S. Court for Greater Bombay passed in Special Case No. 79 of 1995, by which the appellant has been convicted for committing the offence punishable under the provisions of Section 21 r/w Section 29 of Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as N.D.P.S. Act for convenience) and sentenced him to under go R.I. for 10 years and to pay fine of Rs. 1 Lac, in default to suffer further R.I. for six months.

2. The prosecution case in brief is that on 29/1/1995 at about 9.30 a.m. P.S.I., Wadankar received information from his informant, that two persons are likely to come near hotel Samrat at Kandivali by possessing narcotic drugs. The said information was recorded in station diary, because the information book was produced in the Court and was not available for recording that information. The said information was informed by P.S.I., Wadankar to P.I., Mehta who in turn informed that information to A.C.P. and D.C.P. on telephone. Thereafter, the said information was forwarded to the superior officers in writing. Panch witnesses were called. P.I. Mehta, P.S.I. Wadankar informed the said information to the said panch witnesses, a panchanama before trap was recorded by giving search of police officers to the panch witnesses. The search of Jipsy car which was to be used in said raid was given to the panch witnesses. The person of the panch witnesses was searched and the raiding party proceeded towards hotel Samrat and they waited in ambush for catching those two persons who were to come with narcotic drugs. After their arrival and ambush those two persons came and they were tallied the description which was given in the information. They were apprehended. The appellant was carrying a plastic bag in his hand, which was containing a polythene bag, in which some powder was packed. His associate was holding two plastic bags and both the bags were containing polythene bags in which some powder was packed. The said powder was tested by the test kit and the raiding party found it to be narcotic drug.

3. P.I., Mehta and P.S.I. Wadankar informed the appellant and his associate that, they wanted to search their person and the said polythene bags. They informed that the appellant and his associate were entitled to search before a Gazetted Officer or a Magistrate and if they desire to do so, necessary arrangement in that context would be made. But the appellant and his associate declined the said opportunity of being searched before a Gazetted Officer or a Magistrate. They opted for being searched by the members of the raiding party. Thereafter, P.I., Mehta told both of them that he was a Gazetted Officer. The search was taken, the narcotic drug was seized under a panchanama. Sample packets were made for being set to the laboratory of Chemical Analyser concerned. Remaining narcotic drug was stored in other packets. The raiding party returned to police station, the samples were kept in the office of head quarter at Azad Maidan Police station premises. A forwarding letter was written on the same day and P.C. Surayavanshi proceeded on the next day with the samples to the concerned laboratory for depositing the samples for necessary chemical analysis. The report of the chemical analyser revealed that the samples were containing diacetyl morphine, a narcotic drug. After completing the necessary investigation the appellant and his associate were chargesheeted and thereafter, they were tried by the Special Judge. The prosecution adduced the necessary evidence for proving the charge by examining P.S.I., Wadankar, panch witness Shaikh Ibrahim, P.S.I., Landge and P.C., Surayavanshi. The appellant denied that he was in possession of narcotic drug and claimed to be innocent. The learned Judge, after appreciating the evidence and the arguments advanced before him, passed the order of convicting and sentencing appellant, which is being assailed by him in this appeal.

4. Shri Tiwari, Counsel appearing for the appellant, submitted that in the present case the members of the raiding party did not comply with the mandatary provisions of Section 50 of N.D.P.S. Act and therefore, the evidence which has been adduced by the prosecution on that count is illegal and that cannot be accepted for passing a conviction but the learned trial Judge has committed some mistakes and therefore, the appellant needs to be acquitted. Shri Tiwari pointed out that, in the evidence, Shaikh Ibrahim. Panch witness, has stated that the members of the raiding party, more particularly, P.I., Mehta informed the appellant and his associate together that, "if necessary they would be searched in presence of Gazetted Officer or Magistrate". He further submitted that thereafter, P.I., Mehta told the appellant and his associate that he was a Gazetted Officer. It is the submission of Shri Tiwari that by telling that he happens to be a gazetted officer, P.I. Mehta prompted the appellant for opting to be search by the members of raiding party, more particularly, P.I. Mehta. Shri Tiwari further submitted that when that tick was played by P.I. Mehta, it was the duty of the prosecution to examine him and on account of non examining P.I. Mehta the prosecution has destroyed its case. Shri Tiwari further submitted that the trial Court should have also noticed this important aspect of the matter and should have acquitted the appellant. He submitted that this Court be pleased to acquit the appellant by allowing this appeal.

5. Shri Gadkari, Prosecutor appearing for the prosecution, submitted that the submissions advanced by Shri Tiwari on behalf of the appellant is not correct, because the sum and substance of the evidence of P.S.I., Wadankar, Panch witness Shaikh Ibrahim and P.S.I. Landge has to be understood by reading the said evidence as a whole and if that is done, there would be no conclusion except on that the members of the raiding party had complied with the mandatary provisions of Section 50 of N.D.P. Act.

6. Shri Tiwari placed reliance on the judgments of this Court in the matter of -

1) Mohanlal Khetaram Jangid v. State of Maharashtra, reported in 1998 ILJ, 405 (Division Bench Judgment).

2) Dharmaveer Lekhram Sharma and Anr. v. The State of Maharashtra and Ors., (Division Bench Judgment).

And 3) judgment of Rajasthan High Court in the matter of Bhairu Lal and Anr. v. State of Rajasthan, reported in 1996(4) CRIMES 147 (Single Bench Judgment).

It would be necessary to know the ratio of the judgment in the matter of Mohanlal Khetaram Jangid's case (Supra). The Division Bench of this Court held that when the prosecution evidence shows that the members of the raiding party had asked the accused, whether they wanted to be searched by the Magistrate or when they were asked whether they wanted to be searched by the gazetted officer as provided under Section 50 of N.D.P.S. Act, it cannot be said to be due compliance of mandatary provisions of Section 50 of N.D.P.S. Act. In the matter of Dharmaveer's case (Supra) another Division bench of this Court had held that the accused is having a right to be apprised of his right of getting searched before the Gazetted Officer or Magistrate, in view of the provision of Section 50 of N.D.P.S. Act and failure to do so would result in making the evidence of seizure unacceptable.

7. The Division Bench of this Court has made these observations in respect of the evidence which was adduced in those cases. In the matter of State of Punjab v. Baldev Singh, etc. etc., . The Supreme Court has held that, "When an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Magistrate for making the search. However, such information may not necessarily be in writing, the failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. A search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before Gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act".

8. The Supreme Court has further pointed out that:

"There is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. Whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal".

9. Thus, there is no doubt that the provisions of Section 50 are to be complied in its real spirit and to the fullest extent. No go-bye to that by any means or trick can be permitted. There may be clever brain in the raiding parties may be eager to find out the ways of giving go-bye to mandatary provisions of Section 50 of Act. They may follow number of tricks and devises to achieve the goal. Therefore, the Court has to be on guard to see whether there has been a compliance of mandatary provisions of Section 50 in its real spirit and that would depend on cases to cases and the Court will have to appreciate the evidence, keeping in view the set of evidence brought before it in a particular case. While doing so, the Court will have to evaluate the evidence as a whole and not by fractions. Picking a sentence here and there would not be permissible because that would be defeating the normal rule of appreciation of evidence. The Court has to scrutinise the evidence of the relevant witnesses with cautions eyes and the impact created by the evidence adduced by the prosecution by assessing as a whole it will have to be taken as a basis for recording a finding of conviction or acquittal.

10. In this case the evidence of P.S.I. Wadankar and P.S.I. Landge shows that the members of raiding party, more particularly, P.S.I. Wadankar and P.S.I. Landge had apprised the appellant and his associate of their right of being searched before a Gazetted Officer or a Magistrate. Not only that, they informed him that if the appellant and his associate desired to be searched before a Gazetted Officer or a Magistrate, necessary arrangement would be made. In comparison to this evidence, the statement of panch witness, Shaikh Ibrahim will, have to be considered. Shaikh Ibrahim has stated in his evidence that P.I. Mehta told the appellant and his associate that, "if necessary, they would be searched before a Gazetted officer or a Magistrate". Shri Tiwari has pointed out this aspect of the evidence vehemently for canvassing an acquittal in favour of the appellant and, therefore, this Court carefully examined evidence of all these three witnesses in comparison to panchanama Exh.8. Exh.8 clearly demonstrates that the appellant and his associate were apprised of their right of being searched before a Gazetted Officer or a Magistrate and further they were told that if they desired to do so, arrangement would be made to take them to such Gazetted officer or a Magistrate. But in spite of this offer being offered, the appellant and his associate opted for being searched by the members of the raiding party and therefore, the raiding party decided to search them. Only after this, P.I. Mehta informed the appellant and his associate that he was a Gazetted officer. It may be an enthusiastic act on the part of P.I. Mehta to speak of his status. It would not vitiate the search and it would not allow a conclusion to be drawn that the provisions of Section 50 were not complied with and the raiding party was acting against the provisions of law. It is pertinent to note at this juncture that in the cross-examination of panch witness Shaikh Ibrahim the situation has been restored to the tune, which has been indicated by the evidence of P.S.I. Wadankar and P.S.I. Landge. Therefore, this Court discard the submission advanced on behalf of the appellant on this point and comes to the conclusion that the search was taken after due compliance of mandatary provisions of Section 50 of N.D.P.S. Act.

11. Shri Tiwari submitted that the information which P.S.I. Wadankar received from the informant was telephonically conveyed to his superiors by him and therefore, there is no compliance with the mandatary provisions of Section 40 of N.D.P.S. Act. It is to be noted that thereafter, the information was recorded in writing and it was dispatched to superior officers. Not only that even after the raid was completed, seizure was effected, articles Were also submitted to the superior officer by the members of the raiding party. Therefore, this Court does not give any importance to the criticism levelled by Shri Tiwari against the prosecution case on this point.

12. Shri Tiwari submitted, that the samples were deposited in Azad Maidan Police Station premises when the case was from Kandivali Police station. After reading the evidence carefully, this Court does not find that this act on the part of Investigating Agency has in any way caused prejudice to the defence of the appellant.

13. Shri Tiwari submitted that the forwarding letter which has been sent by P.I. Mehta shows date as "29/1/1995". He submitted that this shows that this forwarding letter was already prepared or P.I. Mehta has sent it ante-dated. Shri Gadkari explained this by submitting that after the raid was completed, the raiding party decided to forward the samples to Chemical Analyser and this forwarding letter was prepared and therefore, the said letter was indicating the date 29/1/1995. Shri Gadkari submitted that P.C. Surayavanshi has taken the samples for analysis on the next day and therefore, the evidence of P.C. Shri Surayavanshi and the date as mentioned on the forwarding letter does not create any dent to the prosecution case and does not allow the appellant to get the advantage. This evidence has to be seen carefully and by keeping oneself informed of the normal behaviour of human being. After such raids are effected, generally all documentation is made as early as possible. Therefore, in all probability this forwarding letter must have been prepared on the same day, i.e. on 29/1/1995. It is to be noted that had that not been done on the same date, the defence would have made a point out of it. Therefore, the attempt of playing hot and cold by same pipe cannot be allowed and cannot be permitted to be utilised for gaining advantage. Advantage is to be earned by shattering the prosecution case in pieces and exposing it as falsehood by using powerful weapon of cross-examination. It cannot be done by picking the infirmities in the prosecution case defects inherently found in it. Accused can show the malafides of the investigation and in that context, can point out such loopholes in the prosecution case. Court would consider it if it is causing a serious prejudice to the defence of the accused and denial of justice. For the purpose of keeping the stream of administration of justice flawless and unobstructed Court would pass necessary order. In this case, there is no ground of suspecting the faireness of the investigating agency in the trial.

14. Shri Tiwari placed reliance on the judgment of Single Bench of Rajasthan High Court in the matter of Bhairu Lal and another (Supra), wherein it was held that;

"There was recovery of opium from two appellants and recovery memos did not state as to what mark was appended on sealed packets of samples and when Rojnamcha shows that packets of samples were marked A2, A3, B2, B3, C2, C3, D2, & D3 and FSL report showed that samples received were in the packets as A, B, C & D. It could not be said that the FSI report was in respect of samples recovered from accused appellants and benefit of doubt goes to the appellants".

The facts and circumstances, which Single Bench of Rajasthan High Court, considered in Bhairu Lal's case were different. In that case the recovery memo was not showing marking on the samples. But in the present case the recovery panchanama is showing that the samples found with the appellant were distinctly marked and there was no possibility of tampering with those samples when they were in the safe custody of Azad Maidan Police Station premises. The samples which were recovered from the associate of the appellant were marked as A1, A2, A3. Therefore, it is the possibility that the Clerk writing the report might have committed a typing mistake. Had the appellant been feeling that on account of this, there was a prejudice caused to his defence, he could have submitted an application before the Special Judge calling the concerned Clerk or Chemical Analyser for examination and cross-examination as Court witness. Had that been done, this submission would have assumed some importance. The other portion of the Chemical Analyser's report is tallying with the information in respect of the samples which were dispatched for analysis.

15. One thing this Court wants to observe in respect of the report of Chemical Analyser in this case. A full prosecution story has been given in forwarding letter. Generally, such full story is given in forwarding letter. It is difficult to understand as to why such full prosecution case should be reported when the samples are sent to C.A. Absolutely, there is no need of giving such fully story of prosecution. It is likely to create a bias in the mind of Chemical Analyser and his report is likely to be biased one. This practice has to be abandoned as early as possible by the investigating agency. The Government has to take steps in this context by giving necessary instructions to the police officers to avoid writing such detailed prosecution stories in forwarding letters. The report of Chemical Analyser should be totally unbiased and the practice of briefing him by stands forwarding letter has to be abandoned. It deprecated. In some cases on account of such nasty practice the prosecution is likely to suffer.

16. After appreciating the evidence of the witnesses examined by the prosecution, in view of the submissions advanced on behalf of the appellant, this Court comes to a conclusion that the evidence of P.S.I. Wadankar. P.S.I. Landge and panch witness Shaikh Ibrahim establishes beyond all reasonable doubt that the appellant was possessing a plastic bag containing polythene packets which was containing diacetyl morphine a Narcotic Drug, which falls under the ban imposed by the provisions of N.D.P.S. Act. The appellant was found possessing the Narcotic Drug in contravention of provisions of Section 21 of N.D.P.S. Act on 29/1/1995 when he was caught near Samrat Hotel.

17. The learned trial Judge has appreciated the evidence correctly, the conclusions drawn by him are consistent with the evidence on record, he has rightly accepted the prosecution case and has rightly concluded that the prosecution has proved the guilty of the appellant beyond reasonable doubt. This Court does not find any defect whatsoever in it. Therefore, this Court dismisses the appeal and confirms the judgment of conviction and order of sentence passed by the trial Court. There is no need to interfere with the order which has been passed by the learned Trial Judge. The appellant to suffer imprisonment which has been inflicted on him by the trial Judge in appropriate prison in accordance with the appropriate provisions of law.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.