Hatibu Mungis Khamishi vs The Narcotic Cell, Andheri Unit ...
2002 Latest Caselaw 1064 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellant has been convicted by the Special Judge for Greater Mumbai for the offence punishable under Section 21 of the Narcotic Drug and Phychotorpic Substances Act, 1985 (hereinafter referred to as Act for convenience) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. one lac, in default to undergo further rigorous imprisonment for 6 months. The prosecution case in brief is that on 30th of March 1996 at about 3 p.m. P.I. Tawade received an information, which disclosed that a African person aged about 22 to 23 years, slim, having injury mark on the right side eye brow and wearing blue colored jeans pant and blue colored printed shirt, was to arrive at Lona Bhavan, P. D'mellow Road, Mumbai between 5.30 and 6 p.m. for dealing with brown sugar. He reduced that information into writing, despatched the copy of it to his superior and disclosed that information to his colleagues including P.W. Hari Ikke. He sent a constable for calling the panch witnesses and when panch witnesses came, he disclosed that information to them. A pre trap panchanama was drawn and by taking seals, wax, typewriter, the party proceeded near Loha Bhuvan, probably by vehicle. The raiding party ambushed for arrival of said African person. When he came, and his identity was ascertained, he was apprehended by P.I. Tawade and P.I. Tawade disclosed his information as he had received the information, that the said person was dealing with narcotic drug. On being questioned, the said person disclosed his name as Hatibu Mungia Khamishi. In initial interrogation he informed P.I. Tawade and the member of raiding party that he was knowing bit of English ("little little of English" as taken down by the learned trial Judge). As per prosecution case, P.I. Tawade informed him about his right in view of provisions of Section 50 of the Act and thereafter a leather bag which was hanging on his shoulder was searched. A passport with his photograph was found in it. Thereafter, the members of the raiding party decided to search his person and the packets of the jeans pants which he was wearing. When the packet of the pants was searched, a polythene bag was found. When it was opened, brownish powder was found. It was tested by the sample test kit and it was disclosed that it was narcotic drug. A sample for chemical examination containing 5 gms. of the said powder was seized in presence of panch witnesses by drawing a panchanama. It was sealed with wax and other seals. The appellant was taken in custody and thereafter P.I. Tawade lodged his F.I.R. in nearest police station. The sample packet and remaining packets were handed over in possession of P.W. Sangle, which were to be kept in the custody of P.I. Rede. On 2/4/1996 the said sample packet was sent to F.S.L. for chemical examination. The report of the chemical examination disclosed chat it was containing diacetyl morphine a narcotic drug. The chargesheet was filed and the appellant was put to trial.

2. In the trial, prosecution examined P.I. Hari Ikke P.W.1, Kamalakar Sarang P.W.2, P.S.I. Sampat Sangle P.W.3, and Satish Nair P.W. 4. The appellant set up his defence of denial and contended that he was falsely implicated in this case. The learned trial Judge accepted the prosecution case and concluded that the prosecution had proved it beyond reasonable doubt that the appellant had committed crime for which he was charged. Thus, he passed the order of conviction and sentence which is the subject matter of the challenge in this appeal.

3. Shri Tiwari, Counsel appearing for the appellant, submitted that there is no compliance of Section 50 of the Act in this case, in true sense as it has been indicated by the judgment of the Supreme Court in K. Mohanan v. State of Kerala, reported in 2000 Supreme Court Cases (Cri) 1228. He submitted that without giving an opportunity to appellant to think over the alleged offer in context with Section 50 of the Act, P.I. Tawade and his colleagues who were the members of raiding party immediately promoted that P.I. Tawade was a gazetted officer. Shri Tiwari submitted that by such act of P.I. Tawade more particularly, the appellant was not able to exercise his right granted by Section 50 of the Act and therefore, the evidence which has been collected by the prosecution and which has been adduced against the appellant cannot be accepted for his conviction. He submitted that in addition to that the evidence of P.S.I. Sangle, panch Nair and P.I. Hari Ikke is contradictory with each other and it is contradictory with the panchanama. Therefore, it does not inspire confidence at all. He further submitted that in the present case P.I. Tawade has not been examined by the prosecution for the reasons best known to it. So also P.I. Rade who was in charge of the store, where the samples were stored has not been examined. He submitted further that when the samples were stored in the said store, P.I. Rade did not affix his office seal or own seal. Thus the provisions of Section 55 have not been complied with. He submitted that the said judgment and order of conviction be set aside and the appellant be acquitted.

4. Shri Gadkari, A.P.P., submitted that there is no substance in the challenge put by the appellant in the order of conviction and sentence, because the evidence adduced by the prosecution proves that the provisions of Section 50 have been complied with in all spirits. He furthermore, submitted that the officer in charge of the store room had taken the custody of the samples and the sample was forwarded to F.S.I. for chemical examination by following provisions of law. He submitted that there is minor discrepancy in the prosecution evidence but it is of no ground to shatter the order of conviction and sentence. He submitted that the appeal be dismissed.

5. In the judgment of State of Punjab v. Baldev Singh, , the Supreme Court has while considering the entire points referred to it pointed out that:

"The lain maxim salus populi Suprema lex (the safety of the people is the supreme law) and salus republicae supreme lex (safety of the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. However, the action of the State must be right, just and fair."

The Supreme Court further held that:

"There is indeed, a need to protect society from criminals. The societal 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 investigating 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".

The Supreme Court further observed that:

"Without expressing any opinion as to whether provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted officer or a Magistrate would cause prejudice to an accused and 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 during a search conducted in violation of the provisions of Section 50 of the Act. The admission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril."

6. While summing up the conclusions in paragraph 55, the Supreme Court has emphasised on these observations. In sub-para (4) of para 55, the Supreme Court pointed out that:

"The failure to comply with the provisions of Section 50 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.

7. The Supreme Court has spoken up of fair trial and use of evidence collected by the investigating agency by following the procedure laid down by law. The Supreme Court has deprecated the agency of not following the procedure laid down by law, by the investigating agency while collecting the evidence against the accused and has pointed out that the remedy should not be worst than the disease. Therefore, though an African national trafficking in drug is menance to the society, while dealing with such cases, the Court cannot forget that it is bound to see as to how the evidence has been collected by the investigating agency and whether investigating agency was acting fairly while collecting such evidence.

8. In the present case, the appellant was asked whether he wants to be searched before a Gazetted officer or a Magistrate and immediately P.I. Tawade told him that he himself was a Gazetted Officer. Shri Tiwari, Counsel for the appellant, has severally critilized this action on the part of P.I. Tawade and omission of the prosecution to examine him. Shri Tiwari submitted that when such an opportunity was given to the appellant to think over this so called offer, P.I. Tawade immediately informed him that he was a Gazetted Officer and therefore his opportunity of selecting the option has been polluted. This Court finds substance in his submission. The evidence adduced by the prosecution in this case spells out, that P.I. Tawade immediately uttered that he was a Gazetted Officer and immediately asked him whether he wanted to be searched before a Magistrate or a Gazetted Officer, as his substantive evidence shows. Section 50 has to be considered in this context and in the context the judgment of the Supreme Court in the matter of K. Mohanan v. State of Kerala (Supra). It has to be kept in view, that in paragraphs 6 and 7 the Supreme Court has pointed out that before conducting the search, if police officer concerned merely asked the accused/appellant whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of search but not information him about his right in that behalf under law, it will have to be held that mandatory requirement of Section 50 has not been satisfied. The Supreme Court further observed in that judgment that "if he had been told about his right under law to have himself searched what would have been the answer given by the accused cannot be guged by us at this distance of time." More particularly so, when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with. In this case what was asked to the appellant was whether he wanted to be searched before a Gazetted officer or a Magistrate and immediately P.I. Tawade told him that he was Gazetted Officer. Is it not amounting to polluting his selection of option? Was it not misguiding him while selecting option? When the accused is illiterate, does not know English properly, the duty of the investigating officer is more important and he has to act fairly and to explain the accused that he is having a right to be searched before a Magistrate or a Gazetted Officer and he is to be given sufficient opportunity of thinking of it and to select whether he should be searched before a Magistrate or a Gazetted officer or he should be searched by the raiding party itself. It is unfair to give him a suggestion which would tempt him or induce him to opt to search before the investigating officer or the leader of raiding party who may be a Gazetted officer. It is to be noticed in this context that the law indicates that such Gazetted officer should be independent officer, he should not be interested in the result or success of the said raid, because in this type of cases the members of the raiding party are likely to be rewarded in terms of promotionor prizes or money. Leave it aside, such officers are likely to be rewarded by promotion or good points. Therefore, the gazetted officer should not be connected with the raid or should not be connected with the object of achieving the conviction against the accused.

9. Leave it aside, in this case, without giving appellant opportunity of thinking, immediately he was given a filler and he was attempted to be induced of selecting to be searched before P.I. Tawade and his colleagues. Can it be said to be compliance of Section 50 in its correct spirit? the answer would be "no". It also would be unequivocally heralding a method adopted by P.I. Tawade which was not fair. What is not fair cannot be consistent with the legal provisions. At lest it can be said that the concerned officer was not following procedure laid down by law while collecting evidence, which would aid himself for the purpose of achieving the conviction against accused and would be adding a feather in his cap in the nature of reward or promotion. Therefore, it cannot be said that in this case, fair means have been applied by the investigating agency before searching the person of the appellant and collecting the evidence to show that from the pocket of his pant, a polythene bag was found, which was containing brown sugar or heroin diacetyl morphine.

10. Apart from that, there are infirmities in the prosecution evidence brought forth for convicting the appellant. The raiding party, as evidence on record shows took typewriter for recording panchanama. No evidence has been adduced to show that it was taken in a concealed way. None of the witnesses has stated as to where that typewriter was kept, before catching the appellant. It damages the prosecution case, may be on smaller point.

11. The panch witness stated in his evidence that he was at V.T. Station at 4 p.m. and he was to go to Crawford Market for the purpose of making a purchases for his shop, which he was running at Coloba area. The panch witness was unable to give any reason as to why he was picked up to act as panch witness. But whatever has been deposed to by him further is damaging to the prosecution case. When questions were asked, he was not able to tell the name of any of the police officers concerned with the said raid. He was not able to tell the name of co-panch. But he was able to mention the name of P.I. Tawade. His evidence shows that he was travelling by bus for going to Crawford market for making the purchases. If that was so what was the necessity for him to get down at V.T. Station but stop. He could have very well got down from the bus at Crawford Market bus stop. But in between Crawford Market and V.T. Station, the concerned office is situated and therefore, he was required to pick up the convenient mode of making himself available for the raid and therefore, it has come in his evidence that he got down from the bus at V.T. Station. A constable told him that he was required to act as panch witness. He was not able to produce any document to show that he was having the business or occupation of his own. The suggestion has been made by the appellant that this person does not have any occupation of his livelihood. he is the panch witness under the thumb of P.I. Tawade. His evidence strengthens this suggestion given to him and assume, importance when prosecution did not examine P.I. Tawade for the reasons best known to it.

12. P.I. Tawade was the person who received the information. P.I. Tawade was the person who reduced it into writing and P.I. Tawade who sent the information to his superiors and this panch witness was known to P.I. Tawade and it was the suggestion from the side of the appellant that this panch witness and other panch witnesses were the witnesses under the influence of P.I. Tawade. In such cases it is imperative on the prosecution to examine such witness. P.I. Tawade has not been examined and therefore, prosecution will have to suffer.

13. Like P.I. Tawade P.I. Rade has not been examined. It is the evidence of P.S.I. Sangle that after samples were collected the samples were sent to store of which P.I. Rade is in charge. Nowhere in the prosecution evidence it has come that P.I. Rade or P.I. Sangle affixed the seal of P.I. Rade and his office at the time when the samples were accepted. Section 55 requires that such seals are to be affixed by the officer in whose custody the said packets are given. In this context, the prosecution evidence is suffering from the infirmity and non examination of P.I. Rade, like P.I. Tawade damages prosecution case importantly.

14. The appellant happens to be Tanzanian. The evidence shows that he was not well conversant with English. Therefore, in which language his right under Section 50 was conveyed to him assumes importance and whether it was explained in English or in other language assumes importance. The language in which it was conveyed to the appellant in this case, damages the prosecution case because it has come in the evidence that the appellant was not knowing English very well.

15. Besides this, the prosecution does not have any evidence against the appellant to prove that he was at the relevant time possessing 10 grams of heroin or brown sugar diacetyl morphine. The evidence which has been collected by the investigating agency by not following procedure established by law, for strengthening its case for conviction would damage it and the Court would not accept such evidence for the purpose of convicting the accused in a serious crime which indicates severe punishment.

16. The learned trial Judge has not appreciated the evidence, keeping in view these glaring points. He has discussed the evidence in a casual way. He has not discussed the pros and cons of the action of the members of raiding party, failure of examination of P.I. Tawade and Rade and the impact created by the evidence of prosecution adduced in this case. If he could have appreciated the evidence in proper way keeping in view the ratio of the judgment of Baldev Singh's case (Supra) his conclusions would have been of acquittal and not of conviction.

17. Thus, summing up all, this Court does not have any hesitation in coming to the conclusion that the judgment and order of conviction and sentence passed by the learned trial Judge is not correct, proper and legal. Therefore, it needs to be set aside.

18. Hence, the appeal is allowed. The order of conviction and sentence passed against the appellant stands set aside and he stands acquitted. No order in respect of disposal of the property and the appellant be set at liberty, if not required in any enquiry, investigation, trial or proceeding. He be also not released, if he is undergoing sentence for any other offence. His passport be returned to him on his furnishing the undertaking that whenever required he would produce it. A xerox copy of the passport be taken on record by the trial Court while returning it.

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