Mohammad Hanif Mansoori vs The State Of Maharashtra
2002 Latest Caselaw 998 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellants are hereby assailing the correctness, propriety and legality of the judgment and order passed by the Special Judge for Greater Bombay in NDPS Special Case No. 95 of 2000 whereby the appellant Firoz Abdul Gafar Khan and appellant Mohammad Hanif Ismail Mansoori have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). They are sentenced to undergo R.I. for 10 years and to pay fine of Rs. 1 lac each, in default, to undergo S.I. for 6 months. They have been convicted for offence punishable under Section 29 of the NDPS Act also. But no sentence has been inflicted on them on that count. Substantive sentence has been directed to run concurrently.

2. The prosecution case in brief is that on 3/5/2000 PW PSI Tendulkar received an information to the effect that one person by name Firoz Abdul Gafar Khan and another person named Mohd. Hanif Ismail Mansoori have stored huge quantity of Mandrex Tablets in Room No. 10, Abdul Lal Chawl, Aksa Masjid Road, Jogeshwari (W), Mumbai and they were likely to shift the said stock to some other place between 4.00 p.m. and 6.00 p.m. on that date. PSI Tendulkar, as per the prosecution case, recorded the said information in station diary at Entry No. 33/2000. The copies of the said information were prepared and dispatched to superiors. He called some officers from the Anti Extortion Squad as well as called the panch witnesses. At 3.25 p.m. the said information was disclosed to PSI Surendra Morye and Panch witnesses. The raiding party went to the site for effecting the raid after giving the search of their persons and vehicles to panch witnesses. When the raiding party reached the said room, they saw the present appellants in the process of putting some paper packets in some gunny bags. There were 8 gunny bags. The purpose of the raid was informed to them, they were apprehended. The narcotic drug was seized after drawing a panchanama. The members of the raiding party left the said room. PSI Tendulkar lodged his FIR in the Oshiwara Police Station and handed over the said stock of narcotic drugs along with the samples which were taken on the spot for chemical analysis. On 4.5.2000 those samples were sent to FSL for chemical analysis. The FSL Laboratory sent a report after June 2000 which disclosed that the samples were containing mathequalone powder of narcotic drug. The appellants were chargesheeted and they were put to trial. The trial ended in the order of conviction and sentence which has been assailed by these appeals.

3. Shri Keshwani, counsel appearing for hte appellants, submitted that the prosecution evidence is very much discrepant, unnatural and, therefore, it does not inspire any confidence at all. He demonstrated it by referring to the prosecution evidence. He further submitted that the witnesses from the police department were the witnesses who were not following the legal procedure and, therefore, it is not safe to place reliance on their evidence. He submitted further that the learned trial Judge committed an error in placing reliance on the evidence of these witnesses and coming to the conclusion that the prosecution proved the guilt of the appellants by this evidence and such conclusions need to be set aside in view of the quality of evidence which has been adduced by the prosecution in this case. Shri Keshwani submitted that in the present case the prosecution has not proved at all that the substance which was seized from the appellant was mathequalone which has been stated to be prohibited narcotic drug and psychotropic substance in view of provisions of Section 2 of the NDPS Act because the report of FSL and evidence of Assistant Chemical Analyser PW-5 Swati Vijay Ambulkar was proving that the substance which was analysed by her was not the substance which was falling under the purview of Section 2 and Schedule which relates to Sub-clause (viia) and (xxiiia) of Section 2

Methaqualone has been mentioned, that it is a formula which shows that its structural formula as "2-methyl-3-0-tolyl-4(3H)-quinazolinone". It is his submission that as prosecution has failed to establish that the appellant were found with any prohibited narcotic drug or psychotropic substance, they could not have been convicted for the offence punishable under the provisions of Sections 21 and 29 of the NDPS Act. He prayed that the said order of conviction and sentence be set aside and they be acquitted. He placed reliance on some judgments in support of his submissions.

4. Shri Shringarpure, Additional Public Prosecutor appearing for the prosecution, justified the said judgment and order of conviction and sentence by submitting that the discrepancies in the evidence of prosecution witnesses pointed out by Shri Keshwani are minor in nature and they do not shatter the prosecution evidence. He submitted that the learned Judge has rightly concluded that by this evidence the prosecution proved the guilt of the appellants beyond reasonable doubt. He further submitted that so far as evidence of Mrs. Swati Ambulkar is concerned, the Assistant Chemical Analyser's evidence proves it beyond reasonable doubt that the substance which was found with the appellants was a narcotic drug or psychotropic substance which has been prohibited by Section 2 of the NDPS Act. He submitted that Swati Ambulkar has analysed more than 100 cases and, therefore, she be treated as expert witness and her evidence be accepted. He justified the act of the trial Judge in accepting the evidence of Swati Ambulkar. He prayed that these appeals be dismissed.

5. This Court would be dealing with the important point which has been urged by Shri Keshwani relating to the burden which happens to be on prosecution for proving that the appellants were found in possession of narcotic drug or psychotropic substance which has been prohibited by provisions of NDPS Act. In this context, evidence of Mrs. Swati Ambulkar needs to be considered as it is. It is the evidence of Mrs. Swati Ambulkar, Assistant Chemical Analyser that Mrs. R. Krishnamurthy, her senior, received the samples pertaining to present case between 4.5.2000 and 20.6.2000 and she performed the chemical analysis on 20.6.2000. According to her, she performed four tests (1) colour test, (2) Thin layer crometography, (3) Ultra Violet spectrophotometry and (4) Liquid Promatography. After performing those four tests, the result was positive and, therefore, she concluded that it was methaqualone and she thereafter gave a report. She tendered the data sheets also in her evidence. But her evidence in examination-in-chief has been totally destroyed by the answer given by her in her cross-examination. She stated when question was specifically asked to her asking her to quote the ingredients which make methaqualone. She answered this question by stating that it was a pharmaceutical question and, therefore, she was unable to answer it. Though she denied the suggestion which was made on behalf of the appellants to her telling her that she was not qualified, she was unable to give the ingredient of Methaqualone and she advised the counsel for the defence to find out from Clerk's book of identification of drugs. When the further question was asked to her, she stated that what she recollected was that one of the ingredients of the said narcotic drug or psychotropic substance was a "Benzene". In this context, the schedule which has been given as annexure to NDPS Act will have to be seen. It has been appended to NDPS Act by virtue of a notification which was published in exercise of the powers conferred by Clause (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, (61 of 1985) and in supersession of the notifications of the Government of India, in the Ministry of Finance, Department of Revenue, Notification No. S.O. 527(E), dated July 16, 1996, except as respects things done or omitted to be done before such supersession, the Central Government specified the quantity mentioned in column (5) and (6) of the table given in relation to narcotic drug and psychotropic substance mentioned by corresponding entry in column Nos. (2) to (4) of the said table as the small quantity and commercial quantity respectively for the purposes of the said clauses of that section. The said table gives the names of various narcotic drugs and psychotropic substances (international, - proprietary name (INN). In that table, Methaqualone has been mentioned as "2-Methyl-30-tolyl-4(3H)-quinazolinone. It nowhere mentions that it contains "Benzene" as stated by M/s. Swati Ambulkar. In fact it was the duty of the prosecution to bring on record as a substantive evidence that whatever was found with the appellants was methaqualone with the above mentioned formula as ingredients of the said substance.

6. In a case dealing with narcotic drugs and psychotropic substances, it is obligatory on the part of the prosecution to prove that whatever was found with the accused happens to be a drug which has been contemplated by provisions of Section 2 of the NDPS Act and it should be a substance which has been mentioned in the scheduled table. If the prosecution fails in proving that, it would fail in its whole goal of getting a conviction against such an accused. There cannot be a go-bye as it has been attempted in this case. The learned trial Judge has accepted the evidence of Mrs. Swati Ambulkar, Assistant Chemical Analyser, by saying that she happens to be the expert witness as she analysed more than 100 samples. By making such a sweeping remark, the infirmities pointed out in her evidence exposing the credibility of her evidence and the certificate given by her stamping such substance as narcotic drug or psychotropic substance cannot be accepted. Section 45 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act for convenience) relates to the evidence of experts in respect of their opinion. It reads:-

"When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or in finger-impressions are relevant facts."

It provides further that such persons are called experts. Before bringing the evidence of a particular witness under the provisions of Section 45 of Evidence Act prosecution is obliged to bring such evidence on record to convince a Court that such witness can be called as an expert in real sense. The Supreme Court has expressed its view on the point in the case of State (Delhi Administration) v. Pali Ram, wherein the Supreme Court observed that it is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because strictly speaking, such issues are for the Court or jury to determine. Therefore, it was for the prosecution in this case to bring such evidence through the mouth of Mrs. Swati Ambulkar to make out a case that she happens to be an expert witness and, therefore, it was safe for the Court to conclude that her analysis was correct and it proved that the substance which was sent for analysis to her was nothing but a narcotic drug or psychotropic substance which has been banned under the provisions of NDPS Act. Instead of that Mrs. Swati Ambulkar herself exposed herself to such a situation which made her evidence totally unfit for being accepted as a proof that the substance which was analysed by her was a narcotic drug or psychotropic substance. She was unable to tell the formula of methaqualone. On the contrary, she gave a wrong ingredient of it. Her evidence was not at all showing, leave aside proving, that the substance which was analysed by her was one which was falling under the purview of Section 2 of the NDPS Act and was consistent with the formula given at Sr. No. 161 of the table which was giving the description of methaqualone. Apart from that, her evidence is so shaky and not convincing, not satisfactory, to make out a good case for prosecution. She stated in her evidence that Mrs. Radha Krishnamurthy, her senior, received the said samples somewhere between 4-5-2000 and 20-6-2000. That was very much vague statement made by such a witness. It shows her tendency of speaking anything which suits her purpose because in the said paragraph she has stated that she has analysed the said samples on 20.6.2000. Taking into consideration this date, her statement will have to be understood which speaks that Mrs. Radha Krishnamurthy might have received those samples in between 4.5.2000 and 20.6.2000. She preferred not to go beyond 20.6.2000 because on that date as per the record she had analysed the said samples. It damages the credibility of her evidence.

7. Furthermore, the prosecution has not adduced any evidence to show as to in what conditions those samples were lying between 4.5.2000 and 20.6.2000 when those samples were lying in the F.S.L. Laboratory. No witness on this point has been examined leave aside Mrs. Radha Krishnamurthy. No evidence has been adduced to show that precautions were taken for keeping the samples safely and precautions were taken for avoiding the possibility of tempering with the contents of those samples. In the case of Ukha Kolhe v. The State of Maharashtra, reported in 1963 SC 1531, the prosecution evidence revealed that blood phial of the accused who was facing trial for committing offence punishable under Bombay Prohibition Act was lying in the civil hospital between 3.4.1961 and 13.4.1961. The Supreme Court pointed out in the said judgment that the prosecution failed to bring evidence on record to show that precautions were taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between 13-4-1961 and 18-4-1961. It pointed out that even special messenger with whom the phial was sent to the Chemical Examiner was not examined. There was no evidence adduced on record about the person in whose custody the phial remained till it was handed over to the Sub Inspection of Police on 13.4.1961. The Supreme Court opined in the said judgment that on account of no evidence on record in that context, prosecution case suffered. In the present case also, no evidence has been adduced to show in what condition the said samples were kept in F.S.L. Laboratory between 4.5.2000 and 20.6.2000. No evidence was adduced for showing that necessary precautions were taken for voiding the possibility of tampering with the substance.

8. Thus, this Court does not have any hesitation incoming to the conclusion that in the present case the prosecution has failed to establish that the appellants were found in possession of narcotic drug or psychotropic substance which happens to be a punishable act in view of provisions of Section 21 or Section 29 of the NDPS Act. This conclusion drawn by this Court gets supported by the judgment of the Andhra Pradesh High Court Single Bench in the matter of Shahidkhan v. Director Revenue Intelligence and Anr. reported in III (2001) CCR 487 wherein the Single Bench of the Andhra Pradesh High Court held that when the prosecution evidence is unable to give a chemical composition of methaqualone as indicated in the schedule, prosecution fails. This Court is also supported by the Division Bench judgment of this Court in the matter of Nicklaus Peter Heel v. State of Goa, reported in 1998 (2) Mh.L.J. 884 wherein the Division Bench of this Court held that mere opinion expressed by Chemical Analyser cannot be relied upon to conclude that the articles recovered from accused were Charas and L.S.D. So also this Court is supported on this point by the view expressed by the Division Bench of this Court in the matter of Criminal Appeal No. 749 of 1997 Mr. J.L. Pandey, Inspector of Customs (P) Narcotic Cell, Mumbai v. Sherif Khan Rashidkhan and Anr. and Criminal Appeal No. 620 of 1997 Pappu Chandapal Singh v. Inspector of Customs (P) Narcotic Cell, Bombay and Anr., delivered on 21.12.2001 wherein the same view has been taken.

9. Now this court turns to the evidence adduced by the prosecution in respect of the act of raiding, seizure, drawing the panchanama, filing the FIR and doing all consequential things.

10. Shri Shringarpure has submitted that the discrepancies in the evidence of the prosecution witnesses pointed out by Shri Keshwani are minor in nature and, therefore, they be not taken to be sufficient enough to shatter the prosecution case. True, if the discrepancies are of minor nature, they do not affect the strength of the prosecution evidence, but, if they are glaring discrepancies, they not only crack the prosecution case, but shatter its castles. Therefore, the discrepancy has to be considered and its value has to be considered by weighing it in appropriate way. It impact has to be behaviour. Shri Keshwani pointed out a glaring discrepancy in the evidence of the prosecution witnesses/members of the raiding party i.e. PW-1 PSI Tendulkar, PW-4 Bagve and panch witness PW-2 Govind Shankar Waghmare. According to the version of PW-1 Tendulkar, the appellants were putting paper "puddis" in the gunny bags. However, according to PW-4 Bagve, they were putting paper packets in the gunny bags. Panch witness Waghmare achieved the final stroke by saying that when the raid was effected the appellants were found putting grey coloured mandrex tablets in gunny bags. Puddies are different from packets. Therefore, the discrepancy cannot be patched up in a reasonable way. The evidence of PW-2 Waghmare cannot be shaped with the evidence of PW-1 and PW-4 because he has stated that he saw both the appellants putting greenish coloured mandrex tablets in gunny bags. Such type of discrepancy goes to the root of the credibility of the prosecution case and gives one irresistible conclusion that those persons must not have been present as claimed by the prosecution and the raid must not have been effected as claimed by the prosecution. If the prosecution contends that all these witnesses are truthful witness, there should not be a discrepancy in their evidence. Prosecution has put questions in the nature of cross-examination to PW-2 Waghmare, the panch witness, for the purpose of bringing him back in his evidence has not been repaired satisfactorily by the question which was put to him in the nature of cross-examination. His evidence has to be considered as it is.

11. Shri Keshwani has pointed out that investigating agency in this case attempted to show that it was acting consistent with the procedure and all actions were taken in a chronological way. He pointed out some letters which were meant for bringing the sample examination kit and for bringing seals. Those letters are having forwarding number different from the forwarding number which has been printed on forwarding letter by which the samples were dispatched to FSL Laboratory. Initial letters were bearing forwarding number which was starting with 3000 figure. When that is so, the letter by which the samples were forwarded to FSL should have been above 3000 figure. But very strangely that is ranging in the range of 2000. Therefore, by seeing it by naked eye, the falseness of these letters has been exposed. Shri Keshwani has made a statement that all those letters were prepared at one time and after the appellants were hooked in the prosecution. This submission will have to be accepted in view of such glaring infirmity in the forwarding numbers of those letters.

12. Another point which is to be considered, and which goes to the root of the prosecution

and 4 the mandrex tablets were either in puddies, in paper packets or were in loose condition but very strangely the evidence of Mrs. Swati Ambulkar shows that what FSL received was polythene bags. There is no evidence from the prosecution to show that the mandrex tablets were collected in polythene bags in presence of panch witnesses. This sort of discrepancy in the evidence is not explainable by the prosecution and it assumes more dangerous nature when prosecution has not adduced any evidence to show as to how the precautions were taken for avoiding the possibility of tampering with the substance either when it was in the Oshiwara Police Station or in between its dispatch from Oshiwara Police Station to FSL and during the period when the samples were lying in FSL.

13. It has come in the evidence of panch witness that when raid was in progress, the owner of the said room named Jadhav came and he intervened in the work of the police, the members of the raiding party. Not only that, but by testing the said substance he declared that those were mandrex tablets. This is something unthinkable but it is there in the present case so far as prosecution evidence is concerned.

14. PW-1 Tendulkar stated in his evidence that it is not his practice to make the entry in station diary whenever he joins the duty. he further stated in the evidence that it is not his practice to make entry whenever he goes out of the police station for duty. Further, his evidence shows that it is not his work or it is not his practice to record the time of receiving the information. Shri Keshwani has submitted that these answers have been given by Shri Tendulkar for the purpose of patching up the prosecution evidence and maneuvering for achieving success in the nature of conviction in the case. The submission of Shri Keshwani cannot be dismissed because it holds its ground keeping in view the evidence of PW-1 Tendulkar.

15. The time has not been put when the information was received. Time has not been put on the FIR to show as to when the FIR was recorded. The prosecution witnesses from police department claim that after receiving the information, copy of it was sent to immediate superior and superiors. But there is no endorsement of dispatch and receipt. The casual answers given by these witnesses show that these persons from the police department who have been examined as prosecution witnesses in this case do not have any regard for doing the acts consistent with the provisions of law. It has been pointed out by the Supreme Court in Baldev Singh's case that when the investigating agency officers are not giving due regard to the legal provisions and their acts are not consistent with legal position, their evidence does not inspire confidence. The witnesses who dare to behave inconsistent with the legal provisions and give casual answers, are capable of giving any answers which would suit their purpose and, therefore, it is very unsafe to base conviction on their evidence. But unfortunately the trial Court has done so without giving due consideration to potential infirmities in their evidence which shatters the castles of the prosecution which is bidding for conviction. The trial Judge has not noticed that there is a provision of giving rewards to such officers in NDPS cases. Therefore, the possibility of temptation of maneuvering for getting success cannot be over ruled and, therefore, potential infirmities openly noticeable have to be given due importance and if that is done there will be only one conclusion which would be leading to discarding of the evidence in this case. The trial Court should have done it but as it lost the sight of important facet of the prosecution evidence in this case, it landed in error of recording the order of conviction and sentence against the appellants. The conclusions drawn by the learned trial Judge are not borne out by the evidence on record. On the contrary, he has misdirected the evidence. Thus, on this count also the appellants are entitled to get acquittal because the prosecution has failed to establish their guilt on this count. There is no evidence of conspiracy.

16. Thus, this Court does not find any hesitation in coming to the conclusion that the appellants should have been acquitted and as trial court has not done that, this Court acquits them of the charge framed against them by allowing these appeals.

17. Thus, the appeals are allowed. The order of conviction and sentence passed against the appellant stand set aside. The appellants are acquitted. They be set at liberty, if not required for any enquiry, investigation, proceeding or trial. They be also not released if they are convicted for any other crime. No interference with the order of disposal of the muddemal property.

18. Parties to act on an ordinary copy of this judgment duly authenticated by the Sheristedar of this Court.