Mohamed Enshael vs Shri K.P. Gundecha, ...
2003 Latest Caselaw 178 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard learned counsel for the parties in detail in context with the evidence on record.

2. The appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by Special Judge in N.D.P.S. Case No. 5 of 1996 wherein he convicted the appellant for committing the offence punishable under the provisions of Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for convenience). The appellant has been sentenced to undergo R.I. for ten years and to pay fine of Rs. 1 lac, in default to undergo RI for two years in respect of the offence indicated by provisions of Section 18 of the NDPS Act.

3. The prosecution case in brief is that on 27.10.1995 at about 5.30 p.m. Superintendent, Customs (Preventive), Head Quarters, Pune, Shri Gundecha, received the information that one person named Parvej Dhulha Khan (who happens to be accused No. 1 in the above said special case) was to come with opium and 400 grms of heroin by riding Kinetic Honda bearing No. MVO - 7807 and was going to deliver the same to another person near "Tin Toph Area" opposite Army Supply Depot at Silver Jubilee Corner Camp, Pune at about 8.30 p.m. It was informed that he happened to be the regular supplier of opium to Iranian National Shri Mohammd Enshaei, the present appellant, who was at that time residing at Koregaon Park, Pune. On this information customs officers, namely. Shri Gundecha, Superintendent, Inspector C.P. Vinod, T.S. Krishna Murthy, Alexander Lee and V.b. Deshpande proceeded to Silver Jubilee Motors Corner, Camp, Pune and ambushed near that area alongwith two panch witnesses. At 8.30 p.m. they saw that one Silver colour Kinetic Honda Scooter bearing No. MVO 7807 being driven by one person was coming to said road. It stopped near Tin Toph area, opposite Army Supply Depot. After observing his behaviour they went near him and inquired about his name which he told as Parvej Dhulha Khan. They asked him as to what he was carrying in the said basket connected with the scooter. He told that he was carrying opium. 1 kg. Nirma washing powder end 2 kgs. of cement which he had brought for a customer. They seized those articles under the panchanama. Though said Parvej Dhulha Khan attempted to run away from the spot by seeing a car bearing No. MVL 4479, he was caught and those articles were seize under a panchanama and Parvej Dhulha Khan was taken to the Customs Warehouse (Central Godown) along with panch witnesses. The said godown was situated at Saify Lane, Camp, Pune. The samples were collected for chemical examination. He disclosed name of the appellant during the interrogation. Therefore, by taking the search warrant the said officers went to flat No. A/8 Liberty Society, Phase II, Koregaon Park at 11.30 p.m. They knocked the door of the said flat which was opened the appellant whom the search warrant was shown and the search of the said flat was taken. The said officers found that a cavity was created by arranging two books verifically and touching each other. In the said cavity a packet was kept which contained opium weighing 40.6 gms. which was seized under a panchanama in presence of panch witnesses. The appellant alongwith the said Parvej Dhulha Khan and Hossein Pishevarz were prosecuted before the Special Court. Prosecution examined necessary witnesses. The appellant examined one witness in his defence. The learned trial Judge acquitted Parvej Dhulha Khan convicted the appellant and one Hossein Pishevarz. After the trial and before the appeal was filed the said person died.

4. Shri Keshwani, counsel appearing for the appellant, submitted that the prosecution case is totally false because as per the evidence of Behram Irani, the landlord, the appellant was residing in his (Behram Irani's) Bungalow and not in flat No. A/8, Liberty Society, Phase II, Koregaon Park, Pune. He further submitted that the prosecution case, though coming through the mouth of number of witnesses, is totally false because it has come in the evidence of panch witness Malani PW-1 which has not been disowned by the prosecution that at 8.30 p.m. the present appellant was present in Customs Godown alongwith Parvej Dhulha Khan when he was being interrogated. He submitted that when that as so, he could not be present in flat No. A/8, Liberty Society for opening the door to the members of the raiding party who knocked it. He submitted that the prosecution did not disown the said evidence which was given by panch witness Malani. Hence, it will have to be presumed that the appellant was not present in flat No. A//8 at 12.30 p.m. as claimed by the prosecution.

5. Shri Keshwani submitted further that there were other persons residing alongwith him, even as per prosecution case, at that time and in that night in the said flat. Therefore, the appellant only need not be said to be in exclusive possession of the said narcotic drug. When the appellant has retracted his statement alleged to have been recorded by the officers of Customs in view of provisions of Section 67 of NDPS Act. He submitted that at this juncture it is pertinent to note that the aid Parvej Dhulha Khan has been acquitted by the trial Court itself who was the source of the information, as per prosecution case. He further submitted that the prosecution has not disowned Behram Irani's evidence which was running against the prosecution. He also submitted that the prosecution did not disown Exhibit-84, the information which was given by Behram Irani to the concerned police station officer informing that along with the appellant some other Iranian persons were residing in his bungalow which happens to be different from flat No. A// or the said society. He prayed for acquittal by setting aside the order of conviction and sentence passed by the trial Court.

6. Shri Thakur, counsel appearing for Respondent No. 1, submitted that there is evidence of six witnesses to establish the prosecution story that the appellant opened the door of flat No. A/8 after the door was knocked by the concerned officers of the Customs Department, Pune. He submitted that the appellant was the person who took the said flat on rent from landlord Behram Irani and he admitted in his statement, recorded in view of provisions of Section 67 of NDPS Act, that he was in possession of the said opium and, therefore, small discrepancies here and there should not be sufficient enough to disbelieve the prosecution case. Shri Thakur submitted that in view of provisions of Sections 35 and 54 of NDPS Act, once an accused gives a statement before the officers of the concerned department recording the statement in view of provisions of Section 67 of the NDPS Act, the burden lies on him to explain his innocence. He submitted that retraction at the time of examination under Section 313 of Criminal Procedure Code, 1973 (hereinafter referred to as the Code for convenience), cannot be taken to be sufficient enough to brush out the effect of the admissions given in such statement. He submitted that the evidence of PW Gundecha and his colleague officers and the said statement are sufficient enough to be the basis for conviction which has been recorded against the appellant by the trial Court. He prayed for dismissal of the appeal.

7. It has come in the evidence of PW-1 Malani, the panch witness, that when Parvej Dhulha Khan was caught and was take to customs godown at Pune Camp at 8.30 p.m. and was interrogated, the present appellant was present there. It appears as natural phenomena that after initial interrogation, he might have been brought there by the concerned customs officers for further interrogation. Besides this, there is no other acceptable explanation of Malani speaking on oath this way. Malani's this statement has not been disowned by the prosecution not any suggestion was made to PW Malani that he was telling the falsehood or telling by misunderstanding the situation. The prosecution did not disown the said statement of Malani. Therefore, it will have to be considered as it is. It cannot be thrown out as submitted by Shri Thakur as the lapse is on the part of PW Malani on account of forgetfulness or not understanding the question. Had that been so, the prosecutor taking his examination-in-chief would have made certain suggestions in that context.

8. When that statement has not been disowned, two things come up (i) that the present appellant was present in the said night at 8.30 p.m. in the Customs Godown and, therefore, he could not have been present in the said flat for opening the door to the officers of the concerning department, who have been examined as prosecution witnesses in this case as the prosecution claims that its case is true. (ii) It means indirectly that the concerned appellant was present at 8.30 p.m. in the said godown in context with the information which was given by Parvej Dhulha Khan, as per the prosecution case. Accordingly to the prosecution case, Parvej Dhulha Khan stated that he sold the opium to the appellant. In that case, the concerned officers would not have allowed the appellant to go away from the said godown without he being escorted or put under the surveillance of any person from the said department. They would have taken care that he does not abscond. Impliedly it means that he would not have been permitted to go to his flat so as to make himself available for the purpose of opening the door when the said squad members were to go to his flat at about 12.30 p.m. It impliedly means that the prosecution story that they raided the said flat No. A/8 at 12.30 p.m. was nothing but a falsehood.

9. Again, it is to be noted that if at all the appellant was successful in running away from the said godown, there would have been such evidence from the prosecution side to that effect. But there is nothing on record to that effect. Again it is to be noted that if the prosecution evidence is to be believed, then it impliedly means that the appellant was knowing that the police were having the information of his involvement in the dealing of opium by Parvej Dhulha Khan. In that case he would not have been present in the said flat or would have taken the care of removing the said opium from the flat where the prosecution says, was concealed. The prosecution cannot escape the natural inferences which are reasonably cropping up from the situation. It means that the prosecution case that the members of the raiding party raided the said flat at 12.30 p.m. when the door was opened by the appellant who was present in the premises of his flat, opium weighing 460 gms was found kept in the cavity created by the books, is false.

10. Again, it is important to note that it is the prosecution case that in addition to the appellant some more Irani's were residing in the said flat. Possession always requires two things (i) the knowledge of the thing being possessed and (i) exclusive domain over the thing alleged to have been possessed. The said exclusive domain means exclusive physical possession or possession which is under the control of concerned person. In the present case, along with the appellant about 7 - 8 persons all Iranis were present in the said flat at the said time. In such situation how it can be said that the appellant was in exclusive possession of it except by making reference to his statement recorded in view of provisions of Section 67 of the NDPS Act.

11. At this juncture it is important to note that the landlord Behram Irani has stated in his evidence that the appellant was residing as his tenant alongwith some 7-8 Iranis whose names were informed by him to the officers of the concerned police station as indicated by Exhibit - 84. Exhibit - 84 does not mention anything about flat No. A/8. It speaks of bungalow owned by Behram Irani. That bungalow had not been raided at all as the evidence on record shows. Had that been so, it would have come so in the evidence of Behram Irani, the landlord, but is evidence does not show that way at all. The evidence of other prosecution witnesses does not also show that Behram Irani was present in the said flat at the relevant time. How the prosecution can be permitted to say that what is inconvenient to it be ignored and what is beneficial or helpful to it, what is convenient to it should be accepted. A person cannot be permitted to blow hot and cold by the same pipe at the same time.

12. Shri Thakur submitted that the statement of the accused recorded in view of Section 67 should be accepted as basis for conviction. This Court is unable to agree with him because that is not so. That cannot be so if existing law is considered. The said statements can be considered but there he to be reliable substantive evidence against the accused. The said statement has been retracted by the appellant when he was examined in view of Section 313 of the Code. Shri Thakur submits that no importance can be given to the things stated by an accused under Section 313 examination. This Court is unable to agree again with him on this point. The examination of an accused under Section 313 of the Code has its own importance. Incriminating statements made by the accused in such examination can be considered along with substantive evidence against such an accused and the things which have been stated by him explaining the circumstances which are against him and but to him under such examination have to be considered in his favour as the explanation given by such an accused explaining the circumstances surfacing in the evidence and against him. That is the exact purpose of Section 313 of the Code. That is the spirit indicated by the provisions of Section 313 of the Code. It cannot be used so lightly as Shri Thakur submits. A proper consideration has to be given to it so as to understand the statement made by an accused in the statement recorded under Section 67 or the NDPS Act. But it has to be kept in mind that the spirit of Section 67 is to enable the concerned officer to collect the information of commission of the offence for detection,for investigation, for enquiry and for collection of the information necessary for the prosecution to go to trial. It cannot assume the importance of a statement made by an accused in the examination taken in view - provisions of Section 313 of the Code assumes. The said examination is meant for allowing the accused to explain the circumstance which has surfaced in the prosecution evidence. The Court cannot ignore the retraction by the accused of the facts stated in the statement recorded in view of Section 67 of the NDPS Act.

13. Courts of voices of witnesses does not make the melody. There has to be tune of truth in it. Section 134 of the Indian Evidence Act, 1872 (hereinafter referred to as the "Evidence Act" for convenience) makes it categorically clear that the qualify of the evidence is to be seen and number of witnesses from whose mouth it is coming is not to be seen. Section 134 of the Evidence Act heralds that no particular number of witnesses shall in any case be required for the proof of any fact. Evidence is to be appreciated, weighed and not counted. It repels and nullifies the submissions advanced by Shri Thakur that the prosecution case has been proved by evidence of those prosecution witnesses, namely Gundecha, Gaikad, Vinod, Bhor, Charwani and Rekha Magar. True, their evidence is to be considered, examined, appreciated and assessed as a whole and not be peice-meal and not numberwise. A small pin of truth infact punctures the big balloon of concoction. A small pin of truth can puncture the balloon of untrue occult testimony of number of witnesses. Exactly the same has happened in this case. The statement made by PW Malani, the panch witness, that the appellant was present at 8.30 p.m. in customs godown along with Parvej Dhulha Khan destroys, nullifies the chorus created by the evidence of Gundecha, Gaikad, Vinod, Bhor, Charwani and Rekha Magar that when they raided flat No. A/8 in Liberty Society, when they knocked the door, it was opened by the present appellant. Keeping in view the normal human experience he could not have been present for opening the door to the members of the raiding part at 12.30 p.m. as claimed by the prosecution because the statement which was made by PW Malani in his evidence has not been disowned by the prosecution though it was conducted by the prosecutor. He did not make a suggestion to Mr. Malani suggesting him that he was telling that statement as a falsehood or was telling untruth. No suggestion was made to him that he made such incorrect statement by casualness or by forgetfulness or with oblique motive. It was not suggested to him that he was won over or was bribed by the appellant or was making favour to him with some oblique motive. If a witness is making a statement destroying the prosecution case, it becomes the duty of the prosecution or the officers conducting the prosecution, to disown it before his evidence is completed. During the continuation of examination-in-chief by tactful way by remaining in the four corners of the limits put by the examination-in-chief and restrictions made by putting of leading questions or by seeking permission of the Court for putting questions to such witness in the nature of cross-examination as indicated by provisions of Section 154 of the Indian Evidence Act of taking the help of Section 155 also. If the prosecution does not do in such evidence deserves a consideration appropriately and deserves to be given appropriate weight at the time of adjudication of innocence or guilt of the accused tried before a Court.

14. When there is evidence of PW Malani, independent witness destroying the prosecution case, partisanness of PWs Gundecha, Gaikad, Vinod and Bhor cannot be ignored. At this juncture it cannot be also ignored that the success of a case connected with N.D.P.S. Act is likely to bring credit to such officers by way of rewards or by way of good remarks. Success of such a case is going to add to their qualifications and merits which is likely to be considered in the matter of promotions. The most of the admission given by PW Malani who has not been disowned by the prosecution and who happens to be an independent witness chosen for the raid, and examined as such, has its own weight. Therefore, when the Court is to assess the quality of the evidence adduced by the prosecution in a case against the accused, such things do weigh and are bound to weigh and in this case are sure to weigh.

15. In addition to this aspect of the prosecution case, evidence of Behram Irani has also to be appreciated in proper perspective. Behram Irani has written a report to the concerned police station officer which is Exhibit 84 which has not been disowned by the prosecution. In that report, he has informed the concerned police station officer that alongwith the appellant some 7-8 Irani persons were residing in his Bungalow. In fact that document has been produced by the prosecution itself. It means that if at all those persons were residing at the relevant time in the bungalow of Behram Irani and it was raided, Behram Irani should have been examined as witness being concerned with that aspect of the case. But so far as the present case is concerned, his evidence is not coming in such a way. If that flat was owned by Behram Irani, Behram Irani should have been interrogated in that context keeping in view Exhibit-84 and Behram Irani's evidence would have come in a different sphere but it is not so so far as the present case is concerned. The question arises as to why Behram Irani is not saying anything about the raid which is concerned with his tenant's activities in the premises owned by him. Another question arises as to who was the owner of the said flat No. A/8 of Liberty Society. Why he has not been examined?

16. In addition to that, presence of number of those Iranian persons at that particular time an spot has also to be considered in favour of the appellant. All of them were present there as the tenants of the said tenement. Nobody of them could have been in possession of it or they all could have been jointly possessing the said opium. But prosecution evidence is silent about this.

17. Though presumptions have been indicated by provisions of Section 35 and 54 of the NDPS Act, what the prosecution has to do is to discharge its fundamental duty of proving a factum of possession qua a particular accused. Unless that is done, the prosecution cannot take the advantage of presumption indicated by Section 54 in this case or in the case like the present case or different cases having different set of facts and circumstances. It is the duty of the prosecution to bring acceptable substantive evidence and thereafter to go for the presumption. It cannot take the advantage of the information which has been alleged to have been collected by the words of Section 67 of NDPS Act. It has to stand on its feet independently. It cannot bid for conviction by standing on crutches. The learned trial Judge has lost sight of the important aspect of the case. He was carried away by number of witnesses and instead of assessing the quality of evidence, gave importance to number of witnesses speaking for prosecution and, therefore, the learned trial Judge landed in error of recording the judgment of conviction and sentence against the present appellant. The conclusions drawn by the learned trial judge are not borne out from the evidence on record if assessed in proper sense keeping in view the legal principles of appreciation of evidence. The findings recorded by the trial Judge are thus suffering from legal infirmities. It is far away from the true meaning indicated by the facts of the case brought on record by the evidence adduced by prosecution in support of the charges levelled against the appellant. The fact that the accused No. 1 Pervez Dulha Khan has been acquitted has to be kept in mind because he was the person who, as per the prosecution case, gave the name of the appellant. The learned trial Judge has lost sight of this aspect of the case also.

18. Thus, the order of conviction which has been assailed by this appeal has to be set aside as it is against the tune of the evidence recorded and is against the true interpretation of the law. Appeal stands allowed. The appellant stands acquitted of the charge levelled against him. He be set at liberty if not required for any enquiry, investigation, proceeding or trial. He be also not released if he happens to be undergoing sentence for any other offence. No interference in the order passed by the trial court in respect of the disposal of the property.