Charles Wuzor vs State Of Goa, As Represented By ...
2007 Latest Caselaw 878 Bom

JUDGMENT

N.A. Britto, J.

1. The appeal is by the accused who has been convicted and sentenced under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and who has already undergone the sentence imposed upon him of nine months. The accused was also fined Rs. 25,000/-and in default was directed to undergo imprisonment for a period of two months.

2. The accused was charged and tried with the allegation that on 9-2-2001 at about 15.30 hours when he was intercepted, on the basis of prior information, near the bus stop at Arpora whilst travelling in a Maruti Zen car bearing registration No. GA-02-J-4391 he was found in possession of 169.6 gms. of charas worth Rs. 16,900/-.

3. The case of the accused was that he was falsely implicated.

4. The prosecution examined eleven witnesses to support the charge. The most important of them are PW6/PSI R. Prabhudessai who conducted the raid, PW3/Sandesh Kossambe, the panch witness, PW7/PI Uday Naik who was given the safe custody of the said charas before it was sent to the Directorate of Food and Drugs Administration where it was examined by PW1/M. Kaissare and who found its weight to be the same, as earlier found by PW6/PSI Prabhudessai and its contents were positive for charas.

5. As per the version of PW6/PSI Prabhudessai, on 9-2-2001 he was attached to ANC Police Station and at about 13.30 hours he received specific and reliable information that a person of stated description would be coming to deliver a consignment of drugs in a Maruti Zen car bearing the said number which information he reduced into writing and handed a copy to PW8/Dy. S. P. Finton D' Souza and thereafter he secured the presence of two panchas, namely PW3/Kossambe and one Gurunath Naik and told them about the said information 3 and thereafter they left to Arpora in a Police jeep bearing No. GA-01-G-1077 and a private motor-cycle bearing No. GA-02-E-4100 along with a kit box, the seal, typewriter, etc. and when they reached there about 15.10 hours they parked their jeep besides the bus stop and kept a watch and when the said Maruti Zen car came and its number was confirmed, it was blocked by putting their jeep in front of the said vehicle and the motor-cycle behind it and they surrounded the said Zen car which was found locked from inside and thereafter the person who was driving the same swallowed something after removing from the front passenger seat. As far as the swallowing of a substance is concerned, it may be stated at this very stage that the prosecution was unable to state as to what that substance was inspite of the accused having been sent to the Goa Medical College for his examination.

6. PW6/PSI Prabhudessai stated that thereafter he broke the driver's side glass and opened the driver's side door and the driver i. e. the accused was taken out of the car but nothing was found in his mouth and the accused was told about the receipt of the said information and was also told that he had a right to be searched before a Gazetted Officer or a Magistrate and that he was free to search the members of the raiding party including the panchas which offer the accused declined and when his personal search was taken nothing incriminating was found but one transparent polythene bag was found below the front passenger's seat which contained some blackish colour pieces, flat in shape wrapped individually in transparent cellophane paper and three ball shape pieces of blackish colour substance which were not wrapped and on checking the same, he suspected them to be charas which were then weighed and found to be 169.6 gms. along with the individual wrappers but without the outer polythene bag and thereafter the same were put in an envelope, packed and sealed with seven seals of Anti Narcotic Cell Panaji Goa-4 with Ashoka Emblem and the said envelope was signed by him, both the panchas and the accused refused to sign the same.

7. PW6/PSI Prabhudessai stated that on further search of the car a mobile set was found in the car and cash of Rs. 2,240/-was found in the glove box of the dashboard of the car and the accused was then told that the possession of charas was an offence under the Act and he was liable for arrest. According to him, he attached the car. He asked the accused whether he could produce any documents for possession of charas which the accused could not produce and the panchanama was completed at about 18.00 hours and whilst returning to the Police Station the accused complained of giddiness and was directly taken to Goa Medical College at Bambolim and was admitted as a medico legal case in Ward No. 113 and on return to the Police Station he registered the offence vide Cr. No. 6/2001 and that during investigations he handed over the muddemal property to PW7/PI Uday Naik vide covering letter dated 9-2-2001.

8. The panch witness, namely PW3/Kossambe has corroborated the version of PW6/PSI Prabhudessai in all material particulars. According to PW3/Kossambe and a fact which is otherwise admitted by PW6/PSI Prabhudessai, PW3/Kossambe is related to PW6/PSI Prabhudessai. The learned Counsel on behalf of the accused contends that PW3/Kossambe being related to PW6/PSI Prabhudessai has supported a false case put forward by PW6/PSI Prabhudessai. The learned Counsel has also submitted that it does not appear that PW3/Kossambe was present for the raid and in case he was present he would have been able to recall as to who had written the panchanama since he has stated otherwise and therefore there is an element of doubt whether PW3/Kossambe was at all present.

9. No doubt PW3/Kossambe has stated that he is the second cousin of PW6/PSI Prabhudessai and the latter has stated that he is his cousin and in fact the defence did not specify what was their exact relationship. It is not unknown that many persons even refer to distant relations as their cousins and only because PW3/Kossambe was related to PW6/PSI Prabhudessai or he was unable to recall as to who had written down the panchanama was no reason sufficient enough to discard the evidence of PW3/Kossambe. PW3/Kossambe, as stated by him, had come from Sanguem to Directorate of Municipal Administration and possibly because earlier he was the Vice Chairman of Sanguem Municipality, as stated by him. Again, as stated by him, he readily accepted to become a panch witness as he had never seen drugs before and he had a dislike for persons who were spoiling the fate of the people of Goa with drugs. As far as the breaking of the glass is concerned the case of PW3/Kossambe is consistent with what is recorded in the panchanama as well as otherwise stated by PW6/PSI Prabhudessai. The absence of breaking of the glass on the station diary dated 9-2-2002-Exh.61 is insufficient to create a doubt that the glass of the vehicle was not broken because the panchanama makes a reference to the breaking of the glass. He stated that the constable who had come to call him was along with the raiding party but there is nothing in the evidence of PW6/PSI Prabhudessai to say that constable Buckle No. 3196 to whom he referred as the constable sent to fetch a panch witness was not a member of the raiding party. In my view, there is nothing to doubt the presence of PW3/Kossambe at the time of the raid and only because he is related to PW6/PSI Prabhudessai is no reason to discard his evidence. PW6/PSI Prabhudessai had no personal interest in the case and likewise PW3/Kossambe had nothing to gain by deposing falsely to support PW6/PSI Prabhudessai. PW3/Kossambe is consistent in his evidence and the same can be relied upon to corroborate the version of PW6/PSI Prabhudessai and the evidence of the latter is again consistent and convincing and there is nothing to doubt about the same.

10. The request letter dated 9-2-2001 was addressed to the Director of Food and Drugs Administration, Panaji, and was produced by PW1/Kaissare as Exh.7 and when shown to PW6/PSI Prabhudessai was confirmed by him. A bare reading of the said letter shows that it was prepared at ANC Police Station as the very address shows. This position is also strengthened by the fact that there is a mention in the said letter that it is while returning to the Police Station that the accused complained of giddiness and was directly referred to Goa Medical College, Bambolim and was admitted for treatment. The said statement is another indication which suggests that the said letter was prepared at the Police Station.

There is another statement which further strengthens the fact that the said letter was prepared at the Police Station namely that Crime No. 6/2001 was registered at the Police Station at 23.45 hours on 9-2-2001. However, it is important to note that PW6/PSI Prabhudessai was not at all cross-examined in relation to the said letter and who is the author of the said letter. There is no doubt that PW8/Dy.S.P. D' Souza as well as PW11/PI Mardolkar have stated that the said letter was prepared on the spot on which the specimen seal impression of the Anti Narcotic Cell Panaji Goa-4 with Ashoka Emblem was affixed. Learned Counsel on behalf of the accused contends that in case the said letter was prepared at the Police Station, both the aforesaid witnesses have lied on an important aspect of the case and therefore they cannot be believed. In support of the submission, the learned Counsel has placed reliance on the case of Vikram Reddy v. State of Goa 2002(1) G.L.T. 116 and Gopal Bahadur v. State of Goa 2005 Drugs Cases(Narcotics) 449. In the case of Vikram Reddy v. State of Goa(supra) it was observed that a witness who has stated to have sworn a falsehood cannot be relied upon. He not only renders his testimony unworthy of acceptance but casts a shadow of doubt on the entire prosecution case and that a Court should never accept the testimony of a witness who is shown to have stated a falsehood and his testimony has to be discarded as a whole. That principle was followed in the case of Gopal Bahadur v. State of Goa(supra).

11. In my view, the said two decisions cannot come to the aid of the accused as contended on his behalf by his learned Counsel. As already stated, the said letter dated 9-2-2001(Exh.7 colly.) clearly shows that it was prepared at the Police Station. PW6/PSI Prabhudessai who is the author of the said letter was not at all cross-examined to find out where it was prepared. There is nothing in the Act which requires that a letter such as Exh.PW7 dated 9-2-2001 had necessarily to be prepared at the spot where the drugs were seized. There is nothing wrong in case the said letter is prepared on return to the Police Station. In the absence of cross-examination of the author of the said letter namely PW6/PSI Prabhudessai the statement of PW8/D' Souza and PW11/PI Mardolkar could be ignored stating that the said letter was prepared at the spot. As already stated the evidence of PW1/Kaissare, PW3/Kossombe, PW6/PSI Prabhudessai and PW7/Uday Naik was more than sufficient to convict the accused under Section 20(b)(ii)(B). Their evidence is consistent and convincing.

12. In view of the the above, I find there is no merit in this appeal. Hence, the same is hereby dismissed.