Gopal Rajlingam vs The State Of Maharashtra
2016 Latest Caselaw 7175 Bom

Sherla V.



                                                                         wp.1412.2002+_211.doc


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION




                                                                                        
                          CRIMINAL WRIT PETITION NO.1412 OF 2002




                                                                
            Ashok Hari Khedkar                             ... Petitioner

                  Vs.




                                                               
            The State of Maharashtra & Ors.                ... Respondents

                                          with
                          CRIMINAL WRIT PETITION NO.1452 OF 2002




                                                      
            Gopal Rajlingam                                ... Petitioner

                  Vs.
                                          
            The State of Maharashtra                       ... Respondent
                                         
            Mr.R.N. Misra for the Petitioner in WP/1412/2002
               


            Mr.Rajendra Shirodkar with Mr.Archit Sakhalkar for Petitioner in
            WP/1452/2002
            



            Mr.V.V. Gangurde, APP, for Respondent - State
   




                                                CORAM: MRS.MRIDULA BHATKAR, J.

DATE: DECEMBER 14, 2016

ORAL JUDGMENT:

1. In these writ petitions, the order dated 25.8.1999 passed by the

Special Judge, NDPS Court, in Special Case No.125 of 1997. is

challenged. The accused Gopal Rajlingam, who is the petitioner in

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writ petition No.1452 of 2002, was the accused in NDPS Special

Case No.518 of 1998. In Special Case No.125 of 1997, the accused

was prosecuted for the offences under section 8(c), 21 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 which was

registered at C.R. No.170 of 1996. It was a case of the prosecution

that 10 gms of heroin alongwith 3 audio cassettes were found in his

possession. The 10gms heroin and audio cassettes were seized by

the police under panchanama dated 29.11.1996 from the house at

Colaba of Gopal Rajlingam, the petitioner in Writ Petition No.1452 of

2002. After going through the contents in the audio cassette, the

police found that though the petitioner Ashok Khedkar was a police

officer at the relevant time, when he was on duty, he had in

connivance with the petitioner Gopal Rajlingam and the other co-

accused have committed offence under section 59 of the NDPS Act.

Thus, both the accused and the co-accused were also prosecuted for

the offences punishable under sections 59 and 27(a) of the NDPS

Act read with sections 201, 204, 218 and 34 r/w section 120B of the

Indian Penal Code.

2. The trial of the NDPS Case No.120 of 1997 wherein Gopal

Rajlingam was the only accused commenced and concluded in

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acquittal of the petitioner by judgment and order dated 25.8.1999 by

Special Judge, NDPS Court. Thereafter, the trial of the NDPS

Special Case No.518 of 1998 commenced on 18.9.2001 and PW1

was examined. Thereafter, the prosecution wanted to tender and rely

on panchanama dated 29.11.1996 in respect of seizure of the articles

i.e., three audio cassettes. Therefore, on the point of issue estoppel,

the defence filed application (exhibit 75) objecting to admit the

seizure panchanama dated 29.11.1996. The learned Judge by order

dated 16.8.2002, which is the subject matter of these writ petitions,

dismissed the said applications, hence, these writ petitions.

3. Both the learned Counsel for the petitioners submitted that the

seizure panchanama dated 29.11.1996 was disbelieved by the

learned Special Judge in NDPS Case No.125 of 1997 and the

petitioner accused was acquitted. The said judgment of acquittal

was not challenged by the State in appeal. Hence, the said

judgment and the issues on the facts decided by the said Court

attained finality; so is the case of seizure panchanama of the

cassettes. The learned Counsel has relied on section 300 of the

Code of Criminal Procedure and mainly on the ratio laid down in the

judgments of the Supreme Court in Pritam Singh & anr. vs. The

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State of Punjab1; Manipur Administration, Manipur vs.

Thokchom Bira Singh2 and in the case of Ashwani Kuma alias

Ashu & anr. vs. State of Punjab3.

4. The learned Counsel for the State has submitted to the orders

of this Court as it involved a legal issue.

5. Perused the impugned order and the judgments relied on by

the learned Counsel for the Petitioner. The short issue involved in

these petitions is whether due to finding given by the competent

Court in a previous trial in respect of a document i.e., panchanama,

admission of the said documentary evidence in later trial is precluded

by virtue of the principal of issue estoppel under section 115 and

section 40 of the Indian Evidence Act. It is useful to reproduce

sections 40 and 115 which are as under:

"40. Previous judgments relevant to bar a second suit or trial.-- The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such

Court ought to take cognizance of such suit, or to hold such trial.

115. Estoppel. --When one person has, by his declaration, act or omission, intentionally caused or permitted another person 1 1956 Cri.L.J. 805 2 1965(1) Cri.L.J. 120 3 (2015) 6 SCC 308

wp.1412.2002+_211.doc

to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his

representative, to deny the truth of that thing.

6. By seizure panchanama dated 29.11.1996, the police have

seized 10gms heroin and three audio cassettes. In Special Case

No.125 of 1997, recovery of heroin was the main issue. In Special

Case No.125 of 1997, there was only one accused before the court.

The petitioner Ashok Khedkar was not accused in Special Case

No.125 of 1997. The seizure panchanama is a common document

of recovery of incriminating articles. It is an admitted fact by the

prosecution and by defence that the said panchanama was

disbelieved by the Special Judge, NDPS Court, while deciding the

Special Case No.125 of 1997. It is not disputed that the said

judgment was not challenged in appeal and has attained finality.

Under such circumstances, if the prosecution wants to use the said

judgment or a part of that judgment in subsequent trial, then, it is

barred under section 115 of the Evidence Act. Thus, the finding given

in the former judgment results in estoppel or res judicata against the

prosecution in later trial. It is made clear that res judicata or estoppel

is qua the said seizure panchanama and it does not bar the later trial.

The prosecution is precluded from receiving the said document in

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evidence. Thus, such evidence is to be stopped at the threshold so

that the finding of the former Court is not disturbed. In support of

this, I rely on the judgment of the Supreme Court in the case of

Pritam Singh (supra). The Supreme Court in the said case has

reproduced the observations of Lord MacDermott in the case of

Sambasivam vs. Public Prosecutor, Federal of Malaya, 1950 A.C.

458(A) which is thus:

"The effect of a verdict of acquittal pronounced by a competent

Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added

that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the

appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was

bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial".

7. In the case of Manipur Administration, Manipur (supra), the

principle underlying the decision in Pritam Singh's case (supra)

came up for consideration before the Supreme Court and so also on

several occasions but it was never dissented from and confirmed.

8. In the case of Ashwani Kumar (supra), the Supreme Court

has relied on the judgment in the case of Sangeetaben

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Mahendrabhai Patel vs. State of Gujarat 4. The finding given by the

Supreme Court in Sangeetaben Mahendrabhai Patel (supra) is

reproduced in the judgment of Ashwani Kumar (supra), which is

exactly on the point thus:

"20. ...

23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the

accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and

conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a

different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific

finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is

designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue..."

9. In view of the above, Rule is made absolute in terms of prayer

clause (a) and (b) in Writ Petition No.1412 of 2002 and in terms of

prayer clause (b) in Writ Petition No.1452 of 2002.

10. Both the Writ Petitions are disposed of accordingly.

4 (2012) 7 SCC 621

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11. As the matter is old, the learned Special Judge, NDPS Court, is

hereby directed to proceed with the matter after giving notice to the

concerned parties and expedite the matter, preferably on or before

30th May, 2017.

(MRS.MRIDULA BHATKAR, J.)