Bombay High Court
Subodh Levi, Presently In Custody At ... vs State, Thr. Police Inspector, Anti ... on 7 October, 2024
2024:BHC-GOA:1695 CRIA 20 OF 2022.ODT
2024:BHC-GOA:1695
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 20 OF 2022
WITH
CRIMINAL MISC. APPLICATION NO. 223 OF 2023 (F)
IN
CRIMINAL APPEAL NO. 20 OF 2022
Mr. Subodh Levi, s/o Sambarbhushanam
Levi, age 21 years, labour work, n/o
Trilanga, Bhopal, Madhya Pradesh, convict
prisoner, presently in custody at Modern
Central Jail at Colvale, Bardez, Goa. ... Appellant
Versus
1. State, (Through Police Inspector, Anti
Narcotic Police Station, Panaji, Goa).
2. The Public Prosecutor, High Court of
Bombay at Goa, Porvorim, Goa. ... Respondents
*****
Mr. Pavithran A.V., Advocate under the Legal Aid Scheme
for the Appellant.
Mr. Pravin Faldessai, Additional Public Prosecutor for the
Respondents.
CORAM: BHARAT P. DESHPANDE, J.
RESERVED ON: 19th SEPTEMBER 2024
PRONOUNCED ON: 7th OCTOBER 2024
JUDGMENT:
1. The Appeal was admitted on 24.03.2023 and thereafter,
Record & Proceedings were called and on furnishing a paperbook,
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the matter was taken up for final disposal since the Accused is in
custody.
2. Heard Mr. Pavithran who is appearing on legal aid basis for
the Appellant and Mr. Pravin Faldessai, learned Additional Public
Prosecutor for the State.
3. The Appellant has challenged the conviction and sentence
passed by the learned Special Court vide judgment and order
dated 13.10.2021, thereby holding the Appellant guilty for the
offence punishable under Section 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 [NDPS Act, for short] and
accordingly, sentencing him to undergo rigorous imprisonment
for a period of ten years and to pay a fine of Rs.1 lakh and in
default to suffer imprisonment for a period of one year.
4. The challenge to the impugned judgment is raised on three
points as under:
(a) That there is non-compliance of Section 50 of the
NDPS Act;
(b) That there is non-compliance of Section 52-A of
the NDPS Act and
(c) That the possibility of tampering with the
contraband is evident.
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5. The points for determination are as under together with my
findings against it.
Points for determination Findings
(I) Whether the Raiding Officer complied
with Section 50 of the NDPS Act before
searching the Accused ?
(II) Whether the Incharge of the Police
Station complied with Section 52-A of
the NDPS Act on receipt of the
In the
contraband from the Raiding Officer ?
Affirmative
(III) Whether the prosecution proved that the
contraband sealed at the spot, is the
same which was forwarded to the
Laboratory and was found to be the
narcotic substance ?
SUBMISSIONS OF APPELLANT:
6. Mr. Pavithran in his elaborate submissions would submit
that there is a clear breach of Section 50 of the NDPS Act as the
Accused was not informed about his right to be searched before
the Gazetted Officer or the Magistrate. He would submit that the
Pancha nowhere disclosed the actual words spoken by the Raiding
Officer in Hindi, while informing the Accused of his actual right,
as what the Raiding Officer deposed in his evidence. According to
Mr. Pavithran, this is a major discrepancy and non-compliance of
the provisions.
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7. Mr. Pavithran would then submit that there is a clear
discrepancy in the evidence of the Raiding Officer and that of the
Pancha witness as the only independent witness failed to support
the contentions of the Raiding Officer about compliance with
Section 50 of the NDPS Act.
8. Mr. Pavithran would submit that there is serious doubt
about the exact procedure followed by the Raiding Officer at the
spot and more particularly, the weight of the substance as a small
piece was taken out of the paper sheet for the purpose of testing
and the only Pancha witness is clearly deviating from such
material. He would submit that the panchanama would clearly go
to show that the weight of the substance was told to the Pancha
witness by the Raiding Officer. According to Mr. Pavithran, this
would clearly mean that the Pancha did not personally verify the
weight of the substance. He would further submit that such a fact
is clear from the deposition of the Pancha and the Raiding Officer
and further, the CFSL report is totally silent about the weight.
9. Mr. Pavithran would therefore submit that the prosecution
has miserably failed to prove the weight of the narcotic substance
and thus, it cannot be proved that the Accused was in possession
of the commercial quantity.
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10. Mr. Pavithran would then submit that the witnesses and
more specifically, the Expert who has given the report certifying
that the entire paper sheet contains LSD was found intact, which
would clearly demonstrate that no test was conducted at the spot
by removing the corner piece of the paper sheet.
11. Mr. Pavithran on these lines would submit that if the
witnesses are believed, the paper sheet which was forwarded to the
CFSL was intact on all sides. Whereas the panchanama shows that
a small piece of the paper sheet was removed for testing at the
spot, prove that the paper sheet which was allegedly found with
the Accused was not the same which was forwarded to the CFSL
and thus, it amounts to tampering.
12. Mr. Pavithran would then submit that the Raiding Officer
was duty bound to deposit the sealed envelope/packet containing
the contraband to the nearest Police station. He submits that the
Incharge of the nearest Police Station was therefore required to
follow the mandatory provisions of Section 52-A of the NDPS Act,
which is clearly absent in the present matter.
13. Mr. Pavithran would then submit that the sealed packet
containing alleged contraband was handed over to the Incharge of
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the ANC Police Station, Panaji, who failed to follow the procedure
under Section 52-A of the NDPS Act and thus, the conviction and
sentence awarded by the Courts below stands vitiated.
14. Mr. Pavithran would then submit that there is an inordinate
delay in sending the sealed packet/envelope from the office of the
Incharge of the ANC Police Station, Panaji to the CFSL which is
clear from the record as the envelope was received after seven
days. According to Mr. Pavithran, the envelope containing the
contraband is required to be despatched within 72 hours and since
there is a violation of the above procedure, the possibility of
tampering in between cannot be ruled out.
15. Mr. Pavithran would then submit that there is serious doubt
with regard to the handing over of the seal used by the Raiding
Officer for sealing the envelope and thus, the entire raid
performed by the Raiding Officer becomes doubtful. He submits
that this also suggests that there was a possibility of tampering
with the envelope and finally, the contraband and therefore,
according to him, the benefit must go to the Accused.
16. Finally, Mr. Pavithran would submit that there is a breach of
Sections 50 and 52-A of the NDPS Act and the evidence brought
on record would clearly create serious doubt in the entire raid and
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the procedure followed by the Raiding Officer and therefore, the
Accused needs to be granted the benefit of it. A written
submissions on all above grounds is also filed.
17. Mr. Pavithran placed reliance on the following decisions:
(i) State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172;
(ii) Vijaysinh Chandubha Jadeja Vs. State of Gujarat,
(2011) 1 SCC 609;
(iii) State of Rajasthan Vs. Parmanand & Another,
(2014) 5 SCC 345;
(iv) Union of India Vs. Mohanlal & Another, (2016) 3
SCC 379;
(v) Mohan Lal Vs. State of Punjab, (2018) 17 SCC 627;
(vi) Simarnjit Singh Vs. State of Punjab, 2023 SCC
OnLine SC 906 and
(vii) Ranjan Kumar Chadha Vs. State of Himachal
Pradesh, 2023 SCC OnLine SC 1262.
SUBMISSIONS OF RESPONDENTS/STATE:
18. Per contra, Mr. Faldessai would submit that there is strict
compliance of Section 50 of the NDPS Act, which has been
established through the prosecution witnesses including the
independent Pancha witness. He would submit that one or two
sentences in the cross-examination cannot be picked to disbelieve
the otherwise consistent evidence. He submits that the
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panchanama as well as the deposition of the Raiding Officer and
the raiding party Members consistently show that the
conversation between the Raiding Officer and the Accused was in
Hindi. Even the offer under Section 50 of the NDPS Act was given
in Hindi, which the Raiding Officer has confirmed in specific
words in cross-examination. He would then submit that though
the panchanama is written in English as per the normal procedure
adopted by the Goa Police, the offer was given to the Accused in
the language which he understands and thus, there is full
compliance with Section 50 of the NDPS Act.
19. Mr. Faldessai would submit that the contention of the
Appellant that there is non-compliance of Section 52-A of the said
Act is clearly incorrect. According to Mr. Faldessai, the entire
contraband was forwarded to the CFSL through the Scientific
Assistant with utmost despatch. There is no evidence about
tempering even brought on record during the cross-examination
and the evidence of the Scientific Assistant and that of the Expert
from the CFSL would fortify it.
20. Mr. Faldessai would submit that the weight of the substance
was recorded at the spot itself and that too in the presence of the
Pancha and the raiding party Members, who witnessed such
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exercise. He would further submit that non-recording of the
weight of the substance at the Laboratory would therefore not be
detrimental to the case of the prosecution.
21. Mr. Faldessai would submit that a small piece i.e. a piece of
approximately a tip of the matchstick was removed for the purpose
of testing the contraband at the spot and such piece after testing
was thrown on the ground, which is clearly deposed by the Raiding
Officer. He submits that the Accused is trying to take advantage of
the statement of the Expert that the paper sheet was intact.
According to Mr. Faldessai, the question was asked in a different
context since the paper sheet contained 30 square-shaped
portions and when the Expert says that the paper sheet was intact,
it cannot be stretched to such an extent that a small part or
portion of it was not torned. He submits that the word "intact" was
used in a different context altogether.
22. Mr. Faldessai would submit that the possibility of tampering
with the contraband is clearly ruled out since the Expert as well as
the Scientific Assistant who are independent from the concerned
Police Station supported the case of the prosecution.
23. Mr. Faldessai would submit that the Accused is trying to
create confusion with regard to the number of square-shaped
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paper sheets and the paper sheet which is actually found to be only
one paper sheet containing 30 square-shaped pieces.
24. Mr. Faldessai would submit that the sealed packet
containing the contraband was immediately despatched from the
ANC Police Station and therefore, the Raiding Officer as well as
the Incharge of the Police Station complied with the guidelines
referred to by the Accused. It is submitted that as far as
compliance with Section 52-A of the NDPS Act is concerned, Mr.
Faldessai would submit that since the entire contraband consisting
of one paper sheet weighing 0.4 grams was forwarded to the CFSL
for testing, there was no need for compliance of Section 52-A of
the NDPS Act. Even otherwise, Mr. Faldessai would submit that
this aspect has been considered by this Court in another decision
in the case of Roque @ Rocky Fernandes Vs. State &
Another [Criminal Appeal No. 5 of 2023 decided on 14.09.2023],
which would be squarely applicable to the facts of the present
matter.
25. Mr. Faldessai would submit that the seal used by the
Raiding Officer was allotted to the said Officer being the special
designated Officer attached to the ANC Police Station, Panaji. The
practice which is followed is that after conducting the raid, the seal
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used by the Raiding Officer is immediately forwarded to the higher
Officer and it remains with the Dy.S.P. till the contraband is
forwarded to the CFSL to avoid tampering which has been
followed in the present matter.
26. Mr. Faldessai would further submit that the evidence of the
raiding party Members including the only Pancha, is consistent on
all aspects including the weight of the substance, the description
and conducting of the test on the spot. He submits that even if the
weight of the substance is not recorded by the Scientific Assistant,
the evidence of the Raiding Officer along with the panchanama
would confirm that the substance was 0.4 grams. There is no
inconsistency, contradiction or omission to that effect in the entire
evidence. He specifically argued that there is no denial on the part
of the Accused about the weight recorded of the substance during
the raid.
27. As contended by Mr. Faldessai, as far as the statement of the
Raiding Officer is concerned that he is not fluent in Hindi, would
not mean that the Raiding Officer is unable to speak in Hindi.
28. After considering the above submissions as well as on
hearing both sides and on perusal of the entire record with the
able assistance of both the learned Counsel for the parties, it is
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necessary to disclose in a nutshell the case of the prosecution in
the chargesheet as well as in the charge.
FACTS AS PER CHARGESHEET:
29. On 18.08.2014 at around 23:00 hours, specific and reliable
information was received by PW-8, Sitakant Naik, the PSI
attached to the ANC Police Station, Panaji that one male person
aged between 40 to 45 years having a strong built, tall height, dark
complexion, wearing a blue colour T-shirt and blue colour half
pant, having french beard will be coming in red and black colour
Honda Dio scooter bearing registration No. GA-03-T-9455 to
deliver drugs between 02:00 to 02:30 hours on 19.08.2014, to his
prospective customers, near Holy Cross, besides Sacred Heart of
Jesus School, Anjuna, Bardez, Goa.
30. The Raiding Officer reduced such information in writing
and furnished a copy to the Dy.S.P., Chandrakant Salgaonkar
[PW-4]. Thereafter, he arranged two Pancha witnesses and formed
a raiding party consisting of a Constable, other Officers and the
P.I. and then proceeded to the spot. He carried along with him the
drug detection kit, emergency lights, kit box containing weighing,
packing and sealing material and the seal having the inscription
"Anti-Narcotic Cell, Panaji, Goa 7" with Ashoka Emblem.
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31. The raiding party along with the Pancha reached the spot
and concealed their presence at a nearby place. At around 02:10
hours, the Raiding Officer saw one person coming on a scooter
and on reaching the spot, he parked his scooter and was waiting
for someone. The identity of the said person was matching with
the information received through the sources. The raiding team
surrounded the said person and after introducing himself as the
Officer of the ANC, Police Station, Panaji informed the said person
about the purpose of the raid. The Raiding Officer thereafter,
apprised the said person of his right to search in the presence of
the Gazetted Officer or the Magistrate, if he so desires and on
receiving the answer in the negative, the Raiding Officer
conducted the personal search. During the personal search, the
Raiding Officer found in the front right-hand side pocket, one
transparent auto press polythene in turn containing one
perforated paper sheet. On opening the auto press polythene
sheet and on removing the perforated paper sheet, the Raiding
Officer found that it contained square shape pieces 30 in number
having a symbol of 'OM' in pink colour on each square piece. The
Raiding Officer then removed a small piece of one square paper
from the perforated sheet and tested it with the field testing kit
and found that it contained LSD, a psychotropic substance. The
Raiding Officer then weighed the paper sheet containing 30
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square-shaped pieces and found it to be weighing 0.4 grams. He
then placed the paper sheets containing the LSD in the auto press
polythene packed and then in a greenish colour envelope which
was then packed, sealed and signed. During the further search, no
other incriminating material was found. The envelope containing
the perforated paper sheet was marked as Exhibit-1 and the said
envelope was attached under the panchanama whereas the seal
used for sealing the said envelope was sent from the spot to the
Dy.S.P. The said person who was found in possession of the LSD
is the Accused who was informed that the said paper sheet
contains LSD, which is an offence under the NDPS Act.
32. After the raid was complete, the Raiding Officer along with
the raiding team returned to the ANC Police Station, Panaji. The
sealed envelope was then handed over to the Incharge of the ANC
Police Station, Panaji along with the seizure report and other
documents which were then entered in the muddemal register and
forwarded to the office of the Scientific Assistant who then
forwarded it to the Laboratory for examination. The report of the
CFSL confirmed that it was LSD, which is a banned narcotic
substance and since it weighs 0.4 grams, it comes within the
commercial quantity and is punishable under Section 22(c) of the
NDPS Act.
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33. The charge was explained to the Accused, upon which, he
pleaded not guilty and claimed to be tried. The prosecution in all
examined eight witnesses to prove the said charge. The statement
of the Accused under Section 313 of Cr.P.C. was then recorded
wherein the Accused denied the entire case of the prosecution and
finally claimed that he has been falsely implicated.
34. The learned Special Court after considering the entire
material on record found that the Accused is guilty of the offence
and accordingly, convicted the Accused, which is challenged in the
present proceedings.
FINDINGS:
POINT NO. (I):
35. Mr. Pavithran strenuously urged that there is non-
compliance with Section 50 of the NDPS Act and thus, the entire
raid and recovery stands vitiated. While elaborating on this
submission, he invited attention to the deposition of PW-5, PW-6,
PW-7 and PW-8 together with the panchanama at Exhibit-35.
According to Mr. Pavithran, the only independent witness is the
Pancha/PW-6. According to him, the said Pancha though
disclosed in examination in chief that the Accused was apprised of
his right, the cross-examination clearly shows that such appraisal
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was only with regard to the search to be taken in the presence of
the Magistrate/Nyayadhish.
36. Mr. Pavithran would submit that the other raiding party
Members did not disclose the exact words used by the Raiding
Officer in Hindi to apprise the Accused of his right under Section
50 of the NDPS Act. He submits that PW-8, the Raiding Officer
for the first time in the cross-examination disclosed the exact
words used by him in Hindi, which are not found recorded in the
panchanama and therefore, it is clear that no offer was given to the
Accused as contemplated under Section 50 of the NDPS Act. In
this respect, Mr. Pavithran placed reliance on the decision in the
case of Baldev Singh (supra), Vijaysinh Chandubha Jadeja
(supra), Parmanand (supra) and a recent decision in the case of
Ranjan Kumar Chadha (supra).
37. In the case of Baldev Singh (supra), the Constitutional
Bench while considering the provisions of Section 50 of the NDPS
Act observed in paragraph 24 that there is unanimity of judicial
pronouncements to the effect that it is an obligation of the
empowered officer and his duty before conducting the search of
the person of a suspect, on the basis of prior information, to
inform the suspect that he has the right to require his search being
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conducted in the presence of the Gazetted Officer or the
Magistrate and that the failure to so inform the suspect of his
right, would render the search illegal because the suspect would
not be able to avail of the protection which is inbuilt in Section 50.
If the concerned person requires, on being so informed by the
empowered Officer or otherwise, that his search be conducted in
the presence of the Gazetted Officer or the Magistrate, the
empowered Officer is obliged to do so and failure on his part to do
so would also render the search illegal and the conviction and
sentence of the Accused bad.
38. In paragraph 32, the Constitutional Bench though discussed
as to whether the provisions of Section 50 are mandatory or
directory, did not express any opinion but reminded the purpose
for which safeguards have been made and it is held that the
provisions of Section 50 of the NDPS Act implicitly make it
imperative and obligatory and cast a duty on the Investigating
Officer to ensure that search of the concerned person is conducted
in the manner prescribed by Section 50, by intimating to the said
person about the existence of his right and failure to do so may not
vitiate the trial as such, but since it would be considered as
inherent prejudice caused to the Accused, it would render his
conviction and sentence unsustainable.
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39. In the case of Vijaysinh Chandubha Jadeja (supra), the
Constitutional Bench discussed the provisions of Section 50 of the
NDPS Act mainly on the aspect of whether it is mandatory or
directory and the mode of giving such information i.e. orally or in
writing. It also discussed the issue of compliance with the
provisions of Section 50 of the NDPS Act.
40. The question which was referred to the Constitutional
Bench is whether Section 50 of the NDPS Act cast a duty on the
empowered Officer to "inform" the suspect of his right to search in
the presence of the Gazetted Officer or the Magistrate, if he so
desires or whether a mere enquiry by the said Officer as to
whether the suspect would like to be searched in the presence of a
Magistrate or a Gazetted Officer can be said to be due compliance
with the mandate of the said Section.
41. While considering the above referred question, the Apex
Court observed that the mandate of Section 50 is precise and clear,
i.e. if the person intended to be searched expresses to the
authorised Officer his desire to be taken to the nearest Gazetted
Officer or the Magistrate, he cannot be searched till the Gazetted
Officer or the Magistrate, directs the authorised Officer to do so.
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42. The conclusions drawn in the case of Baldev Singh (supra)
were discussed in paragraph 23 and thus, it is observed that the
case of Baldev Singh (supra) did not decide whether Section 50
of the NDPS Act is mandatory or directory, yet it was held that
provisions make it imperative for the empowered Officer to inform
about the existence of his right and failure to do so, may not vitiate
the trial, but would render the recovery of the illicit article suspect
and vitiate the conviction and sentence of the Accused, where the
conviction has been recorded only on the basis of the possession of
the illicit article, recovered from the person during a search
conducted in violation of the provisions of Section 50 of the NDPS
Act. The Apex Court then considered the insertion of sub-sections
(5) and (6) in Section 50 of the NDPS Act and in that regard, it
discussed the decision of another Constitutional Bench in the case
of Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539,
wherein it was observed that by insertion of sub-sections (5) and
(6) in Section 50, the mandate given in the case of Baldev Singh
(supra) is diluted, but the Court also opined that, it cannot be said
that by the said insertion, the protection or safeguards given to the
suspect have been taken away completely.
43. Finally, in paragraph 29, the Constitutional Bench in the
case of Vijaysinh Chandubha Jadeja (supra) observed thus:
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"29. In view of the foregoing discussion, we are of the
firm opinion that the object with which right under
Section 50(1) of the NDPS Act, by way of a safeguard,
has been conferred on the suspect, viz. to check the
misuse of power, to avoid harm to innocent persons
and to minimise the allegations of planting or foisting
of false cases by the law enforcement agencies, it would
be imperative on the part of the empowered officer to
apprise the person intended to be searched of his right
to be searched before a gazetted officer or a
Magistrate. We have no hesitation in holding that in so
far as the obligation of the authorised officer under
sub-section (1) of Section 50 of the NDPS Act is
concerned, it is mandatory and requires a strict
compliance. Failure to comply with the provision
would render the recovery of the illicit article suspect
and vitiate the conviction if the same is recorded only
on the basis of the recovery of the illicit article from the
person of the accused during such search. Thereafter,
the suspect may or may not choose to exercise the right
provided to him under the said provision."
44. The above observations would clearly go to show that the
provisions of Section 50(1) of the NDPS Act are mandatory in
nature and require strict compliance. Failure to comply with it
would render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of the
recovery of the illicit article from the person of the Accused during
such search.
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45. In the case of Parmanand (supra), the Apex Court
[Division Bench] considered the aspect of compliance under
Section 50 of the NDPS Act with regard to the personal search or
the search of a bag. In that matter, two suspects were found
allegedly possessing the contraband wherein the empowered
Officer informed both of them about their right under Section 50
of the NDPS Act. In such circumstances, the Apex Court observed
that a joint communication of right available under Section 50(1)
of the NDPS Act to the Accused would frustrate the very purport of
Section 50. The communication of the said right to the person
who is about to be searched is not an empty formality as it has a
specific purpose since most of the offences under the NDPS Act
carry stringent punishment requiring strict compliance of such
rights. These are the minimum safeguards available to the
Accused against the possibility of false involvement. The
communication of this right has to be clear, unambiguous and
individual. Each Accused must be made aware of the existence of
such a right. This right would be of little significance if the
beneficiary thereof is not able to exercise it for want of knowledge
about its existence. A joint communication of the right may not be
clear or unequivocal as it may create confusion. The Apex Court
further observed that the search of the bag carried by the said
person will not attract Section 50(1), however, if the bag carried by
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the suspect is searched along with the person, then Section 50(1)
of the NDPS Act would be imperative.
46. In the case of Ranjan Kumar Chadha (supra), the Apex
Court while dealing with the manner in which Section 50(1) of the
NDPS Act is required to be complied with, observed that such
compliance on the part of the empowered Officer could be by
apprising the suspect of his right by intimating him orally,
however, the response of the said suspect should be recorded in
writing. The Apex Court has proposed in paragraph 65 that
henceforth, the response of the suspect to the Officer under
Section 50(1) should be recorded in writing. Such observation is
clearly perspective in nature and would not be applicable to the
matter in hand.
47. As far as Section 50 is concerned, the learned Trial Court
has discussed the entire evidence on record and found that there is
strict compliance with Section 50(1) of the NDPS Act as the
empowered Officer has apprised the Accused about his right to
search in the presence of the Magistrate or a Gazetted Officer,
upon which, he declined the said offer.
48. On behalf of the Appellant, an attempt has been made to
deal with the case of the prosecution by arguing that the Hindi
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version uttered by the empowered Officer is not found recorded in
the panchanama. Secondly, it is tried to be claimed that since the
empowered Officer admitted that he is not well versed in Hindi,
there is non-compliance with the mandatory provisions. Thirdly,
it has been tried to claim that the only independent witness/
Pancha deviated during cross-examination and referred to the part
of the offer and utter of the words "the Magistrate/Nyayadhish"
and not the Gazetted Officer.
49. On perusal of the deposition of PW-6 to PW-8 and
panchanama of the search and seizure, it would be clear from the
examination in chief of the Pancha witness/PW-6 that the Raiding
Officer informed the Accused that he has the right to be searched
in the presence of the Gazetted Officer or the Magistrate and that
he has also a right to search the raiding party Members, which the
Accused declined. During cross-examination, PW-6 disclosed that
the Raiding Officer informed the Accused in the Hindi language
that his search could be taken before a Nyayadhish or the
Magistrate. Much stress is applied to the deposition of PW-6 and
on his cross-examination to point out that the only independent
witness did not support the case of the prosecution regarding
compliance with Section 50. However, the entire deposition of the
witness is required to be taken into account and only a few
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sentences or words cannot be picked or chosen to claim non-
compliance. PW-6 in clear terms deposed during the examination
in chief that the Accused was apprised of his right that his search
could be conducted in the presence of the Gazetted Officer or the
Magistrate. He also disclosed that the entire conversation between
the Raiding Officer and the Accused was in Hindi. Only because
during the cross-examination, he disclosed the words "Nyayadhish
and Magistrate", would not be considered as a dent in his
deposition or even contradiction/omission.
50. Admittedly, the panchanama is in English, which is a
normal practice followed in Goa. Though the Accused is a person
who understands Hindi, it is natural that compliance with Section
50(1) of the said Act is required to be carried out in the language
known to the Accused. Thus, informing him about his right in
Hindi, would not in any manner be considered as non-compliance,
specifically when PW-6 during cross-examination uttered the
words "Nyayadhish and Magistrate". It may sound to be similar,
however, during the examination in chief, the same witness has
disclosed the words used as a Gazetted Officer or the Magistrate.
No contradiction or omission is found recorded in the cross-
examination of PW-6. The possibility that as per the
understanding of PW-6, the Gazetted Officer in Hindi is called as
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Nyayadhish cannot be ruled out. Besides, the deposition of the
Raiding Officer/PW-8 is very precise and clear. During his
examination in chief, he clearly deposed that the Accused was
apprised of his right before conducting the search. During cross-
examination, he specifically uttered the Hindi words, which he
used to apprise the Accused of his right and at that time, he
disclosed to the Accused that he has the right to search in the
presence of a Nyayadhish or the Rajpatrit Adhikari [Gazetted
Officer]. The other raiding party Members in tandem supported
the case of the Raiding Officer with regard to compliance of
Section 50 of the NDPS Act.
51. The panchanama is recorded in English and all the
witnesses disclosed that the contents of the panchanama were
read over to the Accused in the language known to him, however,
he refused to sign it. This material would clearly go to show that
the Pancha witness along with the Raiding Officer signed the
panchanama at the spot. The statement recorded under Section
313 of Cr.P.C. would clearly go to show that all questions are
framed in English and the answers of the Accused are recorded in
English. The entire statement of the Accused under Section 313 of
Cr.P.C. shows that the Accused signed all the pages in English.
His answer to the final/last question shows that the raiding party
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took Rs.4,800/- from him and did not show it in the chargesheet.
The raiding party took his mobile phone, credit card and driving
license. He was arrested at a different spot and at that time, he
was not having any drugs with him.
52. It is nowhere recorded that the Accused is not conversant
with the English language. He did not step into the witness box
and also failed to file any written statement to claim his ignorance
of the entire raid. First of all, words such as Magistrate or
Gazetted Officer are common in other languages too and most of
the people are conversant and have knowledge of such Officers/
Authorities. Accordingly, the material which is placed on record
would go to show that there is full compliance with Section 50(1)
of the NDPS Act before conducting a search of the Accused. The
minor discrepancy which is found in the cross-examination of PW-
6, cannot wipe out the consistent and cogent evidence of the
Raiding Officer and other raiding party Members, which
corroborates with the panchanama, which is proved through PW-
6. Thus, the contention raised by Mr. Pavithran with regard to
non-compliance with Section 50(1) of the NDPS Act is of no
substance.
POINT NO. (II):
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53. It is the main contention of Mr. Pavithran that there is total
non-compliance of Section 52-A of the NDPS Act in the present
matter and therefore, the search and the recovery of the
contraband stands vitiated. In this respect, he placed reliance on
the case of Mohan Lal (supra) wherein the Apex Court discussed
the provisions of Section 52-A of the NDPS Act and finally,
observed that Section 52-A is mandatory and non-compliance of it
would suspect the recovery. The Apex Court also discussed about
the conflicting provisions and the standing order and observed
that such a sample has to be drawn as early as possible and
preferably within 72 hours from the time of recovery and the
samples should be forwarded to the Laboratory.
54. There is no quarrel with regard to the mandate laid down by
the Apex Court in the above decisions with regard to Section 52-A
of the NDPS Act. However, the case of Mohan Lal (supra)
basically deals with the disposal of the drugs and circulation of
such drugs which are seized and disposed of or destroyed. The
provisions of Section 52-A was inserted only for the purpose of
disposal of the drugs seized, by taking samples in the presence of
the Magistrate thereby giving evidentiary value to the sample
itself. The procedure to be followed for taking samples is also
provided therein, however, in the present matter, the contraband
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which is seized from the Accused is only one paper sheet
containing therein 30 square-shaped portions having a weight of
0.4 grams and containing suspected LSD. The entire contraband
was forwarded to the Laboratory for testing. In such
circumstances, it has to be kept in mind as to whether non-
compliance with Section 52-A would vitiate the recovery or would
make it suspect.
55. In the case of Roque @ Rocky Fernandes (supra),
similar submissions were made wherein this Court observed that
when the entire contraband which is found only to be 0.26 grams
is forwarded to the laboratory, the question of non-compliance
with Section 52-A would be of little importance. It is also observed
that the provisions of Section 52-A were inserted by way of the Act
of 1989 only with a view to dispose of the seized narcotic drugs
and psychotropic substances, which are considered as hazardous
in nature, vulnerable to theft, substitution and constraint of
proper storage place.
56. However, considering the size of the contraband, in the
present matter, i.e. 30 square-shaped pieces on one paper sheet
having 0.4 grams of weight, forwarded the entire contraband to
the Laboratory, for the purpose of examination, cannot be
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considered as non-compliance of Section 52-A of the NDPS Act. It
was feasible to forward the entire quantity of 0.4 grams to the
Laboratory for the purpose of testing instead of collecting the
sample. Thus, to my mind, the contention raised with regard to
non-compliance with Section 52-A of the NDPS Act would be of
little help to the Accused.
POINT NO. (III):
57. It is the main contention on the part of the Accused that the
weight of the contraband is not established and the report of the
Laboratory which confirmed the presence of LSD is silent on
weight.
58. Mr. Pavithran would submit that the weighing scale used by
the Officer did not have any certificate to show that it was properly
calibrated, marked and showing the correct weight. He submits
that the Pancha witness clearly stated in the panchanama that the
weight of the substance was carried out by the Raiding Officer and
then he informed him that the weight is 0.4 grams. He would
submit that an inference could be drawn that the Pancha did not
personally verify or have seen the actual weight of the substances.
He would then submit that it was incumbent upon the Expert to
carry out the weight since the Laboratory has scientific and
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calibrated weighing scales showing even the weight in milligrams.
Since the Expert did not carry out the weight and the Pancha is not
clear that he has seen the actual weight of the paper sheet there is
serious doubt about the weight of the substance. He submits that
the sentence depends upon the weight of the substance and in this
case, when the weight is not established, the Accused is entitled to
such benefit.
59. Mr. Faldessai, learned Additional Public Prosecutor would
submit that the deposition of PW-6, Pancha clearly shows that the
weight of the substance was carried out in his presence and thus,
there is even no denial to this aspect. He would further submit
that the panchanama though mentions that the weight is carried
out by the Raiding Officer and he then informed the Pancha about
the actual weight would not in any manner be construed that the
Pancha and the other raiding party Members did not witness the
carrying out of the weight and the figures mentioned on the
weighing scale. He submits that on each and every document, the
weight of the substance is mentioned as 0.4 grams and there is
absolutely no confusion about it.
60. PW-6, the Pancha witness in his examination in chief
claimed that the weight of the said substance was about 0.4 grams.
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This statement of the Pancha nowhere indicated that he did not
witness the weighing procedure or the weight disclosed on the
weighing scale. There is absolutely no omission or contradiction in
the entire deposition of PW-6 with regard to the weight of the
substance. The statement found in the panchanama that the
Raiding Officer weighed the paper and informed the Pancha that
the weight of the paper sheet is 0.4 grams was not put to the
witness even to contradict or to record any omission therein. The
evidence which is deposed by the witness in the Court has to be
taken on its face value. The contents of the panchanama are only
for the purpose of contradicting or corroborating. When there is
no contradiction or omission recorded with regard to the weight of
the contraband in the entire deposition of the Pancha witness and
that of the Raiding Officer, the contention on behalf of the
Accused regarding the weight of the substance cannot be accepted.
61. The other contention which has been raised is with regard to
the seal used by the Raiding Officer for sealing the contraband.
The Raiding Officer/PW-8 was attached to the ANC Police Station,
Panaji, which is the Police Station having jurisdiction over the
entire State of Goa as far as narcotic and psychotropic substances
are concerned. It is called as Anti Narcotic Cell, Panaji Police
Station. It is a matter of record that the seal has a specific number
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and is allotted to the Officer empowered to conduct raids. The
practice followed since long is that after sealing the contraband at
the spot, the seal used by the Raiding Officer along with the
covering letter and impression of the seal is despatched through
the messenger and handed over to the Dy.S.P. of the ANC Police
Station, Panaji for safe custody. The seal remains in the custody of
the Dy.S.P. who maintains a register to that effect. Such seal is
returned to the Raiding Officer only after the contraband seized by
him is despatched to the Laboratory for examination.
62. In the present matter, the Dy.S.P., who received the seal
immediately after the raid, is examined as PW-4 before the Trial
Court. He deposed that apart from receiving the information, he
received the seal through PSI, Therron D'Costa [PW-5], who was
one of the raiding party Members. PW-4 then kept the seal with
him and made an entry in the seal movement register, which is
produced during deposition.
63. The contention of Mr. Pavithran is that there is no record of
handing over the seal to the Raiding Officer prior to conducting
the raid is of no substance since practice is followed to hand over
the seal only after conducting the raid. In this case, the seal
bearing No. 7 was used and the same was handed over to PW-4,
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Dy.S.P. immediately after the raid was complete and it remains
with him till the contraband was despatched and seized for the
purpose of sending it to the CFSL Laboratory. Thus, there is no
discrepancy or any illegality with respect to the use of the seal and
handing over it to the concerned Authority.
64. The other aspect is with regard to the paper sheet containing
30 square-shaped pieces. It has been tried to point out that at
some places, it is recorded that three sheets and 40 square-shaped
pieces were recovered and accordingly, there is tampering as
alleged. However, on careful perusal of the deposition of various
witnesses including PW-1, the Scientific Assistant, there is a
consistent stand about recovery of only one paper sheet having 30
square-shaped pieces. There is an apparent and inadvertent
mistake in the deposition of PW-1 and more particularly, on pages
3 and 4, however, it is clear that it was only one paper sheet
containing 30 square-shaped pieces. The learned Trial Court has
also rightly appreciated this aspect and there is no need to disclose
it at length since there is absolutely no deviation or inconsistency
with this aspect. During trial, the paper sheet was verified as it was
found that one corner portion is found torn, corroborating the
case of Raiding Officer. This fact is considered by Trial Court in its
judgment.
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65. Mr. Pavithran would submit that there was delay in sending
the sealed envelope to the Laboratory and it was beyond 72 hours
and thus, there is clear apprehension of tampering with it.
However, the deposition of PW-2, Gauresh Mapari, the Scientific
Officer would clearly go to show that he received the forwarding
letter along with the notice and sealed envelope on 19.08.2014 at
12:45 p.m. from the P.I., ANC Police Station, which he
acknowledged and kept in his custody and thereafter, forwarded it
to the Director, CFSL, Hyderabad on 22.08.2014 through a special
messenger. The documents to that effect are placed on record.
66. This fact has been corroborated by PW-7, P.I., Suraj
Halarnkar, who was the Incharge of the ANC Police Station,
Panaji. This witness has deposed that after the raid was over, he
received a sealed envelope from the Raiding Officer/PW-8 with a
request to keep the same in safe custody after recording the
necessary entry in the muddemal register. He forwarded the said
sealed envelope on the same day through a special messenger to
be handed over to PW-2, Scientific Officer having office at
Porvorim. The necessary documents are also placed on record
along with the muddemal property register and letter of handing
over of the sealed envelope. Thus, the contention that there was a
delay in handing over the sealed envelope is of no substance.
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67. Mr. Pavithran has placed reliance on the Field Officers'
Handbook with regard to the Drug Law Enforcement. However, it
is clear that these are the guidelines issued to the Police Officers
for the purpose of compliance of relevant provisions. Since in this
matter, the sealed envelope was despatched from the ANC Police
Station, Panaji on the same day, to be handed over to the Scientific
Assistant, which in turn was to be forwarded to the CFSL,
Hyderabad, there is substantial compliance of such guidelines.
68. The observations of the learned Trial Court, therefore,
cannot be faulted with as the prosecution has successfully proved
the guilt on the part of the Accused and that too beyond a
reasonable doubt. Accordingly, I answer Points (I), (II) and (III)
as observed above.
69. The Appeal therefore fails and stands dismissed.
70. Accordingly, Criminal Miscellaneous Application No. 223 of
2023 (F) stands disposed of.
BHARAT P. DESHPANDE, J.
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