Rajendra Kumar S/O. Shrem Kumar Vs. the State of Goa - Court Judgment

Excerpt:
indian penal code - section 120-b, section 380, section 409 - criminal procedure code - section 428 - narcotic drugs and psychotropic substances act 1985 – section 20(b)(ii)(c), section 50, section 52, section 55, section 57 - prevention of corruption act 1988 - section 7, section 8(c), section 11, section 12, section 28, section 29, section 30, section 31, section 59(b) - criminal appeal - special court sentenced accused and acquitted accused 1 primarily on the ground that the search of bag in which charas alleged have been found was carried by lady head constable who was not authorized to conduct search – no hesitation to accept that the substance seized from accused contained charas - difficult to believe that prosecution witness 3 who is a government servant would simply.....by this appeal, the appellant (hereinafter, referred to as “the accused”) takes exception to the judgment and order dated 22nd december, 2008, passed by the special judge, at mapusa in special criminal case no. 1/2008, convicting the accused for the offence punishable under section 20(b)(ii)(c) of the narcotic drugs and psychotropic substances act, 1985 (“the act” for short) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of rs.1,00,000/- (rupees one lakh only) and in default, to undergo further imprisonment for one year. the accused has been granted set off in respect of the period of detention in terms of section 428 cr.p.c. 2. the appellant was accused no.2 in special criminal case no. 1/2008 filed against two accused pursuant to a.....

Judgment:

By this appeal, the appellant (hereinafter, referred to as “the accused”) takes exception to the judgment and order dated 22nd December, 2008, passed by the Special Judge, at Mapusa in Special Criminal Case No. 1/2008, convicting the accused for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act” for short) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default, to undergo further imprisonment for one year. The accused has been granted set off in respect of the period of detention in terms of Section 428 Cr.P.C.

2. The appellant was accused No.2 in Special Criminal Case No. 1/2008 filed against two accused pursuant to a raid conducted by PW.7 Punaji Gawas, attached to the ANC Police Station, Panaji on the basis of a specific and reliable information received on 23.10.2007 that one lady and one man would be coming near Dipti's Bar and Restaurant, Vagator on the same day with charas. The raid was conducted, after recording the information received. The raiding party consisting of PW.7 Punaji Gawas, PW.5 Dina Mandrekar, PI Ashish Shirodkar and others along with panchas proceeded to the spot and at about 15.25 hrs. the raiding party noticed a lady and a man coming near Dipti's Bar and Restaurant. Suspecting that they were the same persons in respect of whom the information was received, the raiding party identified themselves and gave offers under Section 50 of the Act. Thereafter, the search of the bag found with the lady Jogmaya Budamagar (accused No.1) was conducted by the Lady Head Constable Kajal Patil and in the bag, 1.5 kgs. of substance, suspected to be charas, was found. The same was seized and sealed under a panchanama. Similarly, in the bag carried by accused No.2 (the appellant herein), black colour sticky substance, weighing 3.170 kgs. suspected to be charas was found. The seizure was made after giving an offer to the accused under Section 50 of the Act. Both the accused were taken into custody and the articles seized were sealed on the spot. The seal which was used for sealing was sent through PW.5 Dina Mandrekar who went to the police station on motor cycle. Thereafter, the raiding party returned to the ANC Police Station, lodged the report and the muddemal articles were handed over to PW.6 Ashwini Dessai, Writer Head Constable, attached to the ANC Police Station. Intimation under Section 57 of the Act was sent by PW.7 Gawas to PW.5 Dy. S.P. Dinraj Govekar. The substances found with both the accused were sent for chemical analysis through PW.2 Gourish Mapari, Scientific Assistant, attached to the Office of CID, Crime Branch. The substances found in the two bags were examined by PW.1 Mahesh Kaisare, Senior Scientific Officer, Directorate of Food and Drugs Administration, Panaji, who upon conducting various tests on the substances, came to the conclusion that the substances found in possession of the accused were containing charas. After completion of the investigation, charge-sheet was filed against both the accused and separate charge was framed against each of the accused for being in possession of charas weighing 1.5 kgs. and 3.170 kgs. respectively.

3. Before the Special Court, the prosecution examined 7 witnesses, namely PW.1 Mahesh Kaisare, PW.2 Gourish Mapari, PW.3 Pramod Shinde, Panch witness, PW.4 Dy.S.P. Dinraj Govekar, PW.5 Dina Mandrekar, PW.6 Ashwini Dessai, and PW.7 Punaji Gawas. The defence of both the accused was of denial simpliciter. The accused did not lead any evidence. The learned Special Judge, upon appreciation of the evidence, held the accused guilty of the offence punishable under Section 20(b)(ii)(C) of the Act and sentenced him as above and acquitted accused No.1 primarily on the ground that the search of the bag in which charas alleged to have been found was carried out by the Lady Head Constable Kajal Patil who was not authorized under the Act to conduct the search. Her acquittal has not been challenged by the State and, as such, has become final.

4. The learned Special Judge held that the evidence of PW.3 Pramod Shinde Pancha witness was corroborated by the evidence of PW.7 Punaji Gawas on material aspects, more particularly in so far as seizure of 3.170 kgs. of charas is concerned and the same was also corroborated by the evidence of PW.4 Dinraj Govekar, PW.5 Dina Mandrekar and PW.6 Ashwini Dessai. The Special Judge held that the evidence of PW.1 and PW.2 clearly established that the seized substance which was sent for analysis with the seals intact was containing charas.

5. Mr. Rodrigues, learned Counsel appearing for the accused submitted that the evidence of the prosecution is tainted and full of infirmities and, therefore, the conviction of the accused is unsustainable in law. According to learned Counsel, four of the raiding party members, namely PI Ashish Shirodkar, PC Sandip Parab, PC Saish Pokle and PSI Punaji Gawas have been chargesheeted in Crime No. 16/2010, registered with State CID, Crime Branch, Dona Paula, for the offences punishable under Sections 380, 409, 120-B IPC, read with Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988 and Section 8(c), read with Sections 28, 29, 30, 31 and 59(b) of the Act and as such, no reliance can be placed on the testimonies of the two police officials, namely PW.7 Punaji Gawas and PW.5 Dina Mandrekar, who have been examined in the present case. According to the learned Counsel, since PW.7 Punaji Gawas, who according to the prosecution conducted the raid, is an accused, no reliance can be placed upon the evidence led by the prosecution and the possibility of false implication of the accused cannot be ruled out.

Mr. Rodrigues further submitted that the station diary entry (Exhibit 40) clearly falsifies the prosecution case inasmuch as the same shows that the muddemal property was received by PW.6 Ashwini Dessai at 19.15 hrs. from PW.7 Punaji Gawas and the raiding party, including PW.7 reached the Police Station at 20.00 hrs.. In view of this position, the manipulation in the record is clearly made out and, therefore, it is difficult to place reliance upon the prosecution case and the false implication of the accused cannot be ruled out.

Mr. Rodrigues further submitted that the document produced by PW.6 Ashwini Dessai at Exhibit 30 shows that the muddemal property was received at 19.15 hrs., and entry to that effect was effected in Exhibit 31 at page No.137 and both the exhibits 30 and 31 bear Crime No.12/2007. He submitted that since the muddemal is claimed to have been received prior to the raiding party reaching to the police station, serious doubt is created about the raid and the truthfulness of the prosecution case.

The evidence of PW.7 Punaji Gawas discloses that the letter addressed to the Director, FDA was typed at the spot; whereas perusal of the exhibit discloses that it was prepared at the ANC Police Station and not on the spot. Therefore, it is evident that Exhibit-8 was prepared at the police station and not at the spot, which raises serious doubt about the prosecution case and the possibility of tampering with the muddemal property cannot be ruled out.

The prosecution is guilty of non-examination of material witnesses, namely PI Ashish Shirodkar and the Lady Head Constable Kajal Patil and no explanation is forthcoming for their non-examination. As such, adverse inference has to be drawn against the prosecution for non-examination of the material witnesses.

MrRodrigues further submitted that the prosecution evidence itself discloses that Sections 52, 55 and 57 of the Act were not complied with. Though all these three sections individually are held to be directory, however, having regard to the fact that the prosecution has not complied with the provisions of these three sections, it raises a doubt about the prosecution case and, therefore, the accused is entitled to be acquitted of the offence for which he has been convicted. In support of this submission, Mr. Rodrigues has relied upon a judgment of the Apex Court in the case of GurbaxSingh vs. State of Haryana, AIR 2001 SC 1002 and Mohammad Salim Bashir Shaikh vs. State of Maharashtra, 2004 ALL MR (Cri) 53.

Mr. Rodrigues, lastly submitted that the evidence led by the prosecution raises serious doubt about the truthfulness of the raid conducted by the raiding party and the seizure of 3.170 kgs. of charas from the accused. As such, the conviction and sentence imposed on the accused are liable to be set aside and the accused acquitted of the said offence.

6. Per contra, Mr. Rivonkar, learned Public Prosecutor supported the impugned judgment and order and submitted that the evidence of panch witness PW.3 Pramod Shinde is fully corroborated by the evidence of PW.7 Punaji Gawas and the prosecution evidence clearly establishes the offence punishable under Section 20(b)(ii)(C) of the Act against the accused beyond reasonable doubt. According to the learned P.P., the raid was properly conducted and the accused was informed about his right to be searched and, therefore, no interference is warranted with the impugned judgment and order of conviction. Mr. Rivonkar also placed reliance upon the judgment of the Apex Court in the case of GurbaxSingh (supra), and in the case of BalbirKaur vs. State of Punjab (2009) 15 SCC 795.

7. I have carefully considered the rival submissions, perused the record and the judgments relied upon.

8. In order to appreciate the rival contentions, it would be necessary to deal with the prosecution evidence. Firstly, I would deal with the evidence of panch witness PW.3 Pramod Shinde, who at the relevant time was working as U.D.C. in Electricity Department, at Panaji. His evidence discloses that on 23.10.2007, he was asked by his superior officer to report at ANC Police Station, Panaji. He has identified the signature of his superior officer Shri Chodankar on the letter at point “A”. His evidence further discloses that he went with his colleague in the Department by name Krishna Karapurkar to ANC Police Station at around 14.30 hrs. and met PSI Punaji Gawas at the Police Station who informed him that he had received a specific and reliable information that one Nepali lady about 35 to 40 years old, with thin and fair complexion and a boy around 25 to 30 years would be coming near the Dipti's Bar and Restaurant at Anjuna at around 15.30 hrs. for supply of drugs to a customer. He also informed him that the said information was forwarded, in writing, to the Dy. S.P. and both of them should act as witnesses for conducting the raid. Accordingly, the raiding party consisting of PSI Gawas, PI Ashish Shirodkar, Lady Head Constable Patil, PC Sandeep Parab, Mandrekar, Pokle and Naik, all of ANC Police Station, left the police station with a kit box, containing weighing, packing and sealing material. PSI Gawas carried with him the seal bearing impression “Anti Narcotic Cell, Panaji Goa 4” with Ashoka emblem. One Constable carried the typewriter. They reached Dipti's Bar and Restaurant at Anjuna, at around 15.15 hrs. and the vehicle was parked around 100 metres away. The driver remained in the jeep and they all proceeded to Dipti's Bar and Restaurant. Four persons remained on one side of the road; whereas remaining waited towards the other side of the road. At about 13.26 hours, one lady and one boy were seen coming towards Dipti's Bar from Mapusa-Shapora road, on foot. PSI Gawas told the raiding party members that the description of the said persons was found matching with the information received by him. The lady was having one bag on her left shoulders, whereas the boy was carrying nylon bag in his right hand. The raiding party surrounded the said two persons. Thereafter, PSI Gawas introduced himself and asked them their names, whereupon the lady disclosed her name as Jogmaya, whereas the boy disclosed his name as Rajendra. The witness identified the lady (accused No.1) and the boy (accused No.2) as the persons who were found with the bags. Thereafter, PSI gave offers to search both the accused separately. Accused No.1 was told that her search would be taken by the Lady Head Constable. Both the accused were also given offers to search the members of the raiding party before conducting their search. However, both of them declined. Raiding party members and the panchas were introduced to the accused when they were surrounded. Search of the bag found with accused No.1 was conducted by the Lady Head Constable Kajal Patil and in the said bag of accused No.1, one mobile hand set and 16 auto pressed polythene packets containing blackish colour pieces of substance were found. Patil handed over the same to PSI Gawas who after minutely verifying and smelling, disclosed that the substance contained charas. All the 16 polythene bags were then weighed together and found to be 1.5 kgs. All these packets were inserted in same brown colour bag in which the same were found and the said bag was wrapped in a cotton cloth, tied with jute thread and thereafter, a paper slip was pasted on it, disclosing the details and then it was sealed at seven places. The said paper slip showing the details was then signed by the panchas, the accused persons, as well as PSI Gawas. The said parcel was marked as Exhibit-1.

9. Thereafter, PSI Gawas conducted the search of the nylon bag found with accused No.2. In the bag he found one plastic bag containing 36 auto pressed polythene packets, which were suspected to be charas on verification by PSI Gawas. The said 36 pieces were weighed together and were found to be 3.170 kgs. All these 36 pieces were inserted in the same polythene bag and kept in the nylon bag and thereafter, it was wrapped in cotton cloth, tied with jute string and a label disclosing details was affixed on it. Thereafter, it was sealed at seven places. The said label was signed and it was marked as Exhibit-2. During the personal search of accused No.2 one mobile of Nokia make was found in the shirt pocket and currency of Rs.100/-. Both were seized and cash amount was put in an envelope which was packed and sealed and signatures of the panchas were obtained, which was marked as Exhibit 3. Thereafter, offer was given to accused No.2 to conduct search of the raiding party, which was declined. Accused No.2 was taken into custody after informing that he was found in possession of charas, which was an offence under the NDPS Act. Weighing, packing and sealing of the property was carried out by PSI Gawas himself. Panchanama and the seizure report were prepared and copies were handed over to the accused persons under acknowledgment. One letter was prepared, addressed to the Director, FDA, Panaji and another letter regarding the seal and addressed to the Dy.S.P. was prepared and the seal along with the said letter were forwarded from the spot through PC Mandrekar who left the spot on the motorcycle. Thereafter, the raiding party along with both the accused, and the attached property, came back to the Police Station at about 18.30 hrs. The witness identified his signature at point “A”, that of other pancha and PSI Gawas at points “B” and “C” respectively and that of accused No.2 at point “D”. The sealed cloth parcel was opened in the presence of the witness, and he identified his signature at point “C” on the paper slip on both sides and also the substance found inside the bag. He also identified his signature on the envelope Exhibit-3 at point “A”. The same was opened in the presence of the witness and cash of Rs.500/- was identified by the witness. He also identified the identity card of accused No.1.

10. In cross examination, he stated that PSI Gawas was present when the letter was handed over to him in his office. Thereafter, he went with his colleague to the Police Station. The discussion between both the panchas and the PSI was only for about 10 minutes. He further stated that the contents of the kit box were not shown to them at the police station. The typewriter was carried by Saish Pokle. The accused persons were seen for the first time when they were around 20 to 25 metres away and both were coming together from one road. There was name board of Dipti Bar and Restaurant, which is a single storeyed building. The weighing scale was kept on the bonnet of the vehicle for weighing purpose. After the accused were surrounded and told about the raid, the jeep was brought to the spot by giving instructions to the driver. The witness stated that he did not recollect whether the letter addressed to the Dy.S.P. was typed or handwritten on the spot. He further stated that there were shops by the side of the said Dipti's Bar and Restaurant, but he did not know the type of shops available near the said Dipti Bar. He knew the names of the raiding party members on the basis of the introduction given by PSI Gawas. He denied the suggestion that he had acted as panch witness in other matters. The witness denied all the suggestions put on behalf of both the accused that the witness had neither been to the spot, nor any substance was found with either of the accused or that any panchanama, seizure report, etc., were written on the spot.

11. The evidence of panch witness is substantially corroborated by the evidence of PW.7 Punaji Gawas. He categorically deposed that on 23.10.2007, at 14.00 hrs. he received a specific and reliable information that one Nepali lady, aged about 45 to 50 years, wheatish complexion, strong built, wearing light green colour churidar and one male person aged about 25 to 30 years, fair complexion, medium built, having Nepali features would be coming near Dipti's Bar and Restaurant at Vagator to deliver drugs to their prospective customers on the same day between 15.00 to 15.30 hrs. He reduced the information in writing and forwarded a copy of the same to Dy.S.P. ANC Shri Govekar for his information, at his office. He identified the said letter along with the copy of the information forwarded to Dy.S.P., and also identified his signature on it at point “B”. He also identified the original information reduced in writing and the copy of forwarding letter together with his signature on it at point “A” and the endorsement of Dy.S.P. at point “B”. The original information and the copy of forwarding letter were admitted in evidence and marked Exhibit 34. He, thereafter, forwarded a request letter to the Chief Electrical Engineer for deputing two employees to act as panchas and he personally carried the said letter to the said office. The said letter is marked as Exhibit 35. Pursuant to the said letter, two employees by name Pramod Shinde PW.3 and Krishna Karapurkar working at Electricity Department were deputed and they reported at the police station. His further evidence is on similar lines as that of the panch witness PW.3. He has given all details about the search and seizure of the contraband from both the accused, offers given to the accused of their search in the presence of a gazetted officer, which were refused. He also identified all the muddemal articles. He categorically deposed that the sealing was done on the spot with the seal of Anti Narcotic Cell, Panaji-Goa and the same was sent through PC Dina Mandrekar, along with covering letter addressed to Dy.S.P. from the spot for safe custody. He further deposed that they left the spot and after reaching the Police Station, he handed over the attached property to Writer H.C. along with the covering letter. He identified his signature on the said note at Exhibit 30. Thereafter, he prepared the complaint against both the accused which was registered under Crime No.12/07. He identified his signature on the complaint Exhibit 36 at point “A”. Both the accused were shown formally arrested and arrest cards of the accused were forwarded to the concerned authority. He identified his signature at point 'A' on the arrest cards of the accused. Thereafter, intimation under Section 57 of the Act was forwarded to PW.4 Dy. S.P. Dinraj Govekar. He identified his signature at point 'A' on Exhibit 26. Thereafter, he recorded statements of the raiding party members and forwarded letter to PWD, Mapusa for preparing a sketch of the spot of offence which he identified as Exhibit 38. He received a letter from PWD along with the sketch which was admitted in evidence and marked as Exhibit 39. He, thereafter, deposed that he effected entries in the Station Diary while conducting the raid and the investigation. A copy of the station diary was compared with the original and the same was admitted in evidence and marked as Exhibit 40. The property was forwarded to the Laboratory by the Writer H.C. and upon receipt of the report confirming that the substances attached from the accused contained charas, the charge-sheet was filed. He identified the muddemal property which was seized during the raid from the accused persons.

In the cross examination, he denied that both the accused were not found at the place along with any contraband substance. He further deposed that typing of the letter was carried by PC Saish Pokle. He denied the suggestion that a false case was filed against both the accused or that the alleged contraband was not found with both the accused as deposed by him or that the false charge-sheet was filed against both of them. He also denied the suggestion that both the pancha witnesses were not present at the spot of raid as claimed by the witnesses.

12. PW.1 Mahesh Kaisare has deposed that he was working as a Senior Scientific Officer in the Directorate of Food and Drugs Administration, Panaji and on 24.10.2007, his office received from the Superintendent of Police, Crime Branch, CID, Panaji two sealed cloth parcels marked Exhibits I and II with covering letter and letter bearing the specimen seal impression which was acknowledged by him. He further deposed that both the parcels were individually tied with jute thread, both vertically and across and were bearing seven seals each. The seals were intact. The seals on both the parcels were of Anti Narcotic Cell, Panaji Goa 4 with Ashoka Emblem at the center. He carried out several tests on both the substances and opined that the substance analysed by him from both the parcels was containing charas. He identified his signature at point 'A' on the report Exhibit 9. Except for putting suggestions to this witness, nothing tangible has been brought on record to disbelieve his testimony and, therefore, I have no hesitation to accept that the substance which was seized from the accused and which was analysed by this witness contained charas.

13. PW.3 Gourish Mapari is a formal witness, who has deposed that he was working as Scientific Assistant in the Office of Superintendent of Police CID, Crime Branch, at the relevant time. His evidence discloses that on 24.10.2007 in the morning he received a letter from Lady H.C. of ANC Police Station addressed to S.P. CID, Crime and another letter from PSI, ANC, Police Station, in duplicate, bearing specimen seal of Anti Narcotic Cell, Panaji Goa-4, with Ashoka Emblem on both the copies and two sealed cloth parcels marked Exhibits I and II. He kept them in safe custody and handed over the same personally to the Director of Food and Drugs Administration, Goa, along with a letter under signature of S.P. Shri Borkar and obtained acknowledgment from the Director, FDA, Panaji. He identified the signature of Shri Borkar at point 'A' on Exhibit 7, as well as on the copy of it bearing the acknowledgment of the Director, FDA, at point 'B' which was admitted in evidence and marked Exhibit 14. He received a letter from the Director, FDA, Goa on 23.10.07 and he deputed one Constable to collect the balance quantity and he received both the sealed cloth parcels and kept them in safe custody. He identified both the parcels received from the ANC and the balance quantity parcels received from the Office of the Food and Drugs Administration, Panaji. On behalf of the accused, only suggestions have been put to this witness and nothing tangible has been brought on record and as such, the evidence of this witness has not been shaken.

14. PW.4 Dinraj Govekar who was working as Dy S.P. ANC, Panaji at the relevant time, was examined and he deposed that at about 14.10 hrs. on 23.10.07, he received information from PSI Punaji Gawas of ANC, Police Station, that he had received a specific and reliable information that one Nepali lady aged around 45 to 50 years, and one male person aged about 25 to 30 years, with fair complexion of medium built having Nepali features would be coming near Dipti's Bar and Restaurant, Vagator to deliver charas to the prospective customers between 15.00 hrs. to 15.30 hours. He accordingly acknowledged the said information and directed him to conduct raid. He identified the said forwarding letter and the copy of the information received by him at Exhibit 23. He identified his signature at point 'A' and that of PSI Gawas at point 'B'. He further deposed that on the same day at 19.00 hrs. he received the seal “Anti Narcotic Cell, Panaji-Goa 4” with Ashoka Emblem along with the seal forwarding note through PC Dina Mandrekar of ANC, Police Station. The seal was received in the office, which was acknowledged and kept in the safe custody. He identified the said letter of handing over of seal bearing his endorsement at point 'A' and that of PSI Gawas at point 'B' which was admitted in evidence and marked Exhibit 24. He effected entry in the seal movement register at sr. No.77 regarding the receipt of the seal and copy of the seal movement register, after comparing with the original, was produced on record and marked Exhibit 25. He further deposed that on the same day he received intimation under Section 57 of the Act from PSI Gawas, giving details of the raid conducted by him, which was acknowledged by him. He identified said information at Exhibit 25.

In his cross examination he stated that seven seals were allotted to ANC, Police Station, Panaji and the seals remained with the concerned officers and only after the raid, the seals were handed over to the Dy. S.P. for safe custody. He denied all the suggestions put to him on behalf of the accused.

15. PW.5 Dina Mandrekar who was part of the raiding party has also deposed about the raid conducted near Dipti's Bar and Restaurant and he has also denied the suggestions put to him in cross examination on behalf of both the accused.

16. The evidence of PW.6 Ashwini Dessai discloses that at the relevant time she was working as Lady Head Constable and on 23.10.2007, she received the property from PSI Gawas in ANC Crime No.12/07. She gave description of the muddemal property received by her, including the contraband seized from both the accused. She further deposed that she received one covering letter from PSI Gawas while handing over the said property and she put endorsement on the same containing her signature and time of receipt i.e. 19.15 hrs.. She identified the note of handing over of the property, which was admitted in evidence and marked Exhibit 30. She made entries in the muddemal property register on the same day in her handwriting. She further deposed that she kept the muddemal property in safe custody and on the next day she dispatched Exhibits I and II, through PC Abhay Palyekar, to be handed over to the Scientific Assistant and the entry was made to that effect. The balance quantity was received with report on 22.2.2008 and accordingly made entry in Column No.9. The copy of the muddemal property register was compared with the original and the copy of the same tendered in evidence was marked Exhibit 31.Thereafter, the muddemal property was forwarded to the Court along with the charge-sheet on 27.3.2008. The witness identified her notings in red ink on all the MOs in the Court. She stated that at the time of handing over of the muddemal property, PSI Gawas also handed over to her the letter addressed to the Director, FDA and also the letter addressed to SP, CID, Crime Branch. The letter addressed to SP, CID, Crime Branch was signed by her, whereas the other letter was signed by PSI Gawas. The letter addressed to SP, CID was prepared by her at the Police Station. She denied all the suggestions put to her on behalf of the accused.

17. From a close scrutiny of the evidence led by the prosecution, what emerges is that the evidence of PW.3 Pramod Shinde panch witness is substantially corroborated by PW.7 Punaji Gawas, who had received a specific and reliable information that two persons, one male and a female would be coming near Dipti's Bar and Restaurant at Vagator with charas for delivering the same to the prospective customers. The evidence of PW.3 Pramod Shinde who is a Government Servant has not been shaken on material particulars in the cross examination conducted on behalf of the accused. There is absolutely no reason why PW.3 Shinde should falsely implicate the accused and that too in an offence under the NDPS Act, which is a serious offence. It is very difficult to believe that PW.3 Shinde who is a Government Servant would simply depose about the details of the raid conducted, in which he acted as a panch witness upon directions given by his superior officer. His evidence on material aspects, and more particularly regarding the recovery of 3.170 kgs. charas from the bag which was in possession of the accused, has absolutely not been shaken in the cross examination and finds corroboration from PW.5 and PW.7. No doubt there are some variations in the testimonies of PW.3 and PW.7, but it is well settled that two witnesses in a criminal case are not expected to depose exactly in the similar lines inasmuch as the power to assimilate the things which have occurred in the past, differs from a person to person. Moreover, PW.3 Pramod Shinde was a panch witness who visited the site only to witness the raid and deposed after about nine months. As such, it cannot be expected of him to give all the minute details regarding the location of the area, nature of shops around Dipti's Bar and Restaurant etc.. But the evidence of PW.3 has a ring of truth and, therefore, I have no hesitation to accept his evidence on material aspects which is corroborated by the evidence of PW.7 Punaji Gawas and PW.5 Dina Mandrekar.

18. Coming to the submission made on behalf of the accused that the evidence of PW.7 and PW.5 should not be accepted inasmuch as an FIR has been registered against them with the State CID, Crime Branch for various offences. The same is difficult to be accepted. Admittedly, the FIR has been registered much after the raid was conducted. Simply on the ground that subsequently FIR has been registered against PW.5 and PW.7, I find it extremely difficult to accept the submission of Mr. Rodrigues that their testimonies deserve to be rejected totally, on this count alone. Moreover, as stated above, the evidence of these two witnesses corroborate the version of PW.3 Pramod Shinde who, as stated above, had no axe to grind against the accused. Therefore, it is difficult to accept that PW.3 Pramod Shinde, in connivance with PW.7 Punaji Gawas would foist a false case on the accused, more particularly having regard to the fact that he has deposed about all the details of the raid conducted by the raiding party in which he was present along with his colleague Krishna Karapurkar. Moreover, his evidence stands corroborated by documentary evidence inasmuch as he has identified his signature on several documents, including the label on the parcel in which charas found with the accused which was sealed. It is difficult to accept that PW.3 who is a Government Servant would simply affix his signature on the label and other documents at the instance of PSI Punaji Gawas. Nothing has been brought on record as to why PW.3 would oblige PW.7 Punaji Gawas and falsely implicate the accused.

19. In so far as the submission made on behalf of the accused that adverse inference has to be drawn for non-examination of PI Ashish Shirodkar and the Lady H.C. Kajal Patil, is concerned, I find it difficult to accept the same. No doubt, it would have been prudent for the investigating agency to examine PI Ashish Shirodkar, who was holding higher rank than that of PSI Punaji Gawas. But the fact remains that the information was received by PSI Gawas who had conducted the raid and PI Ashish Shirodkar had accompanied the raiding party. Non-examination of PI Ashish Shirodkar or for that matter any other police official accompanying the raiding party, would not be fatal to the prosecution case. What is to be seen is whether the evidence led by the prosecution is sufficient to establish the offence alleged against the accused and the evidence led by the prosecution has to be tested on the touchstone of probability. Therefore, in my view, non-examination of PI Ashish Shirodkar, would not be fatal to the prosecution case. In so far as the evidence of Kajal Patil, Lady Head Constable is concerned, her evidence would be more relevant in so far as the case against accused no.1 is concerned.

20. In so far as the submission made by Mr. Rodrigues that the station diary entry discloses that the muddemal property was received at the ANC Police Station at 19.15 hrs. and the raiding party arrived at the Police Station at 20.00 hrs. and, therefore, there is a clear manipulation in the record is concerned, I am of the opinion that the same is not fatal to the prosecution case. Firstly, no explanation is sought from PW.7 Punaji Gawas regarding the discrepancy and the mere fact that the muddemal property was first handed over and thereafter, the entry was made regarding the return of the raiding party, would be a mere irregularity and would not render the raid conducted much prior, illegal or doubtful. Therefore, in my view, the said irregularity is not such so as to create a doubt about the seizure of the contraband from the accused.

21. Similar is the case regarding Exhibit 8 which is a letter addressed to the Director, FDA which, according to PW.7 Punaji Gawas was typed on the spot after the search and seizure. No doubt, Exhibit 8 discloses that on the top it is written “ANC Police Station”. But this fact, by itself, would not be sufficient to throw doubt about the entire raid conducted by the raiding party in which contraband was seized. In so far as the argument advanced on the basis of the said exhibit that possibility of tampering cannot be ruled out is concerned, in my view, even a suggestion has not been put to PW.7 Punaji Gawas that there was tampering of the contraband seized from the accused.

22. Coming to non-compliance of the provisions of Sections 52, 55 and 57 of the Act is concerned, no doubt, the record discloses that the provisions of Sections 52 and 55 have not been complied with by the prosecution. However, the record discloses that Section 57 has been clearly complied with inasmuch as PW.7 Punaji Gawas and PW.4 Dy.S.P. Dinraj Govekar have categorically deposed about the same. PW.4 Dy.S.P. Govekar has even produced the intimation given by PW.7 Punaji Gawas under Section 57 of the Act which is at Exhibit 26.

23. The question, therefore, is whether non-compliance of Sections 52 and 55 of the Act is fatal to the prosecution case. In the case of GurbaxSingh (supra) relied upon by both sides, the Apex Court has held that the provisions of Sections 52 and 55 are directory and any violation thereof would not inspofacto violate the trial or conviction. In the said case, the Apex Court held that all the three sections were not only breached, but, in addition, the Apex Court held that there was no evidence to establish that the chemical analyser received the sample with proper intact seals, thereby creating doubt as to whether the same sample was sent to analysis. Further, the conduct of the panch witness was found to be unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O.. Moreover, the panch witness had stated that the muddemal seal used was wooden seal, whereas it was the say of the I.O. that it was a brass seal. In the light of all these contradictions, the Apex Court gave benefit of doubt to the accused after taking into consideration that the provisions of Sections 52, 55 and 57 of the Act were breached. As stated above, in the present case, the provision of Section 57 has not been breached. In my view, therefore, the breach of Sections 52 and 55 of the Act is not sufficient to create a doubt about the core of the prosecution case regarding recovery of 3.170 kgs. Charas from the possession of the accused.

24. In view of the clear ratio laid down by the Apex Court in the case of GurbaxSingh (supra), I am unable to place reliance upon the judgment delivered by the learned Single Judge of this Court in the case of Mohammad Salim Bashir Shaikh (supra), relied upon by the Mr. Rodrigues. Moreover, in the case of BalbirKaur (supra), the Apex Court held that the delay in sending the articles recovered from the accused was inconsequential since the recovery of the contraband from the possession of the accused stood proved by cogent and reliable evidence.

25. In view of the above discussion, in my view, the evidence led by the prosecution proves the offence punishable under Section 20(b)(ii)(C) of the Act beyond reasonable doubt against the accused. In my considered view, the discrepancies pointed out on behalf of the accused are not such so as to discredit the entire prosecution case regarding the seizure of 3.170 kgs. charas from the possession of the accused which has been established by cogent and reliable evidence led by the prosecution.

26. For the reasons aforesaid, the impugned judgment and order of conviction of the appellant-accused for the offence punishable under Section 20(b)(ii)(C) of the Act deserves no interference.

27. In so far as the sentence imposed on the accused is concerned, since the accused was found in possession of commercial quantity of charas, the sentence of 10 years R.I. which is the minimum sentence deserves no interference. However, in so far as in default sentence is concerned, although no argument has been advanced on behalf of the accused, in my view, the interest of justice would be served by reducing the same from one year to six months. In other words, in the event of failure to pay the fine amount of Rs.1,00,000/- (Rupees one lakh only), the accused shall undergo further imprisonment of six months' R.I. The accused shall be entitled to set off the period of detention in terms of Section 428 of Cr.P. Code.

28. In the result, therefore, the appeal is dismissed, except as to in default sentence as indicated above.