Guffran Mohammad Hasad Kasai Vs. State of Maharashtra - Court Judgment

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(a) narcotic drugs and psychotropic substances act, 1985 - sections 43(b) and section 51 - criminal procedure code, 1973 - section 100(7) -'seizure of contraband - non-supply of copy of panchanama to accused - effect - omission has no fatal effect on trial.;as far as the facts of present case are concerned, even if a copy of the panchanama had not been given to the accused that such a situation would not create any serious legal anomaly which would be sufficient to affect the validity of the trial or to vitiate it.;(b) narcotic drugs and psychotropic substances act, 1985 - section 50 - search in presence of gazetted officer - accused voluntarily produced contraband - section 50 is not attracted.;the contraband having already been recovered, there could be no question of invoking the provisions of section 50 of the n.d.p.s. act.;(c) narcotic drugs and psychotropic substances act, 1985 - sections 21 and 27 - offence under - defence of self consumption - recovery of several 'pudis' - plea of self consumption negatived.;the fact that the contraband was divided into small quantities is indicative of the purpose for which the same had been so sub-divided. this, would support the prosecution case that the purpose was for selling and not for personal consumption. - - rathod being examined as a witness and the panchas being unreliable, that the court should outright reject the panchanama and if that goes that there is no nexus established between the seizure and the accused.saldanha, j. 1. the appellant before us, a resident of nagchhao zopadpatti at malegaon is alleged to have been involved in dealing with gard powder at about 17.35 hours on 31-5-1991. p.s.i. shaikh nisar (pw 4) received a certain information with regard to his activities pursuant to which he and two panchas mukhtar nijamuddin (pw 1) rafiq ahmed siraj ahmed (pw 2), after completing the requisite formalities, proceeded along with the raiding party to the spot in question. the accused was seen sitting under a tree and the police apprehended him. as many as nine pudis are alleged to have been recovered from him, and the panchanama that was drawn up indicates that the total quantity of the gard powder contained in these pudis worked out to approximately 1000 milligrams, which is apart from the weight of the paper-wrappings. we note with some degree of appreciation that the police officer concerned has followed a very correct procedure while ascertaining the weight of the contraband in this case in so far as even though the quantity of the powder in each pudi was extremely small, he has taken the trouble to collect the aggregate amount of the powder and weighed it separately so that the court would be aware of the exact amount of the contraband. we have noted in a large number of cases, particularly the ones where contraband is in relatively small quantity, that the investigating officers have committed the error of weighing the contraband along with the container. this has created some problem for the purposes of the court ascertaining as to how much the exact quantity was and, where it is extremely small, it has often-times been contended on behalf of the defence that if one were to notionally exclude the weight of the paper-wrappers, container, etc., that the contraband would come within the prescribed amount provided for by s. 27 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter referred to as 'the n.d.p.s. act'). this court has had occasion to also observe that where the offence is one of trafficking in drugs or drug-peddling that was of necessity, the drugs are divided into very small quantities for purposes of retail and thereby, because of the situation that we have referred to above, leniency is pleaded on the ground that the case is covered by section 27 of the n.d.p.s. act as far as the quantity is concerned. it was never the intention of the law to allow persons who are retailing or dealing in these dangerous drugs to get away on the ground that the quantities are comparatively small, with a light sentence or no sentence at all. under these circumstances, we note that this is one of the rare instances where a very correct procedure has been followed and it would be useful for the respective cells of the enforcing agency to specifically bring our observations to the notice of all those concerned with the enforcement of the ndps. act. 2. the prosecution alleges that apart from the quantity of 1000 milligrams of gard seized from the accused that an amount of rs. 52/- in cash was also recovered from his person. after the formalities were completed at the spot, such as the sealing of the packets containing the gard powder and the sealing of a separate packet containing the wrappers as also the panchanama, the police party thereafter returned to the police station and completed the remaining formalities. dagu barahate (p.w. 3) was sent with the two sealed packets in question to the chemical analyser on 3-6-1991. the chemical analyser has, vide his certificate dated 16-9-1991, indicated that the two sealed packets were received by him, that the seals were intact and that, on analysis of the contents of both the packets, traces of heroin were detected along with other opium alkaloids and that exhibits 1 and 2 fall under section 2(xvi)(e) of the n.d.p.s. act. the chemical analyser's report has not been seriously assailed either at the trial or before us and the learned trial judge, on an appraisal of the evidence, held that the charge under section 21 of the n.d.p.s. act was held proved and awarded a sentence of rigorous imprisonment for ten years and to pay a fine of rs. 1,00,000/-, in default, to suffer rigorous imprisonment of two years to the appellant-accused. the present appeal assails the correctness of the conviction and the sentence. 3. shri gavnekar, learned counsel appearing on behalf of the appellant, has taken us through the evidence on record. his principal ground of attack is that the panchanama in the present case is vulnerable. towards this end, he has taken us through the evidence of p.s.i. shaikh nisar (pw 4). he pointed out to us that the police constable thakare and that the scribe has not been examined. on the basis of the english transcript, shri gavnekar pointed out that it appeared that the panchanama had been prepared under the instructions of p.s.i. rathod and it was shri gavnekar's contention that in the absence of p.s.i. rathod being examined as a witness and the panchas being unreliable, that the court should outright reject the panchanama and if that goes that there is no nexus established between the seizure and the accused. 4. as regards the last contention, we have verified from the original of the marathi transcript and we do find that there is a slight inaccuracy as far as the english translation is concerned in so far as p.s.i. rathod was part of the raiding party and issuing instructions, but the panchanama was written as per the directions of p.s.i. shaikh nisar (pw 4). apart from that aspect, shri gavnekar has taken us through the evidence of the two panchas, both of whom have been examined. this is one of the fortunate cases wherein the panchas have not turned hostile and have by and large supported the prosecution. it is true that due to lapse of time, their evidence is rather patchy. shri gavnekar contended very forcefully that both the panchas, who are autorickshaw drivers, have signed the panchanamas in urdu and they have admitted that they cannot read or write marathi. it was his contention, therefore, that the entire operation of calling these persons as panchas was virtually sham and that their evidence is useless. 5. in the light of this last submission, we have scrutinised the record carefully and we do find that it may be that the two persons do not know how to read and write marathi, but the fact remains that they speak and understand the language as would be quite obvious from the fact that they are working as drivers of public transport vehicles in nasik. quite apart from that, what clinches the issue is that the original transcript of the evidence indicates that these two panchas have deposed in marathi. this ground of challenge, therefore, vanishes. 6. shri gavnekar thereafter drew our attention to section 51 of the n.d.p.s. act and he stated that the provisions of the code of criminal procedure, 1973 in relation to searches and seizures would be applicable in the present case. relying on the provisions of sub-section (7) of section 100 of the code of criminal procedure, shri gavnekar submitted that it was obligatory on the part of the police officer to have given a copy of the panchanama to the accused. he invited our attention to the statement in the cross-examination of p.s.i. shaikh nisar (pw 4) wherein he has contended that a copy of the panchanama was given to the accused which conflicts with the evidence of the two panchas who have admitted that the copy was not so given. p.s.i. shaikh nisar has admitted that an endorsement of the accused was not taken on the panchanama and shri gavnekar, therefore, contends that this is a breach of the provisions of sub-section (7) of section 100 of the code of criminal procedure. we do not consider it necessary to go into an interpretation of the relevant provisions or to give our findings on it, though we need to prima facie observe that the provision in question relates to cases where seizures of property are made and an inventory is drawn up and the law requires that a copy of that inventory be handed over to the accused so that there can be some record with both the parties of the property that has been taken charge of. we note that there is a specific provision in section 43(b) of the n.d.p.s. act which empowers the seizing authority, while conducting a search, to take charge of the drug or such other contraband that may be found in possession of the person who has been searched. in these circumstances, if the legislature desired that a specific inventory be drawn up and that a copy be handed over to the accused a provision for the same would have been made. the section is silent with regard to this aspect of the matter. in any event, we are of the view that as far as the facts of the present case are concerned, even if a copy of the panchanama had not been given to the accused, that such a situation would not create any serious legal anomaly which would be sufficient to affect the validity of the trial or to vitiate it. 7. shri gavnekar thereafter submitted before us that p.s.i. shaikh nisar (pw 4) has contended in the course of his deposition that he did, in fact, ask the accused whether he desired to be searched in the presence of a gazetted officer and that the accused declined. he pointed out to us that p.s.i. shaikh nisar has admitted that this fact has not been stated either in the panchanama or, for that matter, in the complaint recorded by him. furthermore, both the panchas admitted that the accused was not asked any such question. p.s.i. shaikh nisar has, however, given a valid explanation for this because in his deposition he has stated that on the accused being apprehended, he was asked as to whether he is in possession of any contraband and he has stated that the accused person at that point of time took out the pudis from the pocket of his kupri and produced the same before the police. if this, in fact, is the position as pointed out by p.s.i. shaikh nisar (p.w. 4), then section 50 of the n.d.p.s. act would not come into play at all because the requirements of that section refer to a situation whereby the searching authority is required to carry out a personal or a bodily search. in the present instance, we have a unique case in which the contraband has already been recovered without a search and under these circumstances the argument advanced by learned counsel for the appellant to the effect that section 50 of the n.d.p.s. act has been breached is rendered factually incorrect. it is true that p.s.i. shaikh nisar has admitted that after the recovery of the pudis in question and the money, he did carry out a cursory search of the accused for purposes of ascertaining whether there was anything more, but that in our considered view is nothing more than a post-search precaution or a minor verification, thereof. in any event, the contraband having already been recovered, there could be no question of invoking the provisions of section 50 of the n.d.p.s. act. 8. on the basis of the aforesaid consideration, we have carefully re-examined the record before us and we do find that the learned trial judge was justified in holding that the prosecution has established that the accused on the day in question was found in possession of the nine pudis, which contained gard powder. the chemical analyser's report, as indicated by us earlier, has not been called into question and, therefore, the nature of the contraband has been established. the prosecution allegation was that the accused was selling or distributing the drug in question. there is no evidence on record to indicate that he was caught in the act of selling or distributing except for the fact that the recovery of some amount of cash from his person would be highly suggestive of this. that fact is, however, incidental and it makes little differences as far as the liability in law is concerned, namely, as to whether he was found in possession of the contraband, whether he was found in a position whereby he was preparing or offering for sale and/or whether he was, in fact, caught in the act of selling. the fact that the contraband was divided into small quantities is indicative of the purpose for which the same had been so sub-divided. this, to our mind, would support the prosecution case that the purpose was for selling and not for personal consumption. 9. the legislature has prescribed stringent punishment for offence under the n.d.p.s. act. the legislature, as indicated by us earlier, has consciously not made any distinction with regard to the cases where the quantity seized may be relatively small, obviously for the reason that this is the usual modus operandi for distribution and retail sale. it is under these circumstances that the law itself provides for a minimum punishment which is, undoubtedly, rigorous. the trial court has exercised this discretion while awarding the punishment. in our considered view, the minimum sentence having been awarded, there is no discretion left with this court, even though the total amount of the contraband involved in the case was only 1000 milligrams. 10. in the light of the aforesaid findings, the appeal fails and stands dismissed. 11. appeal dismissed.