Judgment:
(This criminal appeal is filed u/s. 374 (2) of the Cr.P.C seeking to set aside judgment and order of conviction and sentence dated 10.08.2011 in Special Case No.40/2008 passed by the court of the special judge (Prl. Sessions Judge), Belgaum and acquit the Appellant for an offence p/u/s 21 and 8(c) of N.D.P.S Act.
This criminal appeal is filed u/s 374(2) of Cr.P.C. Seeking to set aside the judgment and order of conviction dated 18.08.2011 passed in Spl. Case No.40/2008, by the Prl. Dist. Sessions and Spl. Judge, Belgaum, and acquit the appellant/accused of the offences with which he has been convicted and sentenced.)
1. These two appeals are arise out of the same judgment, hence both are taken up together for the purpose of disposal. The parties are referred according to their ranking before the trial Court.
2. These appeals are filed challenging the judgment dated 10.08.2011 passed by Court of the Special Judge (Prl. Sessions Judge), Belgaum, (hereinafter called as the trial Court) in Spl.Case No.40/2008, convicting the accused of the offences punishable under Section 21 r/w Section 8(c) of the N.D.P.S. Act, 1985, and sentencing each of them to undergo RI for 10 years and to pay fine of Rs.50,000/- each for the offence punishable under Section 21 r/w Section 8(c) of the N.D.P.S. Act and further sentencing accused No.1 to undergo RI for three years and to pay fine of Rs.10,000/- for the offence punishable under Section 22 of the N.D.P.S. Act, 1985, with default clauses.
3. It is the case of the prosecution that on 30/12/2007, at about 10.15am. near the second Railway Gate at Tilakwadi, Belgaum, within the jurisdiction of Tilakwadi Police Station, Belguam, accused No.1 was found in the possession of 10 plastic packets containing Heroin, weighing 9.690 Kgs., in all and 520 Ketamine tablets i.e. narcotic drugs, totally worth about Rs.30,99,500/- and accused No.2 was found in possession of 30 plastic packets, all containing Hashish (charas) a narcotic substance, weighing 3.035 kgs. in all worth about Rs.3,08,000/-, without any permit or licence, thereby they have contravened Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and it is also further alleged that they were illegally transporting the same form Bombay to Goa via Belgaum, for the purpose selling them at Goa and thereby both accused Nos.1 and 2 have committed offences punishable under Sections 20(b)(ii)(C), 21(c) and 22(c) of the N.D.P.S.Act, 1985.
4. After the accused were secured, the prosecution in order to prove the case has examined in all 16 witnesses and got marked Exs.P1 to P27 and produced MOs.1-43. The defence of the accused was one of total denial. However, they have got marked Ex.D1, the copy of the report of PW-13 dated 15/3/2008. The learned Special Judge after hearing the prosecution and the defence has held that the prosecution has proved the case against the accused and convicted them and sentenced as aforesaid. The convicted accused have filed these appeals.
5. The case of the prosecution commenced with PW- 1-Sri.Mahanteshwar Jiddi, who was the Inspector of Police, Tilakwadi Police Station, Belgaum, during the relevant time, receiving credible information during November/December 2007, that accused No.2 is dealing in the sale of contraband Hashish, which he was getting from Uttaranchal State and Bombay, for the purpose of sale at Goa. On receipt of the said information, he passed on the said massage to the Superintendent of Police, Belgaum. The Superintendent of Police, Belguam, formed a team consisting of PW-1, CWs.13-
15. Thereafter, on 30/12/2007, the police along with other team members went to arrest the accused. The complainant- PW1, at about 6.00 am. on receipt of the credible information that accused No.2 along with one more person were travelling from Bombay to Belgaum, in Dadar-Yashwantpur train and that they are carrying contraband Hashish and Heroin, and further getting an information that A2 was wearing one cheks shirt of saffron colour and blue colour jeans pant and other person was wearing T-shirt and gray colour jacket and also biscuit colour pant, made note of the said information in the station diary and thereafter, information was passed on to his superior. He thereafter, directed one of the police officer to bring a weighing machine and at about 7.00am, he proceeded towards railway station, Belgaum. It was about 8.15am when they were waiting for the arrival of Dadar-Yashwantpur train, the train came at about 9.15am. After some time, two persons as per the information received earlier, got down from the train and both of them were holding one bag each. They boarded one auto-rickshaw, at the railway station and the auto-rickshaw went towards Gogte Circle and thereafter, entered the Congress Road. The auto rickshaw stopped at the second railway gate, Tilakwadi, Belgaum. Two passengers got down from the auto-rickshaw and paid fare to the driver of the auto. Immediately, all of them got down from the vehicle and hence, surrounded these two persons. The police party asked the name of the accused. A1 told his name as Anurag @ Nikki. A2 as Dharani. A1 was not knowing Kannada, but, he was speaking in Hindi. The Inspector revealed the purpose for detaining them, stating that they had credible information regarding transport of contraband Hashish and Heroin and that the said persons have an option of being searched in the presence of the Gazetted Officer. It was also stated to the accused that they have liberty to be taken before the Judicial Magistrate at Belgaum. The accused told that they have no objection for search of the contents of the bag. The Inspector, thereafter recorded the said information regarding the option of the accused to be searched before the Gazetted Officer in writing and also regarding their consent for not being taken before the Gazetted Officer or the JMFC. Thereafter, the search was conducted. It was noticed that A1 had possessed one black colour rexine bag. When he removed the zip of the said bag, which A1 was holding, there were two brown colour paper packets in the bag of A1. When the packets were opened the said packets contained 10 plastics packets containing white colour powder. The contents of 10 packets were opened. The same were weighed. Out of the 10 packets 20gms Heroin was kept apart as a sample. The weight of the packets and sample of the Heroin was 9.690 kgs. Out of the said 10 packets, 20gms each of Heroin is taken out separately as sample. The sample of Heroin in 10 packets were duly packed and sealed separately. The bulk material was also seized from accused No.1 and a Panchanama was prepared to that effect. It is also found that there were 520 Ketamine tablets in the bag of accused No.1, in the plastic pouches. The Inspector seized the entire 520 tablets along with the rexine bag. The packets also were weighed individually. It is seen that there were 970 gms of Heroin each in 4 packets, 960 gms of Heroin each in three packets, 975gm of Heroin each in two packets and 980 gms. of Heroin in one packet, thus, making the total of 9.690kgs. Thereafter, A2 was interrogated, who also had a red colour rexine bag in his possession. Inside the same there was a big plastic cover. When the cover was opened, plastic sachets were found inside, which were 30 in number. Out of the said packets 20gms of the material was removed as a sample. The Weight of the entire material was taken out. It was found that the said material was Hashish. A2 was found in possession of 3.95kgs. of Hashish. Thereafter, the raiding party prepared the spot panchanama and after taking the materials and also the persons, they returned to the police station. Thereafter, the investigation was conducted by PW14-S.H.Gangareddy, who took over the investigation, on the same day and thereafter, sent the materials to Forensic Science Laboratory and after obtaining certificate regarding the nature of the drug seized, handed over the further investigation to CW-23 (PW-15), who filed the charge sheet against the accused on 12/6/2008.
6. After the accused were secured before the Court and they pleaded not guilty to the charge, PW-1-Inspector was examined. He has reiterated the version contained in the complaint. PW-1 has been thoroughly cross examined regarding the initial investigation conducted by him and also regarding the statement given by the accused at the time of arrest. It is suggested to PW-1, that no such recovery has been made from the possession of accused Nos.1 or 2. PW2- Pundalik Mahadevappa Lokannavar is working as a Section Officer in the Indian Oil Corporation who has acted as pancha for the seizure of the narcotic drugs from the possession of accused Nos.1 and 2. He has fully corroborated the evidence of PW-1 in material aspect. In the cross examination, it is suggested that he has falsely deposed at the instance of PW-1. PW3-Mahadev Balu Patil, is an independent business-man who has furnished the weighing machine to the complainant. But, he has turned hostile to the case of the prosecution. PW4 - Uday Kadappa Kamble has also turned hostile to the case of the prosecution. PW-5-Jyotiba Patil also has not supported the case of the prosecution. PW-6 states that accused No.2 was carrying on plywood business.
7. PW-7 is the Assistant Commissioner, Belgaum, he is a Gazetted officer who was present at the time when PW-1 and others conducted the raid and apprehended accused No.1. PW8- Raju Fakir Ghurani, is the constable at the Tilakwadi police station and he has carried the FIR to the Court of the learned Magistrate in Belgaum. PW-9 M.F.Bhavihal is the head constable, who has carried samples from Bangalore to Belgaum, after their examination by the Forensic Science Laboratory. PW10-Raosaheb Kanakareddi is the police constable who has assisted PW-1, in the raid. PW- 11 is the police constable of Tilakwadi police station, who on 30/12/2007, at about 4.00pm, received 81 packets of Hashish and Heroin from PW-1 and he has kept the same by mentioning it in the property register at Tilakwadi police station as per Ex.P18(a). In the cross-examination, it is suggested that Ex.P18 does not contain page numbers nor the signature of any senior police officers. It is also suggested to him that there is no mentioning in the said register about his signature for having performed the duty. However, this witness states that when PW-1 handed over the materials connected with this case, he has entered the same in the register. It was suggested that the same was prepared for the purpose of this case.
8. PW-12 is a constable who had carried the articles on 1/2/2008 to the Forensic Science Laboratory, Bangalore, obtained a receipt and he has reported the same to his superiors. It is elicited from him that on 1/2/2008, the sample property was handed over to his possession and on the same day he has carried the same from Belgaum to Bangalore. He has stated that the materials seized by the prosecution were in his custody, till he had handed over to the F.S.L. office. It is suggested to him that the property which he has handed over to the F.S.L. is different from the property seized at the time of offence. PW-13-C.M.Hegde, is the Head Constable who was deputed to search the accused on 10/3/2008. He was also requested to go to Bangalore F.S.L. office and bring the expert's opinion regarding the articles sent to the said office and on 10/3/2008, he went to Bangalore and was informed that the test is not completed and came back on 14/3/2008. PW-14-S.H.Gangareddy, Deputy Superintendent of Police, Belgaum, has stated that he has given permission as per Ex.P1(b) to PW-1 to conduct a raid in this case. He had further stated that he was working as Dy.S.P., Khade Bazar, police station and that on receipt of a letter from P.S.I., Tilakwadi, he gave permission in the form of letter Ex.P1. It is in the evidence of PW-14, that he has taken up further investigation in this case on 30/12/2007 itself and that the materials at MOs.1 to 43 seized by PWs-2 were subjected to PF. It is also stated by this witness that he has submitted PF Form to the Court and obtained permission of the Court to retain the above M.Os., until completion of the investigation. PW-14 has further stated that he has interrogated A1 and A2 and recorded their voluntary statement. He has also secured the information regarding the persons who are carrying on the business of narcotic drugs. This PW-14 has given the details of all the investigation conducted in this case. In the cross examination, PW-14 has stated that the document produced before the Court Ex.P-18 is not the official property register, but the same is certified extract of the Malkhana Register containing the entry with regard to the seized articles in question. It is stated by him that the said Ex.P18 is neither signed by any superior officials of the Department nor by any other person. A specific question was put that the custody of the materials seized in this case were not in the hands of the said witness. However, PW.14 has denied the said suggestion. It is also suggested that custody of the seized articles were not properly taken. A specific question was asked regarding sending of articles to Forensic Science Laboratory and PW.14 has answered that since he has several other duties and responsibilities, he could not send the sealed articles immediately after 30.12.2007 to the FSL. It was suggested to him that the samples sent to the FSL are not the same which were seized and that no due care and caution had been taken to preserve the original seized articles. However, PW.14 has denied the said suggestion.
9. PW.15-Verayya Pujar is the Assistant Superintendent of Police. He has conducted part of investigation and filed charge sheet in this case.
10. PW.16-P.Mallesh, is the Scientific Officer, FSL, Bangalore, who has stated that he has examined the contrabands sent to him by the IO in this case. After conducting the thorough examination of the articles he has found that the articles were heroin and Hashish and that the Ketamine tablets seized from the possession of the accused was also a scheduled drug. This PW.16 given the minute details of the examination of the articles sent by the police including its individual weight. It is suggested to him that the articles sent to him were not seized properly and that he has not noted that the seals were intact in the receipt issued by his subordinate officer as per Ex.P20. It is also suggested to him that Ex.P20 does not contain any mention of the seal put by the Investigating Officer at the time of seizure of the articles nor there is any mention that the seals are intact or that the seals tally with the sample seals.
11. It is from the above evidence of the prosecution witnesses that the learned Special Judge has convicted the appellants and sentenced them as aforesaid.
12. Heard Sri K.M.Shiralli, learned Counsel appearing for the appellant in Crl.A.No.2871/2011; Sri G.M.Bhat, learned Counsel appearing for the appellant in Crl.A.No.2822/2011 and Sri V.M.Banakar, learned Addl.SPP appearing for the Respondent/State in both the appeals.
13. It is submitted by Sri K.M.Shiralli, learned Counsel appearing for the appellant in Crl.A.No.2871/2011 that in this case there is an inordinate delay in sending the seized articles to the chemical examination by FSL in Bangalore. While the incident has happened on 30.12.2007, the samples were sent on 1.2.2008 and office of PW.16 receives the same on 2.2.2008 after a lapse of more than one month. It is his submission that nowhere it is mentioned that while sending the articles on 1.2.2008, the articles were found in the same position as they were seized on the date of seizure namely, 30.12.2007. No documents are kept to show that the articles were kept intact so far as the entrustment of the articles seized is concerned. It is his submission that PW.11 says that the articles were given to him by PW.1, whereas PW.14 says that the articles seized were given by him to PW.11. PW.11 nowhere in his evidence states that while receiving the articles the said articles were found in a sealed condition. It is his submission that the sample seal put by the raiding party at the place where the materials were sealed has not been forwarded to the FSL nor the office of PW.16 has noted in Ex.P20 that there was any seal in the articles received by them leave alone mentioning that the seal found tallies with the sample seal. It is his submission that the prosecution has not at all produced the said sample seal before the Court. Whereas the one which is produced as per Ex.P26-sample seal is originated from the office of FSL through PW.16. It is further submitted by him that the evidence of PW.16 is to the effect that the samples sent to his office were weighing between 26 grams and 27 grams each. Whereas PW.1 categorically states that taking an electronic weighing machine, 20 grams of the articles found in the possession of the accused was seized as samples. It is his submission that the prosecution has not explained as to how the weight differed in such an exorbitant manner and therefore it is certain that the articles which were given to PW.15 for examination were not the articles seized by the police. It is his further submission that seizure mahazar indicates that 520 tablets of Ketamine were seized and sent to the chemical examinor. Whereas PW.16 says that he has received only 425 tablets, which shows glaring discrepancy between the property seized and the property produced for chemical examination. It is further submitted by Sri K.M.Shiralli, learned Counsel appearing for the appellant that PW.16 has not stated the percentage of Narcotic drug in the property sent to him. Therefore, the real quantity of narcotic substance in the property sent by the prosecuting officer is not forthcoming. It is further submitted that there is a discrepancy regarding the colour of the substance seized by the raiding party as mentioned in the seizure mahazar and the colour of the substance mentioned by PW.16 while examining the articles sent for examination. Under the circumstances, there being such glaring discrepancy in respect of the material involved in the case, the only way would be to dis-believe the version of the prosecution witnesses so far as the identity of the property is concerned and to acquit them.
14. He has relied on the following rulings:-
(i) 1993(2) CRIMES 267 (VALSALA v. STATE OF KERALA), where the Hon'ble Supreme Court has said that the delay of more than three months in sending the seized article to the Magistrate and article seized not kept in proper custody and proper form indicates perfunctory investigation and hence, the evidence adduced is insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner and convictions recorded not unsustainable;
(ii) 1996 Crl.L.J. 3125 (MOHAMADALI SULEMAN VARACHHIA AND OTHERS v. THE STATE OF GUJARAT AND OTHERS), wherein, it is stated that when the sealed articles found to have changed when it reached to chemical analyst, inference as to its tampering in Police Station could be drawn. Since there is no evidence of genuineness of the articles given and hence, the accused is entitled for the benefit of doubt; and
(iii) 2005 Crl.L.J. 1746 (STATE OF RAJASTHAN v. GURMAIL SINGH), it is held that Malkhana (Property) Register was not produced in evidence to prove that the seized articles were kept in the Malkhana, no evidence to prove satisfactorily that seals found were in fact same seals as were put on sample bottles immediately after seizure of contraband, acquittal of the accused was sound and proper.
15. Sri G.M.Bhat, learned Counsel appearing for accused No.2 also adopts the arguments of Sri K.M.Shiralli, learned Counsel appearing for accused No.1.
16. Sri V.M.Banakar, learned Addl.SPP appearing for the Respondent/State in both the appeals submits that the prosecution has placed reliable and convincing evidence to prove the case against the appellants. It is submitted by him that the evidence of PW.1 coupled with the evidence of PW.16 clearly establishes that the property seized from the possession of the accused is a Narcotic Drug and there is absolutely no discrepancy insofar as the identity of the property is concerned. PW.11 has categorically stated that he has received the property seized by PW.1 and thereafter he has sealed in the presence of PW.1 and handed over to PW.12 to be taken to the FSL. He further submits that PW.16 has stated that apart from Smt.Bhargavi, he himself has also examined the contents and thereafter an acknowledgement has been given as per Ex.P20. Both PW.16 and PW.12 have stated before the Court that the seals were intact and the said seals were tallied. So far as the Malkhana extract is concerned, when the same was marked before the Court as Ex.P18, both the accused never raised their objection either for marking or for admissibility of the said document and it is only in the arguments that they have raised the said issue. Mere delay of one month caused in sending the articles to FSL has not diminished its character or value in the face of the certificate issued by PW.16 holding that the contents of the articles was a Narcotic drug. Therefore, there is absolutely no flaw in the case of the prosecution and the learned Special Judge has rightly convicted the accused persons. Hence, he submits that the appeal may be dismissed.
17. I have gone through the entire materials on record. It is seen that the discrepancies in the prosecution case so far as the identity of the original material seized in the case and the material which is tested by the chemical examiner is of serious effect in this case. While at the first instance the seizure has been effected on 30.12.2007, there is no convincing evidence as to whether exactly the same property was kept till 2.2.2008, the day on which the material was sent to the FSL, Bangalore. Evidence in this connection is not convincing because PW.1 who is the leader of the raiding party states that he has entrusted the said property to PW.11, whereas, PW.11 is a Constable. Section 55 of the NDPS Act states that 'An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him,....' Section 2(o) of the Cr.P.C., states that, police constable cannot become a Station House Officer and therefore a responsible officer-PW.1, who is an Inspector of Police at the first instance could not have entrusted the seized material in the hands of PW.11, who was only a police constable. The evidence of PW.11 is to the effect that the said article has been entered into the property register, which is marked as Ex.P18.
18. On a perusal of Ex.P18, it is seen that it does not contain the page numbers serially nor does it contain the signature of any superior officer of the Department. This aspect has been spoken by PW.11 himself in his evidence before the Court. Therefore, it is the case of the accused that Ex.P18 is not an authenticated register, which complies with the provisions of Section 55 of NDPS Act, insofar as entrustment of Narcotic Drugs to a responsible officer is concerned. Further, it is in the evidence of PW.16 that all the articles sent for examination were weighing somewhere between 26 grams and 27 grams. Whereas PW.1, states that after weighing in an electronic machine he has taken samples of 20 grams each and sealed them. Therefore, there is absolutely no explanation as to how the weight of the seized articles has increased by about 6 to 7 grams during the intervening period and therefore necessarily a doubt is created as to whether the articles sent for chemical examination were the same which were seized by the trapping party. Further, Ex.P20 is an acknowledgement by the FSL, Bangalore for having received the samples. It is elicited that one Smt.Bhargavi, has received the said articles in the office of PW.16. However, the said Smt.Bhargavi has not been examined before the Court. On a careful scrutiny of Ex.P20, nowhere it contains the mention that the articles were sealed or that the seal found on them has been compared with the sample seal sent by the prosecuting officers. Therefore, it is difficult to believe that the articles sent by PW.1 through PW.11 are the same as was seized at the time of raid. It is further very difficult to understand as to how the prosecution has not produced the sample seal, which was used for sealing the materials at the time of raid. Ex.P26 is the sample seal of the FSL with signature of PW.16, whereas, the sample seal of PW.1 or the raiding party for having sealed the materials has not at all been produced by the prosecution.
19. In that view of the matter, I am of the considered opinion that there is absolutely no link to the property which is alleged to have been found in the possession of the accused and the property which is subjected to chemical examination by PW.16. The discrepancy in this case is shockingly notable because it is a common man's knowledge that the materials diminish in their weight as the days pass by and there is no scientific reason why the weight should increase that also by about 25 to 30% from the date of preparing the samples till the date of their examination by the chemical examiner. Under the circumstances, the submission made by the learned Counsel for the appellants that the samples sent to the chemical examiner is not the property, which is seized from the possession of the accused gains importance. The manner in which seized articles are entrusted to a constable and preserved as per a Malkhana-ex.P18 which is not authenticated, also adds to the perfunctory manner in which investigation is conducted and the seized articles are preserved.
20. This being a criminal case and the law applicable is a stringent one, when two views are possible, the view that is favourable to the accused has to be given effect to. If this principle is kept in mind having regard to the discrepancy in respect of the identity of the property, accused definitely are entitled for benefit of doubt and accordingly they are entitled for an order of acquittal holding that the prosecution has not proved the case beyond reasonable doubt.
21. Accordingly, both these appeals are allowed. The order of conviction and sentence passed against the appellants is set aside and they are acquitted of the offences levelled against them. It is submitted that the appellants are in custody, they are directed to be set at liberty forthwith, if they are not required in any other case. Fine, if any, paid, shall be refunded to them. Office is directed to transmit the operative portion of this Judgment to the Central Jail Authorities, Hindalaga.