Rajesh Jagdamba Avasthi vs State Of Goa

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(SC) 1393

2004(8) Supreme 171
SUPREME COURT OF INDIA
(From Bombay High Court)
B.P. Singh & Arun Kumar, JJ.
Rajesh Jagdamba Avasthi -Appellant
versus
State of Goa -Respondent
Criminal Appeal No. 1148 of 1999
Decided on 3-11-2004
Counsel for the Parties :
For the Appellant : A. Mariarputham, Maninder Singh, Mrs. Prathiba M. Singh, Saurabh Mishra and Angad Mirdha, Advocates.
For the Respondent : Ms. A. Subhashini, Advocate.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Section 20(b)(ii)-Recovery of charas from accused-appellant-100 grams of the substance was recovered from shoe on the right foot and 115 grams of substance from left foot shoe of appellant was recovered-Appeal against conviction-Discrepancy as to inscription as some witnesses described it as ANCPS while according to PW4 I.O. it was "Anti Narcotic Cell, Panaji, Goa"-Discrepancies however were not sufficient to hold that case of prosecution was to be disbelieved-Discrepancy as regards weight of substance sealed in envelopes on spot and weight of envelopes received by laboratory-Envelope which contained 115 grams substance was found containing 82.54 grams-Discrepancy could not be said to be minor or liable to be ignored on ground that discrepancy as regards other envelope was very small-Seal as well as packets were in custody of same person and thus there was possibility of seized substance being tampered-Panch witnesses examined in the case was stock witness-Conviction was liable to be set aside.
Held : It is not disputed that from the shoe on the right foot 100 gms. of Charas was recovered, which was sealed in envelope A . According to PW-1, the Junior Scientific Officer when that envelope was opened and the substance weighed it was found to be 98.16 gms. Similarly, from the shoe on the left foot 115 gms. of Charas was recovered which was packed and sealed in envelope B. But only 82.54 gms. of the substance was found in envelope B when the same was opened by PW-1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could not be explained by the prosecution. The High Court observed that there was no doubt that the envelope B which was said to contain 115 gms. of Charas was found to contain only 82.54 gms. of Charas and this could not be considered to be a minor discrepancy. However, the High Court was of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since there was no material discrepancy in the weight of the Charas found in the other envelope A, the case against the appellant stood established on the basis of the Charas recovered, packed and sealed in envelope A. It, therefore, concluded that the appellant could be held guilty for unauthorized possession of 98.16 gms. of Charas found in envelope A , if not for the total quantity of 180.70 gms. as charged. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope A ignoring the quantity of Charas found in envelope B . This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. (Paras 12 to 14)

JUDGMENT

The appellant was put up for trial before the Narcotic Drugs and Psychotropic Substances Court, Mapusa in Special Criminal Case No. 2/1995 charged of the offence punishable under Section 20(b)(ii) of the N.D.P.S. Act, 1985. The trial court by its judgment and order dated 22nd March, 1996 found him guilty of the charge and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. One lakh, in default to undergo further imprisonment for a period of two years. The High Court in appeal upheld the conviction but modified the sentence in as much as it upheld the substantive sentence of ten years rigorous imprisonment as also the fine of Rs. one lakh, but reduced the sentence in default from two years to one years. The judgments of the courts below are challenged before us in this appeal by special leave.

2. The facts of the case are that on 14th December, 1994 one P.C. Kulbi was apprehended by the police and was found to be in possession of Charas. He was interrogated. In the course of interrogation, he disclosed the involvement of the appellant, who as stated by P.C. Kulbi, had Charas hidden in his shoes. He volunteered to identify the appellant. The said P.C. Kulbi accompanied the police party to Arjuna beach where he pointed out the appellant, who was immediately apprehended and searched. From his shoes a substance, allegedly Charas was recovered. According to prosecution, from the shoe on the right foot 100 gms. of that substance, and from the shoe on the left foot 115 gms. of that substance was recovered. The recovery was made in the presence of two public witnesses of whom one was Nitin Kesarkar (P.W.2). The other witness was not examined by the prosecution. The seized substance was duly packed and sealed and sent for chemical examination. The report disclosed that the substance seized was Charas.

3. PW-4, Naresh Mhamal, who conducted search, was a police sub-inspector attached to the Anti Narcotic Cell, police station. He deposed that on 14th December, 1994, he had gone to Flea Market Anjuna, along with PSI Thorat, Head Constable, K.G. Desai and some others accompanied by two panchas. PSI Thorat arrested one Premchand Kulbi for possession of suspected substance namely Charas. On questioning, Kulbi disclosed that he had come to Goa along with his friend, the appellant herein, from Himachal Pradesh and that his friend, the appellant herein, had concealed Charas in his shoes. He accompanied the police party and identified the appellant who was apprehended by the police party. According to him, he informed the appellant that he had received information from P.C. Kulbi that he had concealed Charas in his shoes and that he wished to search him for the said contraband. He also informed him that he had a right to be searched in presence of a Gazetted Officer or a Magistrate, and that he also had a right to search him and the members of the raiding party as well as panchas. The appellant, however, declined both the offers and thereafter he was searched by him. He was asked to remove his shoes, and as noticed earlier, from both the shoes a substance was recovered which appeared to be narcotic drug. The substance recovered was weighed. What was recovered from the right shoe was found to weigh 100 gms. whereas substance recovered from the left shoe weighed 115 gms. They were packed and sealed in two envelopes marked A and B . It is not necessary to refer to the recovery of other articles found on search of the person of the appellant. According to PW-4, the two envelopes in which the seized substance was packed and sealed along with covering letter was handed over to police inspector, Anti Narcotic Cell, Panaji. The covering letter contained a request to forward the substance recovered fro analysis. The person to who the two envelopes along with the covering letter were handed over was Inspector Yadav.

4. On the following day i.e. on 15.12.1994, he took charge of the said sealed envelopes and

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