1992 Supreme(Bom) 510

BOMBAY HIGH COURT
PANAJI BENCH (DB)
AY. Savant and Dr. E.S. Da Silva. JJ.
 Brown Nicholas William Jonathan, British National - Appellant
versus
State of Goa - Respondent
Crl. Appeal No. 9 of 1992
Decided on 6.11.1992
Counsel for the parties: For the Appellant Lalit Chari with J.P.D Souza and Miss R.B. Amrolia.
For the State: G.V. Bhobe.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii) - Conviction for the offence punishable under - Appeal - Prosecution failed to prove that what was found on the person of the accused was the very substance which was sent for analysis - Identity of the sample searched and the sanctity of the sealing has not been preserved - Casual and unsatisfactory manner in which the samples of charas were sealed - Accused entitled to benefit of doubt - Judgment and order of conviction liable to be set aside.

       Held, that when the search was taken and the contraband was seized, both panch witness P.W. 2 Naik and Investigating Officer P.W. 3 Dias are clear in their minds that only one polythene packet was found in which there was charas and it was that polythene packet which was seized from the navel portion of the Pyjama. It is true that in a separate cloth bag the chillum was found but neither the panchanama nor the two witnesses have referred to the presence of any charas in the chillum or in the cloth bag in which the chillum was found. The panchanama says that charas was wrapped in a polythene. P.W. 3 Dias is very specific that he found one polythene packet in which there was charas. As against this, P.W. 1 Calderia is very clear in her deposition that when she opened the envelope, she found two lots of charas in two separate polythene papers. In one she found crujras in the form of two sticks and one small piece of irregular shape sticking together and in another polythene paper she found two circular pieces, one big and one small sticking together. She has elaborated this in her examination-in-chief after referring to the very un-satisfactory sealing found on the envelope. She says that inside the said envelope she found three flat pieces of dark brownish substance - two pieces are sticking to each other. The said 3 pieces were wrapped in a polythene paper. She further says that in another polythene paper, she found many broken pieces of mostly roundish shape. We have examined the envelope which has been marked as Ex. B. P.W. 1 Colderia has referred to the sealing on the said envelope which was found to be thoroughly unsatisfactory and seems to have been made in a very casual manner. The seal "A" was broken and was not intact. Seal "B" was broken. Seal "c" was also broken to a substantial extent.

       As far as seal "D" is concerned there was only an impression of the seal with a very small portion of the seal found. As far as seals "E" and "F" were concerned, there were only impressions of the seal but there were no seals at all. As against this sealing done by the police, we have examined the envelope Ex. A which P.W. 1 Calderia sealed after she analysed the samples and put the envelope Ex. B sent by the police in the said envelope. Ex. A which she sent from the laboratory. We find all the five seals put in the laboratory in an intact position, apart from the fact that during the trial the seals have been covered with a transparent adhesive tape. We also examined the seals put during the course of the trial on the bigger envelope in which envelope Ex. B sent by the police and envelope Ex. A sent from the laboratory to the police were kept. A bare perusal of the seals put by the police on the one hand and the seals put either - by the laboratory staff or by the staff of the Trial Court on the other, would show that unfortunately the police have resorted to the process of sealing as an empty formality in a very casual and, if we may say so, most careless manner. We are commenting upon this because Shri Chari is right in his contention that if the police found one lot of charas and if the panchanama and the two witnesses, namely, P.W. 2 Naik and P.W. 3 Dias are categorizing their assertion of finding of one lot in a polythene paper, it is not understood how P.W. 1 Calderia would find two distinct lots of charas packed in two separate polythene papers inside the envelope which had been so poorly sealed. If there was no Such glaring inconsistency in the finding of the two lots of charas inside and if the evidence of P.Ws. 2 and 3 on the one hand were to be consistent with the evidence of P.W. 1, we may have ignored the shabby and careless manner in which the sealing was done. But in the light of the serious contention raised by Shri Chari, we cannot ignore the casual and thoroughly un-satisfactory manner in which the samples of charas were sealed. It may not be out of place to mention that the samples remained with the police from Friday the 21st December 1990 to Wednesday the 26th December 1990. What is more important is that P.W. 3 Dias himself carried out the raid and the search and is himself the investigating officer. We are not unmindful of the criticism which Shri Chari has levelled on this aspect of the matter though it is not necessary for us, in this case, to pronounce our opinion on the question as to whether the Investigating Officer should not be the same as the-one who carried out the search and raid. Suffice it to say that the samples remained with the Investigating Officer, Admittedly from Friday the 21st December 1990 till Monday the 24th December 1990. May be, Saturday and Sunday were holidays. On Monday the 24th December 1990, the samples travelled from the A.N.C. to the office of the S.P.C., I.D.,. at Panaji itself. Tuesday the 25th December 1990 was again X-mas holiday and it was on Wednesday the 26th December 1990 that the samples reached the laboratory and was received by P.W. 1 Calderia. The evidenced P.W. 1 Calderia on the manner of sealing speaks volumes and we are distressed to find that an experienced officer like P.W. 3 Dias should have permitted the sealing of the samples in Such a casual and careless manner. If this is the state of affairs as far as the sealing of the envelope which contained the seized charas, it is difficult to reject the contention of Shri Chari that the identity of the sample searched and the sanctity of the sealing has not been preserved in this case. (para 21)

       Further held: We are really surprised at the casual manner in which the seizure and panchanama has been effected. We are more disturbed at the casual manner in which the Investigating Officer has given the evidence when he was alive to the fact that P.W. 1 Calderia had categorically deposed to the finding of two distinct lots of charas in two separate polythene papers. If this is the position of the evidence on record, we find great substance in the first contention raised by Shri Chari that the prosecution has failed to prove that what was found on the person of the accused on 21st December 1990 was the very substance which was sent for analysis and was analysed by P.W. 1 Calderiaon 16th January 1991. A perusal of the evidence of the 3 witnesses, which Constitutes the entire evidence in the cases, shows that the integrity of the scaling process is seriously in doubt in the present case. Sanctity of the sealing process has not been preserved. It is difficult for us to record a finding that what was tested in the laboratory on 16th January 1991 by P.W. 1 Calderia was they by substance which was recovered from the accused on Friday the 21st December 1990. If that be the position, we are afraid, the very foundation of the prosecution case must collapse. (para 22)

       Result: Appeal allowed.