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1993 Supreme(Bom) 516
BOMBAY HIGH COURT
ASHOK AGARWAL AND I. G. SHAH, JJ.
Mohd. Hussain Babamiyan Ramzan, Appellant
Versus
State of Maharashtra, Respondents.
Criminal Appeal No. 445 of 1992 with Criminal Appeal No. 438 of 1992
Decided on : 1-12-1993.
A. H. Ponda, for H. H. Panda, for Appellant; D. U. Mirajkar, A. P. P., for Respondents.
In a prosecution for possession of brown sugar under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the prosecution must establish the guilt of the accused beyond a reasonable doubt by producing reliable evidence, including independent panch witnesses and proper handling of the samples.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 21 - POSSESSION OF BROWN SUGAR - EVIDENCE - PANCH WITNESSES - SAMPLES - TAMPERING - CONVICTION SET ASIDE: 1. In a prosecution for possession of brown sugar under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the court held that the conviction of the accused could not be sustained due to the following reasons: a) Lack of Independent Panch Witnesses: - The prosecution failed to examine any independent panch witnesses, despite taking two panchas for the raid and drawing a panchanama. - The police witnesses admitted that the panchas were pliable witnesses who had acted as panchas in previous cases with the same M.I.D.C. Unit. - The investigating officer's knowledge of the panchas' previous involvement as panchas raised doubts about the genuineness of the raid and the reliability of the police witnesses' testimony. b) Discrepancies in Sample Handling: - There was no satisfactory evidence regarding the handling of the samples taken from the seized material. - The prosecution's claim that the samples were kept in safe custody by the police officer was contradicted by the Muddemal register entry, which showed that the samples were deposited with the head office. - The forwarding letter sent with the samples to the Chemical Analyser had an unreadable specimen seal, raising concerns about the authenticity of the samples received by the Chemical Analyser. - The samples remained with the police officer for three days without being recorded in any official records, creating a possibility of tampering. 2. The court concluded that the prosecution failed to establish the guilt of the accused beyond a reasonable doubt and set aside the conviction and sentence imposed by the trial court.
Fact of the Case:
The accused were convicted of possessing brown sugar under Section 21 read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that the accused were found in possession of brown sugar during a raid conducted based on information received from an informant. The raiding party seized brown sugar, a weighing scale, weights, polythene bags, a spoon, and a scissor from the accused. The accused were arrested, and the seized property was handed over to the police. The Chemical Analyser's report confirmed that the samples contained heroin.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt due to the lack of independent panch witnesses and discrepancies in the handling of the samples. The court held that the police witnesses' testimony was not reliable due to the involvement of pliable panchas, and the possibility of tampering with the samples could not be excluded.
Issues: 1. Whether the conviction of the accused could be sustained in the absence of independent panch witnesses? 2. Whether the discrepancies in the handling of the samples affected the reliability of the Chemical Analyser's report?
Ratio Decidendi: 1. The court held that the lack of independent panch witnesses raised doubts about the genuineness of the raid and the reliability of the police witnesses' testimony. The court relied on the fact that the panchas were pliable witnesses who had acted as panchas in previous cases with the same M.I.D.C. Unit, and the investigating officer was aware of their previous involvement. 2. The court held that the discrepancies in the handling of the samples, including the lack of proper documentation, the unreadable specimen seal on the forwarding letter, and the possibility of tampering during the three-day period when the samples were in the custody of the police officer, raised concerns about the authenticity of the samples and the reliability of the Chemical Analyser's report.
Final Decision: The court allowed the appeals filed by the accused, set aside the impugned order of conviction and sentence, and ordered the release of the accused.
SHAH, J. :- These two appeals are filed by the original accused Nos. 1 and 2 against their conviction of the offence punishable under S. 21 read with 8(c) and the sentence of rigorous imprisonment for ten years and a fine of Rs. 1,00,000/ - each, in default further rigorous imprisonment for six months each.
2. Briefly stated, facts giving rise to the present appeals are as under :
Constable Bhosale (P.W. 1), S. I. Singh (P.W.3) and P.I. Ghuge (P.W.4), at the relevant time, were attached to the M.I.D.C. Unit at Andheri of Narcotic Cell of C.B., C. I. D. Prosecution alleged that on 31-7-1990, while constable Bhosale (P.W. 1 ), was present in the Unit office at about 10.30 a.m. he received information from an informant that one person was doing business of brownsugar in a rickshaw at the eastern side of the B.E.S.T. Bus Depot, Bandra (West), Bombay. He immediately conveyed the said information to S. I. Singh (P.W. 3), who, in turn, conveyed the said information to P. I. Ghuge (P.W. 4). S. I. Singh reduced the said information to writing. P. I. Ghuge (P.W. 4), after learning from S. I. Singh, informed D.C.P. Sur on telephone about the said information and on being instructed by the D.C.P., P. I. Ghuge directed Bhosale (P.W. 1), the constable, to bring panch witnesses. The panch witnesses were explained the facts and they consented to act as Panch witnesses. Thereafter, initial panchanama was drawn in the office and then the raiding party, consisting of Police Constable Bhosale (P.W. 1), S. I. Singh (P.W. 3), P. I. Ghuge (P.W. 4), two constables and the two drivers of the vehicles through which they went. They then proceeded and parked their vehicles opposite Bandra Railway Station and then they went towards the spot of incident. They noticed one rickshaw, which was parked in front of Hassan General Store. They noticed that some persons were going to the rickshaw and taking something from the person sitting in the rickshaw and thereafter they were going away. Immediately, the raiding party rushed towards the rickshaw. The accused No. 1, on noticing the riding party, is alleged to have tried to run away but he was nabbed by S. I. Salaskar at a short distance. Thereafter, the search of the rickshaw was taken and in that search a plastic carry bag containing powder, which ultimately was found to be brown sugar, was found. The said powder was weighed and it was found that it was about 80 grams. They also recovered other articles from the rickshaw, like a small weighing scale, weights of different denominations, a bunch of small empty polythene bags, a spoon and a scissor. All these articles were seized under panchanama after drawing samples. The bulk packet was marked as 'A', the two samples packets containing 5 grams of powder each, were marked as 'A1' and 'A2'. They are the article Nos. 2 and 3 before the Court. The other articles were packed in a packet which was marked as 'A3'(Article 5). All these articles were seized on the spot and were pasted with lables bearing signatures of the panch witnesses. Thereafter, the person of the accused No. 1, who was nabbed, was searched. Cash of Rs.1,234/- (Article 4) were seized from him. The rickshaw and the papers of registration of the rickshaw, which were found lying in the rickshaw, were also seized by the police. A detailed panchanama of all that had happened was drawn on the spot.
3. It is also alleged by the prosecution that on interrogation of the accused No. 1 police learnt that Pandit Hiralal Sharma was to come to Khardanda at 3.00 p.m. and it is he who had supplied the brown-sugar to the accused No. 1. Therefore, the raiding party decided to go to Khardanda, but before that they went to the house of the accused No. 1 and searched his house but nothing incriminating was recovered.
4. Subsequently, the raiding party, with the accused No. 1, went to Khardanda and the accused No. 1 is alleged to have pointed out the accused No. 2 who was coming on a scooter. The police apprehended
