2013 Supreme(Bom) 1057

In the High Court of Bombay at Goa
R.P. SONDURBALDOTA, J.
Mukesh Mohan
Versus
State of Goa, as represented by Officer-in-charge
Criminal Appeal No. 43 of 2006
Decided On : 14-06-2013

Headnote:CRIMINAL PROCEDURE CODE, 1973 - Section 374. - Appeal against conviction and sentence - For offences under Sections 20(b)(ii)(B), 20(b)(ii)(c) of NDPS Act, 1985 - Accused found in illegal possession of ’Charas’ weighing 2.69 kgs. - Recovered from his person, possession and room in his occupation - Contention that mandatory provisions of Sections 42 and 50 of Act not complied with and entire trial vitiated for non-production of maternal and relevant evidence on record - Contraband weighing 15 gms. of charas seized from pant pocket of accused and 1.2 kgm. from shoulder bag of accused - Alleged seizure and recovery under same crime report, wrongly treated separately by trial Court - Contraband found from two separate places during same search - Separate conviction of appellant under Sections 20(b)(ii)(B) and 20(b)(ii)(c) of Act unjustified - Impugned judgment and order of trial Court convicted appellant accused under Sections 20, 20(b)(ii)(c) of Act set aside - Appellant accused acquitted - Appeal allowed.

       Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(B) and 20(b)(ii)(c) - Conviction for possession of “Charas“. - Conviction of accused under Section 20(b)(ii)(c) for recovery of 1.2 kgs. ‘Charas‘ from his shoulder bag would cover conviction for possession of 115 gms. ‘Charas‘ from same accused. - The Sessions Judge has convicted the appellant for the offences punishable under Section 20(b)(ii)(B) and Section 20 (b)(ii)(C) of the N.D.P.S. Act. The conviction under both the sub-sections of Section 20 (b) (ii) has apparently been awarded on account of seizure of contraband weighing 115 gms of charas from his pant pocket and 1.2 kg charas from the shoulder bag. The alleged seizure and recovery under the same crime report could not have been treated separately by the Sessions Judge. Further in the charge-sheet filed, the police have not shown the two recoveries as two separate offences. In fact, at the time of filing of the charge-sheet, they have added all the quantity of charas for the purpose of attracting the maximum punishment under Section 20 (b)(ii)(C) of the N.D.P.S Act.

       Sub-section (C) of Section 20(b)(ii), relates to contravention of N.D.P.S. Act involving commercial quantity. Sub-section (B), involves quantity lesser than commercial quantity, but greater than small quantity. Sub-Section (A), involves small quantity. These sub-sections have been made for the purpose of prescribing higher punishment depending upon the quantity of contraband found to have been possessed. Merely because during the same search, contraband had been found from two separate places, there could not have been separate conviction of the appellant under the sub-sections. Conviction under Section 20(b)(ii)(C) would have covered the conviction and sentence for the lesser quantity.

       Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(c) - Cr PC, 1973, Section 161 - FIR for offence of possession of contraband. - Non-production of FIR for commission of offence under Section 20(b)(ii)(c) of Act, in Court, vitiates trial. - The search revealed actual possession of the contraband. After the seizure of the contraband, according to PW 4, he had made immediate arrangements for forwarding the sealed packets to the Food and Drugs Administration, Panaji for chemical analysis of the substance found. Thereafter, the police had proceeded to the rented premises of the appellant for further search. These facts would indicate that the police had been moved into action of search on account of the second telephone call received by the police which call had given sufficient information as regards the commission of crime under the N.D.P.S. Act. Therefore, the police ought to have treated the information from the second telephone call, which had been reduced into writing by way of an entry in the station house diary, as an FIR. Once that information is treated as an FIR, the statement of PW 4 reduced into writing and treated as an FIR, would become a mere statement to the police and would be hit by Section 161, Criminal Procedure Code. Therefore, any further investigation into the case by the police on the basis of Exhibit-78 as the FIR would vitiate the further investigation and the trial based on that information would vitiate the trial. Since the information from the second telephone call reduced into writing has not been produced in the Court as FIR, the entire trial of the appellant would get vitiated for non-production of the material and relevant evidence.

       Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search and seizure. - Since panch witnesses as to search and seizure found to be stock witness of police and details of search missing from Police Diary hence recovery from accused doubtful. - If the evidence of the panch witness, PW 3 is discarded, there is no need to disbelieve the fact of search of the appellant and seizure of contraband from his possession, since the fact stands established by the three police witnesses i.e. PW 4, PW 6 and PW 7. The evidence of the Investigating Officer for this purpose will also have to be disbelieved. PW 4 has deposed about search and seizure at the police station, as well as, at the room rented by the appellant. The Sessions Court has found every defect in the search and seizure at the rented room and disbelieved PW 4 to that extent. Strangely, the identical defects pointed out in respect of the personal search of the appellant have been not found worthy of acceptance by it. PW 4 in his evidence admitted that the entry at serial No. 12 of the station house diary, does not disclose that 115 gms of charas recovered during the personal search was duly packed, sealed and signed by the panchas themselves and the accused.

       The station house diary also does not disclose that 1.2 kg of charas, Nokia mobile phone, money purse with cash, jeans pant and the shoulder bag had been duly packed, sealed and signed by the panchas and the accused. According to PW 4, these facts were not reflected in the station house diary, because the station house diary contains only a brief account of all the steps taken during investigation. He, however, admitted that in case of a raid or a recovery, the entry made in the station house diary and the FIR registered generally states details of the search, seizure, weighing, packing, sealing etc. The entry at serial No. 12 is silent on use of any seal. The entry is silent on the envelopes of the contraband being in sealed condition at the time of handing the same over to PW 7 for safe custody. There is no reference in the station house diary to preparation of seizure report in the police station pertaining to the recovery. There is also no reference therein to the letters to Director, Food and Drugs Administration being handed over to PW 7 for the purpose of forwarding.