The Judgment of the Court was delivered by

P.V Hardas, J.— The appellant, who stands convicted for an offence punishable under SS. 20(b)(ii) and 22 of the NDPS Act, 1985, and is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000, in default to undergo simple imprisonment for one year on each count, has filed the present appeal challenging his aforesaid conviction and sentence as recorded by the Special Judge, NDPS Court, Mapusa, by judgment dated 26-12-2000, in Special Criminal Case No. 10 of 2000.

2. The facts necessary for the decision of the appeal are set out hereunder:

On 20-12-1999, at about 5 p.m, two panch witnesses PW 3 Ashok Bhosle and one Shivnath Naik, both government servants from the office of the Director of Agriculture were called to the Anti-Narcotic Cell Police Station by PW 6, PI Lavu Mamledar, by his letter dated 20-12-1999 addressed to the Director of Agriculture, Panaji, Goa. The said two panch witnesses were introduced by PW 6, PI Lavu Mamledar to PW 4, PSI Uday Naik. PW 4, PSI Uday Naik, informed the two panchas that they were called to the Anti-Narcotic Cell Police Station, Panaji, to accompany PW 4, PSI Uday Naik and the other members of the raiding party for a raid. At about 9.55 p.m, PW 4, PSI Uday Naik introduced the panchas to the members of the raiding party which comprised of Superintendent of Police, CID Karnail Singh, Superintendent of Police Shrivastav, Deputy Superintendent of Police Shri Shirish Thorat, PW 6 PI Lavu Mamledar, Police Constables Devidas Gawas, Chandrashekhar Amonkar and Sandeep Shirvaikar. Thereafter, at about 10 p.m, the raiding party consisting of the police officers and the panch went to the Anjuna and Vagator area. PW 4, PSI Uday Naik, carried with him the seal of Anti-Narcotic Cell, Panaji, Goa-2 with Ashoka emblem. Police Constable Devidas Gawas carried with him a kit box containing packing, weighing and sealing material and flashlights. Police Constable Chandrashekhar Amonkar carried a typewriter. The raiding party which had gone in two jeeps reached Anjuna at about 10.30 p.m They went near the Prim Rose Bar and Restaurant at about 1.15 a.m in the morning of 21-12-1999. They parked their vehicles and alighted and at about 1.25 a.m, they saw two persons near the gate of Prim Rose Bar and Restaurant whom they suspected of having drugs in their possession. PW 4, PSI Uday Naik, therefore, told the other members of the raiding party that the search of the two persons should be taken. The members of the raiding party rushed towards them and surrounded them. PW 4, PSI Uday Naik, identified himself as PSI of Anti-Narcotic Cell Police Station (hereinafter referred to as “ANCPS” for the sake of brevity) and also introduced the other members of the raiding party including the panchas. PW 4 PSI Uday Naik, then told the said two persons that he wanted to take their search for drugs as he suspected that they were possessing drugs. PW 4 PSI Uday Naik, asked their names. The first person disclosed his name as “Vikram Reddy, resident of Mumbai and presently staying at Anjuna, Goa”. PW 4 PSI Uday Naik, then asked the name of the other person who disclosed his name as “Ameet Dhurandhar of Bombay presently staying at Anjuna, Goa”. The appellant was carrying a shoulder bag on his left shoulder. Before taking the personal search of the appellant and the other person, PW 4 PSI Uday Naik, informed the said two persons that they have a right to be searched in the presence of either a Magistrate or a Gazetted Officer but the appellant and the other person declined the offer. PW 4 PSI Uday Naik also informed them that they had a right to search the members of the raiding party including the panchas but even this offer was declined. The appellant agreed to be searched in the presence of the members of the raiding party. It was at 1.35 a.m in the morning of 21-12-1999, that the search of the appellant commenced. On instructions of PW 4 PSI Uday Naik, the appellant handed over the shoulder bag to him and the search of the shoulder bag revealed a black colour substance. The said black colour substance was in different sizes and shapes attached to each other and was partly wrapped in a polythene paper. PW 4 PSI Uday Naik, informed that the black colour substance was suspected to be charas and on weighing, it was found to weigh 107 grams. The black colour substance was then packed by putting it in an envelope and sealed with the seal of Anti-Narcotic Cell Panaji, Goa-2 with Ashoka emblem. The envelope was signed by PW 4 PSI Uday Naik, the two panchas, the appellant and Dy. S.P Shri Shirish Thorat. The said envelope was marked as Sample 1. Further search of the handbag revealed some tablets wrapped in polythene paper. The tablets were of creamish colour and these tablets were put in an envelope packed, sealed and signed by following the same procedure as was followed in respect of the packing and sealing of 107 grams of charas. The envelope containing these tablets was marked as Sample 2. Indian Currency of Rs. 2600 and currency of 100 US dollars and a driving licence of the appellant was also found in the handbag. These were replaced in the handbag and the said bag was put in an envelope, packed and sealed. Thereafter, the search of the other accused Ameet Dhurandhar was taken. From the evidence, it transpires that a separate charge-sheet was filed and the accused Ameet Dhurandhar was convicted in the said case.

3. PW 4 PSI Uday Naik, then informed the accused that possessing drugs without having documents was an offence and they were taken into custody and were explained the grounds of arrest. A panchanama of the entire sequence of events was drawn which is at Ext. PW 3.A which is signed by the said two panchas and by PW 4 PSI Uday Naik. The panchanama commenced at 1.35 a.m and concluded at 5.35 a.m on 21-12-1999. Thereafter, PW 4 PSI Uday Naik, prepared a document at Ext. PW 1.B, which is the forwarding note. After preparing the document at Ext. PW 1.B PW 4 PSI Uday Naik, prepared a document at Ext. PW 4.B which is a letter handing over muddamal. Both these documents were prepared at the spot and thereafter, the raiding party returned to the police station. On reaching the police station, PW 4 PSI Uday Naik, registered the crime at 9.30 a.m vide Crime No. 14 of 1999 under SS. 20(b)(ii) and 22 of the NDPS Act, 1985, by filing a complaint which is at Ext. PW 4.A. Thereafter, the specimen seal and the muddamal property was handed over to PW 6 PI Lavu Mamledar along with the specimen seal letter. After receipt of the report from the Central Forensic Science Laboratory, Hyderabad, which is at Ext. PW 1.C, a charge-sheet came to be filed in the Court.

4. The learned Special Judge, NDPS, Court, Mapusa, vide Ext. 3 framed a charge against the appellant for an offence punishable under SS. 20(b)(ii) and 22 of the NDPS Act, 1985. The appellant denied his guilt and claimed to be tried. The prosecution in support of its case examined PW 1 Sanath Kumar Mukhopadhya, Assistant Director working in the Central Forensic Science Laboratory at Hyderabad who has proved his report at PW 1.C. As per the report, the black-coloured substance gave positive test for charas while the cream colour tablets gave positive test for 3-4 Methylene dioxyamphetamine HCL. Prosecution has examined PW 2 Manohar D. Joshi, who was working as Scientific Assistant in the Crime Branch, Panaji, to prove that he had received the samples on 21-12-1999 with a forwarding note. He had given his acknowledgement of having received the charas and the ecstacy tablets vide PW 2.A. After receipt of the samples, he had forwarded the same to the Director of Central Forensic Science Laboratory at Hyderabad on 26-12-1999 and had received the examination report and the balance quantity of the narcotic substance on 17-2-2000. Vide Ext. PW 2.B, he had forwarded the report and the balance quantity to the ANCPS PW 3 is panch witness Ashok Bhosle. PW 4 is PSI Uday Naik. PW 5 is Dy. S.P Shri Shirish Thorat to whom an intimation under S. 57 vide Ext. PW 4.C was forwarded and PW 6 is PI Lavu Mamledar, who is the officer in charge of ANCPS.

5. Mr Lalit Chari, the learned Senior Advocate appearing for the appellant has urged before me (1) that PW 4 PSI Uday Naik, in the face of evidence, cannot be held to be a reliable witness and, therefore, the veracity of the prosecution case is affected as ultimately, the factum of search and seizure is also affected. (2) There is discrepancy in the number of seals that were put on the envelope and the number of seals that were noticed in the court and thus, an inference could not be ruled out that the samples had been tampered with. (3) There is a total non-compliance with S. 50 of the NDPS Act, 1985. Thus, according to him, the appellant is entitled to the benefit of doubt.

6. Mrs Winnie Coutinho, the learned Additional Public Prosecutor appearing for the State has urged before me (1) That despite the discrepancy in Ext. PW 1.B, the prosecution case cannot be jettisoned on this count alone. (2) According to her, there is hardly any discrepancy as regards the seal. (3) According to her, there is a compliance with S. 50 of the NDPS Act, 1985. She, therefore, submits that the appeal be dismissed.

7. Adverting to the first submission of Mr Lalit Chari, the learned Senior Advocate appearing for the appellant, it will be useful to make a reference to the document at Ext. PW 1.B. This document at Ext. PW 1.B is a document which PW 4 PSI Uday Naik, solemnly states that it was prepared at the spot. In the examination-in-chief, PW 4 PSI Uday Naik, states as under:

“Thereafter we all came to the PS. I say prior to that we had prepared a letter which is specimen seal letter to send to Food and Drugs Admn.”

8. In the cross-examination, PW 4 PSI Uday Naik, states as under:

“After the seizure report I had to prepare a letter Ext. PW 1.B and letter to the CFSL. I say I had to make one more letter to PI ANCPS, Ext. PW 4.B. The typing was done in the jeep and writing work was done by holding the paper on the kit box on the road. One P.C Chandrashekhar Amonkar made the typing work of Ext. PW 1.B. After Ext. PW 1.B was typed I affixed the specimen seal at point Y.”

9. Again, he states in the cross-examination, “I say that after seizure report, Ext. PW 1.B and Ext. PW 4.B were prepared.” Again, in cross-examination, PW 4 PSI Uday Naik, states as under:

“On Ext. PW 1.B it was typed in my presence that the offence vide ANCPS Crime No. 14 of 1999 under S. 20(b)(ii) and 22 of the NDPS Act, 1985 registered against them on 21-12-1999 at 9.30 a.m In Ext. PW 4.A nothing is said about Ext. PW 4.A or Ext. PW 1.B. Since there was guideline of the Hon'ble High Court that letters should be prepared on that spot I prepared Ext. PW 1.B and Ext. PW 4.B on the spot. I deny the suggestion that a false case has been initiated against the accused.”

10. At this juncture, it will be useful to make a reference to what he states in the cross-examination and that is that the offence was registered at 9.30 a.m on 21-12-1999 and this time was given only after registering the offence.

11. Adverting to this evidence, it is urged by Mr Lalit Chari, the learned Senior Advocate appearing for the appellant that the portion at “A” to “A” in Ext. PW 1.B, refers to the crime number and the registration of the offence at 9.30 a.m on 21-12-1999. Thus, according to the learned Senior Advocate appearing for the appellant, since the offence was registered at 9.30 a.m on 21-12-1999, this should not have found place in Ext. PW 1.B which is said to have been scribed at the spot before the raiding party went to the police station. The offence admittedly was registered after the raiding party returned to the police station.

12. The learned Senior Advocate appearing for the appellant then made a reference to the answer given by PW 4 PSI Uday Naik, in response to the question put by the trial court. The answer of PW 4 PSI Uday Naik, is reproduced below:

“I say the two lines which read the offence vide ANCPS Crime No. 14 of 1999 under S. 20(b)(ii) and 22 of the NDPS Act, 1985 registered against them on 21-12-1999 at 9.30 a.m were typed at the P.S Only the pro forma was typed on the spot.”

13. PW 4 PSI Uday Naik then gave another admission in response to the cross-examination on behalf of the accused when he says, “I say that except portion “A” to “A” on Ext. PW 1.B the entire pro forma was typed on the spot.” Again, “I do not remember when portion “B” to “B” on Ext. PW 1.B was typed.” It would be useful to make a reference to the portion marked “B” to “B” on Ext. PW 1.B which reads as under:

SexDated and Time of ArrestB Male.On 21-12-1999 at 0930 hrs. near the entrance of Prim Rose Bar and Rest., Vagator B.

14. It is apparent that Ext. PW 1.B could not have been scribed at the scene of the offence as stated by PW 4 PSI Uday Naik. Firstly, in Ext. PW 1.B, there is a reference to the crime number and the registration of the offence at 9.30 hours. Admittedly, the offence was registered after the raiding party comprising of PW 4 PSI Uday Naik, returned back to the police station. The explanation given by PW 4 PSI Uday Naik, that portion “A” to “A” in Ext. PW 1.B was typed in the police station was in response to the question put to him by the Court. Such an explanation is not forthcoming either in the examination-in-chief or in the cross-examination. Even otherwise, the said explanation according to me does not appear to be true. The portion at “A” to “A” in Ext. PW 1.B forms an integral part of the document PW 1.B. It is a typed document comprising of two pages and it does not appear that the portion at “A” to “A” was subsequently typed. This is not a printed pro forma where certain sentences could be written subsequently. Moreover, PW 4 PSI Uday Naik, is unable to offer any explanation as to when portion “B” to “B” in Ext. PW 1.B was typed. The portion at “B” to “B” in Ext. PW 1.B again refers to the arrest of the appellant on 21-12-1999 at 9.30 a.m near the entrance of Prim Rose Bar and Restaurant at Vagator. At 9.30 a.m, PW 4 PSI Uday Naik, was in the police station when the offence was registered. As if this circumstance is not enough, there is another circumstance which has been brought to my notice by the learned Senior Advocate appearing for the appellant. According to him, at p. 2 of PW 1.B in the column “Full name” it is scribed “Mr Vikram s/o Raghu Reddy, r/o 15 Mayfair Veer Nariman Rd., Churchgate, Mumbai”. According to PW 4 PSI Uday Naik, except what was stated in the panchanama, he was not knowing any personal information of the appellant till they reached the police station at 9.30 a.m on 21-12-1999. In the panchanama, Ext. PW 3.A, it is stated that on questioning, the first person disclosed his name as “Vikram, s/o Raghu Reddy, r/o Mumbai, presently staying at Anjuna, Goa”. Thus, the details which are referred to in PW 1.B were not known to PW 4, PSI Uday Naik, when Ext. PW 1.B was typed at the scene of the offence. This is further evident when he admits in the cross-examination, “I did not interrogate the accused till I reached the police station at 9.30 a.m on 21-12-1999. However, I had taken down his personal details only at the time of writing the arrest card and arrest register at the police station.” Thus, it is quite clear that this document PW 1.B was typed subsequently in the police station.

15. According to PW 4 PSI Uday Naik, he admits to have typed another document and that is document Ext. PW 4.B at the scene of the offence. Ext. PW 4.B is a letter handing over muddamal to the Officer in-charge of the police station. Again, in this document, there is a reference to the crime number which admittedly, according to PW 4 PSI Uday Naik, was registered only after his arrival at the police station.

16. A witness who states a falsehood allows himself to be clothed with the cloak of an untruthful witness. Minor errors, which do not go to the core of the case or affect his veracity, do not render the evidence of a witness unreliable. But a witness who is shown to have stated a falsehood to prove a part of the prosecution story, cannot be relied upon. He not only renders his testimony unworthy of acceptance but casts a shadow of doubt on the entire prosecution case. The vain attempt on the part of PW 4 Uday B. Naik, to wriggle out of the situation by stating another falsehood ought to have put the learned trial court on its guard. The courts should never accept the testimony of a witness who is shown to have stated falsehood. A dissection cannot be done to separate the truthful version from the falsehood. The testimony as a whole has to be discarded. In this case, a police officer has made a false statement that the document at Ext. PW 1.B was typed at the scene of the offence. The contents of the document have exposed him to be an untruthful witness. His explanation in response to the Court question that portion at “A” to “A” was typed in the police station cannot be believed. He is further exposed by the document at Ext. PW 4.B. PW 6 Lavu Mamledar, has admitted in the cross-examination that the specimen sealed letter Ext. PW 1.B was prepared on the spot. He of course, denied the suggestion that Ext. PW 1.B was prepared and sealing was done at the police station itself.

17. The letter like Ext. PW 1.B which contains the specimen seal impressions is a vital piece of evidence. This letter is sent to the Chemical Analyser for comparing the specimen seal impressions with the seals affixed on the samples sent to him for examination. If the seals tally, there is a guarantee that the samples have not been tampered with. If, in the event, the Chemical Analyser finds a discrepancy between the specimen seal and the seals affixed on the samples, the report of analysis loses its importance. Conversely, if a cloud of suspicion hovers on the preparation of the letter of specimen seal impression, the mere tallying of the seals by the Chemical Analyser would not be any guarantee that the samples had not been tampered with. In the present case, it is established from the evidence that Ext. PW 1.B was not prepared at the scene of the offence as claimed by the prosecution. It appears to have been prepared in the police station subsequent to the registration of the offence. PW 4 PSI Uday Naik, has rendered himself to be an untruthful witness, a witness whose evidence cannot be implicitly relied upon. If the evidence of PW 4 PSI Uday Naik stands discredited, it not only affects the credibility of the officers conducting the search but also affects the basic fabric of the prosecution case. The only irresistible conclusion that can be drawn from the evidence is that the contraband was neither seized nor the seal affixed at the scene of the offence as claimed by the prosecution.

18. Mrs Winnie Coutinho, the learned Additional Public Prosecutor appearing for the State has urged before me that even if the evidence of PW 4 PSI Uday Naik is left aside, the evidence of PW 3 Ashok Bhosle, the panch witness is sufficient to establish the offence against the appellant beyond reasonable doubt. According to her, PW 3, Ashok Bhosle is an independent witness on whose testimony the conviction can be based. The evidence of PW 3 Ashok Bhosle, is on the same lines as that of PW 4 PSI Uday Naik, in respect of search and seizure. In the cross-examination, he admits that the police had sent a letter to the department and the department had directed him to go to the police station. He states that the Administrative Officer Shri Charles D'Souza, had directed him to go to the police station. The other panch namely Shivnath Naik was also an employee of the same office where PW 3 Ashok Bhosle was working. He says that he does not know how the police suggested his name to his department and he also did not ask his superiors as to why he was directed and chosen to go to the police station. Curiously, the prosecution has not proved the letter by which the services of these two panchas were requisitioned from his department. He further admits in the cross-examination that he and the other panch Shivnath Naik were scared to go to the police station but did not ask as to why they were called at the police station. On reaching the police station, PW 6 PI Lavu Mamledar, told them to sit down and even then they did not question the PI as to why they were called at the police station. In the cross-examination, this witness has given the following answer which is reproduced below:

“I was at the police station up to 10 O'clock on 21-12-1999. I did not go to my office on 21-12-1999. I went to my office on the next day i.e on 22-12-1999 at 9.30 a.m The police relieved me on 22-12-1999 at 9.30”.

19. He further admits in the cross-examination:

“I was in the police station from 10 a.m on 21-12-1999 to 7 p.m on 21st December. From 5 p.m on 20-12-1999 till 7 p.m on 21 December, I was in ANCPS.”

20. Thus, this panch witness was in the company of police from 5 p.m on 20-12-1999 till 7 p.m on 21-12-1999. Admittedly, the offence was registered at 9.30 a.m on 21-12-1999. There was no earthly reason for detaining the panch witnesses from 9.30 a.m till 7 p.m in the evening on 21-12-1999. According to this witness, he was just sitting in the police station and was not doing anything. According to this witness, they left the scene of the offence at 5.30 a.m on 21-12-1999. PW 4 PSI Uday Naik, states in his evidence, “the panchas had come along with us after the raid but thereafter they dispersed”. PW 6 PI Lavu Mamledar, states that he had seen the panchas at about 9.45 a.m when they had come to collect the certificate. He further states that he had seen them, thereafter they were taking rest in the police station. They were just relaxing on the chair.

21. According to the learned Senior Advocate appearing for the appellant, the admission of the panch witnesses that they were in the police station till 7 p.m on 21-12-1999, when they had no reason to remain in the police station, fortifies his submission that the entire process of sealing was carried out in the police station and not at the scene of the offence. According to him, if PW 1.B is said to have been prepared in the police station, it logically follows that the sealing of the samples was done in the police station. It is true that the prosecution has not advanced any explanation, at least no effort was made in that behalf to justify the presence of the panch witnesses in the police station after 9.30 a.m on 21-12-1999. I have already held that the preparation of Ext. PW 1.B is shrouded in suspicious circumstances. The fact that the panch witnesses were detained in the police station till 7 p.m on 21-12-1999 is a sure indicator of the fact that the contraband articles were seized in the police station. These circumstances do create a doubt as to whether the contraband articles were sealed at the scene of the offence. Even if a slightest doubt is created in the mind of the Court, in that behalf, it is then hazardous to convict the accused on the basis of this evidence and hold that the accused was found in possession of drugs. If the contraband articles found in the possession of the accused have been sealed at the spot itself, then it lends some assurance to the Court that the articles found in the possession of the accused have not been tampered with in the police station. I am afraid, in this case looking to the nature of the evidence, it is difficult to come to a conclusion that what was found in the possession of the appellant was sealed at the scene of the offence itself.

22. There is one more discrepancy in the prosecution evidence and that has been highlighted by the learned Senior Advocate appearing for the appellant. According to him, the envelopes were sealed with the seven seals of Anti-Narcotic Cell, Panaji, Goa-2 with Ashoka emblem. The report of the Chemical Analyser at Ext. PW 1.C also refers to the seven seals of ANCPS, Goa-2 with Ashoka emblem. The learned trial court has recorded the following portion in the evidence of PW 1, Sanath K. Mukhopadhya, which is hereunder:

“The witness also identified his initials on the polythene paper along with the ecstacy tablets. The witness stated that the seal packet received from the police were cut at one end so that three seals affixed by the police are detached from the envelopes which were retained by him and the envelopes were repacked by affixing four seals of the laboratory at points A, B, C and D on both the envelopes. According to him, the other seals on the said envelope are of the police. The witness identifies the rubber stamps and initials at point X on both.”

23. In the cross-examination, PW 1 Sanath K. Mukhopadhya has admitted that the said seals were removed without cutting the envelope. He also admits that before removing the seals he had removed the cellotape affixed over the said seals and thereafter, he had cut the envelope to remove the contents. He says that he could remove the seals without damaging the envelopes and had followed this procedure in both the envelopes. In the cross-examination, he has further admitted, “the file with me carries all documentation of present case excepting the said seals”. The mystery of disappearance of the three seals is not cleared from the evidence of this witness, the mystery, if any, deepens further. If, the three seals had been removed by this witness to facilitate the opening of the envelope, it was incumbent for PW 1, Sanath K. Mukhopadhya to return back those seals while sending the remaining quantity of the contraband drugs. Obviously, the envelopes before the Court contained only four seals and not the seven seals as contended by the prosecution. According to the learned Senior Advocate appearing for the appellant, this is an additional circumstance which casts a doubt on the veracity of the prosecution case itself.

24. From the evidence tendered by the prosecution, it is apparent that the prosecution has not been able to establish that the contraband which was seized from the accused was seized at the spot and thus, there is no guarantee that what was subsequently sealed was the substance that was seized from the possession of the appellant. If, this is so, I am afraid the appellant will have to be given the benefit of doubt and be acquitted.

25. In the result, therefore, Criminal Appeal No. 8 of 2001 is allowed. The conviction and sentence of the appellant for an offence punishable under SS. 20(b)(ii) and 22 of the NDPS Act, 1985 recorded by the Special Judge, NDPS Court, Mapusa, in Special Criminal Case No. 10 of 2000 is hereby quashed and set aside and the appellant is acquitted of the aforesaid offence. The appellant be released forthwith if not wanted in any other case.