The appellant herein is an accused, who has taken exception to his conviction and sentence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 by Judgment/Order dated 13.09.2004/ 06.10.2004, of the learned Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa, Goa.
2.The case of the prosecution was that P.I. Paes/P.W.4, received reliable information on 31.01.2002, at 11.00 hours, that a person of stated description would come to deliver a consignment of charas to his customer on a black Kinetic Scooter bearing No.GA-02/ F-9956 on the same day between 15.00 to 16.00 hours, which information was reduced into writing and a copy was submitted to the Superior Officer, and thereafter, a raid was conducted near the cross junction at Cortalim, in the presence of panchas and when the person of the stated description reached there at about 15.15 hours, in front of Yogesh Cafe, he was detained along with the scooter and he was found with 2.2 kgs of charas for which he could not lawfully account for.
3.To support the case, the prosecution examined five witnesses namely Police Inspector Shri Paes/P.W.4, his Superior Officer Dy.S.P. Shri Finton D' Souza/P.W.5, Panch witness Vijay Surlekar/P.W.3 and Mahesh Kaissare/P.W.1, the latter having examined the sample subsequently sent to him, and P.S.I. Krishna Shetgaonkar/P.W.2, through whom the sample was sent for analysis to the Director of Food and Drug Administration.
4.On the other hand, the case of the accused is that he was falsely implicated in the case. As per the accused, on 31.01.2002, he had gone to INS Hansa, Air Engineering Department at Dabolim Airport, Vasco, in connection with an ejection seat on the basis of a gate pass issued to him and had collected the same to be taken to Rupali Enterprises for repairs and that he had borrowed the vehicle of Lt. Commander Jayathilagan/D.W.2 and left the gate of the Naval base at 12.00 noon with the said ejection seat and initially he went to his house at New Vaddem, Vasco da Gama, 3 to 4 kms away from his home, and then went to Verna Industrial Estate to verify the manufacture of the relevant part of the ejection seat, and on his way back home, and while he was near the cross junction where he had halted for a cup of tea, 8 to 9 persons entered the tea stall, dragged him out and put him in a jeep and then he was taken towards Pilar-GMC Taleigao-Altinho and then brought to Panaji Police Station and his signatures were taken on blank papers, envelopes and some papers with some writings, after interrogation.
In other words, the accused pleaded that he was falsely implicated by the police and not only that, he examined himself in defence. He also examined the said Lt. Commander Jayathilagan Srinivasan/D.W.2 as well as Lt. Commander Sanjay Sharma/D.W.3. These witnesses were examined by the accused probably to show that till 12.00 noon, he was at INS Hansa and so also the scooter belonging to Lt. Commander Jayathilagan Srinivasan/D.W.2, on which scooter the accused was caught near the said cross junction, near the said tea shop, with a view to falsify the said prior information that it could not have been received by P.I. Shri Paes at 11.00 a.m. The accused had also produced two formidable documents namely the gate pass-exhibit-60 and the Register-exhibit 65, which showed that as against entry No.135, ejection seat was taken out for servicing on 31.01.2002 at 12.30 p.m. and the same was brought back on 20.02.2002 at 16.20 hours.
5.The learned Special Judge found that the testimony of P.I. Paes/P.W.4, could be relied upon as he had stood the test of cross examination, shorn of discrepancies, which did not go to the root of the prosecution case. The learned Special Judge relied upon the case of Shri Bhagwatsingh Gaud v. State of Goa (1988 All MR (Cri) 1421), to support her conclusion that a conviction could be based solely on the testimony of the investigating officer and whose testimony had to be examined with care and caution. The learned Special Judge also came to the conclusion that the prosecution had established its case but the accused had failed to create any doubt on his alibi, though there was no plea of alibi at all taken by the accused. Therefore, the learned Special Judge proceeded to convict and sentence the accused, as aforesaid.
6.At the hearing of this appeal, Shri Lalit Chari, the learned Senior Advocate appearing on behalf of the accused, has submitted that the evidence of P.W.3/Vijay Surlikar showed that he was a pancha who was a pliable witness and, therefore, no reliance could be placed on his evidence. Shri Lalit Chari further submitted that there were major discrepancies in the evidence of the said P.W.3/Vijay Surlikar and those of P.W.4/P.I. Paes as well as P.W.5/Dy.S.P. D' Souza and, in the light of the said discrepancies, prosecution evidence could not have been accepted to prove the case against the accused beyond reasonable doubt. Shri Chari has also submitted that the defence had examined two serving Officers of the Navy and had produced contemporaneous documents and, on the basis of the same, it is the defence evidence which ought to have been accepted and not the prosecution evidence, which was inconsistent. Referring to the gate pass-exhibit 60, Shri Chari submitted that this gate pass was before the Court even before the chargesheet was filed and was produced by Lt. Commander Jayathilagar Srinivasan and, therefore, could not have at all been considered as fabricated. In fact, Shri Chari submits that the vehicle No.GA-02/ F-9956, which was the same vehicle along with which the accused was arrested, was clearly mentioned on the said gate pass-exhibit 60. Reliance has been placed by Shri Chari on the decisions of this Court in the case of Bhagwatsingh Gaud v. State of Goa (1998 Bom.C.R. 485), Vikram Reddy v. State of Goa (2002 (6) LJSOFT 91 : 2002 Bom.C.R. (Cri.) 499) and Rajesh Jagdamba Avasthi v. State Of Goa. (2005 (2) LJSOFT (SC) 28 : 2006 (1) S.C.C. (Cri) 150).
7.The learned Special Judge found the case of the prosecution beyond all reasonable doubt, but I find that the entire case of the prosecution is shrouded in doubt. The learned Trial Court found that the testimony of P.W.4/P.I. Paes, had stood the test of cross examination, but as his cross examination shows, P.W.4/P.I. Paes, was at every stage, reluctant to tell the whole truth before the Court i.e. with a view to suppress the truth and suggest falsehood, as will be seen a little later.
8.The case of the prosecution could be examined in two parts. The first is as regards the so-called information, which was received and which was recorded under Section 42 of the Act and produced at exhibit 37. This information shows that P.I. Paes/P.W.4 had received the same on 31.01.2002 at 11.00 hours stating that a person of stated description, would come to deliver a consignment of charas to his customer on the said Scooter GA-02/F-9956, near the cross junction at Cortalim, Sancoale junction, between 15.00 hours to 16.00 hours on 31.01.2002. The accused has disproved the said story of P.I. Paes/P.W.4, by production of two documents, namely exhibit 60 and exhibit 65 and by examining the said two witnesses. First of all, it must be noted that there is no dispute that the said scooter with which the accused was arrested, namely bearing No.GA-02/ F-9956, belonged to D.W.2/Lt. Commander Jayathilagan Srinivasan and who took away the same from the learned Special Judge, by filing an application dated 28.02.2002. Along with the said application, D.W.2/Lt. Commander Jayathilagan Srinivasan, had annexed a copy of exhibit 60, R.C. Book and repair order given to M/s Rupali Enterprises, to show that the said scooter indeed belonged to him. It appears that P.I. Paes/P.W.4, did not carry out any investigations to find out to whom the scooter belonged to from 31.01.2002 till 28.02.2002 or even thereafter. The said gate pass-exhibit 60, shows the timing as 12.30 p.m. on 31.01.2002. P.W.4/P.I. Paes, had filed a reply to the said application and the learned Special Judge by her Order dated 07.03.2002, had ordered the return of the said scooter to D.W.2/Lt. Commander Jayathilagan Srinivasan.
In such a situation, the gate pass-exhibit 60, which showed that the said scooter GA-02/ F-9956, had left the gate at 12.30 p.m., could not be simply brushed aside and, if the said scooter was with D.W.2 till about 12.00 noon on that day, it is difficult to accept that P.W.4/Paes could ever receive information that the accused would be coming with that scooter at 11.00 a.m. on that day. The accused in his evidence before the Court (D.W.1), stated that he was working earlier as a Chief Aircraft Artificer, and after retirement, was representing the said M/s. Rupali Enterprises and Mechanical Aviation Company and that on 31.01.2002, at about 10.00 hours, he had gone to the Air Engineering Department, INS Hansa, in connection with the repair of an ejection seat and, at the relevant time, he had requested the said Lt. Commander Jayathilagan, to provide him with a vehicle to carry it and that was around 12.30 hours on 31.01.2002. He had produced the said gate pass and had identified his signature on the same and after loading the ejection seat on the scooter, he had left the Airport gate and at the Airport gate, an entry was made in the Airport entry gate outward register and a rubber stamp on the gate pass at 12.30 hours was put. In cross examination, he had stated that the works which could not be done at INS Hansa, were allotted to private parties and that he was the only person dealing with the repairs relating to aviation in M/s. Rupali Enterprises. He had confirmed that D.W.2/Lt. Commander Jayathilagan, had handed over the said scooter at INS Hansa at 12.00 noon and when it was suggested to him that the number of the scooter was put on the gate pass subsequently, he had denied the suggestion.
In case the said scooter registration number was put subsequently, nothing prevented P.W.4/P.I. Paes to have investigated in that direction for such a gate pass was brought to his notice when D.W.2/Lt. Commander Jayathilagan Srinivasan had filed the said application for the return of the scooter. D.W.2/Lt. Commander Jayathilagan Srinivasan, stated that he was working as Deputy Station Air Engineer Officer and by the time he had joined in the year 2002, the accused had already left and was working for M/s. Rupali Enterprises at Vasco. D.W.2/Lt. Commander Jayathilagan Srinivasan, had stated that on 31.01.2002, the accused had met him in connection with the repair order and had asked for his vehicle about 15 minutes prior to 12.00 noon. He had stated that a gate pass was prepared by his Officer as an authority to carry out particular item out of Naval base and such a pass is prepared in four copies. He confirmed that the said gate pass was prepared by his office staff and signed by him and he had identified his signature. He stated that the original is tendered at the gate while one copy is given to INS Hansa, the second copy is given to the person taking the repair order and the third copy remains with the office. He had stated that this gate pass exhibit 60, was signed by him about 10 to 15 minutes prior to 12.00 noon and all the contents were written at the gate pass at the time of its issue and the mode of transportation was also recorded at the gate pass with its registration number and the person carrying the item had also to sign the gate pass.
He had further stated that a record is made on the gate pass by the Security as being checked out with the rubber stamp and initialed by the Security. He stated that the ejection seat was received subsequently on 16.02.2002. He had also identified the signature of the accused on the said gate pass and he had confirmed that as per the gate pass, the accused had left at 12.30 hours on 31.01.2002. He further stated that on the next day, he came to know that the accused was arrested at Sancoale junction and he also knew that his scooter was also attached by the police and which was later on released to him. D.W.3/Lt. Commander Sanjay Sharma stated that as per the records, a gate pass was issued in the name of the accused based on the recommendations of the Air Engineering Department. He had stated that the pass was issued to the accused on 08.10.2001 and was renewed to be valid upto 08.04.2002 and that was to enable the accused to enter INS Hansa. He stated that as per records, the ejection seat was taken out at 12.30 hours on 31.01.2002, and it was carried out on vehicle No.GA-02/ F-11-9956. He also stated that the gate pass was reflected on the register maintained in their office as Inspection Record against entry No.135 and he produced an extract of the same at exhibit 65. He had stated that the second stamp reflects the time when the item was brought back to the base i.e. on 20.02.2002 at 16.20 hours. He admitted that the entry on 20.02.2002, at 16.30 hours, did not state as to who returned the said ejection seat on the said date and time and he did not have any records to show that the said ejection seat had reached M/s. Rupali Enterprises on the same day. He stated that he was not aware as to whom the vehicle GA-02/ F-9956 belonged to.
9.In my view, only because D.W.3/Lt. Commander Sanjay Sharma, could not say as to who had brought back the ejection seat taken by the accused, was no reason to discard the evidence of the said two Lt. Commanders namely, D.W.2 and D.W.3 in the light of contemporaneous public records maintained by them, namely exhibit 60 and exhibit 65. It is difficult to accept that only because the accused at one time happened to work as a Aircraft Artificer, that two serving officers, of the rank of Lt. Commanders, would go to depose falsely to protect the accused. The defence evidence of the said two witnesses, D.W.2 and D.W.3, and the said public documents namely exhibit 60 and 65, was more than sufficient to falsify the claim of P.W.4/P.I. Paes, that he had received the information at about 11.00 a.m. on 31.01.2002 about the arrival of the accused as stated by him for D.W.3/Lt. Commander Sanjay Sharma has himself stated that the accused had asked him for the scooter about 15 minutes prior to 12.00 noon and the scooter left the gate of INS Hansa at 12.30 on that day. It is therefore obvious that, exhibit 37 has got to be considered as a document, which has been fabricated subsequently by P.I. Paes/P.W.4 to support the case of the prosecution.
In this context, reference could be made to the decision of this Court in the case of Vikram Reddy (supra), wherein it has been stated that if the evidence of the raiding Officer (P.W.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 and 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. Therefore, in my view, the first part of the case of the prosecution that information was received at 11.00 a.m. and recorded in a manner stated by P.W.4/P.I. Paes, cannot be accepted. This first part of the story of P.I. Paes/P.W.4, has been falsified by the accused by examining two witnesses and by producing two public documents, which also carry a presumption of truth.
10.The second part is as regards the arrest of the accused at the place near the cross junction. The said cross junction is presumably referred to as the cross junction not because it is formed by crossing of two roads but because of a cross at the northern end of the said junction. A perusal of information recorded/exhibit 37 shows that the accused was stated to be coming near the "cross junction at Cortalim, Sancoale junction". The same has been recorded in the complaint/F.I.R. Exhibit 38, wherein the junction has been referred to as "cross junction at Cortalim main junction side". These statements appear to have been made with a definite purpose. The junction had to be either at Cortalim, where indeed it is, or at Sancoale. It could not be at both the said Villages. There is confusion, worst confounded, as to in which direction the accused came near the said junction, in the evidence of the prosecution witnesses, and this is inspite of the fact that the raiding party was waiting there, as stated by them, for the arrival of the accused. In such a situation, it was normally expected that the raiding party would see from which direction the accused came before he had reached near Yogesh Cafe. According to P.W.4/P.I. Paes, he initially stated that he came with the said scooter from Vasco side (i.e. from northern side). I fail to understand as to how P.W.4/Paes could make such a statement, because a person coming from northern side, could be coming from Panaji as well.
In cross examination, P.W.4/P.I. Paes stated that when he first saw the accused on scooter, he was near Sancoale near the junction towards Margao side (i.e. southern side). Then he stated that he did not see the accused from Sancoale road towards the Sancoale cross junction; then he stated that he did not see the accused "from Sancoale road towards Sancoale cross junction", whatever that expression meant; then again he stated that, that the accused came from Vasco side (i.e. from northern side) as Vasco road is also connecting to the main Panaji-Margao Highway, and all this he stated after stating that they had concealed their presence after they had parked their vehicles near Sancoale Railway bridge junction (i.e. on western side) and which bridge, according to learned P.P., is at a distance of about 150 metres away from the said junction. One fails to understand as to how P.W.4/Shri Paes could have ever made a statement that he saw the accused coming from Vasco side whether he was near the said Railway bridge or for that matter, near the said junction, because otherwise it is not possible even if a person stands at a junction to see whether a person comes from Vasco side since from the junction a person coming from Vasco side cannot be seen and all that could be stated is that a person came from northern direction either from Vasco or Panaji for the said Vasco road joins the Panaji-Margao road much before the said cross junction, on its northern side. It is obvious that P.W.4/Paes was lying through his teeth.
As far as P.W.5/Dy.S.P. D'Souza is concerned, he too has stated that they had parked their vehicles little ahead near the Sancoale Railway over bridge and had concealed their presence along the spot. According to him, he saw one person coming from Cortalim main road junction towards the Sancoale cross junction (whatever that means) but when he was cross examined, he stated that he was towards Panaji side on the Panaji-Margao Highway and he saw the accused coming from Cortalim junction side towards Sancoale Junction when he was 150-200 metres away from Sancoale junction. The said statement of P.W.5/D' Souza, gives an impression that the accused came from the east (Cortalim junction) and was going towards west (Sancoale junction). However, in further cross examination he stated that he was not in a position to say whether the accused was coming either from Vasco side or Panaji side or from the Cortalim old ferry side (northern side) towards Sancoale junction. However, he was categorical in stating that the accused did not come from Sancoale road (i.e. from west) towards Sancoale cross junction, but came from north-south direction of the National Highway 17.
According to P.W.3/Surlikar, the accused came from the road on a scooter which is a internal Village road going towards Sancoale Village from the Cortalim cross junction. Next, P.W.3/Surlikar stated that when he first saw the accused, he came from Sancoale road (i.e. from the west) and was at a distance of 6 to 7 metres from the Cortalim cross junction driving towards the said cross junction. What can be culled out from the said confusion is that P.W.3/Surlikar was positive to say that accused came from Sancoale (west) and P.W.5/D' Souza saying positively that the accused did not come from the west. Then again we have the statement of P.W.4/Paes to say that the accused came from the north (Panaji/Vasco) side and P.W.5/D' Souza stating that he was not sure to say whether the accused came from the north. It is, therefore, obvious that there is absolutely no corroboration in the evidence of the said three witnesses, who are said to have been awaiting the arrival of the accused, as to from which direction the accused had reached at the said junction near Cafe Yogesh. However, the matter cannot be allowed to rest at that.
11.Admittedly, P.W.3/Surlikar had stood as a panch witness two days prior to this raid i.e. on 29.01.2002 and, thereafter, on 15 occasions. This has been admitted by P.W.5/D' Souza. P.W.5/D'Souza has also stated that he was present during most of the raids where P.W.3/Surlikar was a panch witness. I really fail to understand as to what sort of a Superior Officer P.W.5/Dy.S.P. D' Souza is, so as to not have advised P.W.4/P.I. Paes, that he should desist from engaging a panch witness in so many cases and this inspite of the Government having given instructions to call on Government servants to act as panchas. (See Aspak Ahmed v. State of Goa, infra) However, when P.W.3/Surlikar was questioned about this aspect, he stated that he knew P.I. Paes from the time he was called for the raid in this case and that he had met him for the first time on 31.01.2002. It is but obvious that in case P.W.3/Surlikar had stood as a panch witness on 29.01.2002, then certainly, he was telling a lie to the Court. When P.W.3/Surlikar was questioned further, he stated that he did not recall whether he had acted as a panch witness at the instance of the police of ANC Police Station in about ten cases. When it was again suggested to him that he had stood as a panch witness in ten cases, he chose to deny the suggestion and added to say that he might have acted as a pancha in about two cases where P.I. Paes was either the I.O. or member of the raiding party. He was shown a copy of the panchanama dated 29.01.2002 and was asked whether he stood as a pancha along with Sanjay Koulekar and he admitted that he had stood as a panch witness as per the said panchanama. In further cross examination, he admitted that the second pancha might have acted as a pancha along with him in earlier raid but he did not remember the same. He stated that he could not say in how many cases he acted as a pancha after this case and that he was unable to recall what was recovered in the last case where he acted as a pancha. It is therefore obvious that P.W.3/Surlikar was suppressing the truth and in such a situation, no reliance could be placed on his evidence. In this context, reference could be made to the Division Bench Judgment of this Court in the case of Bhagwatsingh Gaud v. State of Goa (supra), wherein this Court stated that the minimum care expected of a search officer of a P.I. level is that he takes independent panch witnesses to witness the search and seizure transaction and if such officer does not act with reasonable prudence, the entire search and seizure may become doubtful. The Court observed that P.W.3 in that case was known to P.W.4 for the last 20 years and P.W.3 had acted as a panch witness just 20 days before that case in the raid conducted by P.W.4 and despite these facts, P.W.4 did not take independent panch witnesses and that there was no evidence to show that despite his efforts, he could not get any panch witness and the shocking part was that the other panch witness was not examined by the prosecution, which, if examined, would enable the Court to evaluate whether the other panch witness was independent witness or he also was a pliable witness and, therefore, the evidence of P.W.3 could not be relied upon.
The cross examination of P.W.3/Surlikar shows that he was not at all present, otherwise he could not have seen the accused coming in a manner different from the manner stated by P.W.4/P.I. Paes and P.W.5/D' Souza. P.W.3/Surlikar has made every effort to suppress the fact that he had acted as a panch witness prior to 30.01.2002 and, in such a situation, no reliance could ever been placed on such a witness. The story of P.W.4/P.I. Paes, is no different. P.W.4/P.I. Paes stated that he had made inquiries about P.W.3/Surlikar and the other pancha Sanjay to find out their antecedents and whether they had acted as panch witnesses in earlier cases and they had replied in the negative. This was clear lie because P.W.3/Surlikar had stood as a panch witness on 29.01.2002. He stated that both these persons had acted as panch witnesses in subsequent raids. He specifically stated that he was not aware if P.W.3/Surlikar had acted as a pancha atleast in ten cases of ANC Police Station. He admitted that he was a member of the raiding party involving accused Joseph Gomes but stated that he could not recall if that raid was conducted on 29.01.2002. On records being shown, he admitted that the raid on 29.01.2002, related to Joseph Gomes and P.W.3/Surlikar was a member of the raiding party and Sanjay Koulekar, was a second pancha. He denied that P.W.3/Surlikar and Koulekar were stock panch witnesses and further denied the suggestion that P.W.3/Surlikar had signed the panchanama at the Police Station without being present at the spot.
The evidence of P.W.4/P.I. Paes shows that he too has made an effort to project that P.W.3/Surlikar was not a panch witness prior to this incident of 31.01.2002. Moreover, as far as vital aspects of the case is concerned, the evidence of P.W.4/P.I. Paes was at variance with the evidence of P.W.5/D' Souza. This was certainly not a case where only the evidence of a Police Officer inspired confidence so as to form the basis of conviction. As already stated, the first part of the story sought to be projected by P.W.4/P.I. Paes regarding the receipt of the information at 11.00 a.m., was falsified by the defence evidence produced by the accused. As far as second part of the story is concerned, the evidence of P.W.4/Paes, as regards the arrival of the accused was conflicting with that of the other witnesses and, in such a situation, it was hazardous to place any reliance on the evidence of P.W.4/P.I. Paes for the purpose of convicting the accused in a serious offence under Section 20(b)(ii)(C) of the N.D.P.S. Act, 1985.
12.As stated by this Court in Aspaq N. Ahmed v. State of Goa (2006 (4) LJSOFT 162 : 2006 (2) AIR Bom R 111), corroboration by independent evidence is not a rule of law but one of caution and prudence. It gives an assurance whether the version given by the Police Officers is true or not. This is not the case where a panch witness had turned hostile to the case of the prosecution and the evidence of P.W.4/P.I. Uday Naik, (in that case) inspires confidence. In fact, it does not. It appears that P.W.4/P.I. Uday Naik was only interested in securing pliable witnesses to witness the search and seizure. The aforesaid observations are squarely applicable in this case. In my view, the evidence of P.W.4/Paes as well as P.W.3/Surlikar, does not at all inspire any confidence and, therefore, the same ought not to have been accepted to base a conviction against the accused.
13.Another inconsistency affecting the veracity of the case, pointed out on behalf of the accused is regarding the sealing of the seized article. As per P.W.4/P.I. Paes, after the sealing, he handed over the seal to Dy.S.P. at the Police Station but, according to P.W.5/D'Souza, P.I. Paes had handed over the seal to him under letter at the spot and, therefore, it is obvious that either of them is not telling the truth before the Court. This Court in the case of Prahlad Bhagat v. State (2004 Drug Cases Narcotic 227), has observed that when the Seizing Officer (P.W.4/Chodankar, in that case) continued to remain in possession of the specimen seal impression and also the seized property, the possibility that the seal and the property had been tampered with, could not be ruled out.
14.In my view, and in the light of above discussion, this is a fit case to acquit the accused. As a result, the appeal is allowed. The Judgment of the learned Special Judge, is hereby set aside and the accused is hereby acquitted under Section 20(b)(ii)(C) of the Narcotic Drugs Psychotropic Substances Act, 1985. The accused to be released forthwith in case he is not required in any other case.