CAITAN FERNANDES Vs. STATE OF GOA

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Special Judge, dated 30th March, 1994, in Special Criminal Case No. 19 of 1993 whereby the learned Judge has convicted the appellant for an offence under section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Act") and sentenced him to undergo ten years of rigorous imprisonment and further to pay a fine of Rs. l,00,000/-, or in default to undergo another one year of rigorous imprisonment.

(2.) THE prosecution case is that on 17th September, 1993, on information received by the complainant that the appellant who is from Assagao and is a drug peddlar was going to sell drugs on his motor cycle. The complainant P. S. I. N. V. Mhamal along with some of his staff including the Assistant Superintendent of Police Gautam and two panch witnesses namely Edie Gonsalves and Sudhir Deshpande, both Government employees proceeded in a jeep to Assagao near the house of the appellant at Bhautawado and took their positions in the compound of the house. Within ten minutes thereafter the appellant came out along with the motor cycle from his house in order to go away. At this time P. S. I. Mhamal accosted the appellant and informed him that he was required to be personally searched for drugs as he was suspected to be in possession of drugs. Thereupon after complying with the necessary formalities for the search and seizure a personal search of the appellant was conducted by P. S. I. Mhamal. At that time the appellant was having a waist belt-cum-purse along the waist and he was asked about the contents of the purse-cum-belt which he was carrying. The appellant then opened the purse of his belt and removed from therein a black substance in the form of sticks having been wrapped in cellophane paper. Then the appellant was asked to remove the belt and empty the contents and accordingly he removed all the charas sticks from the purse which were weighed and found to be 370 gms. In the first compartment of the purse-cum-belt there was cash of Rs. 1,000/- while in the other compartment there were some documents including the R. C. book of the motor cycle and the letter of sale of the motor cycle from Adrian Fernandes in favour of the appellant. Out of the quantity of 370 gms. of charas recovered from the appellant, P. S. I. Mhamal separated two sticks weighing 25 gms. and 20 gms. respectively, which after being weighed were wrapped and put in sealed envelopes on which the signature of the panchas, of the appellant and P. S. I. Mhamal were obtained. The cash found in the purse along with documents were put back in the purse which was placed in a large size envelope which was packed and sealed and over which the signature of both the panchas, of the appellant and the Assistant Sub-Inspector Gautam and P. S. I. Mhamal were also taken. Besides these drugs found in the appellants purse on the personal search of the appellant nothing else which was incriminating was found. Thereupon the motor cycle of the appellant bearing registration No. GDL 8314 was also attached. Then, the appellant was taken into his house which was also searched by the raiding party in the presence of the panchas but nothing incriminating was found in the house. Thereupon a panchanama attaching all the incriminating articles was prepared which panchanama was signed by the panchas, the appellant and the P. S. I. Mhamal. The seizure report of the articles attached from the appellant was drawn and copies of both the report as well as the panchanama were given to the appellant. The appellant pleaded not guilty to the charge but the learned Judge after recording evidence of the prosecution witnesses found him otherwise and sentenced him accordingly.

(3.) ON behalf of the prosecution, P. W. 1 Maria Caldeira, has deposed that on 27th September, 1992, one sealed brown paper envelope was received in the office of the Directorate of Food and Drugs Administration from the Superintendent of Police, C. I. D. , Panaji, and on the same day the envelope was sent to the Laboratory wherein she is working as a Junior Scientific Officer. The envelope was bearing the particulars mentioned in her report. The seals fixed on the envelope were covered with cellotape and they were intact and of two types of inscriptions which tallied respectively with the two seal impressions separately sent along with the reference letter. She then described the procedure followed by her to analyse the substance contained in the sample after which she concluded that the substance analysed was containing charas. A report was prepared accordingly and the same is marked Exh. P. W. 1/b. P. W. 2, Sudir C. Deshpande, is one of the panch witnesses who according to the prosecution was present at the spot when the drugs were recovered in possession of the appellant. According to him, on 17th September, 1993, he accompanied the police raiding party to Assagao. The raiding party was consisting of A. S. P. Gautam, P. I. Alex Pereira, P. S. I. Mhamal, besides some constables. The jeep wherein they travelled was parked at a distance of l50 mts. from the house where the police was supposed to conduct the raid. There the P. S. I. divided the party into two groups. He was along with P. S. I. Mhamal while the other group which was headed by constable was consisting of Edie Gonsalves who was another Government servant. The group headed by P. S. I. Mhamal went towards the house and stood at a distance of 20 mts. from that house. The second group stood at a distance of 10 mts. behind. P. S. I. Mhamal pointed out the said house to the second group also. The other police personnel took different positions surrounding the house. The house was having a compound and after sometime a person carrying a motor cycle in his hands came out from the compound and tried to start the motor cycle. It was at this time that the police intercepted him and inquired with him his identity to which he disclosed his name as being Caitan Fernandes. In the meanwhile the other members of the group also approached the appellant. On inquiry he admitted that the motor cycle did not belong to him. Then P. S. I. Mhamal told the appellant that they had come in search of drugs but the appellant replied that he had no drugs on his person. Thereupon P. S. I. Mhamal told the appellant that S. P. Gautam was a Gazetted Officer and that if he liked to be searched in his presence he might be allowed to do so. The appellant was told that S. P. Gautam had the power of a Judge. Then the appellant agreed that he could be searched by the members of the raiding party. At the relevant time the appellant was wearing a belt around his waist and a portion of it was bulging out in the form of a purse. The appellant opened the waist bulging part of the purse which was found to have three compartments. The appellant removed some sticks of drugs from the middle compartment. Then P. S. I. Mhamal started searching the person of the appellant who was asked to remove his waist belt. When the contents of the compartment in the purse of the belt were removed a large quantity of similar substance was removed from the middle compartment. The substance was weighed and found to be 370 gms. out of which 25 gms. were separated for being sent to the Chemical Analyser. One more sample of 20 gms. was also separated. Both samples were packed in envelopes over which he had signed. The appellant and A. S. P. Gautam also signed these envelopes. The remaining substance was put back in the middle compartment of the waist belt. Then the other compartments of the belt were searched. In the third compartment the R. C. book of the motor cycle was found as well as the sale letter of the motor cycle which was bearing the signature of one A. S. Fernandes. In the first compartment of the purse cash of Rs. 1,000 was found comprising of one currency note of Rs. 500/- and five currency notes of Rs. 100/- each. The cash was put back in the same compartment of the waist belt. Thereupon the waist belt was put in a large envelope which was packed and sealed and over which both he and the other panchas P. S. I, Mhamal and S. P. Gautam put their signatures. Thereupon the raiding party conducted a search of the appellants house but nothing incriminating was found. Panchanama attaching the articles was then prepared in his presence and the said panchanama was signed by him and other panch as well as by the appellant and S. P. Gautam. The witness identified at point A his signature and Exhibit P. W. 2/a as being the Panchanama. He also identified at point B the signature of the appellant and at point C the signature of S. P. Gautam. Thereafter a copy of the panchanama was given to the appellant. The witness also identified M. O. 3/a as being the envelope containing the sample. He identified his signature at point A and that of the appellant at point B on the envelope. Thereafter the sealed envelope was opened and he also identified the black coloured substance wrapped in cellophane paper in cylindrical form in the envelope as being the substance attached from the appellant under the recovery. In cross-examination he stated that on 17th September, 1993 he had attended office and remained on duty on that day. He also signed the muster roll in the morning. He further stated that he reported back for duty at 12. 30 in the afternoon. He had reported to his Superintendent and he marked him on official duty. His signature was made only for the morning session. He further stated that on that day he had gone to the Head Office and it was he who asked him to go. Accordingly he left immediately. From his office he was taken on a motor cycle directly towards the house. He was asked to go from the office about half an hour after he commenced his duty, around 10 a. m. as his duty starts at 9. 30 a. m. He stated that he was not taken to the Anti Narcotic Cell on that day. When he reached Assagao there was one jeep and one or more motor cycles. There were also two or three police constables besides the P. ls. present on the spot. There was no other civilian present except himself. On further questions he stated that he did not know where exactly the panchanama was taken but added that he signed the panchanama in the house of the appellant, after all the items were sealed. The sealing was done by one constable but he does not know exactly where the sealing was done. He also could not say who had written all the writings contained on the outer cover of the envelope. He did not also remember whether it was the appellant himself who had removed the sticks of charas from the bag. He then stated that he was not present-when the said things were going on. To a question as to whether it was true that the appellant was seen by him for the first time at Anjuna Police Out Post his answer was that he did not know where the Anjuna Police Out Post was situated. To another question also whether it was true that be saw the appellant for the first time around 11. 30 a. m. to 12 oclock, his answer was that he did not know. He admitted that he had signed the panchanama because the police had told him to sign it and he did not personally know from whom the drugs had been recovered. P. W. 3 Edie Gonsalves is the second panch witness who purportedly remained present on the spot when the raiding party searched the appellant at Assagao. According to him on 17th September, 1993, at about 8. 45 a. m. , he accompanied the raiding party in a jeep to Assagao. It was stopped at a distance of about 100 metres away from the dwelling house. As per the information received P. S. I. Mhamal the house was suspected to have drugs. After reaching the spot the members of the raiding party were divided into two groups which took up their position on different sides. P. S. I. Mhamal and panch Deshpande stood at a distance of 20 mts. from the house while he alongwith A. S. P. Gautam remained at a distance of 20 mts. (10 mts.) away from the house. The other members of the raiding party were scattered. About 10 minutes thereafter one person came out through the gate of the compound of the house and when be was trying to start the motor cycle P. S. I. Mhamal and the other panch accosted him and stopped him. Thereafter all of them went near the appellant who was questioned by P. S. I. Mhamal. He then disclosed his name as Caitan Farnandes. The witness identified the appellant present in the Court as being the same person who was intercepted by P. S. I. Mhamal on that day. Thereafter P. S. I. Mhamal told the appellant that he was going to search him for drugs. He also asked him whether he would like to be searched before a Gazetted Officer or a Magistrate of his choice. The appellant was informed that S. P. Gautam was a Gazetted Officer and he was present there. He was asked whether he would like to be searched in the presence of S. P. Gautam. Then the appellant agreed to be searched in the presence of S. P. Gautam. At that time the appellant was wearing a belt-cum-purse around his waist having a pouch lying on one side, adjacent to his stomach. On opening the pouch it was found that there were three compartments in it. In the middle compartment they saw black substances wrapped in some paper. It was removed and weighed and found to be 370 gms. Out of that quantity a portion of 25 gms. was separated and weighed while another 20 gms. was separately weighed. Both these samples were put into envelopes which were sealed and signed by both the panchas, the accused and ASP Guatam. In the other compartment some documents including the R. C. book of the motor cycle and a sale letter signed by one Adrian Fernandes were found. In the third compartment some Indian currency worth Rs. l,000/- in the denomination of one note of Rs. 500/- and five notes of Rs. 100/- each were found. The documents as well as the currency were put back in the respective compartments of the belt and the entire belt was wrapped in a brown envelope which was sealed and signed by P. S. I. Mhamal, ASP Guatam and both the panchas and the accused. The motor cycle with the key was also attached by the raiding party. Thereupon they conducted a search in the appellants house, but nothing incriminating was found. Thereafter a panchanama was written and was also signed by P. S. I. Mhamal, A. S. P. Guatam, both the panchas and the accused/appellant. The. witness identified Exh. P. W. 2/a as the panchanama which bears his signature at point D as well as that of the appellant at point B. He also identified M. O. I, M. O. 2 and M. O. 3/a which were all carrying his signature as well as that of the appellant. He stated that he does not remember having signed the muster roll for both sessions on 17th September, 1993. Besides that he went to the office in the afternoon and signed the muster roll. He further stated that he had a letter dated 21st September, 1992, instructing him to go alongwith (the raiding party on 17th at the request of the ANC. On further questioning he stated that he received the message from ANC on the previous day i. e. on 16th September, 1993. , asking him to attend office. Accordingly he went to the office of ANC at 8. 30 a. m. on 17th September, 1993 after he reported for duty on 17th September. In the afternoon he went to his appointing authority and told him that he had been to the ANC office to act as a panch witness and the department was very well aware of it. As soon as he attended ANC office in the morning of 17th September, 1993, P. S. I. Mhamal told him that they had some information about the illegal possession of drugs and that his assistance was required to act as a panch witness for conducting the search. He told him that the search would be conducted but neither the name of the person suspected to be in possession of the drugs nor the location of the house of the search was disclosed to him. He came to know the name of the appellant for the first time when P. S. I Mhamal questioned him at the gate of his house when he was about to go on his motor cycle. After recovery of the items panchanama was written in the verandah of the house of the appellant. Drawing of the panchanama commenced only after the weighing and sealing of the items recovered was done by P. S. I Mhamal in that case. He again stated that the weighing was done by P. S. I. Mhamal and the sealing was done by the other staff of ANC Office who were present there. He denied that he was not present at Assagao on the morning of 17th September, 1993 when the panchanama was shown to have been written and that he signed it at the behest of the police later on. He also denied that the other pancha Deshpande was not present at the time and the place where the appellant was apprehended. He denied that no drugs were recovered from the appellant. He has further denied that ASP. Guatam was not present at the time and place where appellant was apprehended. P. W. 4 Naresh V. Mhamal, is the P. S. I. attached to the Anti Narcotic Cell, Panaji. He has stated that on 17th September, 1993, after he received some information that the appellant who is a drug peddlar was going to sell drugs on that day, he arranged two panch witnesses, namely, Edie Gonsalves and Sudir Deshpande, both Government employees. Thereafter he along with the witnesses, ASP Guatam, PI. ANC and other staff member of the ANC proceeded in a police jeep towards Assagao. On reaching Assagao at about 9. 30 a. m. they split into two groups. He alongwith panch Deshpande took position opposite to the house of the appellant while the other group consisting of the panch Gonsalves took position at a distance of about 30 mts. from them. The other staff members spread about. After about 10 minutes, one person came on the road through the compound gate of the house on a motor cycle. When he was about to start his motor cycle he and panch Deshpande rushed towards him and asked his name. In the meantime the other members of the raiding party also came nearby. Then the person disclosed his name as Caitan Fernandes, the appellant. The witness identified the person as the appellant who was present in Court. He then told that they were going to search him for drugs and gave him an opportunity to suggest the name of any Gazetted Officer before whom he would like to be searched. He also told the appellant that A. S. P Gautam was a Gazetted Officer and that he would be searched in his presence. The appellant then agreed to be searched in the presence of the said A. S. P Gautam. At that time the appellant was having a waist belt-cum-purse around his waist. When he was asked about the contents of the purse he opened the purse and removed a black substance in the form of sticks wrapped in cellophane paper. Then he directed the appellant to remove the belt and empty its contents. The appellant accordingly removed all the charas sticks from the purse which were weighed and found to be 370 gms. There were two more compartments in the belt, in one of them cash of Rs. 1,000/- was found while in the other compartment some documents including the R. C. book of the motor cycle in the name of Adriano Fernandes was kept. Thereupon two samples weighing 25 gms. and 20 gms. respectively were taken from the charas recovered from the possession of the appellant which were separately weighed and sealed in two envelopes. Both the envelopes were signed by the witnesses as well as by the appellant and ASP Guatam. Thereafter during the personal search of the appellant nothing else incriminating was found. The motor cycle which was being carried by the appellant bearing No. GDL 8314 of Rajdoot make was attached. After that they proceeded to the house of the appellant which was searched but nothing incriminating was found therein. A seizure report was prepared which was also signed by him as well as by the appellant and A. S. P. Gautam. Thereupon he lodged his complaint at Mapusa Police Station, Exh. P. W. 4/b, which shows his signature at the bottom at point E.