Dr. D.A. Silva, J.
1. The appellant is the accused in Sessions Case No. 74/90 wherein he was convicted by the learned Sessions Judge, Panaji, under section 20(b)(ii) N.D.P.S. Act (hereinafter called the Act) and sentenced to undergo 14 years Rigorous Imprisonment and fine of Rs. 1,00,000/- or in default to undergo further Rigorous Imprisonment for six months.
2. The brief facts of the case are that on information received from Head Constable K. G. Dessai on Intelligence Duty at Mapusa Police Station, P.S.I. Bosco George who is attached to the Anti Narcotic Cell at Panaji went to Mapusa, caught the accused in his barber's shop and took him for interrogation to ANC office, Mapusa where the appellant disclosed that he was having charas in his residence. Thereupon appellant, police party along with panchas went to the house of the appellant and from under the kitchen platform a plastic bag was recovered containing three packets of charas. Samples of the packets were taken by the I.O. and sent to the Directorate of Health Services. The Junior Scientific Officer of the Directorate of Health Services reported that all the three samples were containing charas. Thereupon charge was framed against the appellant to which he pleaded guilty (sic) and claimed to be tried.
3. On behalf of the prosecution three witnesses were examined, namely P.W. 1, Maria Caldeira, Junior Scientific Officer in Food and Drugs Laboratory of the Directorate of Health Services who has testified that the samples sent to her by the Police were containing charas. P.W. 2 Mahableshwar Naik is a panch witness who has deposed that he accompanied the raiding party along with the appellant to his house wherein charas were recovered by the Police at the instance of the appellant. P.W. 3 is P.S.I. Bosco George of the Anti Narcotic Cell who was conducted the raid along with the police party and the panchas and after catching the appellant at his barber's shop at Mapusa, attached the drugs found at his residence. Thereupon the statement of the appellant was taken under section 313 of Cr.P.C. One defence witness has deposed in his favour being D.W. 1 Ratna Bangalorkar who is his wife and has stated that at the time of the raid besides the appellant, her daughter Dreshani and one Kalmish were also staying in the house. However the learned Sessions Judge believed the evidence of the prosecution and sentenced the appellant accordingly.
4. Shri J. P. D'Souza, learned counsel appearing for the appellant, has strongly contended that the alleged disclosure made by the appellant before the panchas which according to the police led to the discovery of the drugs purportedly made by the raiding party under section 27 of the Evidence Act cannot be legally accepted. Shri D'Souza urged that there was no factual disclosure as such and the appellant has never expressed his willingness to disclosure. However even assuming that such disclosure was made that also was done under duress being therefore not admissible in law under Article 20, Part III of the Constitution. Shri D'Souza has submitted that there were many contradictions of vital aspects of the case if Statements of the prosecution witnesses were confronted with each other bearing also in mind the discrepancies which could be found between the statement of the Panch P.W. 1 Mahableshwar Naik and the panchanama allegedly drawn by the Police in his presence.
5. In order to appreciate the submissions made by Shri D'Souza it is useful to scrutinise the evidence given by the prosecution witnesses who have deposed in this case. As far as P.W. 1 Maria Caldeira is concerned it is seen from her deposition that there is no dispute on the part of the appellant on the report given by this witness in respect of the samples sent by the police for examination which admittedly and as per the report submitted by her were containing charas. Therefore the question which arises is whether the samples sent for examination had been in fact taken from any drug substance found in possession of the appellant at his residence. In this respect P.W. 2 Mahableshwar Naik has stated that on 30th July, 1990, when he had gone to Mapusa Police Station at about 6.30 p.m. in order to get news as he is a reporter from Rashtramat, he was called by P.S.I. Bosco to his office where the appellant was already there. Thereupon in his presence the appellant told them that he had kept charas in his house and gave also his name. Whatever was stated by the appellant was immediately recorded in the panchanama (Exh. PW 2/A) which was signed by him at point A. Thereupon he sat in a jeep along with other panchas, the appellant and the raiding party and the appellant pointed out the way to his house at Dangui Colony, Duler. Then the accused pushed the front door of his house and entered inside wherein there was a small child of about 7 to 9 years old. They all followed him inside the house. After the entrance room there is a kitchen wherein the accused entered. The cooking place is on top and from below the same the appellant took out a white plastic bag which was brought to the entrance room by him. Thereafter he took out the contents of the plastic bag consisting of three slabs of blackish colour of different sizes which the accused removed from the bag. The police weighed the bigger slab out of those and its weight was 936 gms from which a sample of 6 gms. was removed. There were two weighing scales, one big and one small. The slabs were weighed in the big scale and the samples in the small one. The Police sealed the sample and the slab separately. Thereafter the second slab was weighed and it was found to be 535 gms. The slab was weighed in the big scale and out of which a sample of 6 gms was weighed in the small scale. Both were sealed separately. Then the third slab was also weighed in the big scale and its weight was 260 gms, from which a sample of 6 gms. was taken and weighed in the small scale. Both were sealed separately. Thereafter the plastic bag was sealed also separately. The witness identified all the packets sealed and produced before the Court as well as his signature affixed by him on the envelopes wherein the packets had been wrapped and sealed. When the envelope marked P. 1 was opened it was found that it was containing one slab wrapped in red cellophane paper below which there was a brown paper and below blackish material. When the envelope marked P. 2 was opened it was found to be containing one slab wrapped in brown paper and under which there was a red cellophane paper and inside blackish substance. When the third envelope marked P. 3 was opened from inside the said envelope one slab wrapped in brown paper below which there was red paper and blackish substance were found. In cross-examination he admitted that the accused was handcuffed when he went to the office of the P.S.I. After completion of the first panchanama at the Police Station they moved out in the police jeep within about 5 minutes. The number of jeep was not mentioned in the panchanama drawn at the Police Station. They went to the jeep subsequent to the drawing of the panchanama at the Police Station and nothing was subsequently added in the panchanama which was prepared at the Police Station. The said panchanama was drawn between 7 to 7.30 p.m. The appellant was handcuffed on one hand when he was taken in the police jeep. The cooking place is facing the kitchen door as one enters the kitchen. The cooking place is a platform of stones and there was space below from where charas were recovered. The panchanama started at 7.40 p.m. when the accused emptied the plastic packet in the entrance room after removing the same from below the cooking place. The said panchanama was written in the house of Serafin Dias and K. G. Dessai and Punaji Dias have weighed the substance in their presence. There was no one else in the house except a small child when they went in. However the panchanama drawn at the police station mentions that when they were introduced to the appellant in the office of P.S.I. Bosco he gave his name as Shankar Raju Banglorkar and stated that at his residence in Duler he has about two kilos of charas kept under the kitchen table which he was ready to show to the Police. Obviously there is substantial divergence between what the panchas stated in his deposition before the court to the effect that the appellant told them that they had kept charas in his house without mentioning the quantity of charas or the exact place where it was purportedly kept namely under the kitchen table of the house. Similarly also there is a contradiction between what the panchas stated that he was not aware of the number of police jeep waiting and that no number had been recorded in the panchanama when the perusal of the panchanama shows that it contains an indication that they left Mapusa Office of Anti Narcotic Cell in Police No. GA-01-0009 along with the appellant. Again in the house search panchanama of the same date there is a divergence between what the witness stated that when they reached the appellant's house he pushed the front door of the house and entered inside contrary to what is mentioned in the panchanama that the appellant opened the main door and entered the house. Similarly there is a discrepancy in the narration made by the panch witness with regard to the manner in which the packets were wrapped when found in white plastic bag under the kitchen table of his house. In his deposition differently from what is recorded in the panchanama which only mentions that the appellant after opening the plastic bag produced three pieces of black coloured substance suspected to be charas which after being weighed and samples having been taken were separately packed and sealed, it is revealed that when the envelopes/packets P. 1, P. 2 and P. 3 were opened before the Court, from inside the envelopes the charas i.e. blackish material was found wrapped in two wrappings, being one cellophane paper of red colour and above that brown paper also. At this stage it is pertinent to note that as far as P. 1 is concerned the description by P.W. 2 Mahableshwar also differs as far as P. 1 is concerned. He has stated that when P. 1 was opened one slab wrapped in red cellophane was found, below the cellophane paper, brown paper was found below it there was blackish material, while as far as P. 2 and P. 3 are concerned he has stated that from inside the envelopes one slab wrapped in brown paper was found under which there was red cellophane paper and then blackish substance. To be noted also that while the panchanama refers to the fact that the appellant disclosed before them that the drugs were kept by him under the kitchen table which he was prepared to show to them and this was again recorded in the subsequent house search panchanama in his deposition the aforesaid witness has stated that the white plastic bag wherein the drugs were found was removed by the appellant from below the cooking place.
6. In his turn P.W. 3, P.S.I. Bosco George has stated in his deposition that after the appellant was taken by him from his barber's shop to the office of Anti Narcotic Cell at Mapusa Police Station, two panchas were secured and taken before the Police in whose presence the appellant was asked to narrate what he had stated previously to him in respect of the drugs. Thereupon the appellant narrated before the panchas and the panchanama of narration was drawn. Then they all went in a jeep to the house of the appellant at Duler as per the directions given by him. The jeep was stopped in front of the house of the appellant. The door of the house of the appellant was closed and the appellant knocked the door and a child answered from inside. This is no doubt a material contradiction between what the panch witness stated that the appellant just pushed the door and entered and what this witness says that the door was locked and the appellant knocked the door and it was opened by the child from inside. This witness also said that after entering the house the appellant went into the kitchen where there is a cemented platform over which there is a wooden piece. From under this platform the appellant took out one polythene bag. This also differs from what P.W. 2 Mahableshwar said that the bag was found under the cooking place. The witness further says that the witness handed over the plastic bag to him and it was he who opened the bag and found three slabs wrapped in cellophane paper. Again there is a material contradiction in what P.W. 2 Mahableshwar states that the bag was opened by the appellant and it was he who removed the three slabs of charas from the said bag. Besides no reference was made by Mahableshwar to any cellophane paper wrapping the slabs. Again P.S.I. Bosco differently from what is found in the panchanama refers to the colour of cellophane paper saying that one was of red and two of green or blue colour. Further he has stated that the slabs were weighed by K. G. Dessai, differently from what Mahableshwar has stated that the weight of the slabs was taken by K. G. Dessai and Punaji Gawas and this also with the help of two scales, being one big and one small. In this respect P.S.I. George stated that they had carried a full kit like common balance, sealing material, gum, paper, envelopes, etc. to do the weighing. There is no reference at all to any big balance and a small one to take the weight of the charas as well as of the samples. He further states that after the weight was taken and the samples removed the slabs were sealed along with cellophane paper. Here there is also no reference to any brown paper wrapping the cellophane paper as it was found when the packets were opened before the Court.
7. Shri D'Souza has contended that from the overall assessment of this evidence there is no mention in the panchanama as to at what stage the charas were wrapped in brown paper the existence of which does not appear also in the testimony given either by the Investigating officer or by the panch witness. Besides from the perusal of the original panchanama which at the instance of the learned counsel for the appellant was produced before us we have taken note that below the said panchanama it is written that a copy was handed over to the appellant. However, although a place was earmarked with a cross for the purpose of the appellant's signature, the said signature is missing in the panchanama. We are therefore in agreement with Shri D'Souza, in view of the absence of appellant's signature, that no copy of the panchanama appears to have been handed over to the appellant in breach of the provisions of Section 100 of Cr.P.C. Shri D'Souza contends that this fact by itself suggests that no panchanama of recovery was done in respect of the drugs purportedly found in his house and that the whole exercise was just prepared and cooked by the Police in order to falsely implicate him in the case.
8. It follows therefore that the contradictions pointed out by us in respect of evidence of the witnesses relied by the prosecution seems to justify the submission of Shri D'Souza that the said evidence is not conclusive and sufficient by itself to establish beyond doubt the fact of recovery of the drugs allegedly done by the raiding party in the appellant's house, consequent upon the disclosure made by the said appellant, under section 27 of the Evidence Act. However, even assuming that the said disclosure might have been made by the appellant before the panchas from the evidence given by P.W. 2 Mahableshwar that the appellant was handcuffed at the time he purportedly expressed his willingness to show the place where the charas had been kept in his house somehow substantiates the contention of the learned counsel for the appellant that this disclosure was made under duress, pressure or threats given by the Police being therefore not admissible in law in terms of Article 20, Part III of the Constitution.
9. It was further urged by Shri D'Souza that the Investigation Officer did not fulfil all the legal procedural safeguards under the Act while conducting the search of the appellant's house. Shri D'Souza has pointed out that, purportedly, there was a clear violation of the provisions of Sections 52(1), 52(3) and S. 55 of the Act.
10. As far as Section 52(1) which refers to disposal of persons arrested and articles seized and enjoins any officer arresting a person under sections 41, 42, 43 or Section 44 to inform of the grounds of such arrest as soon as my be, it was contended that there was nothing in the evidence of the prosecution witness to show that the accused had been informed about the grounds of his arrest and the panchanama also is not disclosing as to what was the reason of his arrest.
11. Similarly and with regard to Section 52(3), according to which every person arrested and article seized under sub-section (2) of Section 41, Sections 42, 43 or Section 44, shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, Shri D'Souza submits that there is no dispute that this was not also done in the present case. The raid and the arrest having been admittedly carried on by the Investigation Officer within the jurisdiction of Mapusa Police Station there is nothing on record to show that after his arrest either the appellant was taken before the officer in charge of the Mapusa Police Station or the articles seized were forwarded or handed over to him so as to enable the said officer to act under sub-section (4) of Section 52 of the Act.
12. Again and in respect of Section 55 it was argued by Shri D'Souza that there is also no evidence that the drugs allegedly seized and attached by the Investigation Officer were given in charge of the officer of the Mapusa Police Station in order to be kept with him in safe custody. This fact by itself vitiates the seizure in view of the legal command which in this case, as it happened also in the case of Section 52 are mandatory provisions which were supposed to be strictly complied with by the investigation agency.
13. Shri D'Souza has placed reliance on the decision of State of Himachal Pradesh v. Sudarshan Kumar, 1989 Cri LJ 1412, wherein it is held that the provisions incorporated in Section 52(1) is mandatory. He has also relied in another decision in Rajesh v. State, (1989) 3 Crimes 638 : (1989 Cri LJ 1814), which refers also to the mandatory nature of this provision and wherein it has been observed that it is only the officer in charge of the Police Station namely the S.H.O. who is to take charge of the person arrested, as well as the articles seized, and supervise the proceedings, have the parcels sealed with his own seal, and then get them deposited at the Police Station for safe custody in order to fulfil the object of the Act which is to provide supervision by a superior officer. In this case the Court held that in view of the fact that the provisions of the Act in regard to the sealing of the seized articles had been violated and no reliable evidence was available to the effect that the seal of the S.H.O. was in fact affixed to the samples the conviction under Section 21 of the Act was not maintainable. Reliance was also placed in the decision of Hakam Singh v. Union Territory of Chandigarh, 1988 Cri LJ 528, which also refers to the mandatory nature of Section 52 of the Act.
14. Shri Bhobe, the learned counsel appearing for the respondent, vehemently argued that the evidence brought on record by the prosecution through the examination of the panch witness who has substantially corroborated the contents of the panchanama together with the one of P.S.I. Bosco George is sufficient to establish a clear case of possession of drugs by the appellant and which were purportedly recovered from his residence at his instance. Shri Bhobe further submitted that the contradictions, if any, are not material or affecting the intrinsic merits of the evidence so as to disprove the credibility of the prosecution witnesses or justify the discarding of their testimony in this case.
15. We are, however, afraid that it is not possible for us to accept Shri Bhobe's submission in this regard. We have already pointed out in considerable detail a number of inconsistencies and substantial divergences between the deposition of the only two eye-witnesses of the search raid allegedly conducted at the residence of the appellant and relied by the prosecution as well as the contradictions which flow when the testimony of the panch witness and of the Investigation Officer are respectively confronted with the very panchanama and the complaint lodged by the latter. Even with regard to the panchanama of recovery it is found that no copy of the panchanama was supplied to the appellant after the purported search and recovery of the drugs was done, this also in clear violation of the imperative mandated of sub-sections (6) and (7) of section 100 of Cr.P.C. The net result of this breach is that the entire search panchama and the consequent recovery is to be held as vitiated, illegal and void and therefore the only inference to be drawn in the circumstances is that no such panchanama appears to have been prepared by the investigation agency on the spot on that day.
16. Further Shri D'Souza has also argued that the whole case of the prosecution seems to be highly improbable. In this respect he took us through the deposition of P.S.I. Bosco George who has stated that on 30-7-1990, at about 2.00 p.m., when he was in ANC Officer he received a phone call from Mapusa Police Station from head constable K. G. Dessai, who was on intelligence duty, that a possible raid in connection with drugs could be done since someone was interested in selling drugs. Thereupon he along with staff of ANC proceeded to Mapusa. They went there and head constable K. G. Dessai explained to them that a person who was working as a barber in the market was interested in selling charas. He also said that they may not find any drugs on his person and that he would have to be interrogated. Thereafter he, head constable Punaju Gawas and K. G. Dessai went in a jeep to Mapusa market to the barber's shop. K. G. Dessai pointed towards him saying that he was the person. He then told the appellant to come along with him to the Police Station but he resisted, on account of which he caught one of his wrists and head constable Dessai caught hold of another wrist of the appellant and in this manner he was taken to the police jeep from where they went to the ANC Office at Mapusa. Thereafter they interrogated the appellant in the office during which he disclosed that he had three packets of charas which he had kept in his house. He further stated that he was ready to show him the said charas packets. Shri D'Souza submitted that this shows that K. G. Dessai, who allegedly tipped off P.S.I. George, did not even inform his superiors at Mapusa Police Station about the probable existence of drugs in possession of the appellant. Again and once K. G. Dessai identified the appellant as a barber by profession and suspected of selling drugs to his customers, no immediate search was carried on by P.S.I. George on his body or in his shop.
17. There is no doubt a lot of substance in this submission of Shri D'Souza. The prosecution very stragely failed to explain as to the actual reason why such search was not forthwith conducted on the spot as this would be the natural course to follow. It is in this context that the failure of the prosecution to examine K. G. Dessai assumes relevance because only he would be in a position to inform about the source of his knowledge regarding the existence of drugs in possession of the appellant in his house rather than in his shop which the raiding party chose not to search evidently under the suggestion of K. G. Dessai himself. We say so because, otherwise, it does not make any sense that having come expressly all the way from Panaji to seize drugs in possession of the appellant P.S.I. Bosco George did not bother to bodily search him or even his shop after he was identified by the informant and instead took the appellant to his office at Mapusa Police Station wherein after his interrogation for about two to three hours the appellant purportedly admitted being in possession of drugs and expressed his willingness to disclose the place where he had kept them in his house. This story of the prosecution appears to us rather unreal and we are thus inclined to accept Shri D'Souza's argument about the evident improbability of the whole case of the prosecution with this regard.
18. At this stage Bhobe has also pointed out to us that although several decisions had been cited by the learned defence counsel in support of his contention that the procedural provisions of Ss. 52 and 55 of the Act are Mandatory in nature, however, a Division Bench of this Court in the case of Hemant Vyankatesh Agwan v. The State of Maharashtra, has clearly held both these provisions as not mandatory.
19. It is true that in the aforesaid decision, the Division Bench after going through the entire case law available at that time observed that the provisions of a statute enjoining performance of public duties are generally speaking directory, that merely because some procedural instructions requiring strict compliance by public functionaries incorporated in the Act the non-observance of these instructions would not nullify the actions taken and that considering the scheme of the Act in the light of the larger Bench decisions of the Supreme Court, the above mentioned provisions were to be held as directory. But at the same time the Court cautioned that simply because these were directory ones it would not mean that they could be ignored with impunity and if they were not complied with one would expect at least some reasons to be given for its non-compliance. Further the Court would also be advised or required to be very careful and circumspect in weighing evidence when there is such a failure on the part of the investigating agency so as to avoid and see to it that no prejudice would arise to the accused consequent upon this failure. Thereafter, on facts, the Court concluded that most of the safeguards which have been prescribed under the Act had been actually observed only in breach and this fact would ipso facto show the prejudice that had been caused to the accused by the omission. Hence the conviction and sentence was set aside and the accused set at liberty.
20. In the instant case we have already highlighted not only the inconsistencies and improbabilities of the prosecution case but also recorded the fact that both the provisions of S. 52(1) and S. 52(3) as well as the mandate of S. 55 were not complied with which, in other words, means that all the ordinary safeguards in this respect were denied to the appellant. No explanation came also forward from the prosecution to place on record in what circumstances they have failed to follow the requirements of S. 52(1) or S. 52(3) and S. 55 of the Act. Therefore we are of the view that this fact by itself suggests the breach that such omission had caused to the appellant leading to the vitiation of the whole investigation and by reflection to the nullity of his trial. Further the cumulative effect of these circumstances and contradictions on the vital aspects of the matter as pointed out above leaves us without any other choice rather than to give a clear benefit of doubt to the appellant.
21. Before parting with this case we feel our duty to express our unhappiness and deep concern due to the fact that in spite of a comprehensive legislation enacted to prevent and curb the trade and consumption of drugs the facts reveal that till now it has not been possible to effectively enforce such legislation in Goa for lack of a proper set-up to adequately work out its meaningful provisions, as a result whereof it is a matter of regret that very often good and genuine cases get lost on merely technical grounds. We do hope and firmly believe that it is already high time for the concerned authorities to realise that only a more attentive and efficient investigation as well as a strict compliance of the statutory directions of the Act which would enable them to successfully eradicate the drug menace in this State.
22. In the result we allow this appeal and quash and set aside the conviction and sentence imposed on the appellant by the learned Sessions Judge, Panaji. We further direct that the appellant be released forthwith if he is not required in any other case.
23. Appeal allowed.