JUDGMENT
D.G. Deshpande, J.
1. Appeal No. 323 of 1999 is filed by original accused No. 1 and appeal No. 336 of 1999 is filed by original accused No. 2. Both these accused have been convicted by the Special Judge, Greater Bombay, vide his judgment dated 28.4.1999 under the NDPS Act separately and individually and have been sentenced to suffer R.I. for 10 years on each count and fine of Rs. one lakh or in default to suffer R.I. for four months on each count. These two appeals have been filed against the said judgment of conviction.
2. The prosecution case, in short, was that the Narcotic Cell, CB CID, Mumbai on specific information laid a trap at the entrance of Sion Hindu Cemetery, on the corner of Sion Dharavi Road, Near Ambedkar Chowk, Dharavi, Mumbai around 12.30 p.m. on 1.1.1998. At about 14.25 hours accused No. 2 Kamaluddin came there and stood at the corner of Sion Dharavi Bridge near the entrance of the cemetery. He was seen waiting for somebody. After ten minutes, accused No. 1 Mohammed Yusuf arrived at Ambedkar Chowk in a taxi. After alighting from the said taxi, accused No. 1 went towards accused No. 2 and after some dialogues accused No. 1 took out a packet from stomach region of his pant and handed it over to accused No. 2, and, at that time PI. Chandanshive, the police party and panchas surrounded the accused on the spot.
3. At the same time one more person, tallied with the description of the police, which they had, who was Iranian national, by name Salim @ Hassan, was seen approaching to these accused. But he fled away after he saw that these accused were surrounded by the police.
4. In the search, that followed, two packets containing 450 grams heroin each have been recovered from both the accused and then in that background they were prosecuted and came to be convicted. The present appeals are against that order
5. This is perhaps a rare case, as pointed out by the counsel for the accused, where the accused himself examined in his defence and where both the accused had examined witnesses in support of their defence. The defence of the accused was very specific and, therefore, it is necessary to consider it at this juncture.
According to both the accused, Azad Maidan Unit of the N’Cell, which, according to the prosecution, is behind this case right from the beginning i.e from receiving information, was never into picture and it was Andheri Unit of the N’Cell, headed by PW5 D.D. Wadmare, who was behind this case. According to them, PW 5 Wadmare, without any authority, was running that cell and he had taken both these accused in his custody on 31.12.1997 and not on 1.1.1998 as alleged by the prosecution from the respective hotels where the accused were staying. Some others were also taken into custody by the said Wadmare. Attempts were made to extract the money from these accused on false pretext and when they failed, these accused were shown to have been arrested in the manner stated by the prosecution. According to both the accused, none of them, right from their arrest on 31.12.1997 or 1.1.1998 were kept in the lock up at Azad Maidan Unit of the N’Cell; that no vehicle of Azad Maidan Unit of the N’Cell was used in the raid which took place at Sion Dharavi Bridge; that at no time, either from 31.12.1997 or 1.1.1998 to 5.1.1998 these accused were taken from the lock up of Azad Maidan Unit of the N’Cell and produced before the Magistrate; that there were serious complaints of similar nature against PW 5 Wadmare which were inquired into by their defence witness ACP Inamdar; that the defence evidence led by the accused is sufficient to create doubt about the entire prosecution case and; the accused are entitled for benefit of doubt and consequently for their acquittal. That in support of their defence, the accused, firstly, applied to Azad Maidan Unit of the N’Cell for inspection of log book of their vehicle for the relevant period, their lock up register and the documents pertaining to movement of under-trial prisoners from the said lock up to the Court or otherwise. But when the Azad Maidan Unit of the N’Cell did not care to meet the demands, the accused made an application in that regard to the Court of Special Judge and even though the Special Judge passed an order in favour of the accused directing the prosecution to produce those documents, the prosecution never produced those documents and, therefore, strong adverse inference for suppression of truth and for suppression of fact should be drawn against the prosecution.
6. Side by side, the accused also attacked the prosecution case as it is and contended that there were no compliance to Sections 42, 50 and 57 of the N.D.P.S. Act and, therefore, they were entitled for acquittal.
7. The trial Court in the impugned judgment discussed the evidence of the defence witnesses and the defence raised by the accused and negatived all their contentions. The trial Court held that the accused could not prove any of the facts alleged by them in their defence, nor they could make any inroad in the prosecution case and, therefore, they were liable to be convicted and, accordingly convicted the accused.
8. I heard both the advocates for the accused and learned APP Mr. Singhal for the State. Similar contentions were raised by both as raised before the trial Court and, in addition, the judgment of the trial Court was assailed by the accused for improper appreciation of the evidence and for coming to wrong conclusion about the prosecution case and about the defence.
9. The question in this case is, therefore, whether the defence raised by the accused has been proved by them. It has to be borne in mind at this juncture that the accused are not required to prove their defence beyond reasonable doubt, but what is required by them is that the defence raised by them should be sufficient to create doubt in the mind of the court and, if the accused succeed in creating such doubt, they must be given benefit of doubt.
10. It is in this background that the defence of the accused is required to be taken into consideration. In order to prove its case, the prosecution has examined PW1 Harishchandra R. Parmale who was working as PSI, N-Cell, CB CID, Azad Maidan, Mumbai. He has stated about the information received by PSI Wadmare at 10.25 a.m. on 1.1.1998 as per Exhibit-11. He has also stated about the preparing of pre-trap panchanama, prepared by PSI Wadmare bearing signatures of two panchas and also stated about actual raid carried out by them; catching hold of both these accused; complying with the requirements of the Section 50 recovering two packets of 450 grams each from both the accused; preparing post-trap panchanama and taking out samples etc.
11. At this juncture it is to be noted, as requested by the counsel for the accused, that after examination-in-chief of PW 1 they applied to the Court under Exhibit 16 to permit them to defer the cross examination of the said witness because they apprehended that if PW1 was cross examined at that juncture their defence will be frustrated causing them great prejudice. The learned Judge, however, rejected that application as per his order dated 1.12.1998.
12 Thereafter prosecution examined PW2 Arjun Sonawane to whom PSI Wadmare handed over two envelopes and, who, in turn, handed over those envelopes to the Food and Science Laboratory. The prosecution then examined panch witness Dinesh Jain as PW3 to prove pre-trap panchanama and post-trap happenings. Fourth witness examined by the prosecution was Vilasrao Chandanshive who was working as PI with N’Cell, Azad Maidan Unit, and had supported PW1 and PW3 in all respects so far as the prosecution case is concerned. 5th witness examined by the prosecution was Deoram Wadmare who was working as PSI attached to N-Cell. CB CID, Azad Maidan Unit.
13. Against this, after the statements of the accused were recorded under Section 313 of the Cr. PC, they gave their written statements in support of their defence and then examined Rais Ahmed as DW1 who was knowing accused No. 1, Kamal Sultana as DW2, who is the wife of accused No. 1, DW3 was one Kamaluddin i.e. accused No. 2 himself, DW4 was Moosa Rehman and DW5 was A.C.P. Inamdar.
14. Since the entire attack of the defence is on working and role played by PW5 PSI Wadmare, it is necessary to consider his cross examination particularly in the background of the allegations made against him.
15. It needs to be clarified at this juncture as I did while hearing the arguments of the counsel for the accused that whether a raid was carried out by Azad Maidan Unit of the N-Cell or whether it was carried out by Andheri Unit of the N-Cell makes no difference. The learned Counsel for the accused conceded that generally it would make no difference. However, his contention is that the entire case of the prosecution stands falsified if the circumstances brought out on record by the accused are given serious consideration.
16. The defence of accused No. 2 Kamaluddin is that on 31.12.1997 he was arrested in the room on the ground floor of New Green Guest House, Hidayat Ullah Compound, Mahim-Dharavi Main Road, Dharavi. He was living in the said house for two days before his arrest. However at about 11.30 a.m. on 31.12.1997 five persons who introduced themselves as the CID men, Crime Branch came to his room. They asked for his passport. He handed over the said passport. They carried out search of his room. One Indian by named Musa was in his room and the room of Mr.Anten, a Srilankan National, was searched and PW5 Wadmare was amongst those five persons.
17. Thereafter, according to accused No. 2-DW3, he was taken along with the said Anten to Andheri N-Cell by PW5 Wadmare. Office of Andheri N-Cell Unit was locked. Officers and PW5 did not have any keys, therefore, they broke open the lock, that on 1.1.1998 accused No.2-DW3 was questioned in the said office, he was concurrent with accused No. 1, but he pleaded ignorance about the accused No. 1. On 2.1.1998 Musa and Anten were released and, thereafter accused Nos. 1 and 2 were produced before the Court and again taken to Andheri N-Cell Unit and then they were produced before the Court on Friday but they were kept at Andheri N-Cell Office on Saturday and Sunday and, for the first time, they were taken to Azad Maidan, N-Cell office on 5.1.1998. Accused No. 1 complained about the ill-health and then he was removed to J.J. Hospital where he was kept in I.C.U. Accused No. 2-DW3 further stated that PW-5 Wadmare seized his documents, VIP briefcase, 400 US Dollars Rs. 5000, for which no receipt was given nor his passport was returned.
18. When accused is taking specific defence as has been done by accused No. 2 supported by accused No. 1 and when they were rightly harping that they were never kept at Azad Maidan N-Cell lock up; that they were never surrounded at Sion-Dharavi Bridge; that no police party came in jeep and they were never produced at any time before any Court from Azad Maidan N-Cell lock up, it was necessary for the prosecution to remove these doubts and produce the relevant papers for inspection of the court. The accused had applied to the Azad Maidan N-Cell office firstly for inspection of those documents and thereafter moved the Court and the Court passed an order directing the prosecution to supply those documents to the accused. However, in spite of this specific order from the Court, the prosecution did not comply with that order and the learned APP Mr. Singhal had no reasonable explanation about this non-compliance of the order or defiance of the order.
19. This is, therefore, a fit case where adverse inference for non-production of relevant documents is required to be drawn against the prosecution. When the Court passes an order after hearing both the sides and directs the prosecution to give certified copies of the documents which are important for the defence then it is obligatory upon the prosecution to supply those documents. The prosecution not only did not only grant inspection of those documents but also did not give certified copies of those documents. This is a grave situation requiring court to draw adverse inference against the prosecution viz. that if the documents had been produced, they would have substantiated the contention of the defence that they were never kept in the Azad Maidan N-Cell lock up and that PSI Wadmare PW5 was never present in the Azad Maidan N-Cell Office right from 31.12.1997. This also requires the Court to draw adverse inference against the prosecution that on 31.12.1997 PSI Wadmare and other police officers did not go into jeep of their department from Azad Maidan N-Cell Office to Sion-Dharavi bridge.
20. PSI Wadmare was extensively cross examined by the accused in this regard. He admitted in para 57 of his evidence that on various occasions he had taken out the accused No. 2 from lockup. But there were no entries in the station diary in respect of the accused No. 2 being taken out from lockup for investigation. He has admitted that there was no entry showing his attendance in Azad Maidan N-Cell Unit on 3.1.1998. He does not remember when accused No. 2 was lodged in the lock up in the evening of 2.1.1998. He could not explain why there was no entry made in that effect in the station diary. When confronted he did not find any entry of his attendance in the station diary on 3.1.1998, nor any station diary about production of the accused No. 2 before the court on 2.1.1998.
21. In para 65 of his deposition PSI Wadmare tried to explain that many times he reported to the Court directly and returned to his residence without reporting to the police station and his attendance was not shown in the station diary. He stated that he was busy in interrogation and, therefore, he did not feel it necessary to inform SHO to record his attendance in the station diary on 2.1.1998. He has stated that he had taken the police vehicle for investigation from 1.1.1998 to 7.1.1998 but he used to take the vehicle without informing the superior officers. He does not remember whether he signed the log book of the vehicle between 4.1.1998 and 7.1.1998.
22. Regarding functioning of Andheri N-Cell Unit, PW5 Wadmare stated that at the material time there was only Azad Maidan Unit of N-Cell and on 1.1.1998 Andheri Unit was under lock. He does not recollect whether he was at the N-Cell office for the entire day of 31.12.1997 and he does not remember who amongst them had the keys of Andheri Unit. He does not recollect having used police vehicle on 31.12.1997. These replies of PW-5 Wadmare are evasive and assumed importance because of the specific defence taken by the accused. Otherwise in ordinary course a police officer may not remember what he had done or what he was doing at a particular day, but when the accused had come with a specific defence by filing application for certified copies in this regard and the court passed an order, giving evasive reply by PW-5 creates strong doubt about his veracity. This taken together with the adverse inference to be drawn against the prosecution, weakens the entire prosecution case.
23. The conduct of PW5 even in other respect also is rightly challenged by the counsel for the accused. He contended that if the passport of accused No. 2 was taken by PSI Wadmare then it was necessary for the investigation agency to return the said passport to the said accused. However for no reason the passport was handed over to one Anten, the other person who was collected from the hotel and who was subsequently released as per the defence case. PSI Wadmare admitted in his evidence that during the course of investigation he had visited a room of hotel Shalimar where accused No. 2 was lodged. He also found one Srilankan passport standing in the name of accused No. 2 and one Anten was also staying in the said room. PSI Wadmare had no explanation offered as to why the passport was returned to Anten when nobody asked PSI Wadmare to do so i.e. neither the accused nor anybody from the accused nor the accused authorized Anten to receive his passport on his behalf.
24. The counsel for the accused pointed out that if from the aforesaid admissions of PSI Wadmare it was clear that the accused No. 2 was staying in the room of Hotel Shalimar at Dharavi and if that is so, then there was no reason for investigating agency to show, in their letter dated 7.1.1998 Exhibit 34 addressed to the Secretary, Ministry of External Affairs, Government of India, New Delhi, the address of accused No. 2 Kamaluddin at Green Guest House, Mahim, Dharavi, Main Road, Dharavi. This Exhibit 34 falsifies, according to the accused, the case of the prosecution and the evidence of Wadmare that he visited hotel Shalimar in connection with this case where accused was lodged. I find strong force in this submission of the defence counsel. If on 7.1.1998 the office of Deputy Police of Commissioner writes to the Secretary and gives address of accused No. 2 Kamaluddin at Green Guest House, Mahim, then PSI Wadmare PW5 is not telling truth to the Court and the defence of the accused gets support that he was at Green Guest House.
25. It is pertinent to note that before PSI Wadmare was asked about station diary entries regarding his attendance he has stated in his cross examination (Para 52) that the presence of the officers is noted in the station diary and attendance record in usual course is separately maintained in respect of the police constable by Sr. P.I. If this was so, then in order to repel away doubt, or in order to prove their bonafide it was obligatory on the prosecution to supply the copies of the documents to the defence for which Special Court has passed specific order. Withholding these documents, not only from the accused but from the Court, is a strong circumstance against the prosecution.
26. The relevant order of the Special Judge in this regard is dated 19,1.1998. It is at Exhibit 50–the application of the accused wherein accused No. 2 claimed inspection and certified copies of the inward and outward registers, log books of the vehicles and the lock up book of the N-Cell, Azad Maidan Unit and Azad Maidan Police Station, Mumbai for the period between 31.12.97 and 7.1.1998. As already observed by me, whether the raid is conducted by a particular unit or other unit is of no consequence. But the circumstances pointed out from the evidence of PW5 PSI Wadmare create strong doubt about the prosecution. Specific defence of the accused and the cross examination of PW5 PSI Wadmare therefore support the defence.
27. In order to prove their defence, the accused No. 1 examined the taxi driver as DW1 Rais Ahmed and also examined his wife. DW1 has stated that he owned a taxi bearing No. MMO 3504. He had driving licence and he was used to go as per the calls of Accused No. 1 who was doing carpet business. According to him, on 31.12.1997 he received telephone call from accused No. 1 who had called him at about 11.00 a.m. on 1.1.1998 at his residence at Vakola, Santacruz. DW1 accordingly went to the residence of accused No. 1 who took two carpets from him and were kept in the taxi and while they were going to hotel Nityanand, they came near Sion Dharavi Bridge. They were not knowing where Hotel Nityanand was exactly situated. Therefore, accused No. 1 was to get down from the taxi to make inquiry when 4/5 persons rushed to the taxi and opened the door. One person was trying to enter the taxi. DW1 told him that the taxi was already engaged. The said person, therefore, ran towards Dharavi and then those 4/5 persons approached the taxi and started beating accused No. 1. When DW-1 inquired from those persons, they also slapped him. He was then asked to leave the place and accused No. 1 was taken in the jeep. He, thereafter informed the wife of accused No. 1 (DW 2) about the incident and had also stated about the business of her husband in carpets, about her husband engaging DW-1 and information which was given to her by DW 1 about accused No. 1 being taken by the police. All this evidence is rejected by the Court.
28. Similarly the defence of accused No. 2 is that on 31.12.1997 he was removed from Green House Hotel, Mahim along with two others, his passport and other documents were taken, two others Anten and Musa were released and he was entangled in this case under the NDPS Act. This defence is also rejected by the trial Court.
29. The defence of the accused was rejected by the trial Court because the accused did not prove by the documentary evidence about their carpet business, about engaging the taxi driver (DW1), about the driver having telephone at his residence, about accused No. 2 not having any documents to show that he was staying at Green House Hotel etc. May be that independently considered the accused have not succeeded in proving their defence beyond reasonable doubt. But in the background of the case, the fact of PW5 PSI Wadmare visiting Green House Hotel, Mahim and mentioning the said fact in the aforesaid letter addressed to the Secretary, Ministry of External Affairs, Govt. of India, New Delhi coupled with the fact of handing over the passport of Anten who is named by accused No. 2 as a person arrested from the said hotel on 31.12.1997 are sufficient in my opinion to create doubt about the truth and veracity of the prosecution case.
30. Further to falsify the contentions of PW5 PSI Wadmare that he was never working at Andheri N-Cell Unit, the defence examined DW5 ACP Inamdar-a responsible officer of the police. It is true that this witness was examined for the purpose of generally proving the facts alleged by the accused and nothing specific tried to be elicited from him regarding arrest of accused on 31.12.1997 etc. DW5 has stated that on 6th, 9th and 11th February 1998 he had visited Andheri N-Cell Unit in connection with ACB C.R. No. 12/98 concerning PSI Wadmare and other constables attached to N-Cell. It was a trap laid at the said office. However the learned APP contended that this evidence about visit of DW 5 to N-Cell Andheri Unit in February is of no consequence nor of any help to the accused. However, the witness DW-5 has admitted that ACB was lodged by one Haresh Baldevdas Thakar who has stated in his complaint that he was detained in the said office from the night of 21.1.1998 till 23.1.1998. The learned Counsel for the accused therefore contended that it is the case of the accused that in January N-Cell, Andheri Unit was functioning though PSI Wadmare has suppressed this fact from the Court and when the said complainant Mr. Thakar has made allegations about his illegal detention from 21.1.1998 to 23.1.1998 coupled with the fact brought on record was sufficient to draw an inference that PSI Wadmare was working in N-Cell, Andheri Unit and has not received information at N-Cell Azad Maidan Unit on 1.1.1998, his raid at Sion Dharavi Bridge is all false and bogus. I am not in agreement with the words used by the counsel for the accused that the prosecution case is false and bogus. But it has to be observed and noted that the prosecution case is full of lacunas, defects and the defence has succeeded in creating doubt about the veracity of the prosecution case. This conclusion of all the circumstances is discussed above.
31. Once therefore it is concluded that the accused have succeeded in creating doubt about the prosecution case then the same is liable to be rejected. Therefore, in this background the evidence of all the prosecution witnesses i.e. the police officers and the panchas do not carry any importance. It is pertinent to note here that the evidence in this case commenced on 1.12.1998. It is on this day the accused applied for deferring the cross examination. Counsel for the accused contended that recording of information by PW5 PSI Wadmare as per Exhibit 11 is also a farce because information was received at 10.40 hours on 1.1.1998 and which mentions that a drug transaction was to take place between 14 hours to 15 hours on the same day and the informant had informed the police about the dress or clothes which were going to be put on by the accused during that time. The counsel for the accused contended that no informer can tell 2/3 hours in advance as to the clothes which the accused are likely to wear because one of the accused i.e. Salim wearing checks designed full shirt chocolate colour full pant and his associate Yusuf wearing half jean shirt and jean pant were likely to come at the aforesaid place between 14 hours to 15 hours.
32. This proposition cannot be accepted in the broad manner in which it is submitted. However, for this case it has to be taken as one of the circumstances against the prosecution because of the background in which the case is tried to be placed before the Court. Describing clothes three hours in advance of the proposed visit of the accused is a suspicious circumstance.
33. For all these reasons when this Court has to accept the submission of the advocate for the accused that accused have succeeded in creating doubt about the veracity and truthfulness of the prosecution case other aspects of the prosecution case which led to the prosecution are not required to be gone into. I therefore, pass the following order:
ORDER
Both the appeals are allowed.
The accused are acquitted. They shall be released forthwith, if not required in any other case. If they paid fine, same shall be refunded.