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Natibabu Khadka vs State Of Goa, As Represented By The … on 13 July, 1995

Bombay High Court
Natibabu Khadka vs State Of Goa, As Represented By The … on 13 July, 1995
Equivalent citations: 1996 (5) BomCR 76
Bench: D Dhanuka, T C Das


JUDGMENT

D.R. Dhanuka

1. This is an appeal against an order of conviction passed by the Court of the Narcotic Drugs and Psychotropic Substances at Mapusa dated 29th December, 1993 in Special Criminal Case No. 3 of 1993. The appellant was accused No. 1 in the said Criminal Case. The appellant was charged with an offence under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. At the trial of the said Special Criminal Case, the accused was tried for the said alleged offence alongwith one Ashok Bajracharya and Ramesh Basnet. The charge framed by the learned Special Judge at the trial of the said case indicates that the appellant was charged with the following alleged offences :—

That on about the 29th day of December 1992 at somewhere in between 2.00 p.m. to 7.00 p.m. at Vozrant, Vagator, the appellant was found in possession of charas weighing 2 kgs. 670 gms. worth about Rs. 1,06,800/- by keeping the same hidden in the dashboard and the box near the door of the bus No. BAAKA 259 without having any permission or licence in contravention of section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and thereby the appellant (accused No. 1) had committed an offence punishable under section 20(b)(ii) of the said Act.

The above referred accused Nos. 2 and 3 were charged with the offence punishable under section 20(b)(ii) read with section 29 of the Act for having abetted or conspired with the accused No. 1 in the commission of the said offence. The trial Court held that the prosecution had established the charge against the appellant beyond any reasonable doubt. The trial Court held that the prosecution had failed to establish the charge of abetment against the accused Nos. 2 and 3. The trial Court held that the prosecution had not brought any material on record to show as to how the accused Nos. 2 and 3 were connected with the possession of the drugs which were recovered according to the case of the prosecution at the instance of the accused No. 1 from the dashboard and the door box of the bus referred to in the charge framed. The trial Court held that the appellant was guilty of the offence with which the appellant was charged as the appellant was found to be in illegal possession of 2 kgs. 670 gms. of charas having been hidden in the dashboard and the door box of the bus of which the appellant was a driver. The trial Court convicted the appellant and sentenced him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and, in default, to undergo Rigorous Imprisonment for a period of one year. The trial Court issued various other directions also as set out in the judgment under appeal. The trial Court acquitted the accused Nos. 2 and 3.

2. This appeal raises interesting questions of law concerning interpretation and application of sections 8, 20(b), 35, 42, 43 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal also raises interesting questions of law concerning the admissibility of evidence relating to alleged statements of the appellant to which reference would be made in the later part of this judgment under sections 8 and 27 of the Indian Evidence Act, 1872.

3. It is the prosecution case that the appellant was employed as a Driver of the said bus by Tourist Service (P.) Ltd. of Nepal. The other two accused were the assistants of the appellant. The appellant held the necessary driving licence. The Embassy of India, Kathmandu had granted a permit in favour of Tourist Service (P.) Ltd. at Kathmandu, Nepal to run the said tourist bus for the purposes of tourism for three months, i.e. 5th December, 1992 to 4th March, 1993. The three accused had come from Nepal to Goa and the appellant was in full control of the said bus at the material time. On 29th December, 1992 one Mr. Cruz D’Souza, Police Inspector attached to the Anti-Narcotic Cell, Panaji, alongwith others had gone in a jeep belonging to the Department for random checking of drugs. The said bus was facing the sea and was parked at the beach. The said Mr. Cruz D’Souza is supposed to have received some information from someone that there were drugs in the said bus which was parked at Vozrant, Vagator i.e. at a public place. The said Mr. Cruz D’Souza had secured the presence of two Panch witnesses in advance. A raiding party led by the said Mr. Cruz D’Souza decided to effect the search in the said bus stationed facing the sea. The accused No, 2 was present near the bus. The accused No. 1 is supposed to have gone to Chapora. Before effecting the search Dy. S.P. Domingo Rodrigues, a Gazetted Officer had also arrived at the place. All the three accused were personally searched. No drugs could be recovered as a result of the said personal search. When the Head Constable Punaji was attempting to open the dashboard box the appellant is supposed to have made a statement to the effect that the appellant had kept one bundle of charas in the dashboard. It is the prosecution case that the appellant volunteered to open the cover of the dashboard with the help of a screw driver which was attempted to be opened little earlier by Head Constable Punaji. As a result of the said search, charas i.e. prohibited drug hidden in the said dashboard of the bus was recovered. The raiding party was to continue the search of the entire bus. At that stage the appellant is supposed to have made a statement to the effect that the appellant had kept some more drugs hidden in a box lying near the door of the said bus. It is the prosecution case that as a result of the information furnished by the appellant as aforesaid, the raiding party was able to recover total quantity of 2 kgs. 670 gms. of charas worth Rs. 1,06,800/- from the said bus. Attachment panchanama was made and duly signed by the panchas in respect of all the articles seized as set out therein (Exh. P.W. 2/A). The said Mr. Cruz D’Souza thereafter filed his complaint dated 29th December, 1992 with the Calangute Police Station. The three accused were arrested. The muddemal articles were deposited by Mr. Cruz D’Souza with the Police Sub-Inspector in charge of Calangute Police Station. The muddemal consisted of one sealed bundle containing charas weighing 2 kgs. 250 gms. recovered from the bus, one sample of the one sealed envelope containing charas weighing 250 gms., one sealed envelope containing charas weighing 130 gms. recovered from the bus, one sample sealed envelope containing charas weighing 40 gms. and one brief case “DELSEY” containing cash, Dollars, and Pounds and other documents duly self locked. The said Mr. Cruz D’Souza furnished the necessary intimation to his immediate superior in respect of the search effected, accused arrested and in other respects as required by section 57 of the Act. The Investigating Officer addressed a letter to one Mr. N.M.S. Pradhan, Managing Director of the Tourist Services (P.) Ltd. informing him that the driver of the said bus was arrested on the charge of possessing charas and an offence was registered against the appellant and two others and the said bus had been kept at the Police Head Quarters at Panaji. The prosecution did not pursue its efforts to trace the alleged tourists of the said bus. The sealed samples were forwarded by the said Mr. Cruz D’Souza, Police Sub-Inspector, Anti-Narcotic Cell, Panaji to the Drug Controller, Combined Food and Drug Laboratory, Panaji. The analytical report in respect of the said samples dated 18th February, 1993 confirmed that the substance analysed from both the samples contained charas. All, the three accused were prosecuted after the investigation was completed.

4. At the trial of the said Special Case, the prosecution examined four witnesses as indicated below :—

1.The prosecution examined one Maria Caldeira, Junior Scientific Office working in the Food and Drugs Laboratory since 1982 for the purpose of proving the analysis report in respect of the said samples.

2.The prosecution examined the panch witness one Mr. Sanjay Hari Parwatkar as P.W. 2 for the purpose of proving the incident in detail, the panchanama and for identification of contraband and other articles seized under the attachment panchanama.

3.The prosecution led the evidence of witness Subhash Goltekar, who was the Police Sub-Inspector in charge of Calangute Police Station on 29th December, 1992, and

4.The Investigating Officer Mr. Cruz D’Souza, working at the relevant time as Police Sub-Inspector attached to the Anti-Narcotic Cell at Panaji. The prosecution proved various documents relied upon in support of its case. The appellant was questioned by the learned trial Court as required by section 313 of the Code of Criminal Procedure. The appellant also filed his written statement before the trial Court under section 313 of the Criminal Procedure Code. The appellant denied the charge. The appellant contended that the appellant had brought tourists as passengers from Nepal and after visiting various places of interest in India had finally reached Goa. The appellant contended that there were some tourists who had continued to use the bus as their responsibility during their short stay in Goa. The appellant contended that he was not aware of any drugs as allegedly recovered from the bus.

5. The learned trial Judge disallowed the several questions sought to be put to some of the prosecution witnesses on the ground that the same were irrelevant. A reference will be made to this aspect of the case little later. A written application was made on behalf of the appellant by his learned Advocate to the learned Judge complaining of the fact that in his examination under section 313 of the Code of Criminal Procedure the muddemal property/Exhibits/signatures on various documents/items were not shown to the accused. By the said application, a prayer was made to the trial Court on behalf of the appellant that the muddemal property be shown to the appellant specially in connection with question No. 10. The learned trial Judge rejected the said application by passing his order dated 4th November, 1993. The trial Court held that the alleged statements supposed to have been made by the appellant to Mr. Cruz D’Souza in the presence of the panch witness Mr. Parvatkar leading to the discovery of the contraband were admissible in evidence under section 27 of the Evidence Act. It was argued on behalf of the defence before the trial Court that the investigation of the case by Mr. Cruz D’Souza was vitiated in law as Mr. Cruz D’Souza was not an officer in charge of the Police Station and the Anti-Narcotic Cell was not declared as the Police Station at the relevant time. The trial Court rejected the said contention. The trial Court recorded various findings in its judgment under appeal to which reference would be made little later to the extent necessary.

6. The learned Counsel for the appellant has made the following submissions during the course of hearing of his appeal :—

1. It is for the prosecution to prove beyond reasonable doubt that the appellant/accused was in conscious possession of the prohibited Narcotic Drug which the prosecution had failed to prove in this case. Only if the prosecution proves this fact, a rebuttable presumption can arise under section 54 of the Act to the effect that the accused has committed an offence under Chapter IV of the Act in respect of possession of the prohibited drug. Only at that stage, the onus would shift on the appellant accused to account for such possession to the satisfaction of the Court. The appellant had merely control of the said bus and the appellant was not in “possession” of the contraband.

2. The statements amounting to confession alleged to have been made by the appellant as deposed to by panch witness Parvatkar and Mr. Cruz D’souza, the Investigating Officer and as set out in the panchanama and the First Information Report were not admissible in evidence under section 27 of the Indian Evidence Act 1872 for a number of reasons. The appellant was not in custody of the police at the time when the alleged statements are supposed to have been made as admitted by P.W. 4. The said alleged statements were not recorded in the words of the appellant as required by law. If the said statements were excluded from evidence, the prosecution case would be considerably weakened to say the least. The alleged conduct of the appellant in pointing out the two places in the bus were charas was supposed to have been hidden i.e. dashboard and the door box even if relevant under section 8 of the Act did not prove conscious possession of the appellant in respect of the contraband in question.

3. Section 42 of the Act was applicable to this case. The information alleged to have been received by Mr. Cruz D’Souza on the basis of which the bus was searched ought to have been reduced to writing which was not done. Thus section 42 of the Act was contravened as a result whereof the trial of the appellant was vitiated and the conviction of the appellant was liable to be set aside. Section 43 of the Act was not applicable to the facts of this case as the search was conducted in the bus which was not a public place within the meaning of the said expression used in section 43 of the Act.

4. The investigation conducted by the Investigating Officer suffers from material defects in so far as the investigating agency did not make any efforts to find out the tourists who might have kept the contraband in the said bus.

5. The trial Court committed serious errors of law by admitting inadmissible evidence and by disallowing material questions sought to be asked by the learned Counsel for the defence to the prosecution witnesses. The trial Court as not justified in refusing to show the seized articles to the appellant while questioning the appellant under section 313 of the Code of Criminal Procedure. Section 35 of the Act was not at all attracted to a case where the appellant was charged under Section 20(b) of the Act as culpable mental state of the appellant was not an ingredient of the offence under the said section. Section 54 of the said Act alone was relevant for purpose of this case so as to raise a rebuttable presumption in favour of the prosecution provided the prosecution proved that the appellant was found to be in possession of the illicit article beyond reasonable doubt. Mere suspicions, if any, would not be sufficient to bring home the charge levelled against the appellant.

7. The learned Public Prosecutor contended that having regard to the facts and circumstances of the case it was proved that the appellant was in possession of the contraband and it was for the appellant/accused to rebut the statutory presumption in respect thereof as required by section 54 of the Act. The learned Public Prosecutor also contended that section 42 of the Act was not at all attracted to this case in as much as the seizure and arrest were effected in a public place within the meaning of the said expression used in section 43 of the said Act read with the explanation appended thereto. The learned Public Prosecutor contended that the investigating agency was not at fault in not pursuing its investigation in respect of the tourists in the said bus. No information was available to the prosecution in this behalf. The learned Public Prosecutor also relied on section 35 of the Act in support of the prosecution case. It was also submitted on behalf of the prosecution that the statements made by the appellant to Mr. Cruz D’Souza in presence of the panchas were admissible in evidence under section 27 of the Indian Evidence Act 1872 or in any event under section 8 of the said Act. The learned Public Prosecutor submitted that there was no merit in the appeal and the appeal was liable to be dismissed.

8. Both the learned Counsel took the Court through the record of the case in detail and also cited large number of authorities at the Bar. We shall refer only to such authorities which appear to us to be relevant for the purpose of this case.

9. It appears to us to be well-settled law by this time that it is for the prosecution to prove that the appellant was found to be in possession of the contraband in a case where the appellant is charged with the offence alleged to have been committed under section 20(b)(ii) of the Act. It is also well-settled that the expression “possession” used in section 20(b)(ii) of the Act has a particular legal meaning and the said expression should not be confused with the expression “custody”. We are firmly of the view that if the alleged confessional statements admitted at the trial of the appellant under section 27 of the Indian Evidence Act are liable to be excluded as inadmissible, the prosecution case inferring the appellant’s possession of the contraband would considerably suffer.

10. In Smt. Zubeda Khatoon, Bangalore City v. The Assistant Collector of Customs, Legal, Bangalore, 1991 Cri.L.J. 1392, the Division Bench of the High Court of Karnataka held that the appellant was entitled to be acquitted in respect of the offences with which the appellant was charged in that case i.e. under section 54 of the Narcotic Drugs and Psychotropic Substances Act inasmuch as the complainant failed to prove that the appellant was in conscious possession of the drug i.e. opium in that case. To quote the exact words from the judgment, the Division Bench of the Court held as under:—

“In our view, therefore, the complainant has failed to prove that the appellant was in conscious possession of the drug in question. Presumption under section 54 of the Act is not attracted when it is not possible to attribute exclusive conscious possession of the contraband article to the accused.”

11. Our High Court took the same view in its judgment dated 19th/20th April, 1994 delivered in Criminal Appeal No. 22/93. This case was decided by the Panaji Bench of this Court. The Court held that the appellant was entitled to an acquittal in respect of the offences with which he was charged i.e. under section 20(b)(ii) of the Act as it could not be said that the appellant was in conscious possession of the drug.

12. In Jawar Arjan v. State of Gujarat, , a rickshaw driver was charged in respect of the offences under section 66(1)(b) read with section 181 of the Bombay Prohibition Act, 1949. The bag seized from the dicky of the rickshaw contained illicit liquor. Fazal Ali, J., speaking for the Court held that the appellant before the Court was merely a rickshaw driver and he could not be imputed with the knowledge of the possession of the articles.

13. In Patel Jethabhai Chatur v. State of Gujarat, , Bhagawati J., as His Lordship then was, speaking for the Apex Court in context of the provisions contained in section 66(1)(b) of the Bombay Prohibition Act, 1949, observed as under:—

“Possession again must be distinguished from custody and it must be conscious possession.”

14. In Kalekhan v. State of M.P. and Dinesh v. Union of India, 1990 Cri.L.J. 1119, the High Court of Madhya Pradesh held that the driver of vehicle could not be convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act for the alleged offence of possession or transportation of opium unless the ‘corpus’ as well as ‘animus’ both were proved. The Court held that it was conscious possession which was contemplated by penal statute which provided and penalised possession of any contraband article or thing. In this case it was further observed by the Court as under:—

“A driver of a vehicle, is certainly in possession of the vehicle in question, but he cannot be said to be in possession of any article or thing concealed in the body of the vehicle, unless there are circumstances indicating knowledge to the driver of such concealment.”

15. Shri Lalit Chari, the learned Counsel for the appellant, heavily relied upon the ratio of the Division Bench Judgment of this Court in the case of Chavadappa Pujari & ors. v. Emperor, reported in A.I.R. 1945 Bom. 292, apart from several other cases relied upon by him during the course of his submission. In this case the stolen property was produced at the instance of the accused. The prosecution relied on the statutory illustration appended to section 114 of the Evidence Act. Divatia, J., speaking for the Division Bench of this Court held that the condition precedent to the application of the illustration was that the accused must be in possession of stolen goods. The Court thereafter dealt with the question of applicability of section 27 of the Evidence Act in that case and proceeded to deal with the situation where the appellant without stating that he had concealed stolen property merely produced it from a place to which other people also could have access. The Court held that it was for the prosecution to establish possession of the accused in respect of the property in question apart from the knowledge of the accused in respect of its concealment and it was only when the possession was proved that the accused was liable to account for it in order to escape from the presumption under illustration (a) to section 114 of the Act. In this case the Division Bench of our High Court relied upon the ratio of the Full Bench decision of this Court reported in 14 Bom. 260 Queen C. Emperor v. Nana. A statement of the accused to the effect that he had concealed the property could be admissible under section 27 of the Evidence Act, 1872 provided all the conditions precedent for applicability of the said section were satisfied. In the abovereferred Full Bench case it was held by the Court that such a statement of confession though admissible under section 27 of the Act, if all the conditions prescribed by the said section were satisfied, was not admissible under section 8 of the Act. The next question before the Court was as to whether the conduct of the accused in producing the property unaccompanied by the incriminating statement was sufficient to prove “possession” of the accused in respect of the property in question. Divatia, J., speaking for the Court observed as under :—

“Moreover even though conduct is relevant, such conduct unaccompanied by any incriminating statement proves merely knowledge but not possession.”

Our High Court held in this case that the view taken by the High Court of Madras in the case of Rangappa Goundan v. Emperor, , was correct when it held that when there was no statement made by the accused leading to the discovery of stolen articles, their mere discovery, even though it raises a gross suspicion against the accused, will not be sufficient to support conviction. Mr. Chari relied upon this case for two purposes. The learned Counsel argued that mere production of the property by the accused or at the instance of the accused did not by itself prove that the accused was in possession of the property. The learned Counsel argued that the conduct of the accused in producing the property unaccompanied by any incriminating statement did not by itself prove that the accused was found to be in possession of the said property and it was for him to account for it in order to escape from the presumption under section 54 of the Act. This case is helpful to the defence provided the Court is persuaded to take the view that the statements in question to which a reference would be made little later was inadmissible. If such evidence is inadmissible and is liable to be excluded from its consideration by the Court, the remaining evidence shall have to be assessed on the footing that no such statement was made by the accused.

16. We shall now refer to the confessional statements which are held by the trial Court to be admissible in evidence under section 27 of the Indian Evidence Act, 1872.

17. Mr. Cruz D’Souza, the Investigating Officer (P.W. 4) during the course of his deposition inter alia stated as under :—

“When H.C. Punaji was attempting to open the dashboard box, the accused No. 1 came and said that he kept one bundle of charas.”

The said witness further stated during the course of his testimony :

“Then the accused No. 1 voluntarily opened the cover of the dashboard with the help of a screw driver and produced the bundle of charas. Thereafter the accused No. 1 has disclosed that he had kept some more quantity of charas in the door box which he can show.”

18. In the complaint (F.I.R.) dated 29th December, 1992 marked as Exhibit P.W. 17A. relied upon by the prosecution, it is recorded as under :—

“When H.C. Punaji attempted to open dashboard of the bus and the right side of the driver seat and near the front door, the accused driver rushed there and disclosed that he had kept one bundle of charas and volunteered to show the same.”

Similar other statements are to be found in the said F.I.R. affirming part of the evidence led on behalf of the prosecution. One of such statements reads as under :-

“The accused driver Nati Babu disclosed before us that the charas found in the bus was belonging to him and that he had kept them hidden in the bus.”

The panch witness made similar statements during the course of his testimony. Exactly identical statements are to be found in the attachment panchanama (Exhibit P.W. 2/A) recorded by Mr. Cruz D’Souza. The said statements thus clearly amount to confession on the part of the appellant-accused to the effect that the appellant had himself hidden charas in the dashboard and in the door box as already explained elsewhere.

19. The learned Counsel for the appellant also submitted that section 27 of the Indian Evidence Act, 1872 was not attracted in this case as the contraband was found in the dashboard and door box which could not be considered as concealed places. The learned Counsel submitted that the Police party could have possibly discovered the contraband by itself also without any assistance from the accused. The learned Counsel submitted that in such cases where the material seized was within the possible knowledge of the appellant, the statement made by the accused could not be said to have led to the discovery of the contraband. It is not necessary to examine this controversy for the purpose of deciding this case as on any view of the matter we are satisfied that the statements imputed to the accused were not admissible in evidence under section 27 of the Indian Evidence Act on several grounds discussed herein.

20. Section 27 of the Indian Evidence Act, 1872 is an exception to sections 25 and 26 of the Evidence Act. The said section reads as under :—

“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

The questions to be asked are as under :—

(a) Whether the appellant was in custody at the time when the statements imputed to the appellant are supposed to have been made?

(b) Whether the appellant was accused of any offence at the time when the alleged statements are supposed to have been made?

 (c)    Whether it is the mandate of law that the statement of the accused must be recorded by the Investigation Officer concerned in his own words and this alone can be judged by the Court as to which part of the statement relates distinctly to the fact discovered in consequence of information disclosed by the person?  
 

 21.    Mr. Cruz D'Souza, the Investigating Officer (P.W. 4) clearly admitted in his evidence that the appellant clearly stated in his evidence as under :--- 
  "The accused were not in my custody at that time and I had not put any restraint on their movements." 
 

 The said witness further admitted as under :--- 
  "I have not recorded the exact words used by the accused No. 1 in the first person while he disclosed about the drugs kept in the dashboard. I have not recorded the exact words used by the accused. It is true he could use more words or less words. The same can be said about the second disclosure in which I have not recorded the exact words of the accused." 
 

 The witness Parvatkar i.e. the panch witness P.W. 2 also stated in his deposition that he did not remember the words which were used by the appellant/accused while making the statements referred to hereinabove. The questions to be asked are as to what is the effect of the above in law. 
 

 22.    We shall first refer to the cases cited by Mr. Chari on this aspect of the matter. 
 

23. In Mohd. Abdul Hafeez v. State of Andhra Pradesh, , the Supreme Court held that if evidence otherwise confessional in character was admissible under section 27 of the Evidence Act, it was obligatory upon the Investigating Officer to state and record who gave the information; when he was dealing with more than one accused, what words were used by him, so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. Admittedly, the Investigating Officer did not record the statement of the accused in the words used by him or otherwise, but has paraphrased the alleged statement in his own way in the F.I.R. as well as in his testimony.

24. In Athappa Goundan and others v. Emperor, A.I.R. 1937 Mad. 618, the Full Bench of the High Court of Madras held in terms that statements made by an accused person which are or may be provable under section 27 of the Evidence Act, should be clearly and carefully recorded by the police officer concerned. It was held that such statements should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. It was held that they should not be paraphrased. It was held that with such a record of the statements before the Court, it will be for the trial Judge to decide how much of the statement was admissible under section 27 of the Evidence Act. Even if the statement is not recorded in the first person as such, the record of the statement must be available to the Court and the statement sought to be proved under section 27 of the Evidence Act should be in the actual words of the accused, at least substantial.

25. In Phusu Koiri v. State of Assam, 1986 Cri.L.J. 1057, the High Court of Gauhati has taken the same view. It was held by the Court that the Court has a duty to discharge and the duty could be discharged only if the entire statement and particularly in the language of the accused was proved.

26. At the stage when the alleged statements are supposed to have been made the accused was not in custody of Mr. Cruz D’Souza or anyone else as stated by Mr. Cruz D’Souza himself in his testimony. At that stage the appellant was not accused of any offence.

27. The learned Public Prosecutor invited the attention of the Court to the observations made by the Supreme Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya, . In this case the Apex Court examined the scope and applicability of sections 25, 26 and 27 of the Evidence Act. In this context the Court observed that the expression “a person accused of any offence” used in section 27 did not mean that a formal accusation must have been levelled against the accused at the time of making the statement. As regards the expression “person in custody” the Court observed that in certain situations a person could be deemed to have surrendered to the Police at the time when he made the statement leading to discovery. In this case however, no such inference is possible having regard to the categorical evidence of Mr. Cruz D’Souza to the effect that neither the appellant was in his custody nor he had put any restraint on him at that time.

28. In our opinion the abovereferred confessional statements were not admissible in evidence as the said alleged statements were not recorded by the Investigating Officer in the manner required by law and as the said alleged statements were not made by the appellant while he was in custody. The trial Court has not concentrated on this aspect of the matter at all. The trial Court has erroneously reached the conclusion that the statements made by an accused leading to recovery of the property were straightaway admissible under section 27 of the Evidence Act. Such statements would be admissible under section 27 of the Evidence Act only if all the conditions precedent prescribed by the said section for its applicability were satisfied and not otherwise. We have therefore no hesitation in over-ruling the conclusion of the trial Court on this aspect of the case and holding that the above statements were not admissible in evidence under section 27 of the Evidence Act and are liable to be totally excluded from consideration of the Court while assessing evidence. The question to be asked is as to whether such statements could be considered as conduct under section 8 of the Evidence Act, 1872. Having regard to the view taken by this Court in its Full Bench judgment reported in 14 Bom. 260, (supra) and the Division Bench judgment in A.I.R. 1945 Bom. 292, (supra) we hold that the abovereferred statements are not admissible in evidence under section 8 of the Act. At the most the conduct of the appellant in producing the property would be admissible under section 8 of the Act which conduct when unaccompanied by incriminating statements by itself is not enough to prove possession of the appellant in respect of the contraband. On this aspect of the case also we are fortified in the view which we have taken by the clear pronouncement of the Division Bench of this Court in the abovereferred case reported in A.I.R. 1945 Bom. 292 agreeing with the view taken by the Division Bench of the High Court of Madras in a case reported in A.I.R. 1936 Mad. 426 (supra).

29. In Prakash Chand v. State [Delhi Administration], , the Supreme Court held that the evidence of conduct of the appellant was admissible as conduct under section 8 of the Evidence Act irrespective of whether any statement made by the appellant contemporaneously with or antecedent to such conduct falls within the purview of section 27 of the Evidence Act. There can be no dispute about the proposition of law laid down by the Apex Court in this case.

30. The learned Public Prosecutor heavily relied upon the judgment of the Supreme Court in the case of Inder Sain v. State of Punjab, , in support of his submission for the purpose of raising presumption under section 54 of the Act herein that it was not necessary for the prosecution to establish conscious possession. This was a case under section 10 of the Opium Act, 1878. In our opinion the language of sections 9 and 10 of the Opium Act, 1878 is somewhat different than the language of section 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. With respect, this decision is of no relevance whatsoever for the purpose of this case. Section 54 of the Act shall not come into operation unless the conscious possession of the appellant in respect of the contraband in question is first proved by the prosecution as rightly held by the High Court of Karnataka where the accused was charged with an offence of illicit possession of the contraband under section 20(b) of the Act of 1985. The prosecution has failed to prove conscious possession of the appellant in respect of the contraband beyond reasonable doubt.

31. We shall now refer to the other contentions urged by the learned Counsel for the appellant during the course of his submissions.

32. The learned Counsel for the appellant relied upon the judgment of the Supreme Court in the case of State of Punjab v. Balbir Singh, , whereby it was held that the provisions of section 42(1) of the Act were mandatory. In this case it was held that contravention of section 42(1) of the Act would affect the prosecution case and vitiate the trial. The learned Counsel for the appellant submitted that the witness Cruz D’Souza had specifically admitted during the course of his deposition that he had received information from someone to the effect that the drugs were likely to be found in the bus on the basis of which he proceeded further. The learned Counsel for the appellant pointed out that admittedly the said information was not reduced to writing and there was thus contravention of section 42(1) of the Act, vitiating the trial. We find no merit in this contention in view of our conclusion that section 42 of the Act has no application in cases where the case is covered under section 43 of the Act. We are of the firm view that in this case the seizure of the Narcotic Drug in question had been effected in a public place. Admittedly, the bus was lying stationed or parked on the beach facing the sea. The place where the bus in question was lying parked at the relevant time was a public place. The learned Counsel submitted that the search was conducted by the raiding party in the bus itself and the tourist bus was not a public place. The learned Counsel submitted that if this submission was acceptable to the Court, it would follow that section 43 of the Act was not attracted but section 42 of the Act was attracted to the facts of this case. In the context of this submission it is necessary to interpret and apply the explanation appended to section 43 of the Act. The said explanation reads as under :—

“Explanation:—For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public.”

It is well-settled law that whenever the expression “means” is used in a definition or an explanation, the expression indicates restrictive meaning of the word sought to be defined or explained. But whenever the expression “includes” is used the legislative intention is to provide for expanded meaning to the word in question for the purpose of the section in which the word includes was used. In our opinion the explanation appended to section 43 of the Act provides extended meaning to the meaning of the words “in a public place”. The expression “any pubic conveyance” used in the said explanation has the same meaning as the said expression has under the Motor Vehicles Act, 1988. In our opinion the said bus was a “public conveyance” within the meaning of the said expression used in the explanation appended to section 43 of the Act. In this view of the matter we hold that it was not necessary for the investigating officer to record the information supposed to have been received by him in writing which led to search of the said bus. We have therefore reached the conclusion that section 42 of the Act is not attracted to the case, but only section 43 of the Act is attracted which is fully complied with. The learned Public Prosecutor submitted that the expression “information” used in section 42(1) of the Act meant definite information and not vague information as was available to witness Cruz D’Souza in this case. The learned Public Prosecutor made this statement as an alternative submission to his main submission that section 43 of the Act alone was applicable to the facts of this case. The learned Public Prosecutor relied in support of his alternative submission on the ratio of the decision of the Supreme Court in the case of Surajmal Kania Lal Soni v. State of Gujarat, reported in 1994 Supp. (2) S.C.C. 276. We do not consider it necessary to record any finding on this aspect of the matter as in our opinion section 42 of the Act has no application to the facts of this case at all for two reasons. The bus was parked at a public place, the bus was in transit; the bus was a public conveyance within the meaning of the explanation appended to the said section 43. Section 43 of the said Act was thus applicable.

33. We have carefully gone through the entire evidence in the case. If the confessional statements imputed to the appellant are to be excluded as they are liable to be excluded from assessment of evidence the same being inadmissible, we are left at the most with suspicions against the appellant. The said suspicion is not enough to hold that the appellant is proved to have been in possession of the contraband and is not capable of shifting the onus on the appellant to account for the alleged possession of the contraband.

34. In our opinion section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985, applies only to such offences where the Act specifically provided for mens rea or culpable mental state as ingredient of the offence. Section 20(b) of the Act is not one of such sections. The said section can be compared and contrasted with sections of the Act for purpose of appreciating the submission made by the learned counsel for the appreciating the submission made by the learned counsel for the appellant in this behalf. In our opinion section 54 of the said Act is a specific section and the same is clearly attracted in a case where conscious possession of the appellant in respect of the contraband articles is duly proved by the prosecution. The expression “conscious possession” has not been in terms used under the Act. We are however of the view that on a true and correct interpretation of the relevant provisions of the Act it is necessary for the prosecution to prove conscious possession of the appellant in respect of the contraband before section 54 of the Act can be attracted. This view is already taken by the Division Bench of our High Court in Criminal Appeal No. 22 of 1993 in the context of some very provisions of the Narcotic Drugs and Psychotropic Substances Act, i.e. section 20(b) of the Act. We are also in respectful agreement with the view taken by the High Court of Karnataka on this subject. We are also fortified in taking this view by the ratio of the decision of the Supreme Court and other courts while interpreting section 66(b) of the Bombay Prohibition Act, 1949.

35. We must now refer to the question as to whether the learned trial Judge was justified in disallowing the questions sought to be asked by the learned Counsel for the defence to the witnesses of the prosecution. It appears from page 106 of the paper book that a question was sought to be asked to witness Cruz D’Souza (P.W. 4) as under :—

“Q. Could you explain as to why you did not attach the said screw driver?”

Witness Cruz D’Souza had already deposed in his evidence that the appellant had made the incriminating statement leading to the discovery of contraband at a stage when Head Constable Punaji was attempting to open the dashboard of the bus with the help of a screw driver. In our opinion the said question was relevant for the purpose of considering the credibility of the story put forth by witness Cruz D’Souza and the said question could not have been disallowed. It is unfortunate that the said question was disallowed by the learned trial Judge on the ground that same was irrelevant. The learned trial Judge observed in his ruling on this aspect as under :–

“Note :This question is disallowed since the screw driver if any used for the opening of dashboard has nothing to do with the seizure of the drug. As such it is disallowed as being irrelevant.”

36. It appears from page 118 of the paper book that the learned trial Judge disallowed the question regarding non-investigation in respect of ownership of the bus. In our opinion the learned trial Judge was in error. The questions asked by the learned Counsel for the defence to P.W. 4 were relevant and ought to have been allowed.

37. The learned trial Judge disallowed several questions sought to be asked to witness P.W. 4 as would be obvious from application dated 21st October, 1993 made by the learned Counsel for the defence copy of which appears at page 224. The learned trial Judge disallowed all these questions on the ground that the same were irrelevant and it was for the accused to rebut the presumption raised against him under section 54 of the Act. Even in a case where such rebuttable presumption is to be raised the accused can rebut such presumption not merely by leading defence evidence but also by cross-examination of the prosecution witnesses. The learned trial Judge ought to have allowed the said questions. We are surprised that the learned trial Judge disallowed the request of the learned Counsel for the defence of showing muddemal to the appellant as is obvious from the ruling of the learned trial Judge dated 4th November, 1993 given by him in application dated 4th November, 1993.

38. Neither of the learned Counsel has prayed for retrial of the accused/appellant by giving fresh opportunity to the learned Counsel for the defence to ask all these questions to the prosecution witnesses. The trial Court erroneously admitted confessional statements under section 27 of the Evidence Act eventhough the condition precedent for applicability of the said statements was not satisfied. The trial Court disallowed the relevant questions sought to be asked to the prosecution witnesses during the course of cross-examination by learned Counsel for the defence.

39. After taking an overall view of the matter we have reached the conclusion that the prosecution has failed to prove the alleged offence beyond any reasonable doubt. No presumption could be raised against the appellant under section 35 or under section 54 of the Narcotic Drugs and Psychotropic Substances Act, for the reasons discussed above. We consider it to be part of our duty to observe that the trial of the Special Criminal Case No. 3 of 1993 was not held in conformity with the provisions of law. The learned trial Judge ought to have been more careful before disallowing the relevant questions and admitting inadmissible evidence. In a marginal case, the Court should allow the question to be asked to the witnesses instead of disallowing the same en bloc. We are also constrained to observe that the investigating officer failed in his duty in not recording the alleged statement of the appellant leading to discovery in his own words literally or at least substantially as required by the ratio of the judgment of the Supreme Court and the High Courts referred to hereinabove. Perhaps the Investigating Officer committed a bona fide error in not keeping record of such statements in the words of the appellant. We leave it at that. We hereby direct that a copy of this judgment be forwarded to the Inspector General of Police for being circulated to all the Police Officers concerned so that in future the statements provable or alleged to be provable or sought to be utilised under section 27 of the Indian Evidence Act are recorded by the Investigating Officers in the words of the accused as laid down by us in the earlier part of this judgment.

40. In the result, we hold that the appellant is entitled to the benefit of doubt as the prosecution has failed to prove the offence beyond reasonable doubt.

41. The appellant shall be released from prison forthwith unless he is required in some other case.

42. In view of the above, the Court of Special Judge, is directed to pass appropriate orders for disposal of property after serving notice on the owner of the bus as contemplated under section 452 of the Code of Criminal Procedure and other enabling provisions. The charas seized in this case would be confiscated and forwarded for disposal to the prescribed authority as provided under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court of Special Judge shall arrange for return of other properties seized to the person who is lawfully entitled to possession thereof within 6 weeks from today as far as practicable.

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