JUDGMENT
N.V. Dabholkar, J.
1. This is an appeal under Section 374(2) of the Code of Criminal Procedure by appellant/accused No. 2. She was tried by Special Judge for N.D.P.S. Gr. Bombay in Special Case No. 200/1992. By the Impugned judgment delivered on 17th July, 1996 the learned Judge found the appellant accused guilty for the offence punishable under Section 8(c) r/w 21 of the N.D.P.S. Act. She is sentenced to suffer R. I. for 10 years and to pay fine of Rs. 1 lakh in default to suffer further R. I. for six months.
2. The prosecution story is as follows :-
On 3rd April, 1992 Police Constable Galugade, then attached to Narcotic Cell Head Office. Azad Maidan, received information at 10.15 a. m. in the morning. It was informed that one Shafiq Shaikh was likely to transact in narcotic drugs at about 1.00 p. m. near the hotel Holiday Inn at Juhu. Police Constable Galugade passed the information to P.S.I. Pujari and P.I. Khedkar. The said information was reduced to writing in information book by P. S. I. Pujari and the copies of information were immediately forwarded to A. C. P. and D. C. P. of Narcotic Cell.
Two Panchas including one lady panch were procured and apprised of the information and they were requested to accompany the raiding party. By collecting weighing and sealing material, drug identification kit etc., the raiding party including one lady constable departed from head quarters at about 11.20 a. m. and reached the spot at about 12.30 noon.
A person matching with the description in the information, was seen near the hotel at about 1.15 p. m. He was accosted by the raiding party. On enquiry he disclosed his name as Shafique Ahmed Mukhtar Shaikh. He was Informed the purpose of search, as also his right to be taken before a Gazetted Officer or a Magistrate for personal search, if he so desires. He was also informed that P. 1. Mr. Khedkar was a Gazetted Officer. The said Shafique is accused No. 1 in the case.
As accused No. 1 declined to exercise his right under Section 50 of the N. D. P. S. Act, on search, a plastic bag containing brownish powder was recovered from his left pant pocket, so also an amount of Rs. 19/-. The said powder tested positive for heroin on drug identification test. It was weighing about 40 grams. Two samples of 5 grams each were taken and then, the samples and remaining contraband were separately packed, sealed and labelled.
On interrogation accused Shafique disclosed that he had received contraband from one Nazma (appellant) and also showed his willingness to take raiding party to her residence. Accordingly, accused Shafique led the raiding party to Room No. 29 of Shantaram Bhat Chawl in front of Nandi Theatre. When knocked, the door was opened by the appellant Nazma and accused No. 1 confirmed that she was the person from whom he had received the contraband.
P. I. Khedekar informed Nazma intention to take search of her person as well as residential premises. She was also apprised of her right to be searched in presence of a Gazetted Officer or a Magistrate. The offer was declined by her. Search of the person of the appellant was taken by lady panch and the lady police constable, who recovered a plastic bag containing gard which tested positive for heroin. This was a packet of about 40 grams. Two samples were withdrawn from the same and thereafter, the bulk and the samples were separately packed, sealed and labelled as B, B1 and B2. All the labels were signed by P. S. I. Pujari and the panchas.
In the search of house a plastic box was recovered from underneath Diwan, which contained two plastic bags. One bag was containing brownish powder weighing about 860 grams which tested positive for heroin. This bulk and two samples taken from the same were separately packed, sealed and labelled and were marked as C, C1 and C2. Other plastic bag contained opium weighing about 2.300 kgs. Two samples were withdrawn from the same, and then, the bulk and samples were separately packed, sealed and labelled as D. D1 and D2. Cash amount of Rs. 962/ and the Ration Card were also recovered, which were also seized.
A detailed panchnama of all the occurrences was drawn commencing from the event of information till the conclusion of search and seizure. With the two accused and contraband, the raiding party returned to headquarters and then F. I. R. was lodged by Police Constable Galugade.
P. I. Pujari took over the investigation on the basis of F. I. R. by Police Constable Galugade. The muddemal was deposited with the concerned clerk and the special report of search and seizure was submitted to D. C. P. Narcotics.
It appears that on 6.4.1992 a statement of appellant Nazma was recorded. It is claimed that she agreed to point out the person, who had supplied the opium. At the instance of her statement house of one Bhola Udit Narayan at Jawahar Nagar, Khar was searched, but nothing incriminating was recovered. Inspite of this said Bhola was impleaded as Accused No. 3, he was subsequently discharged by the learned Special Judge.
On 6.4.1992 at about 11.00 a. m. head constable Mane was instructed to collect sample packets from muddernal and deliver those to Chemical Analyser. Accordingly, Mr. Mane delivered sealed samples to Chemical Analyser and obtained acknowledgement. After the reports of analysis were available, charge-sheet was filed.
3. It appears that Accused No. 1 Shafique, absconded while on bail and therefore, the learned Special Judge separated the trial and proceeded against the present appellant only. As stated earlier, Accused No. 3 Bhola was discharged on 19th April, 1993.
Although contemporary documents, such as F. I. R. and panchnama do not refer that a copy of information was sent to immediate superior, learned
Judge found the deposition of P. I. Pujari, that he personally handed over the copy of information to immediate superior, to be acceptable. This is in view of the fact that the endorsement below the Information indicated that the copies were forwarded to D. C. P. and A. C. P. of Narcotic Cell. The fact that the copy of information was submitted to immediate superior was also found in the station diary entry that was effected on return of party from the raid. The learned Special Judge thus found that the requirement of Section 42 of the N. D. P. S. Act was complied with.
As far as the compliance of Section 50 of the N. D. P. S. Act is concerned, learned Special Judge has observed that the appellant was apprised of her legal right to be searched in the presence of a Gazetted Officer or a Magistrate, and thereafter personal search was carried out. Taking into consideration that the search of the person was carried out by lady police constable Sangita in presence of lady panch, the learned Judge observed that the search was strictly in compliance with Section 50(4) of the N. D. P. S. Act. The contention of defence that the lady constable was not authorised officer is repelled by learned Judge by observing that, if search of the person of appellant Nazma was to be done by an authorised officer P. I. Khedekar that would have been in violation of Section 50(4) of the N. D. P. S. Act and therefore in attendant circumstances, when rule of decency was observed and personal search was under supervision of an authorised officer, the requirements of Section 50 of the N. D. P. S. Act were complied with. The learned Judge has also observed that Section 50 of the N. D. P. S. Act does not mandate that search of a female accused must be by a lady Gazetted Officer.
After having considered the variances inter se in the evidence of prosecution witnesses, the learned Judge found that those were not material contradictions so as to nullify the case of prosecution. Because certain contraband was recovered from the person of accused appellant, and when the contraband was recovered in the house she was the only person present, the learned Judge felt that conscious possession of the contraband by the appellant was established.
In view of line of reasons as above, the learned Judge recorded finding of guilty and convicted and sentenced appellant accused as described above.
4. Learned Counsel for the appellant has prayed for allowing the appeal mainly on the ground of non-compliance of mandatory provisions of Sections 50 and 42 of the N. D. P. S. Act. 1985. He has also claimed the prosecution story to be unworthy of belief due to improbability in the prosecution story and at times by relying upon discrepant versions.
According to learned APP the requirements of Section 50 of the N. D. P. S. Act were duly complied with and as far as Section 42 is concerned, the same was not necessary to be complied with since the authorised officer Khedekar himself was supervising the raid throughout.
5. Regarding non-compliance of Section 50 :-
Learned counsel for the appellant has raised two fold objections regarding non-compliance of Section 50 and this is pertaining to the alleged personal search of accused Nazma immediately after she opened the door. According to him, authorised officer himself must give intimation to the accused regarding his/her right to be searched in presence of a Gazetted
Officer or a Magistrate. Not only that personal search also ought to have been carried out by a Gazetted Officer. According to prosecution, search was carried out by a lady constable and not by an authorised officer and it is not the case of prosecution that any lady authorised officer was the member of raiding party. Therefore, according to defence counsel, the provisions of Section 50 of the N. D. P. S. Act are observed only in breach.
No doubt, prosecution has not examined P. I. Khedekar, who was authorised officer supervising the entire raid; as a witness. On reference to evidence of complainant constable Galugade, he has narrated that P. I. Khedekar informed accused Nazma that the search of the residential premises was intended in order to find out. if there was any contraband. She was also informed that her personal search will be taken and she was also apprised of her legal right to be searched in presence of a Gazetted Officer or a Magistrate. Only after appellant Nazma declined to exercised any such right, P. I. Khedekar informed her that he was also a Gazetted Officer. The occurrence to above effect is also recorded in panchnama Exh. “8” and complaint Exh. “10” which are contemporary documents- Lady police constable Sangita and the panch witness Khatri have also supported this version, although they have not specifically stated that it was P. I. Khedekar who apprised the accused of her right under Section 50. Lastly, P. I. Pujari, who was a member of the raiding party, has also narrated that the accused Nazma was apprised of her right to be searched in presence of a Gazetted officer or a Magistrate by P. I. Khedekar.
Learned counsel for the appellant placed reliance on case of Saiyad Mohd. Saiyod Umar v. State of Gujarat, and more particularly the contents in para 5. The requirement prescribed by Hon’ble the Apex Court that it is obligatory on the authorised officer to inform the person to be searched of his right, appears to have been complied with, if the version of the prosecution witnesses as above is taken into consideration.
It was claimed by Mr. Sangani learned Advocate for appellant that search of accused Nazma also ought to have been by a lady authorised officer, accused being a woman. The case of Saiyad Umar relied upon by him, although lays down that the authorised officer must apprise accused of the right to be searched in presence of a Gazetted Officer or a Magistrate, it does not mandate that such a search also ought to be taken by an authorised officer. Even on reference to text of Section 50, we find no support to such a proposition.
In Ashok Nathuji v. State of Maharashtra, relied upon by learned APP Ms. Kantharia, the accused lady was searched by a lady police constable by taking her to cattle shed, a secluded place and she was not searched in the presence of any of the male panchas. A Division Bench of this High Court at Nagpur, held that, it could not be said that there was no compliance of Section 50 of the N. D. P. S. Act.
The case of State of Punjab v. Labhsingh, was also relied upon by learned Counsel for the appellant, and more particularly he relied upon following contents in para 5 :
“In view of the absence of any writing from the accused, to the effect that accused was informed of his right and that the same was waived taken by the officer who conducted the search and seized the contraband and in view of the long delay that has taken place, we think that these may not be cases warranting interference with the order of acquittal at this distance of time.”
It was contended by Mr. Sangani that since the prosecution has not obtained waiver of right by the accused in writing, her personal search was an infraction on section 50 of the Act.
In view of decision of the Constitution Bench in State of Punjab v. Baldevsingh, and especially “the conclusions, it is difficult to accept the contention of Mr. Sangani. The Hon’ble the Supreme Court has laid down that information regarding right to be searched in the presence of a Gazetted Officer or a Magistrate need not be in writing. The directions implied by can be said to be dispensing need of waiver of such right to be in writing.
Mr. Sangani also tried to gain ground by pointing out that while claiming to have informed the accused of her right to be searched in the presence of a Gazetted Officer or a Magistrate the word “nearest” is missing from such intimation. It is difficult to accept that merely because the word “nearest” was not used in the intimation regarding right under Section 50, the requirement was not complied with.
Reliance was also placed on the case of Ali Mustafa v. State of Kerata., It was contended that because the mandatory provisions of Section 50 are not complied with, the accused is entitled to an acquittal in view of decision in the said case, which followed the conclusions drawn in the case of Balbirsingh. The decision in the case of Ali Mustafa being prior to the guidelines laid down by the Constitution Bench of Apex Court in State of Punjab v. Baldevsingh, need not be followed as a precedent. This is because the Constitution Bench has laid down specific guidelines regarding effect of non-compliance of Section 50 on the prosecution case. Conclusion at Sr. No. 3 of para 57 of the decision of the Constitution Bench in Baldevstngh’s case may usefully be referred in this context :-
“That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the Illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.”
As already discussed above, the prosecution has evidence showing the compliance of requirement of Section 50, while carrying out search of person of the accused, and therefore, the search cahnot be said to be in violation of the said provision. Moreover, in the light to guidelines in the matter of Baldevsingh, such non-compliance does not vitiate the trial, but, action of the prosecution becomes suspect. It causes prejudice to the accused and it vitiates conviction and sentence, where the conviction is
recorded only on the basis of possession of Illicit articles. In the present matter, conviction is not based merely on the possession of illicit articles found during search of person of the accused.
For all the above reasons, it is felt that Section 50 or claim regarding non-compliance of the same, cannot rescue the appellant accused.
6. Section 42 of N. D. P. S. Act :-
Learned Counsel for the appellant has vehemently argued that the prosecution evidence is most uncertain as to the manner in which the information was received, as also how the copy of the same was handed over to immediate superior official. According to him, the prosecution has not at all established that the copy of information received was sent to immediate superior official, much less it has been able to show that it was sent forthwith.
The contention of learned Counsel that the prosecution version regarding receipt of information is shaky and uncertain, has some grain of substance. On reference to evidence of Police Constable Galugade, he claims to have received information from the informant and passed the same to P. S. I. Pujari and P. I. Khedekar he also adds that information was reduced to writing by P. I. Khedkar and the copies were sent to A. C. P. and D. C. P. of Narcotic Cell. Subsequently, he corrected himself by saying that the information was recorded by P. S. 1. Pujari.
When we refer to evidence of P. S. I. Pujari, his version is silent as to who received the information from the informant, but according to him he passed the information to P. I. Khedekar and thereafter he reduced it to writing at the instructions of P. I. Khedekar. He has also stated that he had personally gone to the office of A. C. P. Shri. More and to the office of D. C. P. Shri Sur, with the copies of information and he was accompanied by P. I. Khedekar at that time.
The contemporary document viz. the panchanama Exh. “7” and the complaint Exh. “10” are silent about the manner in which the information was received. The complaint states that the information was recorded by P. I. Khedekar and not by P. S. I. Pujari. The complaint also records that the information was placed before the A. C. P. Shri More and D.C. P. ShriSur and impliedly suggests that it was so placed by P. I. Khedkar and P. S. I. Pujari, because it is added that the two officers were instructed about the raid by A. C. P. and D. C. P.
Above details confirm that the prosecution is uncertain about who received the information and who recorded it. About the point of time as to when the copy of information was tendered before A. C. P. and D. C. P. the station diary entry at Exhibits “24” and “25” effected before departure of raiding party and immediately on return from the raid, speak against the copy of information being tendered immediately after recording. On the contrary, there is room to suggest that it was tendered to the officers only after the raiding party returned from the raid. In fact, the station diary entry at 11.20 a. m. on 3.4.1992 does not make any reference to receipt of information, much less submission of the same to immediate superior. However, it refers to departure after drawing panchanama. As against this, entry at 19.15 hours records that the copy of information was submitted to immediate superior. In fact, if the copy of information was submitted to the superiors before departure, there was no reason why such occurrence
did not find place in the station diary entry Exhibit “24” effected before
departure for raid.
The copy of information is at Exh. “22”. Although it shows endorsements addressing the copies to A. C. P. and D. C. P., admittedly, the same does not bear any signature or endorsement from immediate superior officials in testimony of the said information having been placed before them.
Thus, there is room to suspect the prosecution story regarding strict compliance of requirement of Section 42(2) of the N. D. P. S. Act, 1985. It cannot be said with certainty that the information was laid before the immediate superior officials and it also cannot be said that it was done without any loss of time, since the receipt of information.
Learned APP placed reliance upon few judicial pronouncements and claimed that since the authorised officer P. I. Khedekar was present throughout search and seizure, compliance of section 42 is not necessary.
In view of observations of this High Court in Jaitun v. State of Maharashtra, based on Maharashtra Government Notification dated 19.12.1985, there need not be two opinions that P. I. Khedekar was an authorised officer under Section 41(2) of N. D. P. S. Act, 1985.
Learned APP Ms. Kantharia has also placed reliance on Mohd. Hussain Farah v. Union of India. In this matter although search of the hotel room was made between 9.30 p. m. to 2.00 a. m. i.e. after sunset and before sunrise, without the officer recording any grounds as required by Section 42(2), plea regarding non-compliance of Section 42(2) of the N. D. P. S. Act, 1985 raised on behalf of the accused did not find favour with the High Court, and Hon’ble the Supreme Court refused to interfere with the conviction.
This was a case wherein officers of Revenue Intelligence had moved into action on the information that the appellant who was involved in an earlier case under the Act, and who had jumped bail was staying in Embassy Hotel under the false name. Surveillence was kept and on confirmation of identity the accused was apprehended. The officers did not have any information that the accused had kept or concealed any narcotic drugs or psychotropic substance in the hotel room. Thus, the raid as far as discovery of contraband, was without prior information. The raid was basically for apprehending the accused, who was absconding and therefore, the plea regarding non-compliance of Section 42(2) by not recording reasons for carrying out search at night hours was not upheld.
The learned APP has also tried to place reliance on certain observations that the point was not taken before Trial Court inasmuch as no questions touching the aspect of non-recording of grounds for search at midnight hours without obtaining a warrant, were confronted to the officers of D. R. I. Reliance on these observations is uncalled for. In the present matter cross-examination before the Trial Court indicates that the accused has been challenging the prosecution on the ground of non-compliance of Section 42(2) of the Act. Moreover, in the case of Saiyad Umar, a Larger Bench of 3 Judges has observed that the protection given to the accused under Section 50 cannot be disregarded on the technicality, that this point
was not raised in the Trial Court. Compliance of Section 42 also being mandatory, as much as compliance of Section 50, it must be said that non-raising of plea at the trial stage will not be a good ground to deny availability of such a plea at the appellate stage.
Ms. Kantharia learned APP has also placed reliance upon State of Orissa v. S. Mohanty. In this matter on receiving information, the Dy. Superintendent of Excise, who was an authorised officer, actually supervised the whole raid. Search and seizure was done under his instructions. Hon’ble the Apex Court was pleased to observe that the High Court was in error in holding that the conviction of Respondent stood vitiated on the ground that there was non-compliance of Section 42(2) of the N. D. P. S. Act.
During the course of arguments, attention of learned APP was drawn to Abdul Rashid’s case , which is a decision of Larger Bench and later In time, and especially contents in paras 13 to 18. In para 17 of the judgment, after considering the conclusions as drawn in Balbirsingh’s case regarding non-compliance of Section 42(1) and (2), Hon’ble Lordships of the Supreme Court were pleased to observe as follows :-
“18. When the same decision considered the impact of non-compliance with Section 50, it was held that, “it would affect the prosecution case and vitiate the trial.” But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Baldev Singh, the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance with Section 42 also. If that be so. the position must be the following.
If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate offcial superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded Information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.”
As can be seen from the conclusion, appellant therein was acquitted, mainly because he had discharged the burden of proof in such a manner as to rebut the presumption under Section 35 of the N. D. P. S. Act. Thus, non compliance of Section 42(2) may not vitiate the trial, although it may vitiate the conviction, if recorded only on the basts of possession of illicit articles recovered from the person of accused. However, it cannot be ignored that non-compliance of Section 42 makes action of an officer suspect and results into prejudice to the accused.
7. In the course of arguments, both the learned Counsel had lost sight of one peculiar circumstance in the present case, to which their attention was specifically invited. On reference to Exhibit “22” it is evident that there was no information regarding present appellant or regarding her being in possession of any contraband. Information attracting section 42(1) and relating the present appellant to the same, was not at hands, before the raiding party started for the raid. It was only after apprehension of accused No. 1 Shafique (who was the person informed about and who is presently
absconding) the information regarding present appellant was received. Prosecution claims that accused No. 1 volunteered to show the house of appellant Nazma by saying that the contraband was given to him by appellant Nazma. The prosecution also claims that the accused Shafique led the raiding party to the house of appellant Nazma and confirmed that she was the person, who had given contraband to him.
Taking the statement of absconding accused Shafique on its face value, it cannot be admissible in evidence with the help of Section 27 of the Indian Evidence Act. One accused naming other or pointing out his/her residence, or pointing out the other accused himself/ herself, would not come within the ambit of “fact discovered in consequence of information received from accused” as contemplated by Section 27 of the Indian Evidence Act.
Although alleged statement by Shafique is one affecting himself and present appellant Nazma, Section 30 of the Indian Evidence Act is incapable of providing entry to the said statement as a piece of evidence for two reasons. Firstly, accused Shafique and Nazma are not being tried jointly, although because Shafique has absconded. Secondly, the statement is in the form of confession, and addressed to the police officers, although temporarily forming special narcotic cell. The statement therefore would be hit by bar of Section 25 of the Indian Evidence Act.
Thus, statement of Shafique as recorded in the panchanama Exh. “8” is incapable of assuming character of admissible evidence as against persent appellant. Consequently, it reduces to the status of information received.
It is not the case of prosecution that any copy of this information was sent back to the office of A. C. P. or D. C. P. immediately, viz. before proceeding towards the house of Nazma as guided by the absconding accused Shafique. In this context, attention of both the learned Counsel was also drawn to the observations of the Hon’ble the Apex Court in the case of Mohinderkumar v. State of Goa. In this matter, search was carried out merely on suspicion and without prior intimation, when the Hon’ble the Apex Court observed as follows :-
“If the Police Officer, without prior information makes search and effects arrest of persons and if during such search he stumbles on a chance recovery of any narcotic drugs or psychotropic substance and if he happens to be a Police Officer who is not empowered under the Act to effect search and seizure, he should inform the empowered officer as required by the Act, if he himself happens to be an empowered officer then from that stage onwards, the investigation must be carried out in accordance with the provisions of the Act.”
Applying the ratio to the case at hand, the moment absconding accused Shafique informed to have obtained contraband from appellant Nazma, P. I. Khedkar although an authorised officer was obliged to proceed in accordance with the provisions of N. D. P. S. Act, 1985. It is not the claim of prosecution that this information was immediately sent back to immediate superior officials i.e. A. C. P. or D. C. P. As can be seen from the panchanama, raiding party was strong enough which included P. I. Khedkar, P. S. I. Pujari, 7 subordinate police personnel including the lady constable
and two panchas. It was possible to relegate the copy of information immediately to the superior offcials.
No doubt, this by itself, will not entail acquittal in favour of the appellant, but this will make further actions of raiding party suspect and it must be sald that this has caused prejudice to the appellant accused. In fact it can be said, for the reasons to be discussed hereinbelow; that this is one case which would underline the importance of relegating the copy of information to immediate superior officials without any delay, by the official who receives the information.
8. In this matter, the prosecution claims recovery from the person of appellant Nazama, as also recovery of contraband from the house, found beneath the sofa-cum-bed (Diwan). During the search and seizure, ration card recovered from the house is seized (Art. 15). On perusal of ration card. as admitted by P. S. I. Pujari, name of appellant Nazama finds place at Sr. No. 2 amongst five family members. The ration card was examined in the open Court and following are the details :-
Ismail Hussain 50 years of age is shown to be head of the family. Address on the ration card tallies with the address of the house claimed to be visited. Amongst the family members, Ismail is at Sr. No. 1, Nazama 35 years is at Sr. No. 2 and is said to be wife. There are three children, two sons and youngest daughter respectively, aged 14, 10 and 5, as remaining family members.
Ordinarily head of the family is the person to have domain over the family house. Responsibility of conscious possession of articles found in the house, in the absence of any overt act, can be attributed to him. Viewed from this angle, Ismail Hussain and not the appellant was having domain over the house. The prosecution does not claim to have waited for arrival of Ismail Hussain, if he was not present at the time of the raid nor there is any indication, if he was summoned, interrogated or if Nazama was interrogated regarding her husband. This position is of significance so far as the recovery of contraband from beneath the Diwan in the house.
Realising the significance of ration card and Ismail Hussain, being shown as head of the family, learned Additional Public Prosecutor has placed reliance on Jagdish Purohtt v. State of Maharashtra, and especially concluding part of para No. 5. In the reported case, the premises searched were a factory and factory belonged to appellant who was the sole Proprietor. In those facts and circumstances, it was held obligatory for the appellant to explain how the offending articles came to be found from his factory.
On the basis of the distinction in the status of the appellant Nazama as house wife and appellant in the reported matter as sole proprietor of the factory premises searched, I am afraid, Nazama cannot be called upon to explain for the possession of the contraband, which was recovered from beneath Diwan. Ordinarily presumption regarding conscious possession would be attributable to the head of the family i.e. husband of Nazama. Of course, it cannot be ignored, in the present case, the prosecution has also claimed recovery of small polythene bag containing about 40 gms. of heroine from person of appellant Nazama.
9. The learned counsel for appellant has raised several points regarding reliability of prosecution story about the recovery from the person as well as recovery from the house, on the basis of probability factor, as also weaknesses in the prosecution evidence.
Apart from the fact that information given by absconding accused Shafiq was not relegated to immediate superior officer, causing prejudice to the appellant, absence of any enquiries about the husband of appellant makes the prosecution efforts further suspect. Unless the prosecution story regarding the search of the person of appellant Nazama and seizure of 40 gms. of heroine beneath her brassiere is convincing, neither of the recoveries can be accepted as basis for conviction against her.
10. As far as search of person of Nazama is concerned, on reference to complaint and panchanama, it is difficult to fix the location where she was searched. Accepting the prosecution case as it is, it will have to be said that she was searched right in the door frame. This is because neither the depositions nor contemporary document panchanama Exhibit 9 narrates any specific location to which Nazama was taken for personal search by lady police constable and lady panch. Narration by lady Police Constable Sangita, panch witness Khatri and P. S. I. Pujari that Nazama was taken on one side of the room for personal search is an improvement over the contents of panchanama.
Lady Police Constable Sangita and female panch Leela are the two characters involved in taking personal search of Nazama. It is pertinent to note that lady Constable Sangita is unaware of the exact amount that was recovered from the house. In fact, it must be said that in the whole prosecution evidence, there are no details giving description about the location at which the cash of Rs. 962/ and the ration card was found. Her narration that the signature of accused No. 1 (absconding) was obtained below the statement after the same was recorded, is another vital region indicating that lady police constable may not be the member of raiding party. Her answer, “I do not know” regarding the presence of any other family members ….. i.e. husband or children of Nazama is incompatible
with her presence for the raid. If she was member of the raiding party, the answer ought to have been either “nobody was present” or description as to who else was/were present.
The prosecution has not examined lady panch. Unfortunately, it must be said that, prosecution has come with such a piece of evidence as explaination for non-examination oflady panch that the same makes action of the prosecution further doubtful. At Exhibit 23, P. W. 1 Pujari has produced a certificate regarding the death pertaining to lady panch. From the panchanama, lady panch is Smt. Leela Gangaram Bhagwat. 35 years, resident of Peon Chawl, Room No. 106, II Floor, Cross Lane No. 1, N. M. Joshi Marg, Byculla. Certificate Exhibit 23 is regarding death of Leela Munnalal Gupta. On perusal it appears that she died because of stab injury on 25.8.1992. Age of this Leela is said to 45 years. What is produced is not strictly a death certificate, but warrant for disposal of body issued by Coroner of Bombay to Tardeo Police Station. There can be no dispute that Tardeo Police Station and Byculla are different locations under different police stations. Thus, except name “Leela” nothing is common in the
description of lady panch and deceased referred in the certificate which will enable us to say that the coroner’s certificate is pertaining to lady panch.
One more aspect about the presence of lady panch can be considered from Exhibit 24, the station diary entry effected before departure of the raiding party. Although the constables are described with Badge Numbers and there is reference to two panchas as members of raiding party. It docs not indicate that one was the lady panch. In the facts and circumstances of the case, when the information was only about the Shafiq Ahmed and there was no specific information regarding female accused, probability cannot be ruled out that there was no lady panch in the raiding party. Non-examination of the lady panch before the Court therefore creates more doubts about credibility of prosecustion case.
Prosecution evidence as to who procured the panchas is also in consistent. Panch Khatri has deposed that he was contacted at bus stop by P. 1. Khedekar and P. S. 1. Pujari. Panchanama Exhibit 7 and First Information Report Exhibit 10 stale that P. I. Khedekar (alone) has procured the panchas. P. S. 1. Pujari in his cross-examination denies to have accompanied P. I. Khedekar to summon the panchas.
11. Lastly, taking the prosecution story as it is, if as stated by Shafiq, he had brought contraband from Nazama for distribution, story that within the house, Nazama had concealed one contraband packet beneath her brassiere, does not stand on the touchstone of probability. The stock was beneath sofa-cum-bed Shafiq was the distributor available. One small packet of contraband could have been part and parcel of the main stock, to be taken out and handed over as and when distributor approached. It is not the prosecution case that Nazama herself was to distribute and Shafique had already collected some contraband.
12. To sum up, taking the prosecution case in the light of facts and circumstances narrated by the witnesses and brought on record in the form of documentary evidence, recovery of contraband on the person of Nazama is doubtful on the touchstone of probability as also due to weaknesses in the evidence, surrounding the incident of recovery from the person of Nazama as already discussed above. Unless this recovery is convincingly established, prosecution cannot attribute conscious possession of the stock recovered beneath Diwan to Nazama and therefore, in all probability, introduction of improbable story of recovery on personal search.
13. Learned APP desired the Court to draw an adverse inference because Nazama herself has not offered any explanation about the contraband. The presumption regarding culpable mental state as incorporated in Section 35 of the N. D. P. S. Act will be available in favour of the prosecution and the accused will be obliged to discharge the burden of proving absence of culpable mental state only when the prosecution has proved, beyond all reasonable doubts, possession of contraband by the appellant accused.
As stated above, the prosecution story does not inspire confidence about the claim that a small packet of polythene was recovered on the person of Nazama and as far as main stock is concerned, admittedly there was somebody else who could have been responsible for the possession. Presumption under section 35 of the Act, therefore, neither arises nor is required to be rebutted by the appellant-accused.
For above reasons, appellant-accused atleast deserves benefit of doubt.
The appeal is therefore allowed. Conviction and sentence is set aside and it is hereby directed that appellant Nazama be set to liberty forthwith, if not required in any other case.
Fine amount, if deposited, shall be refunded to the appellant accused.
