Mohammed Hussain vs The State

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned State Public Prosecutor. The appellant was the accused before the court below, in the following circumstances:

On 15.04.2003, on receipt of credible information that some person was making arrangements to sell ''ganja'' near Kundapura KSRTC bus stop, the Police Inspector, Narcotic Drugs Control and COD, Mangalore, had proceeded to the spot along with his staff and having caused a search, discovered that the appellant was in custody of 2.5 kilograms of ''ganja'' and after following the procedure prescribed, had seized the same and the appellant was arrested and after due investigation, was charge-sheeted. After further proceedings, charges were framed against the appellant for offences punishable u/s 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the NDPS Act'', for brevity). The appellant having pleaded not guilty and having claimed to be tried, the prosecution had tendered evidence through PWs 1 to 6 and had marked Exhibits P1 to P6 and material objects 1 and 2 and on conclusion of the evidence, the accused had been examined u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C.'' for brevity). After hearing both the sides, the court below had framed the following point for consideration: 1. Whether the prosecution proves beyond all reasonable doubt that on 15.4.2003 at about 12.45 p.m., near Kundapura Town KSRTC bus stop on a mud road the accused was found with 2.5 kgs., of ganja in his custody without any licence or permission from the competent authority which substance is coming under the definition of Narcotic Drugs or Psychotropic Substances and thereby, the accused has committed the offence u/s 8(c) read with 20(b)(1) of NDPS Act, 1985?

What order?

The Trial Court held the same in the affirmative and the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 25,000/-. It is this which is under challenge in the present appeal.

The learned counsel for the appellant would contend that the prosecution had failed to prove its case beyond all reasonable doubt. The possession of the narcotic substance by the appellant was not at all proved. The testimony of the police officers was not sufficient to establish the alleged guilt of the accused. Though the prosecution had cited independent witnesses in support of the seizure, the said witnesses were never examined. Therefore, the very object of recording statements of such witnesses was in order to establish the case of the prosecution. When the said witnesses did not appear at the trial and support the case of the prosecution, it cannot be said that the case of the prosecution could be sustained. The court below has completely overlooked this aspect of the matter. It is further pointed out that a combined reading of Sections 42 and 43 of the NDPS Act would indicate that whenever a police officer who is empowered under the Act to seize, search and arrest a person in a public place, it is then Section 43 would be followed, but not Section 42 of the Act. Section 42 specifically provides that if the article which is a drug or a psychotropic substance, is concealed in any building, conveyance or enclosed place, it is only then that the strict provisions of Section 42 would be applicable. This, the learned counsel submits, runs counter to the judgment in the case of Sayar Puri Vs. State of Rajasthan, , and in the case of Jose Thomas and etc. Vs. Superintendent of Central Excise, Customs Preventive and Intelligence Unit and Another, .

Placing reliance on judgments of the Apex Court is incorrect with the distinction between Section 40 and 43 was not relevant and is a misinterpretation of the legal provisions and the court below was not justified in holding that compliance with Section 42 was not necessary. It is in this manner that the learned counsel for the appellant seeks to challenge the impugned judgment. Insofar as the contention that the prosecution could not bring home the charges on the basis of the evidence of the police officers alone, when it was not supported by the evidence of independent witnesses, their statements had been recorded as panch witnesses at the time of seizure of the substance in question is concerned. The learned counsel has placed reliance on a judgment of the Apex Court in the case of Beckodan Abdul Rahiman Vs. State of Kerala, , and seeks acquittal of the accused.

While the learned State Public Prosecutor would point out that the first contention that the case of the prosecution cannot rest merely on the evidence of police officers involved and that it ought to be supported by independent witnesses, is not mandatory under any legal provision. It is a matter of procedure that in a routine fashion, the police in carrying out any such exercise of search and seizure, would seek to draw up seizure mahazar which is normally signed by panch witnesses. The fact that such witnesses may not be traceable at the time of trial or that they do not support the case of the prosecution, may not dilute the case of the prosecution, for if otherwise the evidence tendered by the prosecution is acceptable and is to the satisfaction of the Trial Court, there is no impediment for the court to convict the accused on the basis of such evidence. If it is to be alleged that there was foul play and mala fides on the part of the Investigating authority and the prosecution in seeking to bring a false case against the accused, the onus is on the accused to plead and establish that there were such mala fides present in making out a case against the accused. On the other hand, apart from the contention raised in the appeal, there is no such endeavour on the part of the appellant to establish that there was mala fides. Therefore, since the law does not prescribe that the evidence gathered at the investigation and the accused being taken into custody, the same be supported by statements of independent witnesses and if the same is not forthcoming at the trial, it would not vitiate the proceedings. Insofar as the allegation that there was non-compliance with the legal procedure is concerned, is specifically a contention that was urged in the defence before the Trial Court, which the Trial Court has addressed at length and has dealt with the same and would draw attention of this court to the relevant portion.

Curiously, the State Public Prosecutor would also bring to the attention of the court that the quantity of the substance involved in this case was admittedly commercial quantity and if the accused was found guilty of possession of such commercial quantity, law mandates that the minimum punishment shall not be less than 10 years of rigorous imprisonment apart from fine of Rs. 1,00,000/-, whereas the Trial Court has only imposed rigorous imprisonment of three years and a fine of Rs. 25,000/-. It is unfortunate that the State has not chosen to file an appeal in respect of the same and therefore, would submit that the appellant has received an undeserved advantage even while having suffered an order of conviction and therefore, submits that there is no merit in this appeal and the same be dismissed.

Given the above rival contentions as rightly pointed out by the learned State Public Prosecutor, insofar as the absence of evidence of panch witnesses, would not vitiate the trial. It is only if the accused was in a position to establish that there were mala fides in the case brought against the accused at the instance of the police officers, that their evidence could be negated and could be tested as against the allegation supported by cogent evidence. When there is none, it is not for this court to presume that it was want of bona fides. Further, insofar as the non-compliance with the procedure is concerned, the same was in fact a serious defence raised before the Trial Court, which has been dealt with at length. It is not necessary to address the said issue over again merely on the footing that the appellant has chosen to raise it yet again. Further, as pointed out by the learned State Public Prosecutor, the appellant has been treated with extreme lenience in the Trial Court having given a go-by to the mandate in law in imposing the minimum punishment. In any event, since the State is not in appeal, the same is not address. Accordingly, the appeal is dismissed.