Nandlal Shyamdas vs State of Goa

U. D. Salvi, J.—This is an appeal preferred against the judgment and order of the learned Special Judge, N.D.P.S., Mapusa, Goa sentencing the appellant/ accused to R.I. for a period of 10 years and to pay fine of Rs.1 Lac and in default to undergo R.I. for further period of 6 months consequent to he being found guilty of the offence punishable u/s 8(c) r/w. Section 20(b)(ii), (C) of the N.D.P.S., Act, 1985 (hereinafter referred to as ''the Act''). According to the prosecution, the appellant/ accused was found in illegal possession of 1.125 Kg, a commercial quantity, of charas near Arpora market junction, Arpora, Bardez, Goa between 9.15 hours and 12.15 hours on 02.02.2008. It is the prosecution story that the appellant / accused could be caught red handed with commercial quantity of charas as a result of specific and reliable information, which was reduced into writing and a copy of the same was sent to Dy. S.P., A.N.C. as per law; and following the search duly taken in accordance with law, a yellow coloured polythene carry bag containing black coloured sticky substance suspected to be charas weighing 1.125 Kg was recovered. This black coloured sticky substance, according to the prosecution, was found packed in: (i) 6 flat rectangular transparent poly packets admeasuring 5x4 inches approximately (ii) 3 flat rectangular transparent poly packets admeasuring 4.5x3.5 inches approximately and (iii)21 small transparent poly packets admeasuring 2x2.5 inches approximately. All these articles were repacked at the spot in a light green coloured envelope and sealed with official seal of Anti Narcotic Cell, Panaji, Goa - I under the signatures of the panchas, P.I. Anti Narcotic Cell and the appellant/ accused. The contents of the envelop were written over and the envelop was marked as Exh.1. Cash found with the appellant/ accused was likewise packed and sealed in a separate envelop marked Exh.2. Mobile Phone found with the appellant/ accused was also seized under a panchanama drawn at the spot. Seizure report in respect of the seizure of the charas, cash and mobile phone was prepared and a copy of it as well as a copy of the seizure panchanama was handed over to the appellant/ accused. The appellant / accused was arrested at the spot after explaining to him the ground of arrest.

The prosecution story further reveals that letter addressed to the Director of Food and Drugs Administration, Panaji with the facsimile impression of the seal used for sealing the said articles was prepared and the seal was sent to Dy. S.P., A.N.C.

The prosecution examined 8 witnesses namely PW1-Mahesh Kaissare - Senior Scientific Officer - Directorate of Food and Drugs Administration, Panaji, PW2-Sushant Naik - Scientific Assistant in the office of SP,CID,CB, PW3 - Gaurish Mapari - Scientific Assistant, SP,CIDCD, PW4 - Ashok Karpan - Panaji, PW5 - Dinraj Govekar - Dy. S.P., A.N.C., PW6-Ashwini Dessai, Writer HC, ANC, Panaji, PW7 Saish Pokle-Constable, ANC, Panaji and PW8-Ashish Shirodkar - Officer in-charge, ANC, Panaji.

The accused branded the prosecution case as false in his examination u/s 313 of Cr.P.C. He chose not to examine any witness in his defence.

The Ld. Trial Court found the evidence of the Prosecution witnesses cogent and reliable, and believed recovery of 1.125 Kg commercial quantity of charas from the possession of the appellant/ accused according to law, and dismissed the defence submissions contrary thereto, particularly the submission regarding the tampering of the muddemal articles. Pertinently, no controversy as now sought to be raised before this Court regarding the quantity of the contraband seized was raised before the Ld. Trial Court.

Now before this Court, learned Advocate Jose D''Souza for the appellant in clear terms submitted that he proposed no challenge to the recovery of the contraband, but proposed to assail the order of conviction and sentence passed against the appellant u/s 8(c) r/w Section 20(b)(ii)(C) of the NDPS Act, 1985 on the ground that the prosecution evidence brought on record is not sufficient to establish the charge involving commercial quantity of the charas. He submitted that the burden of proving the charge lies on the prosecution and the accused is not under any obligation to cross-examine the analyst in order to bring forth more facts than what is revealed in his evidence. It is this burden of proof, he argued, the prosecution failed to discharge by merely bringing on record that substance recovered from the possession of the appellant contained charas. He added that in absence of the evidence regarding the quantitative analysis of the substance, it is not possible to hold that the said substance contained 100 % charas in order to attract punishment for possessing commercial quantity of charas i.e. more than 1 Kg. u/s 20(b)(ii)(C) of the said Act. Elaborate written submissions in that regard were placed on record by learned Advocate Jose D''Souza for the appellant/ accused.

Time was taken by the prosecution to counter these submissions. However, little use of this time was made by the prosecution except inviting the attention of this Court to the judgment and order dated 16.10.2009 passed by the Court of concurrent jurisdiction in Criminal Appeal No.20/2009 - Yair Daniel Lavon Vs. State of Goa. Coupled with a judgment reported in Sarwan Singh V. State of Punjab''s case reported in 2003 C.L.J. 21, Learned Public Prosecutor Ms. W. Coutinho for the State argued that in similar situation wherein chemical analyst upon the analysis of substance weighing 1.765 Kg. had opined that it contained charas, the conviction for the offence of possessing commercial quantity of charas punishable u/s.20(b)(ii)C of the NDPS Act, 1985 had followed in the said case. The Learned Single Judge -Mr. Justice Britto after considering the evidence on record and reading the cases cited on behalf of the cases, particularly those relied upon in the present case, had made the following observations at para. 38 of the said judgment :

As already stated, the accused made no efforts in cross-examination to find out whether the seized article contained any other substance, for it to be called a mixture or any other neutral substance and, therefore, in absence of any cross-examination, reading the evidence of P.W.3 Kaisare as a whole, one has to presume and conclude that the whole of the substance analysed by him was charas without any other substance, neutral or narcotic ganja. In the absence of any cross-examination, it is not permissible to mince words and conclude that because he did not use the word ''is'', but used the word ''contains'', the whole substance cannot be termed as charas.

She further submitted that P.W.1 Kaisare, Senior Scientific Officer, Director of Food and Drugs Administration, Panaji (DFDA) was spared of cross-examination on this material aspect so as to reveal that the substance analysed was a mixture or any other neutral substance and in similar situation, the submissions made on behalf of the appellant/ accused to canvass his conviction for possessing small quantity of charas punishable u/s 20(b)(ii)(A) of the Act and to leave him on the punishment undergone must fall to ground.

Evidence of P.W.1 Mahesh Kaisare, SSO, DFDA, Panaji deposed that one sealed greenish coloured paper envelop with seals intact along with letters dated 04.02.2008 and 02.02.2008 from SP,CIB and P.I.,ANC bearing specimen seal impression marked as Exh.1 was received in the office of the DFDA, Panaji from Superintendent of Police Crime, Dona Paula, Panaji, Goa on 04/02/2008. Evidence on record, both oral and documentary, rules out possibility of tampering of the seized substance between seizure and its delivery to the DFDA. His evidence further reveals that the said envelop was found to contain yellow coloured polythene carry bag containing dark brown coloured substance placed in 33 poly-bags and the total weight of the substance along with bags was 1.125 Kg (33 Poly bags.)

PW1 Kaisare further revealed how the analysis of the said substance, more particularly 6 rectangular shaped pieces, 3 rectangular shaped pieces and 10 out of 21 small pieces selected at random was individually undertaken by taking about 1 gram of substance from each piece and the following tests common to all were carried out :

Description - (i) Dark Brown coloured substance having characteristics odour of charas

(ii) Microscopic examination; the substance was coarsely powdered, treated with 10 % Sodium Hydroxide and dropped (drop) of the resulting solution was taken on glass slide and observed under microscope showed presence of hair resembling charas hair.

(iii) Identification test for charas - the substance was extracted with petroleum ether filtered and filtrate was subject to following tests :

(i) Beam''s Acid Test -Filtrate with Beams reagent produced red coloured ring at the interaction on the two liquid or positive test for charas.

(ii) Neagm''s Test : Filtrate with neagm''s reagent in presence of Hydrochloric Acid develops colour grey changing to green to blue finally violet a positive test for charas.

(iii) Fast blue B Salt test : Filtrate with solution of fast blue salt reagent on agitation of two liquids the aqueous layer turned red, a positive test for charas.

From these tests, PW1 - Kaisare deposed, he concluded that the substance analysed by him contained charas.

According to learned Advocate Jose D''Souza, the Ld. trial Court erred in equating the two phrases ''1.125 Kg of charas'' with ''1.125 Kg containing charas''. He further submitted that in penal statutes terms and phrases ought to be given strict interpretation, and they are not permitted to be stretched in favour the prosecution to prove the charge. Hence, the term or phrase ''1.125 Kg of charas'' has to be given strict interpretation and cannot be permitted to be stretched to include 1.125 Kg substance containing charas. According to him, learned Single Judge, in the case of Yair Daniel Lavona, has nowhere broached the topic and is thus, per incuriam. Relying on the case of Joseph Fernandez Vs. State of Goa, , the learned Single Judge drew a parallel between the view taken by the Hon''ble Apex Court in the said case and the one taken by him in Yair Danial Lavona''s case. In the said case, the Hon''ble Apex Court concluded that isolated answer in the cross-examination of the analyst claiming no knowledge as to whether the contraband contained cow-dung also, was hardly sufficient to destroy the evidence of the analysis. Learned Advocate Jose D''Souza for the appellant/ accused drew the attention of the Court to the analyst''s statement recorded in the said case. He submitted that the analyst witness therein has stated in clear terms that the contraband was charas and it is on this background, the Apex Court had found isolated answer given by the analyst hardly sufficient to destroy the probative value of his evidence. In the instant case, there is no such statement made by the analyst; and, therefore, no parallel can be drawn between Yair Daniel Lavon''s case and Joseph Fernande''s case.

Section 2(iii) gives idea about the meaning of the term ''cannabis'', the possession of which is made punishable u/s 20(b)(ii) of the Act in following words :

Cannabis (hemp) means - (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from cannabis plant and also include concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.

Cannabis thus includes any mixture of any of its forms : charas and ganja with or without any neutral material.

One such similar controversy over the use of the word ''contained'' and not of the word ''is'' by the chemical analyst in his opinion indicating the presence of charas in the substance analysed arose in Ketile Mardal Vs. State of Goa case reported in 1997 Criminal Law Journal 3581. The Division Bench of this Court took into account then subsisting provisions of law, Section 20(b)(i) and 20(b)(ii) as well as Section 2(iii)(C) of the Act and expressed need for a notification u/s 27 of the Act by the Central Government to declare "small quantity" of narcotic drug or psychotropic substance in the following words :

On the basis of the above mentioned report, the Public Analyst (actual designation of this Officer is Junior Scientific Officer (Drugs)) opined that sample III contained charas. At this stage it is necessary to refer to Section 20 which deals with contravention relating to ''cannabis'' plant and cannabis. Section 20(b)(i) provides that where such contravention relates to ganja or the cultivation of cannabis plant, it shall be punishable with rigorous imprisonment for a term which may extent to five years and shall also be liable to fine which may extent to fifty thousand rupees. Section 20(b)(ii) provides that where such contravention relates to cannabis other than ganja, the same shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. Thus, in a case of mixture of ganja and charas as referred to in Section 2(iii)(c), the clause which would be attracted would be Section 20(b)(i). In other words, in case of cannabis other than ganja namely charas or any mixture of charas and ganja, the same would fall u/s 20(b) (ii). It is no doubt true that small quantity of charas and ganja has been notified u/s 27 of the Act and mixture referred to in Section 2(iii)(c) has not been notified. In fact, Section 27 lays down that for the purpose of the said section, small quantity means such quantity as may be specified by the Central Government by Notification in the official gazette. Thus, it is necessary that in order to operate Section 27 a notification is necessary by the Central Government to declare small quantity of narcotic drug or psychotropic substance so that the benefit of Section 27 is available to the persons possessing narcotic drug, or psychotropic substance.

While dealing with the submissions voicing the defence that reading of the words ''contained charas'' found in the report of the analyst would indicate that it did contain some other substance which could qualify the said substance as mixture u/s 2(iii)(c) of the said Act, the Division Bench of this Court analysed worth of the defence in following words :

In sample No.III what was found by the Public Analyst was dark brown coloured substance having characteristic odour of charas and the Public Analyst did not find any greenish brown dry, loose and non-adherent leafy and flowery part of plant in the said sample so as to suggest that it was a mixture of two substances namely charas and ganja. Secondly, the Public Analyst found that the substance analysed sample III shows presence of hairs resembling charas hairs and in the said sample obviously the Public Analyst did not find any presence of ganja hairs because otherwise the Public Analyst would have referred to the same in the microscopic examination. The identification test for charas was also positive for charas. The definition of charas as contained in Section 2(iii)(a) states that charas is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. Therefore, in order that the substance qualifies as charas, the charas can be crude or purified. In crude form there would certainly be impurities besides charas and if it is so, the analysis of the substance would always show that it contains charas since charas may itself contain impurities being in crude form. Therefore, we are unable to accept the contention of learned Senior Advocate Shri Chari that the substance in question is mixture of charas and ganja and the same would fall within the definition of ''cannabis'' as contained in Section 2(iii)(c).

In the instant case, similar facts are revealed as revealed by the analyst in Ketile Mardal''s case. Microscopic examination of the substance shows that the sample put to test turned completely into a solution. This can be read from the record of the microscopic examination which reveals that drop of the resulting solution was taken on a glass slide. Observations under microscope, the evidence reveals, showed presence of hair resembling charas hair. Evidence does not reveal that microscopic examination showed presence of anything else so as to say that the solution observed under the microscope was mixture of charas as well as any other substance muchless ganja. Then, why did the analyst say that substance ''contained charas'' and not say that substance ''is'' charas ?

Learned Advocate D''Souza for the appellant/accused further submitted that Ketile Mardal''s case was decided on the basis of law as it stood prior to the present amendment of 2001 when there was no provision for taking into consideration for the purposes of sentencing the possibility of a mixture or a preparation of a narcotic drug with a neutral substance as is provided now u/s 20(b)(ii) ABC of the N.D.P.S. Act, 1985 r/w. entry at serial No.239 in the notification u/s 2(xxiii)(a) of the Act. According to him, the judgment of the Hon''ble Apex Court in E. Michael Raj Vs. N.C.B. case reported in 2008 Drug Cases (Narcotics) 2430 SC has crystalised the sentencing policy in relation to quantity of the contraband found or involved in the case. At para 13 of the said judgment, the Hon''ble Apex Court observed as under :

(i) After dealing with the scope of the NDPS Act, and in particular the provisions regarding sentencing including that of Sr. No.239 of the table of quantities dealing with mixtures or preparations, the Apex Court has observed at para 13 :

''...The intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 Kgs. of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less sever punishment and those who commit grave crimes, such as trafficking in significant quantities, with more sever punishment.''

(Emphasis added)

(ii) At para 16, the Apex Court concludes :

''We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.''

(Emphasis added)

Learned Advocate D'' Souza for the appellant/ accused on the basis of this judgment submitted that the ruling in Ketil Marda''s case is no longer binding precedent.

From the perusal of the judgment in the following cases (i) Salim Ibrahim Chauhan @ Hussain @ Shaikh Vs. State of Maharashtra - unreported judgment dated 2.7.2008 of this Court in Criminal Appeal No. 268/2008 and Naseer Abubaker Shaikh Vs. State of Maharashtra, Criminal Appeal No.325/2008 (ii) DVIR Tomar Vs. N.C.B. Criminal Appeal No.488/2005 dated 4.9.2008 of the Hon''ble Delhi High Court,, (iii)Union of India Vs. Stephen Andreas Hofman Criminal Appeal No.671/2006 decided on 13.07.2007 by the High Court of Delhi, (iv)Dharampal and others Vs. State of H.P. and another reported in 2007 Drug Cases (Narcotics) 656, (v)Yaniv Cohen Vs. State of Goa, Criminal Appeal No.16/2003 decided by this Court on 5.12.2003, (vi)Ouseph @ Thankachan Vs. State of Kerala reported in 2003 Drug Cases (Narcotics) 301, (vii)Anthony D''Costa @ Thorn Vs. State of Goa-Criminal Appeal No.24/1991 decided by this Court 29/30.01.1992 it is not difficult to find that jurisprudential thought expressed by the Hon''ble Apex Court in E. Michael Raj''s case ruled the decision making in the said cases. The learned Single Judge while deciding the Yair Daniel Lavon''s case noticed that the facts in cases; Toral Minguel blanco, Yaniv Cohen, Anthony D''Costa, Dharampal and others, Salim Ibrahim Chauhan, Ouseph @ Thankchan, E Michael Raj (supra) were different than the facts in the case at hand and as such they found no application. However, it appears that the concluding thought expressed in E. Michael Raj''s case "that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance, it is the contents of narcotic drug or psychotropic substance, which shall be taken into consideration for the purpose of imposition of punishment" made no impact on his decision making only for the reason that the accused had made no efforts in cross-examination to find out whether the seized articles contained any other substance for it to be called a mixture with or without any other neutral substance. Learned Prosecutor Ms. Coutinho for the State to complement this thinking, cited judgment in Sarwan Singh V. State of Punjab''s case reported in 2003 C.L.J. 21. Though it concerns a murder case, it hints at a rule of a criminal justice system that whenever the opponent has declined to avail of opportunity to put his case in cross-examination, it must follow that evidence tendered on that issue ought to be accepted. Even adhering to this rule, one stumbles at the opinion expressed by the Chemical Analyst PW1 Kaisare that the substance analysed "contained charas" and not what the prosecution was expected to prove that the substance was/ is charas. As aptly put by the learned Advocate Jose D''Souza for the appellant/ accused, the phrase ''substance'' weighing 1.125 Kg ''containing charas'' has more than one reasonable meaning stretching from substance having minuscule stretches of charas to even possible 100 % charas and the quantitative analysis of the substance was the only way of determining how much of the substance was/ is charas.

Was the use of the phrase ''containing charas'' by the chemical analyst in expressing his opinion about the substance inappropriate, being not based on the facts revealed in the test, or not ? Answer to this question would only give clear picture as to whether the controversy arising out of the use of such phrase is an idle controversy involving mere mincing of words or not. Of course, a clear evidence in this regard of PW1 Kaisare would have shed better light on this controversy.

Facts concerning the test carried out, which have generated such opinion pose pertinent questions. Some such questions are (i) whether the solution of the entire substance can show crystals ''hair resembling charas hair'' (crystalline formation of substance) ? (ii) Whether the solution was formed selectively of all the substance other than charas and, therefore, the hair resembling the charas hair were visible under microscope? (iii) Whether the microscopic examination independently or in conjunction with other tests rules out that the substance analysed was not the mixture of charas with something else but 100 % charas? There is no answer to such questions in the evidence of PW1 Kaisare. Giving answers to these questions is the province of the chemical experts and the Courts cannot answer such questions unless some authentic material is placed before them to get at answers. In the instant case, no authentic work answering such questions was placed before the Courts nor could this Court come across any such authentic work.

Who then has to answer these questions ? is it through cross-examination of the witness, the controversy could have been resolved ? are the questions which continue to beg answers in the present judgment. Answer to these questions can be easily found in the case of Syad Akbar Vs. State of Karnataka, . The Hon''ble Apex Court while dealing on the aspect of burden of proof in relation to the abstract Doctrine res ipsa loquitur to criminal trial observed: "firstly, in a criminal trial, the burden of proving everything essentially to the establishment of the charge against the accused always rest on the prosecution as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed." In light of this established judicial wisdom, the only answer to the aforesaid pertinent questions is that it was for the prosecution to have brought on record the facts answering the controversy created by the use of the equivocal phrase ''containing charas'' by the chemical analyst PW1 Kaisare. Clear answers in that regard brought in evidence by the prosecution could have left no room to say that the proved facts give rise to two alternative hypothesis equally possible - one compatible with the prosecution case that the substance analysed contained 100 % charas and the other compatible with the defence version that it contained small quantity of charas. In absence of such clear evidence, the defence becomes entitled to reap the benefit of equivocal opinion of the chemical analyst -"that substance contained charas" for soliciting punishment u/s.20(b)(ii)A of the NDPS Act, 1985 for lesser offence of possessing small quantity of charas. Thus, the view taken by this Court is in conflict with the view taken by the learned Single Judge of this Court Mr. Justice Britto. It is, therefore, necessary that this appeal can be more advantageously heard by the Bench of two or more judges to answer the controversy in the present case. The appeal is, therefore, referred to the Hon''ble the Chief Justice to make such order as he shall think fit.