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TMI Blog2004 (11) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... been examined. PW-2 admitted in very clear terms that he was earlier associated in two other cases under N.D.P.S. Act as panch witness. In both those cases, PSI Thorat was the investigating officer. On 14 the December, 1994, he had been summoned by PSI Thorat and acted as a panch witness in the case against P.C. Kulbi, who as noticed earlier disclosed the complicity of the appellant. Thereafter, in the instant case, he was requested by PW-4 to act as a panch witness. It appears that PSI Thorat was also associated with this case as he was present with PW-4 when P.C. Kulbi was apprehended and thereafter when the appellant herein was apprehended and searched at the instance of the aforesaid Kulbi. Thus in view of the aforesaid features of the case, we find it unsafe to sustain the conviction of the appellant. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant. - CRL.A. 1148 OF 1999 - - - Dated:- 3-11-2004 - SINGH, BISHESHWAR P. AND KUMAR, ARUN, JJ. JUDGMENT 1. The appellant was put up for trial before the Narcotic Drugs and Psychotropic Substances Court, Mapusa in Special Criminal Case No. 2/1995 charged of the offence punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to him, he informed the appellant that he had received information from P.C. Kulbi that he had concealed Charas in his shoes and that he wished to search him for the said contraband He also informed him that he had a right to be searched in presence of a Gazetted Officer or a Magistrate, and that he also had a right to search him and the members of the raiding party as well as panchas. The appellant, however, declined both the offers and thereafter he was searched by him. He was asked to remove his shoes, and as noticed earlier, from both the shoes a substance was recovered which appeared to be narcotic drug. The substance recovered was weighed What was recovered from the right shoe was found to weigh 100 gms. whereas substance recovered from the left shoe weighed 115 gms. They were packed and sealed in two envelopes marked 'A and B', It is not necessary to refer to the recovery of other articles found on search of the person of the appellant. According to PW-4, the two envelopes in which the seized substance was packed and sealed along with covering letter was handed over to police inspector, Anti Narcotic Cell, Panaji. The covering letter contained a request to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance was handled by the investigating agency did not rule out the possibility of manipulation, and that in the facts and circumstances of the case such manipulation was writ large in the face of the evidence on record. 7. Learned counsel appearing on behalf of the Slate submitted that the courts below have noticed the evidence on record and having found that the mandatory requirements of the Act had been fully complied with, accepted the evidence of the prosecution and did not attach much importance to minor discrepancies of inconsequential nature. 8. We shall first deal with the seal put on the envelopes soon after the alleged recovery of the Charas from possession of the appellant. The witnesses who have deposed on this aspect of the matter are PW-4, Inspector PSI Mhamal, PW-2, the panch witness and PW-1 Mahesh Kaissare, the Junior Scientific Officer who tested the said substance and found it to be Charas. So far as PW-4 is concerned, his evidence is to the effect that after recovery of the contraband, the same was placed in two envelopes and those two envelopes were sealed According to him the seal bore the inscription Anti Narcotic Cell, Panaji, Goa . This seal was usual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled in envelope 'A'. According to PW-1, the Junior Scientific Officer when that envelope was opened and the substance weighed it was found to be 98.16 gms. Similarly, from the shoe on the left foot 115 gms. of Charas was recovered which was packed and sealed in envelope B. But only 82.54 gms. of the substance was found in envelope B when the same was opened by PW-1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could not be explained by the prosecution. The High Court observed that there was no doubt that the envelope B which was said to contain 115 gms. of Charas was found to contain only 82.54 gms. of Charas and this could not be considered to be a minor discrepancy. However, the High Court was of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since there was no material discrepancy in the weight of the Charas found in the other envelope A, the case against the appellant stood established on the basis of the Charas recovered, packed and sealed in envelope A. 13. It, therefore, concluded that the appellant could be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case. 16. There is one other aspect of the matter. PW-2, the panch witness associated in this case appears to be a stock witness. The other panch witness has not been examined. PW-2 admitted in very clear terms that he was earlier associated in two other cases under N.D.P.S. Act as panch witness. In both those cases, PSI Thorat was the investigating officer. On 14 the December, 1994, he had been summoned by PSI Thorat and acted as a panch witness in the case against P.C. Kulbi, who as noticed earlier disclosed the complicity of the appellant. Thereafter, in the instant case, he was requested by PW-4 to act as a panch witness. It appears that PSI Thorat was also associated with this case as he was present with PW-4 when P.C. Kulbi was apprehended and thereafter when the appellant herein was apprehended and searched at the instance of the aforesaid Kulbi. 17. In view of the aforesaid features of the case, we find it unsafe to sustain the conviction of the appellant. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant. 18. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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