RAJESH JAGDAMBA AVASTHI Vs. STATE OF GOA

JUDGEMENT

(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 punishable under Section 20 (b) (ii) of the N. D. P. S. Act, 1985. The trial court by its judgment and order dated 22nd March, 1996 found him guilty of the charge and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. One lakh, in default to undergo further imprisonment for a period of two years. The High Court in appeal upheld the conviction but modified the sentence in as much as it upheld the substantive sentence of ten years rigorous imprisonment as also the fine of Rs. one lakh, but reduced the sentence in default from two years to one years. The judgments of the courts below are challenged before us in this appeal by special leave.

(2.) The facts of the case are that on 14th december, 1994 one PC. Kulbi was apprehended by the police and was found to be in possession of Charas. He was interrogated. In the course of interrogation, he disclosed the involvement of the appellant, who as stated by p. C. Kulbi, had Charas hidden in his shoes. He volunteered to identify the appellant. The said P. C. Kulbi accompanied the police party to Arjuna beach where he pointed out the ap pellant, who was immediately apprehended and searched. From his shoes a substance, allegedly charas was recovered. According to prosecution, from the shoe on the right foot 100 gms. of that substance, and from the shoe on the left foot 115 gms. of that substance was recovered. The recovery was made in the presence of two public witnesses of whom one was nitin Kesarkar (P. W. 2). The other witness was not examined by the prosecution. The seized substance was duly packed and sealed and sent for chemical examination. The report disclosed that the substance seized was Charas.

(3.) P. W-4, Naresh Mhamal, who conducted search, was a police sub-inspector attached to the Anti Narcotic Cell, police station. He deposed that on 14th December, 1994, he had gone to Flea Market Anjuna, along with PSI thorat, Head Constable, K. G. Desai and some others accompanied by two panchas. PSI thorat arrested one Premchand Kulbi for possession of suspected substance namely Charas. On questioning, Kulbi disclosed that he had come to Goa along with his friend, the appellant herein, from Himachal Pradesh and that his friend, the appellant herein, had concealed charas in his shoes. He accompanied the police party and identified the appellant who was apprehended by the police party. 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 P. W. 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 forward the substance recovered fro analysis. The person to who the two envelopes along with the covering letter were handed over was Inspector yadav.