TOMMY THOMAS Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant has filed the present appeal challenging his conviction and sentence passed by the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa in Special Criminal Case No. 23 of 1999, sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1 lakh, in default to undergo simple imprisonment for one year in respect of an offence punishable under section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for the sake of brevity N. D. P. S. Act. On the request of the appellant, this Court, on 14th December, 2000, had appointed Advocate Mr. Ashwin Bhobe from the Legal Aid Scheme to represent the appellant.

(2.) THE brief facts necessary for decision of this appeal are set out hereunder :-On 24th October, 1999 at 12. 00 hours P. W. 4 P. S. I. Uday Naik attached to the Anti Narcotic Cell, Panaji, received a special and reliable information that one person from Kerala named Tommy Thomas, aged about 30 years, medium built, having a beard was selling charas at Tiwaivaddo, Calangute, near the house of one Silveira. P. W. 4 P. S. I. Uday reduced the said information to writing and a copy of the same was delivered to Deputy Superintendent of Police P. W. 6 Apa Kashiram Teli. The said information is at Exhibit P. W. 4/d Colly. P. W. 4 P. S. I. Uday thereafter secured the presence of two panchas, P. W. 3 Nitin Prabhakar Dhond and another panch and apprised them about the information received by him. The panch witnesses were then introduced to the members of the raiding party which consisted of P. W. 6 Deputy Superintendent of Police Teli, P. W. 5 P. I. Lavhu Mamledar, Head Constable Sheikh Sallia, T. T. Naik and Police Constables Harinam Naik, Sadashiv Shetye and Sandeep Shirvaikar. The raiding party then proceeded in a police jeep No. GGE-8 and on a private motorcycle No. GDN-4971 to Tiwaivaddo, Calangute at about 1. 40 p. m. P. W. 4 P. S. I. Uday was carrying the official seal of the Anti Narcotic Coll, Panaji, Goa 2 and Head Constable T. T. Naik was carrying the kit box containing weighing scale, packing and sealing material. The raiding party reached Tiwaivaddo at 14. 15 hours. P. W. 4 P. S. I. Uday inquired from a local person about the location of the house of Silveria and the raiding party then went on foot and reached the house of Silveira at about 2. 40 p. m. There the raiding party saw one person searching for some thing in the bushes. Since his description matched with the description which had been received by P. W. 4 P. S. I. Uday, the members of the raiding party immediately rushed and surrounded him. P. W. 4 P. S. I. Uday identified himself and told the said person that he had received specific and reliable information that the said person was selling charas and that P. W. 4 P. S. I. Uday wanted to take his personal search. The said person was questioned regarding his name and he disclosed his name as Tommy Thomas. P. W. 4 P. S. I. Uday then apprised the said Tommy Thomas regarding his right to get himself searched in the presence of either a Gazetted Officer or a Magistrate and also that he had the right to get the members of the raiding party searched, but, he declined to exercise his right. Thereafter P. W. 4 P. S. I. Uday took the personal search of Tommy Thomas and in the right side pocket of the jean which he was wearing one polythene bag containing some blackish coloured substance was found. The said blackish coloured substance was in small pieces numbering 45 and was suspected to be charas. It was weighed and the weight was confirmed at 220 gms. The said substance was then put in an envelope, packed and sealed with the seal of the Anti Narcotic Cell, Panaji, Goa 2. The envelope was also signed by P. W. 4 P. S. I. Uday, P. W. 3 Nitin, the panch witness as well as the said Tommy Thomas. In the left hand pocket of the jeans P. W. 4 P. S. I. Uday found two currency notes of Rs. 100/- each which were returned to the said Tommy Thomas. The search of the bushes was undertaken and a polythene bag containing blackish coloured substances suspected to be charas was found. It was weighed and the weight was confirmed at 850 gms. This polythene bag was again sealed and the same procedure was followed. The accused was questioned and he had stated that the bag was kept at that place by one local person, whose name he was not knowing but would be in a position to identify him. On questioning Tommy Thomas was unable to produce any documents to justify his possession of charas and, therefore, P. W. 4 P. S. I. Uday informed him that he had committed an offence of possessing charas without valid document and he was taken into custody. The value of the charas weighing 220 gms. was estimated at Rs. 22,000/- and the value of the charas weighing 850 gms. was estimated at Rs. 85,000/ -. The accused was apprised regarding his right to search the members of the raiding party but the accused Tommy Thomas declined the offer. A panchanama of the above events was recorded and the same is at Exhibit P. W. 3/a. The seizure report of the charas is at Exhibit P. W. 3/b.

(3.) P. W. 4 P. S. I. Uday thereafter on reaching the Anti Narcotic Cell, Panaji, lodged a complaint which is at Exhibit P. W. 4/a and forwarded intimation under section 57 of the N. D. P. S. Act which is At Exhibit P. W. 4/c. The sealed parcels were examined by P. W. 1 Mahesh Kaissare, who was working as the Junior Scientific Officer in the Directorate of Food and Drugs Administration, Panaji, Goa. Prior to that the said P. W. 1 Mahesh was working as a Chemist in the said office since 1983 and had carried out more than 500 tests on various types of Narcotic Drugs and had also deposed in numerous cases under the N. D. P. S. Act. P. W. 1 Mahesh had received the samples for analysis accompanied by a covering letter Exhibit P. W. 1/a. and a reference letter Exhibit P. W. 1/b. He had tallied the sealed impressions and found them to be correct. He had conducted the tests to determine whether the sample was charas and after performing the various tests, he forwarded a report of his analysis at Exhibit P. W. 1/c that the two samples received by him contained charas. The remaining quantity of the samples was resealed by him and sent to the Anti Narcotic Cell. P. W. 2 Manohar D. Joshi, who was working as a Scientific Assistant in the Crime Branch C. I. D. , Panaji, had received the samples from the Anti Narcotic Cell, Panaji alongwith the specimen seal impression and the letter and had kept the two sealed covers in a cupboard under lock and key. He had received the examination report and the balance quantity of charas from the laboratory and had forwarded the same to P. I. Anti Narcotic Cell, Panaji.