BABU GOVEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Appellant has filed the present Appeal challenging the conviction and sentence passed by the Special Judge. N. D. P. S. Court. Mapusa. in Special Criminal Case No. 20/2000 convitting the Appellant for an offence punishable under Sections 21 and 22 of the N. D. P. S. Act. 1985 and sentencing him for th. e aforesaid offence. on each count to uhdergo Rigorous Imprisonment for 10 years and to. pay fine of Rs. 1. 00. 000/- in default to undergo Simple Imprisonment for 6 months. It is this aforesaid conviction and sentence that is challenged in the present Appeal by the Appellant.

(2.) THE facts necessary for the decision of the Appeal are set out hereunder: On 13th January. 2000. at about 11. 00 a. m. two panchas namely P. W. 3. Francis Almeida and Sadat Nizamuddin. both Government servants, working in the Director of Eslucation. panaji. were summoned by P. 1. Shri Lavu Mamledar (P. W. 6) to the Anti Narcotic Cell. Panaji to act as panch witnesses. On the same day. at about 5:00 p. m. . P. W. 4. P. S. I. Uday Naik. Had received a specific and reliable information that one person by name Babu Govekar. aged 21 years would becoming to deliver a consignment of drugs to his customers near Starcob junction at Anjuna between 11. 00 p. m. to 11. 30 p. m. P. W. 4, P. S. I. U. day Naik, had reduced the said information into writing and a copy of that information was givera. to P. W. 5. Shri Shirish Thorat. The said information, Exh. P. W. 4/e was received by P. W. 5, Dy. S. P. Shri Thorat on the same may i. e. on 13th January, 2000 at about 5. 00 p. m. The original of P. W. 4/e is at Exh. P. W. 4/d. P. W. 5,. Dy. S. P. Shri Thorat, has acknowledged the receipt of the information on Exh. P. W. 4/e at point Y. The panchas who were then present in the Anti Narcotic Cell, Panaji were introduced to the members of the raiding party which comprised of P. W. 5, Dy. S. P. Shri Shirish Thorat, P. W. 6, P. 1. Lavu Mamledar, P. S. 1. Shri Salim Shaikh, Shri prabhudessai, P. W. 4, P. S. 1. Uday Naik and other Police Officials. The raiding party, comprising of the Police Officers referred to above, left the Police Station at about 10. 00 p. m. on 13th January, 2000 in two private four wheelers and two private two wheelers and proceeded to Anjuna at the Starco junction. P. W. 4, P. S. 1, Uday Naik, was carrying a seal of Anti Narcotic Cell, Panaji, Goa-2 with Ashoka Emblem and one constable Devidas Gawas was carrying with him a kit box containing weighing, packing and sealing materials and Head Constable Mohan Naik, was carrying a typewriter.

(3.) ACCORDING to the prosecution, the raiding party parked their vehicles near Starco junction and concealed themselves behind the vehicles. At about 11. 30 p. m. , they saw one person coming towards the lane from Starco junction and since his description tallied with the description of the person delivering the consignment or drugs, this person was accosted by the members of the raiding party. P. W. 4, Uday Naik, identified himself as P. S. I, of Anti Narcotic Cell and on questioning, the said person disclosed his name as Babu Sadashiv Govekar, P. W. 4, P. S. I. Uday Naik, then introduced the members of the raiding party to Babu Govekar. At about 11. 40 p. m. , P. W. 4, P. S. 1. Uday Naik, then informed Babu Govekar, that he had received a specific and reliable information that he had come to deliver the consignment of drugs to his customers and, therefore, P. W. 4, P. S. 1. Uday Naik, wanted to take the personal search of the said person Babu Govekar, P. W. 4, P. S. 1. Uday Naik, then informed him that Babu Govekar had a right to be searched either before a Gazetted Officer or a Magistrate but the said person Babu Govekar declined the offer. P. W. 4, P. S. 1. Uday Naik, then informed Babu Govekar that he had a right to search the members of the raiding party including the panchas but again Babu Govekar declined to exercise that right. Thereafter, P. W. 4, P. S. 1. Uday Naik, then conducted the personal search of Babu Govekar and during the personal search, P. W. 4, P. S. 1. Uday Naik, found one small transparent polethene bag containing white colour powder in the left side pocket of the half pant which was worn by said Babu Govekar. On opening the said polethene bag, P. W. 4, P. S. 1. Uday Naik, informed the panchas that he suspected the powder to be heroin. The said bag was then weighed, and was found to weigh 6 grams. It was put in an envelope packed and sealed with wax seal at seven places with the seal of Anti Narcotic Cell, panaji, Goa-2 with Ashoka Emblem. The said outer packet was signed by P. W. 4, P. S. I. Uday Naik and the panchas as the said Babu Govekar refused to sign the envelope. The said sample packet was marked as Sample NO. 1. Thereafter, further search of said Babu Govekar revealed one transparent polethene packet containing white colour tablets in the right side pant pocket. P. W. 4. P. S. I, Uday Naik, on minutely observing the said tablets informed the panchas that they were Ecstacy tablets and were 17 in number. Those tablets were put in an envelope, packed and sealed by observing the same procedure of sealing as was observed in respect of heroin. The outer cover was signed by P. W. 4. P. S. I. Uday Naik and the panchas. The said Babu Govekar also refused to sign on the outer cover which was marked as Sample No. 2. During the search an amount of Rs. 3. 500/-comprising of 29 currency notes of Rs. 100/ - each and 12 currency notes of Rs. 50/- each were found in the rear side pant pocket. This money was also seized, sealed and signed by following the same procedure in respect of the contraband articles. P. W. 4, P. S. I. , Uday Naik then informed said Babu Govekar that possession of drugs without legal documents was an offence and since the said Babu Govekar did not possess any legal documents, he was arrested and taken into custody by informing him the grounds of arrest. Once again, an offer was extended to said Babu Govekar to search the members of the raiding party including the panch as and the said Babu Govekar declined the offer. According to P. W. 4. P. S. I. Uday Naik, the weighing and packing was done by Constable Devidas Gawas and the sealing was done by P. W. 4, P. S. I. , Uday Naik. A panchanama of the entire sequence of events was drawn and the panchanama is at Exh. P. W. 3/a. The panchanama had commenced at 11. 40 p. m. on 13th January, 2000 which was concluded at 3. 45 a. m. on 14th January, 2000. A Seizure Report at Exh. P. W. 3/b was prepared and was signed by P. W. 4. P. S. I. Uday Naik and the two panch as. The accused had also refused to sign the said Seizure Report. On coming to the Police Station, P. W. 4, P. S. I. Uday Naik filed his complaint which is at Exh. P. W. 4/a and handed over the muddemal property to P. W. 6. P. 1. Lavu Mamledar along with the seal. The properties and the seal were handed over by P. W. 4. P. S. 1. Uday Naik. by tendering a letter the carbon copy of which is at Exh. P. W. 4/b. An intimation under Section 57 of the N. D. P. S. Act. 1985 was sent to P. W. 5. Dy. S. P. Shri Thorat and the same is at Exh. P. W. 4/c.