THAGENDRA BUDHMAGAR PROSONER Vs. STATE THROUGH PUBLIC PROSECUTOR

JUDGEMENT

(1.) BY this appeal, the appellant/accused takes exception to the judgment and order dated 29.4.2009 passed by Special Judge, NDPS, Court, Mapusa in Special Criminal Case No.14/2008 convicting the accused for the offence punishable under Section 20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short) and sentencing him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,00,000.00 (Rupees one lakh only) and in default, to undergo further rigorous imprisonment for a period of 6 months. The period of detention undergone by the accused during the investigation and trial, has been ordered to be set off in terms of Section 428 of Cr. P.C.

(2.) BRIEFLY the prosecution case is as under;- On 5.2.2008 at about 4.00p.m, PW8, PI Suraj Halarnkar attached to Anti Narcotic Cell, Police Station at Panaji received specific information that one Nepali aged about 25 to 30 years would be coming to Caranzalem beach near Martin's Beach Corner between 5.45p.m to 6.15 pm on the same day to deliver Narcotic drugs i.e Charas to prospective customers. He recorded the information in writing and sent a copy of the same to Deputy Superintendent of Police, A.N.C. for information along with forwarding letter. Thereafter, he along with raiding party including PW7 PSI Punaji Gawas and panchas went to the spot in a jeep. The vehicle in which they had gone, was parked in a lane about 100 mts. away from Martin's Beach Corner. Thereafter, raiding party concealed themselves in two groups near the path way leading to Martin's Beach Corner from the beach in the bushes existing therein. At about 5.55 p.m they saw one male person coming towards Caranzalem from Miramar side. The person was apprehended. PW8 disclosed his identity as well as identity of the raiding party including pancha witnesses to the said person. PW8 asked the said person about his name and identity. He disclosed his name as Thagendra Budhamager (the accused), resident of Nepal. Before conducting search, the accused was informed that he has right to be searched in presence of Magistrate or Gazetted Officer, however he declined the offer. He was also informed that he has a right to search the members of raiding party including pancha witnesses, which he declined. The accused was carrying a shoulder bag of blue colour having brown colour at the base. The same was searched and in the said bag, 18 rectangular slabs of black coloured substance enclosed in transparent auto pressed polythene, were found. PW8 after minutely observing and smelling the same, came to the conclusion that the packets contained charas. All the 18 packets were weighed and found to be weighing 1 kg 815gms. The bag was packed in a white cloth, tied with jute thread and sealed with the seal carried by PW8, at seven places. Label was also pasted on the said cloth packet. Upon personal search of the accused, Rs.600.00 were found in the denominations of Rs.500.00 and Rs.100.00 each. The same was put in an envelope which was sealed and signed by the panchas. Seizure memo was drawn and signed by panchas and PW8, and copy of the same was handed over to the accused. Again offer of search of raiding party was made to the accused which he declined. Panchanamawas also drawn on the spot and copy of the same was given to the accused under acknowledgment. Thereafter, a letter was prepared to the Director of Foods and Drugs Administration, Panaji to conduct the analysis of substance. The said letter was typed by P.C. Narayan Morajkar. PW8 wrote letter to Deputy Superintendent of Police, Anti Narcotic Cell regarding handing over the seal for his safe custody. The seal impression was affixed on the said letter. The seal and the letter were sent to Shri Govekar, Deputy Superintendent of Police, Anti Narcotic Cell in his office through PSI Gawas. PW7 PSI Gawas left the spot on private motorcycle carrying the seal and letter to hand over to Deputy Superintendent of Police, Anti Narcotic Cell. Thereafter, PW8 P.I, Suraj Halarnkar, along with accused and other members of raiding party, came back to the police station and handed over the muddemal articles to lady Head Constable Ashwini Dessai along with note. Thereafter, PW8 lodged report against the accused bearing crime no. 6/2008. On 6.2.2008, PW6 Lady Head Constable Ashwini Dessai forwarded contraband for analysis to the Director, FDA, Panaji through P.C. Hari Naik of Anti Narcotic Cell Police Station. PW8 submitted arrest card of the accused to S.D.M., Panaji. He also submitted intimation under Section 57 of the Act to Deputy Superintendent of Police, Anti Narcotic Cell Police Station on 5.2.2008 itself. Thereafter, with the assistance of Engineer, PWD, sketch of scene of offence was drawn. On 8.5.2008, PW8 was transferred. As such, he handed over investigation to PI Shirodkar. After report of Chemical analysis was received, chargesheet was filed in the Court of Special Judge against accused for the offence punishable under Section 20(b) (ii)(C) of the Act.

(3.) THE prosecution examined eight witnesses to prove the charge against the accused. The defence of the accused was of bare denial and false implication.