AHAMAD USMAN BHATTIWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AN interesting and somewhat significant angle concerning Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act') has been canvassed in this appeal. It is submitted that the onus of proving that the small quantity of contraband found with the appellant-accused No. l can as well be discharged in law by establishing to the satisfaction of the Court from the record that it was intended for personal consumption. In other words, the argument proceeds on the footing that it is neither feasible nor is it always necessary to go through the exercise of formal proof for purposes of invoking the lesser sentence provided for under Section 27 of the N. D. P. S. Act. The situation arises in the following circumstances.

(2.) THE appellant, an old man and a resident of Ratnagiri, was alleged to have been sitting on a wall at about 9. 15 p. m. on the night of 20-11-1990. The Police had received information relating to drug-trafficking and the raiding party, along with the Panchas, apprehended the appellant-accused. He is alleged to have declined the offer to be searched in the presence of a Magistrate or a Gazetted Officer, and the Police found 20 small pills of Charas in his shirt-pocket. A goldsmith was called and the weight of the contraband was found to be 5. 100 gms. The contraband was separated, four of the pills being set apart for being sent to the Chemical Analyser and the remaining 16 pills were sealed under a Panchanama. The Chemical Analyser's Report indicates that Charas was detected in the sample. The appellant-accused was put on trial before the learned Sessions Judge, Ratnagiri. In his defence, the appellant-accused had merely denied possession of the drug. The learned Sessions Judge accepted the prosecution evidence and rejected the defence submission that Section 27 of the N. D. P. S. Act would apply to the facts of this case. What is of importance is the fact that the learned Sessions Judge held that only four pills weighing in all 1 gm. , which were sent to the Chemical Analyser, can be proved to be Charas in so far as there was no footing that the appellant-accused was found guarantee that the remaining pills were also of the same material. Strangely enough; therefore, in respect of a conviction for 1 gm. of Charas, the appellant-accused was awarded a sentence of ten years' rigorous imprisonment and a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for a period of one year. The learned Sessions Judge has observed that since Section 27 of the N. D. P. S. Act does not apply to this case, the conviction would have to be under Section 20 (b) (ii) of the N. D. P. S. Act and in these circumstances the minimum sentence prescribed was awarded. The appellant-accused has been in custody and this appeal has been filed through jail. Shri Mundargi, learned Counsel appointed on behalf of the appellant-accused, has argued the matter on his behalf.

(3.) SHRI Mundargi did start by advancing the submission that the procedure prescribed under the N. D. P. S. Act has not been followed in this case. We have gone through the record and we are not inclined to set aside the conviction on this ground for the reason that there was virtually no challenge presented before the trial Court. If it is to be contended at the appellate stage that there has been a wholesale disregard and breach in the prescribed procedure of law, then it will have to be established before the trial Court by taking up this defence and specifically putting it to the respective witnesses. We do not find any special attempt having been made before the trial Court where the only defence pleaded was that, in fact, nothing has been recovered from the appellant-accused, that he has been framed and that the Panch is a habitual Police witness. The learned trial Judge was right in rejecting this defence because it is virtually of no consequence. The learned A. P. P. has submitted that the material before the Court conclusively establishes the recovery of the 20 pills from the appellant-accused and that the conviction is, therefore, fully justified.