CONSTANCIO FIGUEIRO OF GUIRIM, BARDEZ, GOA Vs. STATE

JUDGEMENT

(1.) THIS revision application is directed against the judgment dated 21st January, 1983 whereby the learned Sessions Judge, Panaji dismissed the appeal of the present petitioner and two others against their conviction under section 8(1) read with section 30(a)(1) of the Goa, Daman and Diu Excise Duty Act, 1964 and the sentence passed against them.

(2.) A criminal case had been tiled against the petitioner herein and two others for offences punishable under section 8(1) read with section 30 of the Goa, Daman and Diu Excise Duty Act, 1964 on the grounds that, on 22nd March, 1980, the petitioner and two others had been found in possession of and transporting 16 kgs. of charas which is a dangerous drug and is subject to excise duty. The said narcotic found in possession of the petitioner was worth Rs. 64,000. The three accused pleaded not guilty and after trial was held, they had been convicted under the aforesaid section 8(1) read with section 30(a)(1) of the Goa, Daman and Diu Excise Duty Act, 1964 and each of them sentenced to undergo three months of Simple Imprisonment and in addition to pay a fine of Rs. 200 or in default, to undergo a further period of two months of Simple Imprisonment. The three accused, being aggrieved, preferred an appeal to the Sessions Court which was dismissed by the impugned judgment.

(3.) IT is in the evidence that P.I. Aires de Souza got information that three people were near the Eldorado cinema trying to sell some drugs. It seems that, therefore, the said P.I. deputed A.S.I. Xec Gafur Razak to trap the said people so that they could be arrested red -handed while selling the drugs. A. S.I. Gafur Razak was examined in Court and stated that, in the month of March, 1980, he was deputed by P.I. Aires de Souza to go near the Eldorado cinema to trap by pretending to be a customer and then, to bring three people, who were attempting to sell drugs near the said cinema, to book. Accordingly, he proceeded to the place in company of the informant, as well as of P.W. 3 Jose Fernandes, at about 10 a.m. Once there, according to A.S.I. Razaq, he saw the three accused at the place. They had come on two motor cycles and were pointed out to him by the informant. The accused had with them one white coloured trunk. The witness approached them and told them he was interested in purchasing narcotics and further that he had some agents to re -sell drugs. He also stated that, at that time, accused No. 1/petitioner herein opened the bag or trunk and showed him some slabs. Thereafter following the instructions of P.I. Aires de Souza, the witness managed to take the three accused along with him towards the Marietta restaurant which is situated near the Shalimar restaurant. At that time, it appears that the witness saw the raiding party headed by P.I. de Souza, and, as such, he made a signal to him and the accused were thereafter caught with the trunk. In his turn, witness Jose Fernandes stated that he had accompanied the A.S.I. Razak to the Eldorado cinema and that, once there, the said A.S.I. had gone to talk to three people who were nearby and who had come there on two motor cycles. He further stated that A.S.I. Razak talked to the said persons for about 10 minutes and thereafter, he started walking along with them towards the Dempo house i.e. towards the Shalimar restaurant. The witness followed him and, at one stage, he saw the police party coming to the place and the accused being caught. It is no doubt true that, practically, this is the only relevant evidence connecting the petitioner with the offence. As such, it has to be scrutinised carefully. Mr. Rebello, as already said, has contended that, the offences being in respect of possession of an excisable article, the prosecution ought to have proved beyond any reasonable doubt that the petitioner had been found in possession of the charas being a fact that such onus had not been discharged. He invited my attention to the fact that, except for the statement given by Razak to the effect that the petitioner was holding the bag near the Eldorado cinema house and that on such occasion had opened the said bag and showed the charas, there is nothing on record in support of this statement, being specially relevant to note that Jose Fernandes, who was admittedly near the Eldorado cinema and had accompanied A.S.I. Razak, does not refer to the petitioner opening the bag near the Eldorado cinema house, having however stated that the bag was only opened near the Shalimar restaurant. Thus, according to Mr. Rebello, there is material omission in the statement of Jose Fernandes which amounts to a contradiction and as such, the statement of A.S.I. Razak cannot be relied upon to warrant the conviction of the petitioner. At the outset, it may be pointed out that there are concurrent findings of the Courts below in this respect and that, this being a revision application, it is not open to this Court to interfere with such concurrent findings of fact unless it is shown that the said findings are not supported at all by the evidence and are perverse. Thus, the question to be considered is whether the aforesaid concurrent findings of the Courts below are or are not perverse. As already said, Xec Gafur Razak has stated that he had gone under the instructions of P.I. Aires de Souza to a place near Eldorado cinema house in the company of Jose Fernandes and of the informant. He further stated that he saw three people with a white bag or trunk in hand, that he approached them and told them that he was interested in purchasing narcotics and that he had agents to resell the drugs. In Examination -in -Chief, the said Razak stated that the accused opened the trunk and showed him some slabs. He did not, at that stage, identify who was the accused who opened the trunk at the relevant time, for it was in cross -examination that the same witness identified the petitioner as being the one who was carrying the trunk and who had opened it and showed the slabs. This impliedly shows that the statement identifying the petitioner as the one holding the trunk and opening it near the Eldorado cinema was a result of some questions put to that effect to him by the petitioner himself. It seems that witness Jose Fernandes, who admittedly accompanied Razak and who was present at the time Razak had the talk with the three accused near the Eldorado cinema house, does not refer to the opening of the trunk and to its holding by the petitioner near the aforesaid cinema house. The records of the proceedings of the lower Court are not before me. However, I was given the benefit of being taken through the statement of the said witness Jose Fernandes since Mr. Rebello had a copy thereof and minutely read the said statement to me. It is clear and manifest from his statement in the trial Court that the said witness had corroborated practically, even in all other small details, the evidence given by Razak. In fact, Jose Fernandes stated that he was called to the Police Station and he heard P.I. Aires de Souza to depute Razak to trap three people who were attempting to sell drugs near the Eldorado cinema house; he further deposed that Razak took the witness along with him to the Eldorado cinema house and, then, he saw the three accused coming on two motor cycles to the place. He also narrated the whole incident by saying that Razak went to talk with the said three persons and after a talk of about 10 minutes, started walking with them towards the Dempo house, near the Shalimar restaurant, when a police party caught the three accused. He further stated, that, at that time, the bag or trunk was being -carried by Accused No. 2. He also said that only then the bag was opened. It is undoubtedly true that the witness Jose Fernandes has not mentioned the opening of the bag or trunk near the Eldorado cinema but, considering that the said witness has practically corroborated in all other details the evidence of Razak, it appears to me that the omission in making reference to the opening of the bag near the Eldorado cinema house is not of such a significance as to vitiate the evidence of Razak. In fact, it may be pointed out that it has not been brought in the evidence what were the relative positions near the Eldorado cinema of Razak, petitioner and the witnesses and, therefore, it is quite possible that the witness Jose Fernandes was unable from the place he was to see the opening of the trunk. Therefore, in my view, the omission of the said witness Jose Fernandes to mention the opening of the bag or trunk near the Eldorado cinema house amounts to a minor discrepancy which does not vitiate the evidence of Razak. It Js also pertinent to note that the witness Jose Fernandes stated that all three accused were together, and together, they accompanied Razak upto near the Shalimar restaurant where they were arrested by the police party. This conduct of the petitioner and two other accused is significant and its meaning is such that justifies the inference that they were connected in some manner with the business of narcotics and that they had interest in the charas found in the trunk. This being the position, in my view, the findings of the Courts below cannot be said to be perverse and there is no justification for this Court to interfere with them and with the consequent conviction of the petitioner.