GANGA BAHADUR THAPA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant is the accused in Special Criminal Case No. 47/92 on the file of Narcotic Drugs and Psychotropic Substances Court, Mapusa. He stood charged before the Court on two grounds:

(2.) ACCORDING to the prosecution case, on 1-12-1991, while the police party including P. S. I. Mhamal and other 3 policemen along with 2 panchas was on patrolling duty at Arambol beach at about 6. 25 p. m. , they noticed that the accused along with another boy, both Nepalese, started running away on seeing the party. Thereupon, the P. S. I. and the police staff chased them and apprehended the accused on suspicion that they were in possession of drugs. The accused was carrying one red colour arm-bag with some yellow colour flowers. On a thorough search of the said bag, a black substance suspected to be charas weighing 100 grams worth about Rs. 3,000/- was found. Charas was seized and attached and after packing and sealing properly, signatures of the panchas were taken. Then P. S. I. Mhamal filed his complaint against the accused for possession of 100 grams of charas without having any valid documents and the accused failed to account for the possession of the said charas. Samples were taken and forwarded to Food and Drugs Laboratory for chemical analysis. Then the accused was brought to Pernem Police Station where the complaint was registered. Then the accused, at the Pernem Police Station, while in custody, disclosed that they had come from Himachal Pradesh and were staying at a Hotel at Mapusa called Safari where they had brought the charas and kept. Then the accused along with the panchas and the police staff headed by P. S. I. Mhamal proceeded to Mapusa in a police jeep. When the party was about to reach Safari Hotel, the accused asked the jeep to stop and all of them alighted from the jeep and went inside the Hotel Safari. On some previous information, D. Y. S. P. Shukla also came in a vehicle at Hotel Safari. Then the accused led all the police party to Room No. 10 of Hotel Safari, removed a key from his pocket and opened the lock which he himself had put on the door of Room No. 10. Then the accused and the raiding party entered into the room wherein he removed a military colour shoulder bag which was kept under the bed. He then started removing certain household articles and clothes from the bag and in one military colour banian, some packets of charas in the form of sticks wrapped in polythene paper were found hidden. There were 193 sticks of charas which weighed 2. 860 Kgs. All the packets of charas were put in polythene bag and placed in a cardboard box which was wrapped in brown paper and sealed and then the signatures of the panchas were taken. The said substance was attached under a panchanama. Certain belongings of the accused were also seized and the list of articles was prepared and copies of panchanama and list of articles were furnished to the accused. On the receipt of the report of the Chemical Analyser, charge-sheet against the accused was filed under section 20 (b) (ii) of the N. D. P. S. Act.

(3.) THE Counsel for the appellant/accused, inter alia, contended (i) that the search and recovery from the person of the accused made on 1-12-1991 at 6. 30 p. m. at Arambol beach is illegal as the procedure under section 50 of the N. D. P. S. Act has not been complied with and, therefore, trial is vitiated on that account and the accused is entitled to be acquitted; (ii) that, as regards the second search, sections 42, 52 and 57 are not complied with and since those sections are mandatory the trial is vitiated in violation of those sections; and (iii) the delay in sending the sample to the Analyst is detrimental to the case of the prosecution. He also argued that there were material contradictions which affected the prosecution.