NATIBABU KHADKA Vs. STATE OF GOA AS

JUDGEMENT

(1.) THIS is an appeal against an order of conviction passed by the Court of the Narcotic Drugs and Psychotropic Substances at Mapusa dated 29th December, 1993 in Special Criminal Case No. 3 of 1993. The appellant was accused No. 1 in the said Criminal Case. The appellant was charged with an offence under section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. At the trial of the said Special Criminal Case, the accused was tried for the said alleged offence alongwith one Ashok Bajracharya and Ramesh Basnet. The charge framed by the learned Special Judge at the trial of the said case indicates that the appellant was charged with the following alleged offences :---That on about the 29th day of December 1992 at somewhere in between 2. 00 p. m. to 7. 00 p. m. at Vozrant, Vagator, the appellant was found in possession of charas weighing 2 kgs. 670 gms. worth about Rs. 1,06,800/- by keeping the same hidden in the dashboard and the box near the door of the bus No. BAAKA 259 without having any permission or licence in contravention of section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and thereby the appellant (accused No. 1) had committed an offence punishable under section 20 (b) (ii) of the said Act. The above referred accused Nos. 2 and 3 were charged with the offence punishable under section 20 (b) (ii) read with section 29 of the Act for having abetted or conspired with the accused No. 1 in the commission of the said offence. The trial Court held that the prosecution had established the charge against the appellant beyond any reasonable doubt. The trial Court held that the prosecution had failed to establish the charge of abetment against the accused Nos. 2 and 3. The trial Court held that the prosecution had not brought any material on record to show as to how the accused Nos. 2 and 3 were connected with the possession of the drugs which were recovered according to the case of the prosecution at the instance of the accused No. 1 from the dashboard and the door box of the bus referred to in the charge framed. The trial Court held that the appellant was guilty of the offence with which the appellant was charged as the appellant was found to be in illegal possession of 2 kgs. 670 gms. of charas having been hidden in the dashboard and the door box of the bus of which the appellant was a driver. The trial Court convicted the appellant and sentenced him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and, in default, to undergo Rigorous Imprisonment for a period of one year. The trial Court issued various other directions also as set out in the judgment under appeal. The trial Court acquitted the accused Nos. 2 and 3.

(2.) THIS appeal raises interesting questions of law concerning interpretation and application of sections 8, 20 (b), 35, 42, 43 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal also raises interesting questions of law concerning the admissibility of evidence relating to alleged statements of the appellant to which reference would be made in the later part of this judgment under sections 8 and 27 of the Indian Evidence Act, 1872.

(3.) IT is the prosecution case that the appellant was employed as a Driver of the said bus by Tourist Service (P.) Ltd. of Nepal. The other two accused were the assistants of the appellant. The appellant held the necessary driving licence. The Embassy of India, Kathmandu had granted a permit in favour of Tourist Service (P.) Ltd. at Kathmandu, Nepal to run the said tourist bus for the purposes of tourism for three months, i. e. 5th December, 1992 to 4th March, 1993. The three accused had come from Nepal to Goa and the appellant was in full control of the said bus at the material time. On 29th December, 1992 one Mr. Cruz DSouza, Police Inspector attached to the Anti-Narcotic Cell, Panaji, alongwith others had gone in a jeep belonging to the Department for random checking of drugs. The said bus was facing the sea and was parked at the beach. The said Mr. Cruz DSouza is supposed to have received some information from someone that there were drugs in the said bus which was parked at Vozrant, Vagator i. e. at a public place. The said Mr. Cruz DSouza had secured the presence of two Panch witnesses in advance. A raiding party led by the said Mr. Cruz DSouza decided to effect the search in the said bus stationed facing the sea. The accused No, 2 was present near the bus. The accused No. 1 is supposed to have gone to Chapora. Before effecting the search Dy. S. P. Domingo Rodrigues, a Gazetted Officer had also arrived at the place. All the three accused were personally searched. No drugs could be recovered as a result of the said personal search. When the Head Constable Punaji was attempting to open the dashboard box the appellant is supposed to have made a statement to the effect that the appellant had kept one bundle of charas in the dashboard. It is the prosecution case that the appellant volunteered to open the cover of the dashboard with the help of a screw driver which was attempted to be opened little earlier by Head Constable Punaji. As a result of the said search, charas i. e. prohibited drug hidden in the said dashboard of the bus was recovered. The raiding party was to continue the search of the entire bus. At that stage the appellant is supposed to have made a statement to the effect that the appellant had kept some more drugs hidden in a box lying near the door of the said bus. It is the prosecution case that as a result of the information furnished by the appellant as aforesaid, the raiding party was able to recover total quantity of 2 kgs. 670 gms. of charas worth Rs. 1,06,800/- from the said bus. Attachment panchanama was made and duly signed by the panchas in respect of all the articles seized as set out therein (Exh. P. W. 2/a ). The said Mr. Cruz DSouza thereafter filed his complaint dated 29th December, 1992 with the Calangute Police Station. The three accused were arrested. The muddemal articles were deposited by Mr. Cruz DSouza with the Police Sub-Inspector in charge of Calangute Police Station. The muddemal consisted of one sealed bundle containing charas weighing 2 kgs. 250 gms. recovered from the bus, one sample of the one sealed envelope containing charas weighing 250 gms. , one sealed envelope containing charas weighing 130 gms. recovered from the bus, one sample sealed envelope containing charas weighing 40 gms. and one brief case "delsey" containing cash, Dollars, and Pounds and other documents duly self locked. The said Mr. Cruz DSouza furnished the necessary intimation to his immediate superior in respect of the search effected, accused arrested and in other respects as required by section 57 of the Act. The Investigating Officer addressed a letter to one Mr. N. M. S. Pradhan, Managing Director of the Tourist Services (P.) Ltd. informing him that the driver of the said bus was arrested on the charge of possessing charas and an offence was registered against the appellant and two others and the said bus had been kept at the Police Head Quarters at Panaji. The prosecution did not pursue its efforts to trace the alleged tourists of the said bus. The sealed samples were forwarded by the said Mr. Cruz DSouza, Police Sub-Inspector, Anti-Narcotic Cell, Panaji to the Drug Controller, Combined Food and Drug Laboratory, Panaji. The analytical report in respect of the said samples dated 18th February, 1993 confirmed that the substance analysed from both the samples contained charas. All, the three accused were prosecuted after the investigation was completed.