YALLAPPA CHALWADI Vs. STATE OF GOA

JUDGEMENT

(1.) THIS is an appeal filed by the accused who has been convicted and sentenced under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 2001(Act, for short) for having been found in possession of 725 gms. of charas valued at Rs.72,500/on 28-12-2002 at about 22.45 hours near Asilo Hospital at Mapusa, Goa.

(2.) THE case of the prosecution, as stated by P.I. Paes/PW4 is that at about 7.30 p.m. on 28-12-2002 he received reliable information that a person of short built, wheatish complexion would be coming to deliver a consignment of charas to his customer, at the said place, between 10.00 to 11.00 p.m. and that the said person would be wearing a long khaki pant and a yellow Tshirt with long sleeves, and, he reduced the said information in writing and personally handed over a copy of the said information to Dy. S. P. D'Souza/PW5, along with a covering letter and thereafter he recorded the grounds of his belief that he was unable to obtain a warrant immediately and thereafter at about 08.05 p.m. directed Police Constable Joao Paes to secure two respectable persons and who returned alongwith them at about 9.00 p.m. namely Santosh M. Mandrekar/PW3 and Vijay M. Surlekar, and, he requested them to act as panch witnesses for the raid to which they agreed. Thereafter, he told the said panchas about the receipt of the information, being reduced to writing and a copy of it being furnished to Dy. S. P. D'Souza/PW5 under covering letter and that he also told them that he had recorded the grounds of belief and submitted to Dy.S.P. D'Souza/PW5 and thereafter introduced the panchas to the raiding party. As per him, they left the Police Station at 09.15 hours in a Police jeep and a motorcycle, the numbers of which he has mentioned. He carried the seal of the Anti Narcotic Cell, Panaji while Constable Jagdish Shettigar took the kit box with necessary material and Head Constable Navti took the typewriter and they reached near Asilo Hospital at about 9.40 p.m. and after parking the vehicles, they concealed their presence and at about 1030 p.m. they saw the person matching the said description, looking around, carrying a plastic bag in his right hand whereupon, he signaled to the staff, as his description tallied with the information he had received and thereafter he identified himself and asked for his name which he gave as Yallappa, son of Siddappa, resident of Hubli, Karnataka and thereafter, he told the accused of the receipt of the said information and also informed him of his right to be searched before a Gazetted Officer or a Magistrate of his choice and after the accused had declined the offer, he carried out a search of the said polythene bag and he found that the said polythene bag had blackish colour substances in cylindrical shape individually wrapped in separate polythene papers and after smelling the same, he suspected the same to be charas which were weighed and found to be 725 gms. which then were put in an envelope packed and sealed with the said seal of ANC, Panaji, GoaI with Ashoka Emblem. He stated that cash of Rs.50/was also found in the right pant pocket of the accused. He further stated that the accused did not produce any document to support his possession and thereafter he prepared a panchanama which was duly signed by the panchas, himself and the accused and a seizure report was also prepared and the same was given to the accused under acknowledgment. He further stated that the packing was done by the said Constable Shettigar and the sealing was done personally by him and he also prepared a letter Exh. 10 addressed to the Director of Food and Drugs Administration and another letter Exh. 37, handing over the seal to Dy.S.P. D'Souza/PW5 and thereafter returned to the Police Station along with the accused and the seized property and he filed the complaint Exh. 38. He stated that he kept the sealed envelopes in a cupboard under his exclusive control and on 29-12-2002 he sent Constable Rupa Rane/PW6 along with the seized article Exh. 1 to the Office of CID(CB) along with the forwarding letter Exh. 10 and a letter to SP Exh.17. He also stated that he prepared the intimation Exh. 40 under Section 57 of the Act and submitted the same to Dy.S.P.D'Souza/PW5 and on 13-2-2003 he received the report from the Scientific Assistant/PW1 along with a sealed brown paper parcel through Constable Naik and he kept the said seized article in his custody till it was produced in Court along with the chargesheet.

(3.) AT the hearing of this appeal, Mr. K. Poulekar, the learned Counsel on behalf of the accused has raised 3 points, which I will deal seriatim.