KADIR MOHAMMAD KOTROO Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was tried for possession of 42 gms. of Charas without possessing legal documents to justify its possession in contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the said Act) and punishable under Section 20 (b) (ii) of the said Act.

(2.) THE prosecution case, in brief, is that reliable information was received by P. S. I. Mhamal to the effect that "one Kashmiri by name Kadir Kotroo residing at Anjuna in House No.832 near White Negro Bar and Restaurant is dealing in Narcotic drugs"; P. S. I. Mhamal reported the said information to Deputy Superintendent of Police, Anti Narcotic Cell and sought permission to conduct raid. THE said intimation was left in the office of Dy. S. P. , A. N. C. and P. S. I. Mhamal alongwith police party and panchas proceeded to Anjuna. On this intimation, which is Exhibit P. W. 5/a Colly, an endorsement was made Dy. S. P. , A. N. C. at 2.00 p. m. granting permission. By that time not only the raid had been conducted but even the F. I. R. had been lodged with the Police Station at about 12.00 noon. THE police party after reaching Anjuna searched the house where the suspected Kashmiri was staying and from there recovered several sticks weighing 42 gms. THE said sticks were subsequently sent for analysis to the Central Forensic Science Laboratory, Hyderabad. Assistant Director, Chemistry, Mukhopadhya P. W. 1 reported, after analysing the said sticks, which were 8 in number, that the chemical test for charas was positive. He had also sent the said sticks for biological examination in the same laboratory and Dr. P. K. Banergee, Assistant Director Biology reported that from the morphological examination of hair, cell and cellular components of all the eight exhibits marked 1 to 8 it was found that the greenish black materials were parts of Ganja plant (cannabis sativa ). THE appellant was accordingly put up for trial for possession of 42 gms. of charas which were recovered from the house in which he was residing. Even though the learned Special Judge was conscious of the fact that the charas of 42 gms. was recovered from the house of the accused, as can be seen from Order dated 16th June 1995 before framing of the charge and it was also the prosecution case that the charas were recovered from the house in which he was residing, yet the Special Judge was negligent in framing the charge as can be seen from the charge framed by him, which is reproduced below:- " That you on or about the 15th day of June, 1995 near white negro bar and restaurant, Anjuna were found possessing 42 grms of charas without possessing legal documents to justify its possession in contravention of Section 8 of the NDPS Act, 1985. You have therefore committed an offence punishable under Section 20 (b) (ii) of the said NDPS Act, 1985 and within my cognizance. " A bare reading of this charge shows that the appellant was not charged for possession of 42 gms. of charas from the house in which he was residing. THE case of the appellant throughout, right from the beginning, has been that the house in which the appellant was residing was not searched. In the light of the said defence of the appellant the manner in which the charge has been framed has certainly caused prejudice to the appellant, but we are not discarding the prosecution case on that count alone.

(3.) IN order to examine the rival contentions on this aspect, it is necessary to go into details of the evidence which are available on record. Admittedly the information on the basis of which the raid was conducted was to the effect that "one Kashmiri by name Kadir Kotroo residing at Anjuna in House No.832 near White Negro Bar and Restaurant is dealing in Narcotic drugs". IN pursuance of the said information, P. S. I. Mhamal alongwith the panchas and the raiding party reached Anjuna. Evidence of P. S. I. Mhamal P. W. 5 shows that after reaching Anjuna the vehicle was parked and he led the raiding party and panchas on foot to the house where the suspected Kashmiri was staying. Though it has been respectfully submitted before us by learned Public Prosecutor Shri Bhobe that the house that was searched was not 832 but the house searched was of Shri Madhukar Naik, which bears No.802, yet the evidence of P. S. I. Mhamal does not in any manner support the said contention of Public Prosecutor Shri Bhobe and on the contrary the impression that one gets after reading the evidence of P. S. I. Mhamal is that the house which was searched by him was in fact house no. 832. After receipt of information that the Kashmiri, namely, the appellant was dealing in Narcotic drugs, P. S. I. Mhamal without making any inquiries at Anjuna went straightaway to the house where the said Kashmiri was residing. It is, therefore to be presumed that in the absence of making any inquiries P. S. I. Mhamal straightaway went to house no. 832 because otherwise he should have stated in the records prepared by him as well as in the course of his deposition that though the intimation was in relation to house no. 832 yet the house which was occupied by the appellant was 802 and he had in fact searched the house no. 802. This conclusion is further reinforced if one goes through the evidence of P. S. I. Mhamal which is as under:- " The house number 832 mentioned by me in the examination in chief is the Village Panchayat number given to the house where the accused was residing. I am not able to tell whether the said number 832 was the number of the entire chawl in which the room of the accused was situated or whether it was independent number for the room where the accused was found residing. One Mr. Naik is the owner of the house where the accused was found residing. P. W. 3 Madhukar Naik is the said owner of the house/chawl. It is true that the house number 832 has not been mentioned in the complaint, the panchanama and the intimation under Section 57 of the N. D. P. S. Act. There is no special reason for not mentioning the house number 832 in the complaint, panchanama and intimation under Section 57 of the N. D. P. S. Act. " What flows from the above deposition of P. S. I. Mhamal is that the accused was residing in house no. 832 but he was not able to tell whether the said number 832 was of the entire chawl or of the room which was occupied by the accused. It is pertinent to note that P. S. I. Mhamal made no reference to the house no. 832 in any of the records prepared by him and in case the information pertained to house no. 832 and P. S. I. Mhamal had in fact raided and recovered drugs from house no. 802, it was incumbent upon him to record this fact not only in the records prepared by him but in the course of his deposition as well.