KETIL MARDAL Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was tried for being in possession of 2214 grams of charas and 65 grams of ganja valued at Rs. 2,20,500/- without any valid documents or licence in contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the said Act) which is an offence punishable under Section 20 (b) (i) and 20 (b) (ii) of the said Act. In support of the said charges, the prosecution had examined seven witnesses. Out of the said recovery 14 gms. of charas was stated to have been recovered from the right back pant pocket of the appellant an the balance charas as well as ganja were recovered from the house which, according to the prosecution, was in exclusive possession of the appellant. The trial Court in fact came to the conclusion that the prosecution had established that 2. 200 gms. of charas and 65 gms. of ganja were recovered from the house which was raided by the Police, but the Court found that the prosecution had failed to prove that the house in question was either in exclusive possession of the appellant or was leased to him. In view of the said finding, recovery relating to 2. 200 gms. of charas and 65 gms. of ganja from the said house was not fastened on the appellant by the trial Court. The finding that the prosecution had failed to prove either the exclusive possession of the said house or that the same was leased to the appellant was based mainly upon the evidence of P. W. 3 T. Gomes as well as the C-Form which had been submitted to the authorities in connection with the occupation of the said house by a foreigner. Nevertheless, the trial Court found that recovery of 14 gms. of charas from the right back pant pocket of the appellant had been duly established and as such the appellant was held guilty and convicted for possession of 14 gms. of charas under Section 20 (b) (ii) of the said Act. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh, in default to suffer R. I. for two years. The period of imprisonment already undergone by the appellant pending investigation and trial was set off in terms of Section 428 Cr. P. C.

(2.) THIS order of conviction and sentence has been challenged by the appellant in this appeal. In so far as his acquittal in respect of recovery of 2. 200 gms. of charas and 65 gms. of ganja is concerned, the prosecution did not file any appeal in respect of the same.

(3.) BEFORE dealing with the arguments advanced by learned Senior Advocate Shri Lalit Chari and Public Prosecutor Shri Bhobe, it is necessary to briefly state the prosecution case. Police Inspector G. M. Jadhav, who has been examined as P. W. 6 in this case is in-charge of Anti Narcotic Cell (for short ANC) and he had proceeded for drug checking on 27th December, 1994, from Panaji along with police party and panchas. The Police party reached Assagao at 2. 00 p. m. near Badem when P. I. Jadhav received information that one foreigner was staying in the house of Victor DSouza at Badem who is dealing in narcotic drugs. This information was reduced to writing by P. I. Jadhav and it was sent to the Superintendent of Police, A. N. C. through Police Constable Satyawan Naik on Motor Bike. After despatching the said information, the police party led by P. I. Jadhav proceeded towards the house of Victor DSouza and it was noticed through the window of the kitchen of the house of Victor DSouza that one foreigner was weighing black substance. The police party went to the rear side door of the said house and informed the appellant, who was in the house, that they had come for search of drugs and that in case the appellant so desired, he could be searched in the presence of Gazetted Officer or Magistrate, but the appellant declined to avail of the same. Thereafter, the Police recovered 2 kgs. of charas from the cemented table in the kitchen. The raiding party further recovered 200 gms. of charas on disclosure made by the appellant from the same house and besides that 65 gms. of ganja. Thereafter, a personal search of the appellant was carried out and 14 gms. of charas was found in the right rear pant pocket of the appellant. After completing necessary formalities charge-sheet was filed and the appellant was tried and convicted as already mentioned. The learned Senior Advocate Shri Lalit Chari has attacked the impugned judgment on four specific points, namely :-