PREMNATH DUKHI SHAH Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was tried by Special Judge, Mapusa, for possession of 15.69 grams of charas under Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the said Act" ). THE appellant in his plea to the charge had admitted that only 2 grams of charas was found in his possession. He further stated in the said plea that he is an addict and the charas was for his personal consumption. He, however, did not plead guilty to the charge.

(2.) THE prosecution had examined four witnesses in support of the charge. THE prosecution case is that on 22-3-1996 at 9.50 p. m. PSI Mhamal (P. W. 4) alongwith the raiding party and two panchas had gone for random checking of drugs activities to flea market at Anjuna. THE jeep was kept at flea market area and the raiding party went on foot towards the beach. When the raiding party reached opposite Shore Bar, it was noticed that two persons - one foreigner and an Indian - were talking to each other. THE raiding party proceeded towards them and on seeing them, the foreigner walked away. THE other person, namely Indian, who is the appellant in this appeal, on seeing the police party became nervous and was about to run, when he was prevented from doing so as the police party surrounded him. PSI Mhamal disclosed his identity and told the accused that he wanted to search him for drugs. PSI Mhamal also informed the accused that he could take the search of the raiding party and the panchas before his search was taken and that the search of the accused could be taken in the presence of a Gazetted Officer or Magistrate. THE accused declined the said offers made to him. THE accused was asked to remove the shoulder bag. THE said bag had five zipper compartments. In one side compartment of the right side of the bag, one auto-pressed polythene bag was recovered, which contained two charas pieces which were individually wrapped in cellophane papers. THE said pieces of charas was collectively weighed and the weight was 16 grams. THE said pieces were put in envelope alongwith the polythene bag and the envelope was packed and sealed. THE said envelope was signed by the panchas and the accused. On the personal search of the accused, cash of Rs. 710/- was found. THE seized charas was sent by PSI Mhamal to SP (CID) Panaji vide letter no. 494 dated 23-3-1996 and the same alongwith the seized charas was received by P. W. 2 Manohar Joshi, Scientific Assistant in the Crime Branch (CID), Panaji. He had also received another letter under the same number and dated 23-3-1996 from PSI, ANC, Panaji which was addressed to Drugs Controller, Panaji, in duplicate with specimen seal of ANC Panaji. THE same seized charas and letters were delivered to P. W. 2 Manohar Joshi by Police Constable V. B. Gaonkar, Buckle No.3085. He kept the sealed envelope containing seized charas in his steel cupboard and on 25-3-1996 forwarded the same to the director, Food and Drugs Administration, Panaji vide letter no. CID/cb/993 dated 25-3-1996 through Police Constable P. T. Naik, Buckle No.3579. P. W. 1, Jr. Scientific Officer in the Directorate of Food and Drugs Administration, Panaji analysed the seized charas after opening the sealed envelope and opined that the substance analysed contained charas.

(3.) LEARNED Advocate Miss Triveni Potekar, who was appointed under the Legal Aid Scheme to argue on behalf of the appellant, submitted before us that the Jr. Scientific Officer (P. W. 1) had used, for the purpose of analysis, a portion from both the charas pieces and instead of individually testing the said pieces, conducted test collectively on the portions of the two pieces together. She pointed out that according to P. W. 1, he had utilised 2.6 grams of substance from both the pieces and admitted in cross-examination that even a small percentage of active constituents of charas would have given positive test for charas in the sample drawn by him. In view of the same, it was submitted by her that the liability in respect of 15.69 grams could not be fastened on the accused since the Jr. Scientific Officer had not analysed the portion of the sample taken from the two pieces individually. According to her, at the most the liability which could be fixed on the accused could be in respect of less than 2.6 grams which was utilised by the Jr. Scientific Officer for analysis. She drew our attention to the fact that the appellant had right from the inception of the trial, i. e. in his plea of guilt and in his statement under Section 313 Cr. P. C. , had admitted that he was in possession of only 2 grams of charas and that the same was meant for his personal consumption as he is an addict. Therefore, it is urged that the case of the appellant would fall within Section 27 of the said Act since a small quantity was found in his possession which was meant for his personal consumption. In support of her contention, she relied upon Judgment of the Apex Court in Mr. Gaunter Edwin Kircher Vs. State of Goa (JT 1993 (2) S. C. 285 ).