BHAGWATSINGH GAUD Vs. STATE OF GOA

JUDGEMENT

(1.) THE accused/appellant Shri Bhagwatsingh Gaud has come in appeal before this Court challenging his conviction and sentence. The Special Judge, N. D. P. S. Court, Mapusa, vide his judgment dated 31st October, 1996 convicted the accused/appellant for the offence punishable under section 20 (b) (ii) of the N. D. P. S. Act 1985 and sentenced him to suffer Rigourous Imprisonment for ten years and to pay a fine of Rupees one lakh and in default to suffer Rigorous Imprisonment for two years.

(2.) BRIEFLY stated, the prosecution case is that on 28-11-95 at 10. 00 a. m. an information was received that a North Indian person staying in Room No. 6 of hotel Anjuna Beach Resort at DMello Waddo, Anjuna, was dealing in charas. Shri Gopal Jadhav (P. W. 4) who was officer-in-charge of A. N. C. Police Station accordingly recorded the information in writing and sent the same to the Deputy Superintendent of Police. P. W. 4 decided to raid the said premises and accordingly secured the presence of Mr. Leo DCruz (P. W. 3) and Shri Ashok Johare to act as panchas. P. W. 4 along with panchas, P. S. I. Thorat, lady P. S. I. Pangam and other head constables and police constables proceeded towards Anjuna in jeep and went on motor cycle. The vehicle was parked near the said hotel and then the raiding party entered the hotel. Near the place of the hotel they saw one person wearing blue jeans and multicoloured T Shirt and he was carrying a travellers bag. The said person appeared to be the person for which the information was given. The said person is accused/appellant. He was asked whether he was staying in Room No. 6 of the hotel to which his reply was in the affirmative. P. W. 4 told him that he had information that he (accused) was dealing in charas and that he had come to search him. The accused was informed by P. W. 4 that he has a right to get himself searched in the presence of a Gazetted Officer or Magistrate. The accused was also told that before his search was taken, he could search the raiding party. The accused however, declined both the offers. P. W. 4 thereafter took the bag carried by the accused which was having 4 zippers. In one of the compartments was the cloth bundle containing polythene bag inside which was found to be charas in the form of sticks of various sizes. The charas was weighed and found to be 1 kg. and 800 grams. One piece of charas weighing 30 grams was taken from the entire quantity of charas seized from the accused/appellant and put in an auto pressed polythene bag which was then put in an envelope and the envelope was packed and sealed. Balance quantity of charas was put back in the same polythene bag which was put in an envelope and the envelope was packed and sealed. P. W. 4 also found that inside one of the compartments there was a weighing scale and certain weights of denominations of 1 gm. , 2gms. , 5 grams and 10 grams. Driving licence of the accused/appellant was found in one of the compartments and the entire bag was put in an envelope and sealed. The accused/appellant was personally searched but no contraband was found. The panchanama and the seizure report were prepared. Copies of the panchanama and seizure report were given to the accused. After completing the panchanama, P. W. 4 along with the raiding party went to Room No. 6 where the accused/appellant was staying. In the room a lady, who was wife of the accused and two children were found. The lady P. S. I. took the search of the wife of the accused, but from her person no contraband was found. The substances recovered from the accused/appellant were sent for chemical analysis. Ultimately, the N. D. P. S. Court, Mapusa charged the accused/appellant for the offence committed by him under section 20 (b) (ii) of the N. D. P. S. Act, 1985. To prove its case, the prosecution examined Mahesh Kaissare (P. W. 1), Manohar Joshi (P. W. 2), Leo DCruz (P. W. 3) and Shri Gopal Jadhav (P. W. 4) and also various documents including Chemical Analysers report (P. W. 1/c), search panchanama (P. W. 3/a), seizure report (P. W. 3/b) and the complaint (P. W. 4/b ). The prosecution also exhibited intimation under section 57 of N. D. P. S. Act (P. W. 4/g ). The accused submitted his written statement denying the allegations and also examined one Jayatan Thanksali (D. W. 1 ).

(3.) MR. Chari, the learned senior Counsel, appearing for the accused/appellant raised diverse contentions challenging the correctness of the conviction and the sentence awarded by the N. D. P. S. Court. The first and foremost contention raised by Mr. Chari, and that has impressed us and appears to be of substance, is that the search officer (P. W. 4) knowingly fully well that the panch witness Leo DCruz (P. W. 3) had acted as panch in other cases took him to act as Panch. According to him P. W. 3 pliable witness and therefore the entire raid would become suspect and therefore there was no sufficient evidence to convict the accused for the offence punishable under section 20 (b) (ii) of the N. D. P. S. Act. We have found this argument raised by Mr. Chari, the learned Senior Counsel impressive and of substance after considering the depositions of P. W. 3 and P. W. 4 minutely and the submissions of Mr. Bharne, learned Public Prosecutor, for the reasons which we shall state hereafter.