NICKLAUS PETER HEEL Vs. STATE OF GOA

JUDGEMENT

(1.) THE accused in Special Criminal Case No. 9 of 1995 in the Court of Narcotic Drugs and Psychotropic Substances, Mapusa, is the appellant herein. By the impugned judgment dated 25th April, 1996, the appellant was convicted for having been found to be in possession of 105 grams of charas and 30 pills of L. S. D. without having lawful explanation and convicted under sections 20 (b) (ii) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and in default to suffer rigorous imprisonment for 2 years under section 20 (b) (ii) of the N. D. P. S. Act and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and in default to suffer rigorous imprisonment for 2 years under section 22 of the N. D. P. S. Act. By the impugned judgment the sentences of imprisonment were directed to run concurrently.

(2.) THE case of the prosecution is that on 26th January, 1995, P. S. I. Thorat attached to A. N. C. Police Station, Panaji, received information at 3. 30 p. m. that one foreigner named Peter was dealing with Narcotic drugs at Vagator near Fatima Bar and Restaurant. After having recorded the information and reporting the matter to the Higher Officers P. S. I. Thorat proceeded to Vagator between 5. 00 p. m. alongwith panchas, namely, Mahesh son of Gunali Nagvekar (P. W. 2), who is residing at Vasco-da-Gama and Agnelo son of Francis Almeida (not examined), who is residing in the market area at Panaji. On the way to Vagator, P. S. I. Thorat directed the driver to stop and got down from the jeep in order to meet his informant and confirm the information. After confirming the information, the raiding party proceeded to the spot. They stopped the vehicle at Ramdas Swami Bar and Restaurant, which is situated 50 mts. away from the Vagator Beach. Thereafter P. S. I. , Panchas and other persons in the raiding party started walking towards Fatima Bar and Restaurant, which is at a distance of about 250 mts. from the place where they had parked the jeep. On approaching near Fatima Bar and Restaurant they saw two foreigners having a discussion. They were standing on the road outside Fatima Bar and Restaurant and as the raiding party came near to them, one of the foreigners turned and walked into Fatima Bar and the other foreigner who was wearing blue colour stone washed jean and a T-shirt of green yellow and red colour continued to linger on the road. The said foreigner was carrying a black colour bag on his shoulder. Since he was moving in a suspicious manner, the P. S. I. asked his name and ascertained his name was Peter. The P. S. I. then informed Peter the purpose of their coming there and the P. S. I. identified himself and also other members of the raiding party. He informed the accused that his person has to be searched for Narcotic drugs. The accused was also informed in compliance with section 50 of the N. D. P. S. Act that he has got a right to be searched in the presence of a Gazetted Officer or a Magistrate of his choice, if he so desires. However the accused declined that offer. He was also further informed that the accused has got the liberty to search the members of the raiding party before he has been searched. That offer also was declined by the accused. Accordingly after the formalities the accused was searched. There was no incriminating substance found from the person of the accused but, however, the bag which he was carrying was searched. The P. S. I. opened the outermost zipper of the bag and inside that compartment he found a black colour cloth bag having two zippers on it. The first zipper of the black colour cloth bag contained cash of Rs. 530/ -. The second zipper was searched but nothing was found in it, the second zipper of the bigger black bag was opened and found to contain the passport of the accused. The third zipper of the bigger bag was opened and a polythene packet was found inside it. This polythene packet contained 12 pieces of charas individually wrapped in cellophine paper. These pieces were of different shape and sizes. Upon finding the charas a weighing scale was brought and it was weighed. It was weighing 105 grams. The charas in the polythene packet was placed in an envelope which was then packed and sealed using seal of A. N. C. Thereafter the signatures of P. S. I. and the accused were put on the said envelope. On further search in the zipper it was found a small polythene packet containing a folded silver wrapper. Upon unfolding this silver wrapper the P. S. I. found 30 coffee colour pills which he suspected to be L. S. D. These pills were placed back in the wrapper which was re-folded and put back in the same polythene packet in which it was found. Thereafter this polythene packet was put into a small envelope which was then packed and sealed using seal of A. N. C. The signatures were obtained on the packet of the accused and of the Panchas. The Panchanama was drawn on the spot of the search and seizure. The Panchanama was written by P. C. Vinayak Karekar as dictated by P. S. I. The sealing and packing was done by H. C. K. G. Desai. The Panchanama was read out and explained to both the Panchas in Konkani. A copy of the Panchanama was given to the accused after receiving his signature under acknowledgment. Ultimately the packets have been sent for chemical analysis to the Director of Central Forensic Science Laboratory, Hyderabad through the Superintendent of Police. After chemical analysis it was found that the contraband contained the substance prohibited under the N. D. P. S. Act, namely, ganja and charas. P. W. 1, the Chemical Analyser was examined to prove the contents of the articles. The pancha P. W. 2 was examined to corroborate the evidence of P. S. I. P. W. 5 for having done the search and seizure of the person of the accused. Believing the evidence of the prosecution the lower Court has awarded the conviction as mentioned above against the accused.

(3.) THE learned Senior Counsel Shri Chari, appearing for the appellant, mainly emphasized three points before us. (1) There has been no evidence before the Court below that the substance prohibited by the Act has been recovered from the person of the accused. In other words, the evidence of P. W. 1 the Chemical Analyser is not sufficient enough to establish that the prohibited substance has been recovered from the person of the accused. (2) There is a major improbability which makes the prosecution case worse in as much as the search was actually made in the house of the accused which is situated admittedly 50 mts. away from the road where the search was alleged to have been conducted. This and the search alleged to have been conducted on 30th January, 1995, in the house of the accused will cumulatively make the case of the prosecution that search was made on the road is improbable. (3) The panch witnesses cannot be believed because they are stock witnesses and brought from far away like Vasco-da-Gama and Panaji for a search which was conducted at Vagator, which is situated 40 kms. and 20 kms. respectively away. He further pointed out that the Panchas did not know English and Panchanama prepared in English had to be translated and read over in Konkani to the Panchas and the inference that is to be drawn is that they did not know English whereas accused knows only English and in that respect the mandatory provision of section 50 of the Act has not been complied with. With these important defects which are pointed out by Shri Chari, he argues that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt and the accused is entitled to be acquitted.