PETER DILINGER Vs. STATE OF GOA

JUDGEMENT

(1.) SENSE and sound­ness of the judgment and order of convic­tion and sentence passed on 19-2-1997 by Special Judge, NDPS Court, Mapusa, convicting the accused/appellant for the offence punishable under Section 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rupees one lakh and in default to suffer rigorous impris­onment for two years is under challenge in this criminal appeal.

(2.) THE gravamen of the charge lev­elled against the appellant/accused is that on or about 13th December, 1995 at Villa Fatima Beach Resort, Baga Calangute, he was found possessing 1 kg. 7 grams of Charas without possessing legal docu­ments to justify its possession and thereby the accused committed offence punishable under Section 20 (b) (ii) of the NDPS Act.

(3.) MR . Chari, the learned Senior Counsel appearing for the accused/appellant made a multipronged attack on the soundness of the judgment passed by the Special Judge. He urged that the information received by PW-6 was about foreigner dealing in nar­cotic drugs and therefore, PSI knew that in raid, the panchas knowing English would be required, still no effort were made to secure the presence of panchas knowing English nor any effort were made to have the panchas from that very locality know­ing English. According to the learned Senior Counsel, PW-3, one of the panch witnesses did not know English and though he claims to be witness to the transaction of raid and the conversation between the accused and PW-6, he could not be witness whether in fact any offer was made by PW-6 to the accused that if he wanted search could be made before a Gazetted Officer or Magistrate, According to the learned Senior Counsel, the only source of knowledge of PW-3 about the offer being made to the accused that if he wanted he could be searched before a Magistrate or Gazetted Officer is the statement made to him by PW-6. Thus, it is contended by Mr. Chari, the learned Senior Counsel that there was no compli­ance of mandatory provisions of Section 50 and prosecution evidence in that regard is not acceptable. The learned Senior Counsel also took us through the deposi­tions of PW-3, PW-4, PW-5 and PW-6 and highlighted the contradictions which ac­cording to him, were material and create serious doubt about the presence of panchas during the raid and the entire prosecution story of search and seizure. As a corollary thereto the learned Senior Counsel urged that the deposition of PW-6 cannot be said to be reliable and was not sufficient to bring home the guilt of the accused. It is also contended by the learned Senior Counsel that the story of recovery of 1 kilo of charas from room No. 10-A alleged to be in possession of the accused is planted. In this connection, learned Senior Counsel invited attention to the charge which does not refer to that from Room No. 10-A in possession of the ac­cused recovery of 1 kg. charas was made. He also invited our attention to the depo­sition of PW-4 Fiona Fernandes, reception­ist at Villa Fatima Beach Resort and urged that the register of the hotel was not part of the charge sheet nor accused was in­formed of the said register at any time earlier before recording of the evidence of PW-4 and that the entry No. 146 in col­umn No. 2 dated 6-12-1995 was admit­tedly written by PW-4 after the accused was arrested. In the circumstances, the learned Senior Counsel urged that the prosecution has miserably failed to prove the case against the accused and that ren­ders the convictions and sentence passed against him unsustainable.