MURATA CHIHARU Vs. STATE OF GOA

JUDGEMENT

(1.) PSI Mhamal attached to ANC Panaji decided to go for random checking of drugs at Dando, Anjuna on 16-5-1996. Two panchas Mukund salgaonkar and Manohar Naik were called for the said purpose. PSI Mhamal alongwith PI Jadhav, HC Punaji Gawas, PC K. G. Manoj, PC N. K. Salunke and the said two panchas left Panaji alongwith the kit box containing sealing and packing materials, torches, gaslamp, seal of ANC Police Station and weighing scale. They left Panaji at about 5. 15 p. m. and reached Anjuna flea market at 5. 50 p. m. The vehicle was parked there and thereafter the police party alongwith the panchas proceeded on foot towards the beach. On the way to the beach, they found one foreigner who, on seeing them, increased his speed, on account of which PSI mhamal suspected that he might be in possession of some drugs. He was accosted and PSI Mhamal told the said foreigner, who is the appellant in this case, that he wanted to search him for narcotic drugs. Thereafter, PSI Mhamal informed him that he had a right to be searched before a Gazetted Officer or a Magistrate and that he could also search the members of the raiding party including the panchas. However, both these offers were declined by the appellant. The appellant was having a small cloth bag around his neck and PSI Mhamal told him to give the same. The appellant handed over the said cloth bag to PSI Mhamal, who found two polythene bags in it, one containing some leafy substances suspected to be ganja and the other polythene bag containing charas pieces wrapped in cellphane paper. The said polythene bags alongwith the substance found there were separately weighed. The first polythene packet was found to contain 23 grams of Ganja and the second polythene packet contained 40 grams of charas. Besides this, a sum of Rs. 150/-was also recovered from the said cloth bag. Passport of the appellant was also attached. The said polythene packets were put in separate envelopes and they were sealed in presence of the panchas and the envelopes were signed by the panchas, search officer and the appellant. The panchanama was prepared as well as the seizure report, copies of which were given to the appellant. The attached contraband was handed over to PI, ANC by letter dated 16-5-1996 and PI Jadhav forwarded the same to SP, CID where it was received by P. W. 2 Manohar Joshi, scientific Assistant, on 17-5-1996. Shri Manohar Joshi, who has been examined as P. W. 2, kept the said sealed envelopes in the steel cupboard and on 17-5-1996 forwarded the same to the Directorate of Food and Drugs Administration, Panaji, where they were received on the same day. Shri Mahesh Kaissare, Junior Scientific officer (P. W. 1) working in the Directorate of Food and Drugs Administration, analysed the said samples and found that the sample no. 1 was positive for ganja and sample no. 2 was positive for charas. The tests applied are shown in the report as well as in the deposition of the Junior Scientific Officer, Mahesh Kaissare (P. W. 1 ). There was no challenge to the testimony of P. W 1 and P. W. 2 and they were not at all cross examined by the defence.

(2.) THE two other witnesses examined by the prosecution are pancha Manohar naik (PW. 3) and the Search Officer, PSI Mhamal (PW. 4 ). Both these witnesses were cross examined at length. Reiving upon the prosecution evidence, the learned special Judge, Mapusa, vide judgment dated 24-2-1997 held the appellant guilty for possession of 23. 82 grams of ganja under Section 20 (b) (i) and 36. 6 grams of charas under Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances act, 1985 (hereinafter called "the said Act" ). The difference in weight as found by the Search Officer at the time of. seizure and the weight found by the Junior scientific Officer (P. W. 1) is on account of the scientific balance used by the Junior scientific Officer and also because the Search Officer had weighted the substance alongwith the polythene bags and the Junior Scientific Officer had weighed the substance without the said polythene bags. The appellant was sentenced to suffer r. I. for ten years with fine of rupees one lakh, in default to suffer R. I. for two years under Section 20 (b) (ii)of the said Act. He was further sentenced to suffer R. I. for one year and fine of Rs. 1,000/- in default to suffer R. I. for 15 days under Section 20 (b) (i) of the said Act. The appellant challenges the said conviction and sentence in this appeal.

(3.) LEARNED Senior Counsel Shri Lalit Chan, appearing on behalf of the appellant, has basically placed four contentions before us, namely : (1) that the pancha who was employed in this case did not understand English and inspite of this the defence was not permitted to test the veracity of the pancha witness (P. W. 3) on account of the fact that objection was raised by the Public Prosecutor conducting the trial to the material and relevant question which was put by the defence in order to elicit as to whether the appellant was made aware of his right to be searched before the Gazetted Officer of Magistrate ; (2) that there is no satisfactory evi-dence on record as to whether the accused was told that he would be searched for drugs; (3) that the Search Officer (P. W. 4) has not affixed the specimen seal, which was forwarded to the Junior Scientific Officer for comparison with the seals put on the sealed envelopes, either at the time of search or even later on the same day and in view of the testimony of PSI Mhamal (PW. 4) that the seal had been returned to pi Jadhav on 16-5-1996 itself, it becomes doubtful that PSI Mhamal was in a position to affix this seal on the said letter (Exh. P. W1a)dated 17-5-1996 alongwith which the attached contraband which was sealed with the same seal had been forwarded to the Junior Scientific Officer for analysis. This, according to the learned senior Counsel, throws considerable doubt regarding the seal used in attachment of contraband and specimen seal of Exh. P. W. 1/a; and (4) that there are material discrepancies between the evidence of pancha (P. W. 3) and Search Officer (P. W. 4), as a result of which reliance cannot be placed on the testimony of either the pancha or the search officer.