ROLF MICHAEL TIMERICK Vs. STATE OF GOA

JUDGEMENT

(1.) THIS appeal is at the instance of Rolf Michael Timerick, who has been convicted by the Special Judge, N. D. P. S. Court, Mapusa, for the offence punishable under Section 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act) and the appellant is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh, in default to suffer rigorous imprisonment for two years under Section 20 (b) (ii) of N. D. P. S. Act.

(2.) SHORN of unnecessary details, the prosecution story which has been unfolded during the trial is as follows :- Sunita Sawant (P. W. 9) was Police Sub-Inspector attached to Calangute Police Station at the relevant time. On 15th March 1994 the Taj Security People brought one foreigner (the accused) to the Police station during the afternoon stating that he assaulted one of the security guard of the Taj Hotel. The accused was carrying haversack bag at his back. P. W. 9 asked the accused about the contents of the said haversack and the accused became nervous and tried to run away. The policemen who were present caught hold of the accused. Two panchas, namely, Navnath (P. W. 2) and one Peter were present and in their presence P. W. 9 asked the accused whether he was carrying any incriminating articles in the bag to which, the accused did not reply. P. W. 9 suspected that the accused was carrying the prohibited substance under the N. D. P. S. Act and, accordingly, he was told that his search as well as search of the haversack bag has to be conducted. According to the prosecution case, P. W. 9 asked the accused whether he wanted to be searched in the presence of any Gazetted Officer or by any Magistrate, to which the accused declined. The accused was also asked if he wanted, he could take search of P. W. 9 and the other persons who were present, namely, one havaldar, one constable and two panchas, to which also the accused delined. Thereafter P. W. 9 directed Head Constable Mr. Mayenkar to take search of the accused. The Head Constable Mayenkar took his search but nothing was found on his person. Thereafter the Head Constable took search of the haversack bag and certain clothes were found. The Head Constable also found one plastic bag containing charas in different shapes and sizes in the haversack. The plastic bag was weighed and it was found to be containing 1. 250 kilograms of the charas. Out of the said substance 20 grams of the charas was weighed separately, packed and sealed in separate envelopes to be sent to the Chemical Analyser. A panchanama (Exh. PW2/a) was prepared, which was duly signed by P. W. 9 and the panchas. Seizure report (Exh. PW2/b) was prepared and copy of the seizure report was furnished to the accused but he refused to acknowledge the same. The seizure report too was signed by the panchas. P. W. 9, thereafter, lodged the complaint (Exh. PW9/a ). Crime was registered against the accused and investigation was completed by sending the contraband for chemical analysis to the Chemical analyser. The accused was charged for the offence punishable under Section 20 (b) (ii) of N. D. P. S. Act on 12th July 1994 by the Special Judge, N. D. P. S. Court, Mapusa. The charge reads :- " That you on or about the 15th day of February, 1994, at about 2 . 00 p. m. at Sinquerim Taj Village Hotel were found in illegal possession of 1. 250 kilograms of charas worth about Rs. 70,000/- without any valid document ormlicence in contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances Act 1985 and thereby committed an offence punishable under Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act and within the cognizance and jurisdiction of this Court. " The accused pleaded not guilty and claimed for trial. During the trial prosecution amongst others examined one of the panchas, namely, Navnath Naik (P. W. 2), Dharshan Varang, a Security Guard at Taj Holiday Village, Sinquerim (P. W. 3), Maria Caldeira, a Jr. Scientific Officer in Food & Drugs Laboratory (P. W. 1) and Miss Sunita Sawant, P. S. I. (P. W. 9) and also exhibited number of documents. The accused in his defence submitted written statement as well as examined 5 witnesses. After hearing the learned counsel for the accused and the Public Prosecutor, the Special Judge, N. D. P. S. Court, Mapusa held that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section 20 (b) (ii) of the N. D. P. S. Act and, accordingly, sentenced as aforestated.

(3.) THE prosecution evidence leaves no manner of doubt that the accused was searched by Head Constable one Mr. Mayenkar, though in the presence of P. S. I. Sunita Sawant (P. W. 9) and at her directions. P. W. 9 herself has stated that on her directions Head Constable Mayenkar took the search of the accused, both of his person as well as haversack. P. W. 2 also deposed in his evidence that the Head Constable took the personal search of the accused but nothing incriminating was found and when the Head Constable opened the haversack bag and while searching that bag black roundish balls and flat balls which he was told to be charas, was found. Even the learned Public Prosecutor, during the course of arguments, did not dispute on this factual aspect that the search in fact was conducted by the Head Constable Mayenkar. Answerable question, therefore, is whether the search conducted by the Head Constable is legal inasmuch as by the Officer empowered under Section 42 of the N. D. P. S. Act or not.