PREMCHAND Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was tried for possession of 418 grams of charas without having any legal documents under Section 20(b)(ii) of the N.D.P.S. Act, 1985 (hereinafter called the said Act). The appellant had pleaded not guilty and the prosecution had examined five witnesses in support of the charge. The said five witnesses are P.W. 1 Mahesh Kaissare, Jr. Scientific Officer in the Office of Food and Drugs Administration who had analysed the charas sample which was forwarded to him; P.W. 2 Nitin Kesarkar in whose presence the charas in question was recovered from the person of the appellant; P.W. 3 Manohar Joshi, Scientific Assistant in the Crime Branch, C.ID. Panaji in whose safe custody the charas sample was kept and who forwarded the same to the Office of Food and Drugs for analysis; P.W. 4 Naresh Mhamal who was one of the members of the raiding party and P.W. 5 Shirish Thorat who conducted the search and investigated the case.

(2.) THE Special Judge accepted the evidence of the prosecution witnesses and convicted the appellant for possession of 418 grams of charas under Section 20(b)(ii) of the said Act. The appellant was sentenced to suffer Rigorous Imprisonment for ten years and pay a fine of Rs. 1 lakh, in default, to suffer R.I. for two years. The appellant was in custody in connection with this case from 14.12.1994 and, as such, the period of detention from the said date was set off in terms of Section 428, Cr.P.C. This conviction and sentence is challenged by the appellant in this appeal.

(3.) THE submissions advanced by learned Advocate for the appellant are that the prosecution has failed to place sufficient evidence on record as to whether the officer conducting search had reasons to believe for conducting such search under Section 43(b) of the said Act. In support of his submission he took JS through the panchanama, evidence of pancha P.W. 2, evidence of P.W. 4 Naresh Mhamal and evidence of the officer conducting search P.W. 5 Shirish Thorat and then submitted that nowhere there is any material to suggest that there were reasonable grounds for believing that the appellant was possessing charas. According to him, merely because the appellant was talking to foreigners and subsequently was found to be nervous, would not justify a conclusion that the officer conducting search had reasons to believe that the appellant had in his possession charas. It was also pointed out by him that none of the witnesses have placed any material on record from which it could be concluded that the appellant was nervous since the state of nervousness can be deduced only from the material on record to justify such conclusion.