SITAL KUMAR DIVKAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was charged for an offence under Section 21 of the Narcotic Drugs and Psychotropic substances Act, 1985, on the allegation that he was found in possession of 2.75 grams of brown sugar (morphine) on 14th May, 1988, at his room situated at Rawalfond, Margao. By Judgment dated 27th May, 1989, continued on 29th of the same month, the learned Additional Sessions Judge, Margao, convicted him under Section 21 of the Act and sentenced to undergo 10 years of Rigorous Imprisonment and to pay a fine of Rupees one lakh, and in default, to undergo a further period of Rigorous Imprisonment for one year.

(2.) THE prosecution case was that on information received, the P.S.I. Rodrigues proceeded on 14th May, 1989, at about 10.45 p.m. to the residence of the appellant in company of two panchas and the other policemen. He found the door of the room of the appellant ajar and saw him heating brown sugar on a silver foil which was kept over a kerosene lamp and further inhaling the same. On personal search of the appellant, five packets containing brown sugar were recovered and in a search conducted in the said room, eight more packets, also containing brown sugar, were recovered.

(3.) THE prosecution examined, in all, five witnesses, namely P.W. 1 Mohander Lolienkar, who was a panch taken by the police at the time of the raid and who witnessed the alleged search and recovery of the brown sugar, P.W. 4 who is the Chemical Analyser and P.W. 2, P.W. 3 and P.W. 5 who are policemen. On basis of this evidence, the learned Additional Sessions Judge recorded a finding that guilt has been brought home to the appellant, and consequently, convicted him for an offence punishable under Section 21 of the Act, and further, sentenced him with the minimum penalty under the said Act. S. Mr. Kirtani, the learned Counsel appointed to the appellant under the Legal Aid Scheme, after taking us through the prosecution evidence, contended that a comparison between the evidence of the prosecution witnesses Nos. 1, 2, 3 and 5 with the evidence of P.W. 4 Maria Caldeira gives cause to a doubt inasmuch as it appears that there was a tempering with the evidence. He further submitted that no evidence had been adduced to link up the samples which, according to police, had been taken and those which were tested. Equally, he submitted that no explanation was given for the delay in forwarding the samples allegedly collected at the time of raid, to the Chemical Analyser. Finally, he submitted that the mandatory provisions of the law as regards the search and the proceeding for a search without a warrant had not been complied with. 6. It is not necessary for us to go into all the above submissions made by the learned Counsel, since in our view, this Appeal succeeds on the first ground itself. In fact, the link between the alleged recovery of drugs from the room and the person of the accused and the drugs analysed by P.W. 4 had not been established and this is a fatal infirmity in the prosecution case. The offence under Section 21 of the Act indeed is in respect of possession of prohibited drugs, and hence, once such possession is not established, naturally, the necessary consequence is that person charged for such offence is entitled to an acquittal. 7. P.W. 1, P.W. 2 and P.W. 3 as well as P.W. 5 state that when the raid was conducted to the room of the appellant, a personal search on his body was conducted and five packets containing a powder, which was found to be morphine, were found inside the underpant of the appellant. They further stated that in a search of the room, eight more packets were found. Then, they stated that eleven of the recovered packets were put inside an envelope which was duly sealed and signed by the panchas and the Police Officers. The remaining two packets of brown sugar were sealed, and apparently, sent along with the charge -sheet to the Court. Now, P.W. 4 Maria Caldeira stated that she received on 27th May, 1988, a sealed packet bearing seals of the Margao Circle Police Inspector and that a piece of paper had been pasted on the said envelope with the following particulars: