ARUN KAMBLI Vs. STATE OF GOA AS

JUDGEMENT

(1.) THE appellant was tried for possession of 211 gms. of charas in contravention of section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the said Act) which is punishable under section 20 (b) (ii) of the said Act. The appellant had pleaded not guilty. Prosecution had examined 4 witnesses in support of the charge. By impugned judgment dated 24th February 1999, which is subject matter of this appeal, the appellant was held guilty for possession of 211 gms. of charas under section 20 (b) (ii) of the said Act. He was sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 1 lakh and in default to undergo one year simple imprisonment under section 20 (b) (ii) of the said Act. The period of detention during the trial from 7th March 1998 till the date of conviction was set off in terms of section 428 of Criminal Procedure Code.

(2.) THE prosecution case, in brief, is that P. S. I. Uday Naik P. W. 4 had received specific and reliable information that one Arun Kambli would come to sell charas at Anjuna Beach near Kashmiri shop between 5. 00 p. m. to 7. 00 p. m. This information was reduced into writing and a copy of the same was sent to S. P. Anti-Narcotic Cell. P. S. I. Uday Naik P. W. 4 arranged for panchas Sadguru Patil P. W. 3 and Deepak Raikar, who were informed about the said information. The raiding party consisting of P. I. Mamledar, P. S. I. Uday Naik P. W. 4, Head Constables, Police Constables and the Panchas proceeded to Anjuna where they reached at about 5. 00 p. m. After they reached near the Kashmiri shop at Anjuna Beach, the accused/apellant was found sitting on a stone on the beach. The raiding party surrounded him and on inquiries being made by P. S. I. Uday Naik P. W. 4, the appellant disclosed his name as Arun Kambli. He was informed that there was specific and reliable information that he had come to sell charas to the customers and that P. S. I. Uday Naik P. W. 4 wanted to take his personal search for charas. The accused was informed before taking personal search that he had a right to be searched before a Magistrate and a Gazetted Officer and also that he had right to search the members of the raiding party including panchas. Both these offers were declined by the accused. The search commenced at 5. 10 p. m. and on personal search from the right side pant pocket, two black colour substances in cylindrical shape individually wrapped in transparent cellophane paper were recovered. The said pieces were suspected to be charas. The pieces alongwith their wrappers were weighed and the weight was 11 gms. Both the charas pieces were put in an envelope, which was packed and sealed under the seal of the Anti Narcotic Cell, Panaji, Goa-2, Ashoka Emblem. The envelope was signed by both the panchas, P. S. I. Uday Naik P. W. 4 and the accused. The raiding party also found one white colour polythene bag near the said stone on which the accused was sitting. When the accused was questioned about the said polythene bag, he told the raiding party that the said bag belonged to one Kashmiri person, but, he did not know his name and address, though he could identify the said person. On search of the Polythene bag, black colour substances in different sizes cylindrical and spherical shaped were found individually wrapped in transparent papers. The said substances were suspected to be charas. In all they were 60 such pieces. They were weighed and the weight was found to be 200 gms. All the said pieces were put in an envelope, which was packed and sealed. The envelope was signed by panchas, P. S. I. Uday Naik P. W. 4 and the accused. The contraband recovered was sent for analysis to the Directorate of Food and Drugs Administration, Panaji, Goa. The contraband was analysed by Junior Scientific Officer M. Kaissare, P. W. 1, who carried out various tests and came to the conclusion that the description of contraband was dark brown substance having characteristic odour of charas; Microscopic examination revealed presence of hairs resembling Charas Hairs and the Identification tests for charas, namely, Beams Acid test, Neegms test and Fast Blue B Salt test were positive and that in view of the above findings, the substances analysed contained charas.

(3.) LEARNED Advocate for the appellant urged before us that there is no legal evidence to establish that the appellant was in possession of polythene bag found near the stone on which the appellant was sitting; that at any rate the appellant did not know the contents of the said polythene bag; that the prosecution has failed to establish conscious possession of the appellant of the said bag containing contraband; that the prosecution has failed to establish the distance of the said polythene bag containing contraband from the place where the appellant was sitting and the evidence that the said bag was found near the appellant has to be interpreted in the light of concept of nearness spoken of by the witnesses with reference to the other evidence on record. He also pointed out that the panchanama of seizure of the said polythene bag does not show the distance of the said polythene bag from the appellant except that it was stated that it was found near the stone on which the appellant was sitting and the evidence also does not reveal as to whether the said bag was found in front, on the side or on the back side of the appellant. It was contended by learned Advocate for the appellant that if the bag was found behind the appellant, he could not be obviously saddled with its possession. Learned Advocate for the appellant also urged that the said bag was recovered from a public place (beach) and, as such, it cannot be said that it would belong to a person found closest to such bag. He also pointed out that this polythene bag was not noticed by the raiding party in the beginning, but it was noticed only after the panchanama relating to recovery on the person of the appellant had been concluded. In this respect it was urged that the evidence on record may, at the most, create grave suspicion which cannot take the place of proof and that in view of the evidence on record, two reasonable and possible views emerge as a result of which the appellant is entitled to benefit of doubt. In support of his submissions learned Advocate for the appellant places reliance on a number of rulings, namely, (Patel Jethabhai Chatur v. State of Gujarat), A. I. R. 1977 S. C. 294; (Bahadul v. State of Orissa), A. I. R. 1979 S. C. 1262; (Smt. Zubeda Khatoon, Bangalore City v. The Assistant Collector of Customs, Legal, Bangalore), 1991 Cri. L. J. 1392; (Lucian R. Rodrigues v. State of Goa), 1995 (2) Goa L. T. 122 and (Natibabau Khadka v. State of Goa), 1996 (1) Goa L. T. 212.