OLAF WUMLING Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant was tried for possession of 120 gms. of charas which is punishable under section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N. D. P. S. Act ). The prosecution had examined five witnesses in support of the charge. The Special Judge has recorded conviction of the appellant for possession of 120 gms. of charas and has sentenced the appellant to undergo 10 years rigorous imprisonment and fine of Rupees one lakh, in default undergo one year simple imprisonment under section 20 (b) (ii) of the N. D. P. S. Act. The period of detention of the accused during the trial has been set off under section 428 Cr. P. C. The appellant challenges his conviction in this appeal.

(2.) THE prosecution case, in brief, is that on 23rd January, 1998 at about 1. 30 p. m. P. S. I. Uday Naik (P. W. 4) of Anti Narcotic Cell Police Station, Panaji received specific and reliable information that a foreigner with beard, tall having height of more than six feet with knotted hair, medium built was selling charas in a rented room bearing house No. 1318 belonging to Maria C. Dias at Umtawada Calangute between 1. 30 to 6. 30 to customers. The said information was reduced to writing and copy of the same was sent to S. P. ANC for information. Thereafter two Panchas were called including Uday Shirodkar (P. W. 3) who were informed of the information received. The raiding party then left the Police Station with the kit box containing weighing, packing and sealing materials and torches as well as seal and reached Umtawada Calangute at 5. 00 p. m. The police party went to the house in question and found the door of the room open and a foreigner in the said room. The description of the foreigner tallied with the information received and the foreigner namely the appellant who was in the said room was informed about the reliable information and P. S. I. Uday Naik (P. W. 4) told him that he wanted to take search for drugs as well as search of the room for drugs. P. S. I. Uday Naik (P. W. 4) informed the accused that he had to be searched in the presence of a Gazetteed Officer or Magistrate, but the accused declined the offer. He wasalso told that he had a right to take search of the panchas as well as of the members of the raiding party which was also declined by him. Thereafter the right side trouser pocket of the accused was searched by P. S. I. Uday Naik (P. W. 4 ). From inside the pocket one black colour substance in cylindrical shape wrapped in transparent cellophane paper was found which was suspected to be charas. It was weighed and found to be 10 gms. The said piece of charas was put in an envelope which was packed and sealed. The envelope was signed by P. S. I. Uday Naik (P. W. 4) and both the panchas including P. W. 3, but the accused refused to sign the said envelope. The Police party then found a white polythene bag kept at the right side of the room and on search of the same found 16 pieces suspected to be charas. The same was weighed and the weight was 110 gms. The said charas pieces were packed and sealed. The envelope was signed by the panchas and P. S. I. Uday Naik, but the accused refused to sign. Likewise, the clothes of the accused were sealed, but the accused refused to sign the sealed envelope. The seizure report was prepared. Copy of the panchanama and seizure report was sought to be handed over to the accused but the accused refused to sign for acknowledging the receipt of copy of panchanama and seizure report. After completing the investigation the charge sheet was filed.

(3.) THE defence of the accused is that the room in question which was searched was rented by an Indian lady and the contraband in the bag found in the said room did not belong to him. The case of the accused further is that he has been consuming charas for over 20 years and during the course of arguments the possession of 10 gms. of charas from the person of the accused was admitted.