WESSEL VAN BEELAN Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant/accused was tried for possession of 45 grams of charas in contravention of section 8 of the Narocotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the said Act), which is punishable under section 20 (b) (ii) of the said Act. The appellant pleaded not guilty. The prosecution had examined 4 witnesses in support of the said charge. The appellant examined two witnesses in his defence. By impugned judgment dated 20-8-1998, which is subject matter of the appeal, the appellant was held guilty of possession of 45 grams of charas and was sentenced to R. I. for 10 years and fine of Rs. 1,00,000/-, in default, S. I. for one year under section 20 (b) (ii) of the said Act. The period of detention, during which the appellant/accused was in custody from 4-12-97 till the date of judgment, was set off in terms of section 428 Cr. P. C.

(2.) THE prosecution case, as revealed by P. I. Lavu Mamletdar of Anti Narcotic Cell, Police Station, Panaji who is the officer, who conducted the raid and carried out investigation, is that on 4-12-1997 at about 7. 15 a. m. , he received specific and reliable information through his sources that one foreigner, tall, fair, strong built, having beard wearing grey colour T-Shirt and blue colour half jean pant, would come to sell charas at Arambol beach between 9 a. m. to 12 noon. This information was reducted into writing by P. W. 4, who sent a copy of the said information to Superintendent of Police for information. Thereafter, the sent Police Constable Devidas Gauns to call panch witnessess. P. W. 4 had given names of the panchas who were called through Devidas Gauns. The panchas, including panch P. W. 3, Rupesh Samant, who is a Journalist working in the Navhind Times, reached the Police Station at about 7. 50 a. m. . P. W. 4, informed the panchas of the information received by him and the fact of having forwarded the same to the Superintendent of Police, Anti Narcotic Cell. The raiding party consisting of the two panchas P. S. I. Uday Naik, Constables, Devidas Gauns, Sandeep Shirvoikar, Vaman Naik, Shetgaonkar, headed by P. I. P. W. 4 left for Arambol bench in a private Maruti Van and two motor cycles. The kit box containing weighing, packing and sealing material was taken by the raiding party. Seal of Anti Narcotic Cell, Panaji Goa number 1, with Ashoka emblem was also taken. The raiding party reached Arambol at about 9. 30 a. m. and the vehicles were parked at the end of the tar road, after which the raiding party went towards the beach. The raiding party waited for some time and at about 9. 45 a. m. P. I. P. W. 4 noticed a person of the description given by the informant, who was walking towards the beach. As description of the person tallied, including the clothes he was wearing, P. I. P. W. 4 informed of the same to the panchas and the raiding party and all of them rushed towards the said person and surrounded him. P. W. 4 disclosed his identity to the person, namely the accused/appellant that he had received information that he was possessing charas and he wanted to search him for charas. P. W. 4 P. I. informed the accused/appellant that he had right to get searched in presence of Magistrate or a Gazetted Officer. He also offered his search and that of the raiding party and the panchas. However, both these offers were declined by the accused/appellant. During the search, P. W. 4 found a black colour polythene bag in the right side jean pocket of half pant of the accused appellant. He removed the said black colour polythene bag and found some blackish coloured substance in it. The same were removed from the polythene bag. In all 12 black coloured pieces were found, out of which 10 pieces were found wrapped individually in cellophane papers and two pieces were found to be unwrapped. The said pieces were weighted together along with their wrappers and the total weight was found to be 45 grams. All these pieces were put in an envelope which was packed and sealed. This envelope was signed by P. W. 4 and panchas, including panch P. W. 3. The accused/appellant refused to sign the said envelope. The black colour polythene bag in which the said 12 pieces were found was separately put in an envelope which envelope was also packed and sealed. This envelope was signed by P. I. P. W. 4, panchas, including panch P. W. 3, but the accused/appellant refused to sign the said envelope. The seal which was used for sealing both these envelopes, was the one which the raiding party had carried with it. The clothes of the accused/appellant, namely half jean pant from where the said 12 pieces were recovered, was not attached as the accused did not have other clothes. The weighing and sealing was done by Police Constable Shri Devidas Gauns. Panchanama and seizure report were prepared and the accused/appellant refused to sign the same. The police party returned to Panaji and on the way P. W. 3 was dropped at Canca -Parra, near Mapusa.

(3.) THE sealed envelope containing charas was forwarded by P. I. P. W. 4 to the Scientific Assistant in Crime Branch, C. I. D. Panaji on the same day, that is to say, on 4-12-1997 itself along with covering letter Exh. P. W. 2/a. Along with this, another letter addressed to the Director of Food and Drugs Administration, upon which the seal impression of Anti Narcotic Cell, Panaji Goa (1), had been, was also sent to Scientific Assistant, Shri Joshi, P. W. 2. These letters and the sealed sample containing charas were received by Manohar Joshi from H. C. K. T. Naik, Buckle No. 1537 of A. N. C. on 4-12-1997 itself. P. W. 2, Shri Manohar Joshi kept the sealed cover containing charas in a steel cupbord and on the next day, that is to say, 5-12-1997, he forwarded letter addressed by P. I. P. W. 4 to the Director of Food and Drugs Administration, Panaji on which the seal impression of Anti Narcotic Cell Panaji Goa (1) was affixed, as well as the sealed envelope containing charas with a forwarding letter signed by P. W. 2 Manohar Joshi.