GAUNTER EDWIN KIRCHER Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant, a German National, has been convicted by the trial Court under section 20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act' for short) and sentenced to undergo 10 years R.I. and to pay a fine of Rs. 1 lac, in default of payment of which to further undergo six months' R.I. The appeal filed by the appellant was dismissed by the High Court. Hence the present appeal.

(2.) IN brief the prosecution case is that on 29.9.89 the Police Sub - Inspector Gaonkar, P. W.3 alongwith a police party was patrolling at Calangute Beach near Panjim and they came across the accused who was sitting on a wooden log. On suspicion they went near him and noticed a chillun (smoking pipe) in front of him lying on the log. He secured the presence of panch witnesses and searched the accused and recovered a polythene pouch from his pajama pocket in which there were tobacco, one cigarette paper packet and two cylindrical pieces of "Charas". The two pieces of Charas were weighed and found to be 7 gms. and 5 gms. respectively. They were seized under a panchnatha and were separately sealed in two different envelopes. One of the pieces weighing less than 5 grms. was sent for chemical analysis and the other piece weighing 1 gms. was not sent nor part of it by way of sample was sent for chemical analysid. Maria Caldeira, P.W.1, the Junior scientific Officer in the Directorate of Health Services carried out the chemical analysis of the substances weighing 4.570 gms. consisting of three cylindrical pieces sticking together and she deposed that the substance which was examined by her was found to have contained Chams. P. W.2, a panch witness supported the prosecution case. The accused when examined under section 313 Cr.P.C. denied being in possession of any Charas and said that he has only a pouch containing tobacco and that he was taken to Calangute Police Station and was falsely implicated.

(3.) BEFORE us more or less the same submissions are made. So far as the contentions in respect of seizure and drafting of panchnamt and weight are concerned, the question is whether the accused has been told that if he so desires he would be taken to a Magistrate before the search, as provided under section 50. Whether this has been complied with or not mostly depends on the evidence and they are only questions of fact. Both the Courts below nave considered the entire evidence and have rejected these submissions. Though these are questions of fact, yet we have also considered the relevant evidence on these aspects and we agree with the findings of the Courts below.