Criminal Appeal No. 6 of 1996. Case: Ketil Mardal Vs State of Goa. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 6 of 1996 |
| Counsel | For Appellant: Lalit Chari, Sr. Advocate with J. P. D'Souza, Adv. and For Respondents: G.U. Bhobe, Public Prosecutor |
| Judges | R. K. Batta, J. and R. M. S. Khandeparkar, J. |
| Issue | Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Sections 20, 27 |
| Citation | 1997 CriLJ 3581 |
| Judgement Date | October 10, 1996 |
| Court | High Court of Bombay (India) |
Judgment:
R. K. Batta, J., (Goa Bench)
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The appellant was tried for being in possession of 2214 grams of charas and 65 grams of ganja valued at Rs. 2,20,500/- without any valid documents or licence in contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the said Act) which is an offence punishable under Section 20(b)(i) and 20(b)(ii) of the said Act. In support of the said charges, the prosecution had examined seven witnesses. Out of the said recovery 14 gms. of charas was stated to have been recovered from the right back pant pocket of the appellant an the balance charas as well as ganja were recovered from the house which, according to the prosecution, was in exclusive possession of the appellant. The trial Court in fact came to the conclusion that the prosecution had established that 2.200 gms. of charas and 65 gms. of ganja were recovered from the house which was raided by the Police, but the Court found that the prosecution had failed to prove that the house in question was either in exclusive possession of the appellant or was leased to him. In view of the said finding, recovery relating to 2.200 gms. of charas and 65 gms. of ganja from the said house was not fastened on the appellant by the trial Court. The finding that the prosecution had failed to prove either the exclusive possession of the said house or that the same was leased to the appellant was based mainly upon the evidence of P.W. 3 T. Gomes as well as the C-Form which had been submitted to the authorities in connection with the occupation of the said house by a foreigner. Nevertheless, the trial Court found that recovery of 14 gms. of charas from the right back pant pocket of the appellant had been duly established and as such the appellant was held guilty and convicted for possession of 14 gms. of charas under Section 20(b)(ii) of the said Act. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh, in default to suffer R.I. for two years. The period of imprisonment already undergone by the appellant pending investigation and trial was set off in terms of Section 428 Cr. P.C.
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This order of conviction and sentence has been challenged by the appellant in this appeal. In so far as his acquittal in respect of recovery of 2.200 gms. of charas and 65 gms. of ganja is concerned, the prosecution did not file any appeal in respect of the same.
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Before dealing with the arguments advanced by learned Senior Advocate Shri Lalit Chari and Public Prosecutor Shri Bhobe, it is necessary to briefly state the prosecution case. Police Inspector G. M. Jadhav, who has been examined as P.W. 6 in this case is in-charge of Anti Narcotic Cell (for short ANC) and he had proceeded for drug checking on 27th December, 1994, from Panaji along with police party and panchas. The Police party reached Assagao at 2.00 p.m. near Badem when P. I. Jadhav received information that one foreigner was staying in the house of Victor D'Souza at Badem who is dealing in narcotic drugs. This information was reduced to writing by P. I. Jadhav and it was sent to the Superintendent of Police, A.N.C. through Police Constable Satyawan Naik on Motor Bike. After despatching the said information, the police party led by P. I. Jadhav proceeded towards the house of Victor D'Souza and it was noticed through the window of the kitchen of the house of Victor D'Souza that one foreigner was weighing black substance. The police party went to the rear side door of the said house and informed the appellant, who was in the house, that they had come for search of drugs and that in case the appellant so desired, he could be searched in the presence of Gazetted Officer or Magistrate, but the appellant declined to avail of the same. Thereafter, the Police recovered 2 kgs. of charas from the cemented table in the kitchen. The raiding party further recovered 200 gms. of charas on disclosure made by the appellant from the same house and besides that 65 gms. of ganja. Thereafter, a personal search of the appellant was carried out and 14 gms. of charas was found in the right rear pant pocket of the appellant. After completing necessary formalities charge-sheet was filed and the appellant was tried and convicted as already mentioned. The learned Senior Advocate Shri Lalit Chari has attacked the impugned judgment on four specific points, namely:-
(i) The evidence of P.W. 3 T. Gomes totally destroys the entire prosecution case;
(ii) Chain of events relating to custody of the seized drugs from the time of seizure till the same were received by the Public Analyst have not been satisfactorily explained, as a result of which possibility of tampering with the samples in question cannot be ruled out;
(iii) Material witness namely the Police Constable who took the samples from P. I. Jadhav and delivered the same to the Scientific Assistant Joshi (P.W. 4) has not been examined; and
(iv) The report of the Public Analyst does not state that the substance analysed was charas, but it merely states that the sample analysed contains charas and since the percentage of charas is not mentioned, the case of the appellant would fall within the definition of 'small quantity' under Section 27 of the said Act.
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We shall deal with the said points one by one. Elaborating his first contention, learned Senior Advocate Shri Chari took us through the evidence of P.W. 3 T. Gomes as well as the C-Form (Exh. P.W. 3/A). After taking us through the evidence of the said witness T. Gomes, it was pointed out by him that the features which flow from the said evidence of this witness are:
(a) Raid started at 11.00 a.m.; (b) Police already had C-Form; (c) Tony Gomes was very much present at the raid at the time of search; and (d) Foreigner alleged to be of British Nationality was also present at that time.
He also pointed out that the trial Court in its judgment has held that one foreigner girl was present in the house which was raided at the time of search. This evidence of T. Gomes according to learned Senior Advocate Shri Chari, throws overboard the entire prosecution case. It was also contended that T. Gomes, who was the prosecution witness had deposed the truth at the trial which was not in any manner challenged by the prosecution by declaring the said witness as hostile.
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In this connection, learned Public Prosecutor Shri Bhobe has submitted that even if a witness is not declared hostile by the prosecution, the prosecution is still entitled to establish from the testimony of such witness that he has not revealed the truth before the Court. He also pointed out that in fact, the learned trial Judge had come to the conclusion that the recovery from the house had been duly established the prosecution, but it is only on account of the evidence of P.W. 3 T. Gomes and discrepancies in the C. Form that the trial Court came to the conclusion that possession or lease of the house in question of the appellant had not been established, as a result of which the appellant was acquitted in respect of that part of the recovery. However, the said course adopted by the learned trial Judge does not in any manner affect or vitiate the recovery from the personal search of the appellant and in respect of which no fault has been found or alleged by the learned Senior Advocate Shri Chari.
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In order to appreciate the rival contentions, it is necessary to make a detailed reference to the evidence of P.W. 3 and the C-Form (Exh. P.W. 3/A). Tony Gomes (P.W. 3) stated in his examination-in-chief that he was looking after the house of Victor D'Souza as a caretaker. However, during his cross-examination he spoke of another person who was looking after...
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