P. V. Hardas, J. - (1.) (Oral)- The Appellant/Accused being aggrieved by the Judgment of the learned Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa, Goa, convicting him for an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs.1,00,000/-, in default of payment of fine Simple Imprisonment for six months, has filed the present Appeal challenging his conviction and sentence.
(2.) The facts in brief as are necessary for the decision of this Appeal are set out hereunder:- P.W.5, P.I. Uday Naik, was attached to the Anti Narcotic Cell Police Station as a P.S.I. in March, 2001. On 9th March, 2001, at 10.00 a.m., he received a specific and reliable information, through his sources, that one Israeli National, aged 26 years, with fair complexion, tall and having curly hair, staying in rented room of House No.871 at Sorantowado, Anjuna, is selling Ecstasy tablets. In receipt of the said information, P.W.5, P.I. Uday Naik, reduced the said information in writing and sent a copy to his superior namely P.W.9, Dy.S.P. Finton D'Souza. The copy of the information received by P.W.9, Dy.S.P. Finton D'Souza, is at Exh.57 colly. P.W.5, P.I. Uday Naik, then secured two panchas namely P.W.3, Santosh Mandrekar and P.W.4, Sunil Mandrekar, at about 12.00 noon. He requested both of them to act as panch witnesses and also informed them regarding the receipt of the prior reliable information. P.W.5, P.I. Uday Naik, also informed them that he had handed over a copy of the information which was reduced to writing to P.W.9, Dy.S.P. Finton D'Souza. On the two persons agreeing to act as panch witnesses, they were introduced to the members of the raiding party which consisted of P.W.9, Dy.S.P. Finton D'Souza and other Police Officers. At about 12.30 p.m., the raiding party consisting of the panch and the Police Officers left in Police jeep and private motor cycle for going towards Sorantowado, Anjuna. P.W.5, P.I. Uday Naik, carried with him the seal of Anti Narcotic Cell Panaji Goa-2 with Ashoka Emblem. One Police Constable carried with him a kit box containing weighing, packing and sealing material etc. One other Constable carried with him a typewriter of the Anti Narcotic Cell Police Station. The members of the raiding party reached at Sorantowado, Anjuna at about 1.00 p.m. and parked their vehicles on the main road. P.W.5, P.I. Uday Naik, alighted from the vehicle and went on reconnaissance mission and returned back confirming the location of the house where the present Accused regarding whom the information was received that he was alleged to be residing there. Thereafter, the rest of the raiding party also alighted from the vehicle and set off in the direction of the house. The raiding party reached the house at about 1.25 p.m. On entering the said house, they found the house to be consisting of three rooms with a veranda in front. They reached the door of room no.2 and saw that it was ajar and one foreigner was sitting on the bed. P.W.5, P.I. Uday Naik, knocked on the door. P.W.5, P.I. Uday Naik, then introduced himself to the foreigner, who was identified during the trial as the Accused. On being questioned, the Accused disclosed his name as Yaniv Cohen, Israeli National, aged 22 years. P.W.5, P.I. Uday Naik, then introduced the members of the raiding party including the panchas and informed the Accused about the receipt of the information and told the Accused that he wanted to take his search. The Accused was also informed that he had a right to be searched before a Gazetted Officer or a Magistrate of his choice but the Accused declined the offer. The Accused was informed that he had a right to search the members of the raiding party but the Accused also declined to exercise that right. Thereafter, the personal search of the Accused was conducted and in the right side pant pocket, two white coloured tablets suspected to be Ecstasy tablets were found. The said two tablets were then put in an envelope, packed and sealed with 7 seals of Anti Narcotic Cell Panaji Goa-2 with Ashoka Emblem. The sealed envelope was signed by P.W.5, P.I. Uday Naik and both the panchas but the Accused declined to sign the same. Thereafter, a search of the room was undertaken and during the search, one transparent polythene bag containing white coloured tablets placed in the right side corner of the room was noticed. P.W.5, P.I. Uday Naik, picked up the said transparent polythene bag and observed white coloured tablets inside the white polythene bag. After observing the said tablets in the said polythene bag, P.W.5, P.I. Uday Naik, informed the raiding party that he suspected the said tablets to be Ecstasy tablets. The tablets in the polythene bag were counted and were 691 in number. They were weighed along with the polythene bag and were found to weigh 123 gms. The tablets along with the polythene bag were put in an envelope which was packed and sealed in the manner similar to the sealing of the earlier Ecstasy tablets and as before was signed by P.W.5, P.I. Uday Naik and the two panchas. During the search of the room, an amount of Rs.15,000/- in Indian currency consisting of 4 currency notes of Rs.500/- each and 130 currency notes of Rs.100/- each and 60 US Dollars were found. The currency notes were placed in an envelope, packed and sealed as before. The trouser which the Accused was wearing was also packed and sealed. Since the Accused did not have valid documents in respect of possession of the drug, he was informed the grounds of arrest and was taken in custody. The key of the said room was later on handed over to the owner of the room. The Accused was again offered the search of the members of the raiding party which was declined by him. A Seizure Report was prepared which is at Exh.40. A panchanama of the entire sequence of event was drawn and is at Exh.41. A letter was typed at the spot addressed to the Director of Central Forensic Science Laboratory on which specimen seal was affixed. The said letter is at Exh.20. Similarly, another letter at Exh. 54 was prepared addressed to P.W.9, Dy.S.P. Finton D'Souza handing over the seal for safe custody. The raiding party thereafter returned to the Anti Narcotic Cell Police Station where a complaint at Exh. 55 was filed by P.W.5, P.I. Uday Naik, on the basis of which an offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act vide Crime No.29/2001 was registered. The seal of the Anti Narcotic Cell Police Station was handed over to P.W.9, Dy.S.P. Finton D'Souza, along with the letter at Exh.54. Thereafter, intimation under Section 57 of the Narcotic Drugs and Psychotropic Substances Act vide Exh.56 was given to the superiors. The seized property was kept in the muddemal room.
(3.) On the next morning, P.W.5, P.I. Uday Naik, forwarded two sealed envelopes to the Laboratory through Crime Branch. On 10th March, 2001, another panchanama at Exh.58 was drawn. The sample sent for analysis was received by P.W.2, Krishna Shetgaonkar, along with the covering letter at Exh.24. P.W.2, Krishna Shetgaonkar, has acknowledged the receipt of the samples on the said letter. On the same day i.e. on 10th March, 2001, he placed the sealed envelope in a sealed cupboard under lock and key and on 13th March, 2001, along with PC. Buckle No. 2876 and P.C. Buckle No.4476, the sample so received was sent for analysis. The sample so received was received on 19th March, 2001, by P.W.1, S. N. Rasool, Junior Scientific Officer of Central Forensic Science Laboratory, Hyderabad. P.W.1, S. N. Rasool, examined the samples on 21st March, 2001 and found that the seals were intact and tallied with the specimen sealed impression. He opened one sample which contained two tablets weighing .3195 gms. He opened the second sample which contained 691 tablets weighing approximately 115.9956 gms. He analysed both the tablets from the envelope and took 50 tablets as representative sample from the other envelope. P.W.1, S. N. Rasool, by his report at Exh.21 opined that the tablets examined by him were identified as N-Methyl methylenedioxyamphetamine.;