- (1.) JUDGMENT
(2.) SPECIAL leave granted. The appellant who is a French national has preferred this appeal under Article 136 of the Constitution of India canvassing the correctness of his conviction under Sections 21, 20(b) (ii) and 18 of the Narcotic Drugs and Psychotropic'. Substances Act, 1985 (for brevity hereinafter referred to as the 'Act') and the sentence of 10 years rigorous imprisonment in addition to pay a fine of Rs. 1,00,000.00 in default to undergo rigorous imprisonment for one year inflicted by the Court of Sessions Judge, South Goa, Margao and confirmed by the High Court of Bombay, Panaji Bench (Goa) with a modification of the default sentence from one year to six months on the indictment that the appellant on 7-12-87 at about 0.40 hours at Colva was found in possession of prohibited drugs namely 51 gms. of brown sugar, 45 gms. of ganja oil and 55 gms. of opium all worth approximately to Rs. 13,465.00 without valid documents. Adumbrated in brief, the relevant facts of the prosecution case giving rise to this appeal are as follows :- On 6/12/1987 at about 11.00 p.m. the Assistant Sub-Inspector of Police, Shri Laxman Mahalsekar (P.W. 7) while along with his police party was on his patrol duty at the 3rd ward of Colva, saw the appellant speeding up his motor-cycle, bearing Registration No. GDK 851 ignoring his signal to stop. The appellant in such attempt, presumably to escape from being nabbed by the police lost control over the vehicle and fell down. No sooner he stood up he removed a paper wrapping from his pant pocket and threw it away. P.W. 7 on entertaining suspicion over the conduct of the appellant verified that wrapping to contain small quantity of brown sugar and then he took the appellant along with his motor-cycle to the nearby Police Out Post. A hand-bag, bluish in colour with red strips had been attached to the motor-cycle. When the said bag was opened with a key handed over by the appellant and examined in the presence of two pancha witnesses, namely Francis Xavier D'Silva (P.W. 1) and one Connie D'Silva (not examined), it was found to contain some personal belonging such as wearing apparels,, a pair of shoes and a canvas bag. Inside the bag, there was one shaving cream tube, one camera, a torch and four plastic rolls.. There was also one plastic bag containing contraceptives. The torch was found to contain two bundles of plastic material each one containing a small piece of blackish substance. Inside the cream tube, four bundles wrapped in a plastic material were found. Each of the bundle contained small pieces of blackish substance. There was also one more bundle of plastic material concealed in the shoes which when opened was found to contain small piece of blackish substance similar to the one found in the torch as well in the shaving cream tube. The camera was found in a box in which there were five packets of plastic material with some powder of yellowish colour i.e. brown sugar. According to P.W. 7, there were 50 gms. of brown sugar hidden in the camera case, 45 gms. of Ganja oil in the steel container and 55 gms. of opium in the shaving cream tube, torch light and shoes. All the materials were weighed and seized under a panchnama. (Ex. P-1) attested by P.W. 1 and Connie D'Silva. The appellant was arrested and kept under medical treatment and observation. Samples of these articles were sent to Chemical Analyst (P.W. 6) who has deposed that she received three envelopes Exs. 1 to 3. According to her, the envelope marked Ex. 1 contained 1.57 gms. of substance which on analysis was found to contain 16.8 Per Cent w/w of morphine (which is an alkaloid extracted from opium i.e. conversion of opium). The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the envelope Ex. 2, weighing 2.45 gms. was not sufficient to carry out further analysis. The substance in envelope Ex. 3 weighing 2.07 gms. on analysis was found to contain a dark brown sticky substance having odour similar to that of extract of Cannabis. Prosecution witness 6 gave her report (Ex. P-3) dated 8-2-88. P.W. 7, after receiving Ex. P-3 and completing the investigation charge-sheeted. the accused under the provisions of the Act on the ground that the appellant was in possession of prohibited drugs without a valid licence or permit or authorisation in violation of Section 8 punishable under the penal provisions of the Act.
(3.) THE defence of the appellant is one of total denial. As pointed out in the earlier part of this judgment both the Trial Court and the Appellate Court have concurrently found the accused guilty. Mr. Govind Mukhoty, learned senior advocate appearing on behalf of the appellant directed a manifold scathing attack on the prosecution case raising the following contentions :- 1. The absence of any visible injury on the person of the appellant while apprehended belies the prosecution version that the appellant had fallen down from the vehicle on accelerating the speed; 2. The fact that the Investigating Officer did not deliberately join with Win respective inhabitants of the locality be. within the vicinity of the Police Out Post to witness the seizure but had taken pain to secure P.W. I and Connie D'Silva who were residing far away from the place of seizure and who seem to have been readily willing and obliging to be pancha witnesses devalues the evidence regarding the seizure of the contrabands and more so it is in violation of the salutary provisions of law prescribing the procedure to be followed before making the search and seizure; 3. P.W. 7 sent only three samples from the alleged seized substances - that too in small quantity instead of sending sufficient representative quantity from each of the packets seized for assay. Therefore, in the absence of scientific test of all the substances found in each of the packets, no safe conclusion can be arrived that the entire substances seized under various packets were all prohibited drugs; 4. The admission of Prosecution witness 6 in her evidence that she does not know the difference between the narcotic drugs and psychotropic substances militates against the evidentiary value of her opinion under Ex. P-3, 5. The non-inclusion of P.W. 5, the owner of the motor-cycle as an accused and the non-examination of Cavin at whose instance P.W. 5 lent the vehicle are fatal to the prosecution case; ;