N.A.BRITTO,J. - (1.) THE appellant herein, who is an accused (No. 1) in Special Criminal Case No. 4/2001 has filed the present appeal against the judgment/order of the learned Special Judge, N.D.P.S. Court, Mapusa, convicting and sentencing him under Section 20(b)(ii) of N.D.P.S. Act, 1985 (Act, for short) to undergo Rule 1, for a term of ten years and fine of Rs. 1 lakh in default to undergo S.I. for one year.
(2.) THE accused was prosecuted in the said case upon a complaint filed by Shri M.P. Vaz, Superintendent of Central Excise, Anti -Smuggling Unit, Margao, Goa. The case of the complainant, briefly stated, was that on 14.11.2000 at about 15.00 hrs. Shri J.T. Cruz, Inspector of Customs and Central Excise, Margao received information that one person by name Shri Kamal Lama (A. 1), aged about 25 years, fair complexion, short in stature and having oriental looks would be in possession of sizable quantity of hashish which was meant to be supplied to a prospective customer near about Starco restaurant at Anjuna at about 17.00 hrs. and that the said information which was received at Chapora by the said J.T. Cruz was submitted to the complainant immediately who was camping at Chapora alongwith other officers and the details of the said information were handed over to the complainant under a sealed cover and the said Shri Cruz submitted a report in Form DRI -1 to the Deputy Director, Directorate of Revenue Intelligence, Mumbai and the Commissioner of Customs and Central Excise, Panaji, and also to Shri A.F. Monteiro, Asst. Commissioner, Central Excise, Panaji, and thereafter a team of officials headed by the complainant and others proceeded to Anjuna alongwith two independent panchas by departmental vehicle and positioned themselves near the Starco restaurant at about 17.00 hrs. and, at about 17.30 hrs they saw a person matching the given description who identified himself as Kamal Lama (A. 1) and he was told that he had a right to search the officials as well as the panch witnesses, but he declined to do so and then the complainant inquired of the said Kamal Lama about the contents of the green colour haversack and he admitted that it contained hashish and thereafter the said Kamal Lama was made to sit in the departmental jeep and they proceeded to Chapora Customs House where the accused was informed that his person was to be searched under the provisions of the Act and was further informed that the accused had an option to be physically searched before a Magistrate or an independent Gazetted Officer, which option the accused declined and was accordingly searched by Shri J.T. Cruz and in the course of the search, two identity cards amongst other articles were found and in the said haversack darkish black colour substance in the shape of cigars of various sizes, and flat disc shape objects were found and which was found to be weighing 8 kgs. and from which the said Shri Cruz drew two representative samples of 50 gms. each of which were separately packed and sealed with the seal of South Goa Anti -Smuggling Unit, Margao and the said remaining quantity of 7.900 kgs. were separately sealed and put in a corrugated carton and thereafter the statement of the accused (A.1) was recorded under Section 67 of the Act and in his statement the accused Kamal Lama admitted that the said 8 kgs. of hashish were given to him by one Dinesh Arolkar (A. 2) to be delivered to one German national who was introduced to him on the same day in the morning. The case of the complainant was also that the accused Kamal Lama was arrested at about 1.30 hrs. on 15.11.2000 and was later produced before the J.M.F.C. and was remanded till 17.11.2000 and a report under Section 67 of the Act was sent to the Commissioner, Central Excise, Panaji on 15.11.2000 and out of the two samples of 50 gms. each, one sample namely S -1 was sent to the Director of Food and Drugs Administration, Panaji and the other sample (S -2) alongwith the remaining quantity was deposited in the warehouse on 15,11.2000.
(3.) THE case of the complainant, as regards the seizure was supported by the complainant himself and P.W. 4 Francisco Rebello, who was a parish witness, and the latter claiming to be a friend of the former. The complainant for reasons best known to himself, chose not to examine the said Inspector Shri J.T. Cruz who, according to the case of the complainant, was not only an officer who had received the said information but who had also recorded the same in writing and not only that had actively participated in the seizure including the weighing of the seized quantity, drawing the samples therefrom, etc.;