Criminal Appeal No 533 of 1989
From the Judgment and Order dated 31888 of the Bombay High Court in Criminal Appeal No 24 of 1988
Govind Mukhoty and VB Joshi for the Appellant
Anil Dev Singh CK Sucharita and Ms A Subhashini for the Respondent
The following order of the Court was delivered Special leave granted
The appellant who is a French national has preferred this appeal 1029 under Article 136 of the Constitution of India canvassing the correctness of his conviction under Sections 21 20bii and 18 of the for brevity hereinafter referred to as the Act  and the sentence of 10 years rigorous imprison ment in addition to pay a fine of Rs 100000 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 modifi cation of the default sentence from one year to six months on the indictment that the appellant on 71287 at about 040 hours at Colva was found in possession of prohibited drugsnamely 51 gms
of brown sugar 45 gins
of ganja oil and 55 gms
of opium all worth approximately Rs 13465 without valid documents
Adumberated in brief the relevant facts of the prosecu tion case giving rise to this appeal are as follows
On 6th December 1987 at about 1100 pm the Assistant Sub Inspector of Police Shri Laxman Mahalsekar PW 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 vehi cle and fell down
No sooner he stood up and removed a paper wrapping from his pant pocket and threw it away
PW 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 handbag bluish in colour with red strips had been attached to the motorcycle
When the said bag was opened with a key handed over by the appellant and examined in the presence of two pancha wit nesses namely Francis Xavier D Silva PW 1 and one Connie D Silva not examined it was found to contain some person al belongings 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 bandies wrapped in a plastic material were found
Each of the bundle contained small pieces of blackish substance
There was also one more bundle of plas tic 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 1030 camera was found in a box in which there were five packets of plastic material with some powder of yellowish colour ie brown sugar
According to PW 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 exhibit P 1 attested by PW 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 PW 6 who has de posed that she received three envelopes Ex1 to 3
According to her the envelope marked Ex1 contained 157 gms
of substance which on analysis was found to contain 168 ww of Morphine which is an alkaloid extracted from opium ie conversion of opium
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the envelope exhibit 2 weighing 245 gms
was not sufficient to carry out further analysis
The substance in envelope exhibit 3 weighing 297 gms
on analysis was found to contain a dark brown sticky substance having odour similar to that of extract of cannabis
PW 6 gave her report exhibit
P 3 dated 8288
PW 7 after receiving exhibit P 3 and complet ing 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
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 conten tions 1
The absence of any visible injury on the person of the appellant while apprehended belies the prosecution version that the appel lant had fallen down from the vehicle on accelerating the speed 2
The fact that the Investigating Offi cer did not deliberately join with him respec tive inhabitants of the locality ie within the vicinity of the Police Out Post to witness the seizure but had taken pain to secure PW 1 and Connie D Silva who were residing far away from the place of seizure and who seem to 1031 have been readily willing and obliging to be pancha witnesses devalues the evidence regard ing the seizure of the contrabands and more so it is in violation of the salutary provisions of law prescribing the procedure to be fol lowed before making the search and seizure 3
PW 7 sent only three samples from the alleged seized substances that too in small quantity instead of sending sufficient repre sentative 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 PW 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 Exh
P 3 5
The non inclusion of PW 5 the owner of the motor cycle as an accused and the non examination of Cavin at whose instance PW 5 lent the vehicle are fatal to the prosecution case 6
Even assuming but not conceding that the prosecution version is acceptable in the absence of any evidence that the appellant was carrying on with the nefarious trade of pro hibited drugs either as a peddler  or push er  the appellant would be liable to be punished within the mischief of Section 27a of the Act since the attending circumstances present in this case indicate that the appel lant was in possession of the drugs in small quantity only for his personal consumption
We shall now examine the contentions seriatim with reference to the evidence available on record
There is no denying the fact that the appellant had been taken into police custody on the early hours of 71287 by PW 7 along with the motor cycle involved in this case
The submission of Mr Mukhoty is that in the absence of any injury on the person of the appellant the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable
No doubt if a person is thrown off or falls down from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the 1032 vehicle the manner of fall the nature of the soil and the surface of the earth etc
In the present case evidence of PWs 4 and 7 is that the appellant on seeing the police party accelerated the speed ignoring the signal given by PW 7 to stop and it was only during the course of this attempt the appellant fell down from the motor cycle at a place where the street lights ie the fluorescent tube lights and bulbs were on and thereafter immediately stood up
The evidence on these two witnesses and the other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police
It is not the case of the prosecution that the appellant sped away to some distance and then had fallen down from the speeding vehicle
PW 3 the Medical Officer attached to Hospicio Hospital speaks to the fact that when she examined the appellant on 81287 at about 800 pm the appellant complained of bodyache nosia etc
but PW 3 does not whisper of having seen any visible injury on the person of the appellant
After carefully scanning the evidence of PWs 4 and 7 coupled with the recovery of the articles Nos 1 to 14 we unhesitatingly hold that the appel lant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt
Hence in the light of the above evidence we are constrained to hold that this submission made by the learned defence counsel does not merit consideration
After the appellant was secured by the police PW 7 directed PW 4 to bring two pancha witnesses
Accordingly PW 4 brought two witnesses from a place which is according to PW 7 is within a distance of 1 KM and according to PW 5 at five minutes walking distance
Much argument was advanced by the learned defence counsel that these two witnesses were not the respectable inhabitants of that locality that they were readily willing and obliging witnesses to the police and that there is deliberate violation of the statutory safeguard
This argument cannot be endured for more than one reason to be presently stated
The appellant was secured in the midnight near the police out post
It clearly transpires from the records that these two witnesses are not outsiders but residents of the same area namely Colva
Except making some bare suggestions that both the witnesses were regular and professional witnesses nothing tangible has been brought out in the cross examination to discredit the testi mony of PW 1
This Court while considering a similar con tention in Sunder Singh vs State of UP 1956 Crl
Law Journal 801 and Tej Bahadur vs State of UP has observed that if pancha witnesses are not respect ables of the same locality but from another locality it may amount only to an 1033 irregularity not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below
See also State of Punjab vs Wasson Singh and Five Oth ers  When such is the view expressed by this Court on a number of occasions we are unable to appreciate the submis sion of the learned counsel that the prosecution case is in violent disregard of the procedure relating to search and seizure
The question that PW 1 and other pancha witnesses are not the inhabitants of the locality does not arise in the present case because it is indisputably shown that they are the residents of the same Colva area where the Police Out Post is situated
The fact that these two witnesses are not residing in the vicinity of the seizure in our view does not disturb the acceptance of the evidence of PW 1 relating to the seizure of the contrabands and other arti cles
With regard to the drawing up of the panchnama the defence has come forward with two diametrically contradicto ry suggestions in that the suggestion made to PW 1 is that he only subscribed his signatures on some papers whilst a new story suggested to PW 7 is that the panchanama was fabricated around the 5th of January 1988 in order to save one Ramesh brother of PW 5 from being prosecuted in connec tion with this seizure
To establish the seizure of all the articles including the contrabands the prosecution rests its case not only on the testimony of PW 1 but also on the evidence of PWs 5 and 7 whose evidence is amply corroborated by the towering circumstances attending the case
From the records it is found that PW 7 divided the contrabands into three categories and sent the samples from each of the categories for analysis
No doubt it would have been appreciable had PW 7 sent sufficient representative quantity from each of the packets but however this omission in the present case does not affect the intrinsic veracity of the prosecution case
PW 6 has fairly stated that she was able to thoroughly assay only the substances found in two envelopes marked as exhibit P 1 and P 3 and the substances in envelop exhibit P 2 was not sufficient to carry out further analysis though it was a dark brown soft mass having charac teristic of odour of opium
The testimony of PW 6 and her opinion recorded in the unimpeachable document exhibit P 3 lend assurance to the case of the prosecution that the contrabands seized from the possession of the appellant were prohibited drugs and substances
1034 The criticism levelled by the learned defence counsel is that the evidence of PW 6 is not worthy of acceptance since she has admitted that she does not know the difference between the narcotic drugs and psychotropic substances
This attack in our view does not assume any significance be cause as rightly pointed out by Mr Anil Dev Singh the learned senior advocate for the respondent the Medical Officer is not expected to know the differences in the legal parlance as defined in Section 2xiv and xxii and speci fied under Schedules 1 to III in accordance with the con cerned Narcotic Drugs and Psychotropic Substances Rules 1985 made under the Act and so this ground by itself in our view is no ground for ruling out the evidence of PW 6
Yet another attack by the defence that the omission on the part of the prosecution to include PW 5 as an accused and to examine Cavin as a witness has to be mentioned simply to be rejected as devoid of any merit as there is absolute ly no material to hold that PW 5 was in any way connected with the seizure of the contrabands or he has committed any indictable offence though the vehicle belonged to him
The non examination of Cavin at whose instance PW 5 lent his motorcycle to the appellant does not in any way affect the prosecution case
For the discussions made above we see no force in the contentions 1 to 5
Lastly we have to consider the legal submission made by Mr Mukhoty that the appellant was in possession of these drugs or substances in a small quantity for his personal consumption and as such he would be punishable only under Section 27a of the Act providing imprisonment for a term which may extend to one year or with fine or with both
He further pleaded that the appellant is neither an uncrowned king of the mafia world  nor a peddler  nor a pusher  that he being a foreigner by prolonged and continuous use of drugs has become a drug dependent and that he had all symp toms of an addict and exhibited sufferance of withdrawal symptoms on discontinuing the drug which it seems he was taking on his own as borne out from the testimony of the Medical Officers PWs 2 and 3 under whose observation the appellant has been kept for some days
Incidentally he has added that though ignorance of law is not an excuse and it cannot be permitted to be pleaded yet this Court may take note of the fact that the appellant who is a foreigner should have been lacking awareness of the stringent provi sions of the Act
Firstly let us examine whether the offence would fail within the 1035 mischief of Section 27a of the Act
This section provides punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance
The expression small  quantity occuring in that section is explained under Explanation I annexed to that Section which reads thus For the purposes of this section small quantity  means such quantity as may be speci fied by the Central Government by notification in the Official Gazette
 In compliance with this explanation the Ministry of Finance Department of Revenue has issued notification No SO 827E dated November 14 1985 published in the Gazette of India Extra Part II Section 3ii dated 14th November 1985 which notification reads thus In exercise of the powers conferred by Expla nation 1 of Section 27 of the 61 of 1985 and in partial modification of the notification of the Government of India in the Ministry of Finance Department of Revenue NoSO 825E dated the 14th November 1985 the Central Government hereby specifies the quantity mentioned in Column 3 of the Table below in relation to the narcotic drug men tioned in the corresponding entry in column 2 of the said Table as small quantity  for the purposes of that section
TABLE Serial No Name of the Narcotic Drug Quantity 1 2 3 1
Heroin or drug commonly 250 milligrams known as Brown Sugar or smack 1036 2
Hashish or Charas 5 grams 3
Opium 5 grams 4
Cocaine 125 milligrams 5
Ganja 500 grams Coming to the case on hand the appellant was found to be in possession of the narcotic drugs or substances far in excess of the quantity mentioned in column 3 of the table under the notification
According to the prosecution he was in possession of 51 grams of brown sugar 45 grams of Ganja oil and 55 grams of opium
In view of the above position it cannot be contended that the prohibited drugs and substances seized from the appellant s possession were in small quantity so as to bring him only within the mischief of Section 27a of the Act
It may not be out of place to mention that even if a person is shown to have been in possession of a small quan tity of a narcotic drug or psychotropic substance the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution lies on such person as per Explanation 2 of Section 27 of the Act
Thirdly the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera shaving tube torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law
We for the above reasons see no merit in this contention also
The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows The spreading of the drugs in Gao is becoming day by day a terrible menace which is com pletely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming 1037 provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade
 With deep concern we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public particularly the adolescents and students of both sexes and the menace has assumed serious and alarming pro portions in the recent years
Therefore in order to effec tively control and eradicate this proliferating and booming devastating menace causing deleterious effects and deadly impact on the society as a whole the Parliament in its wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine
As we have now rejected the plea of the defence hold ing that the penal provisions of Section 27a has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the notification the sen tence of 10 years rigorous imprisonment and the fine of Rs 100000 with the default clause as modified by the High Court does not call for interference
In the result the appeal is dismissed
TNA Appeal dismissed


Summary:
Six persons were charged under section I43 Indian Penal Code for being members of an unlawful assembly the common object of which was to murder one Anne Gowda
Five of them were further charged under section 302 Indian Penal Code for committing murder by intentionally causing the death of Anne Gowda and the sixth was charged under section 302109 Indian Penal Code for abetment of murder
The trial Court acquitted all the six accused under section 143 acquitted two of them but convicted the three appellants under section 302 and convicted the sixth accused under section 302109
On appeal the High Court maintained the conviction of the appellants under section 302 but acquitted the sixth accused under section 302109
It was contended by the appellant that as the prosecution had not established which of the appellants had given the fatal blow none of them could be convicted under section 302 simpliciter and that as no charge had been framed under section 34 they could not be convicted under section 30234 Indian Penal Code  Held that the omission to mention section 34 Indian Penal Code in the charge could not affect the case unless prejudice was shown to have resulted in consequence thereof
The charge was that the appellants and two others committed the murder by intentionally causing the death of the deceased
The appellants had notice that they were being tried as  sharers in the offence  and that their liability was collective and vicarious and not individual
The appellants had neither alleged nor shown that the omission to specify section 34 in the charge had caused them any prejudice
Common intention is a question of fact and is to be gathered from the acts of the parties
The evidence showed that there was preconcert that the appellants attacked the deceased with choppers injuring him on the head the neck the shoulders and the forearms and that the appellants not only caused injuries to the deceased at the place where they met him but they also chased him when he tried to run away to save himself and continued to assault him with the deadly weapons till he was dead
The conduct of the appellants the ferocity of the attack the weapons used the situs of the injuries and their nature together with the fact that there was preconcert established that the common intention of the appellants was to murder the deceased