minal Appeal No 642 of 1991
From the Judgment and Order dated 2541991 of the Bombay High Court in Criminal Appeal No 25 of 1990
Lalit Chari Peter D  Souza and Mukul Mudgal for the Appellant
JS Wad and Ms A Subhashini for the Respondent
340 The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
The appellant a German National has been convicted by the trial court under Section 20bii of the  Act  for short and sentenced to undergo 10 years RI and to pay a fine of Rs 1 lakh in default of payment of which to further undergo six months  RI
The appeal filed by the appellant was dismissed by the High Court
Hence the present appeal
In brief the prosecution case is that on 29989 the Police Sub Inspector Gaonkar PW3 alongwith a police party was patrolling at Calangute Beach near Panjim and they came across the accused who was sitting on a wooden log
On suspicion they went near him and noticed a chillum smoking pipe in front of him lying on the log
He secured the presence of panch witnesses and searched the accused and recovered a polythene pouch from his pyjama pocket in which there were tobacco one cigarette paper packet and two cylindrical pieces of Charas
The two pieces of Charas were weighed and found to be 7 gms
and 5 gms
respectively
They were seized under a panchnama and were separately sealed in two different envelopes
One of the pieces weighing less than 5 gms
was sent for chemical analysis and the other piece weighing 7 gms
was not sent nor part of it by way of sample was sent for chemical analysis
Maria Caldeira PW1 the Junior Scientific Officer in the Directorate of Health Services carried out the chemical analysis of the substance weighing 4570 gms
consisting of three cylindrical pieces sticking together and she deposed that the substance which was examined by her was found to have contained Charas
PW2 a panch witness supported the prosecution case
The accused when examined under Section 313 Cr
PC denied being in possession of any Charas and said that he had only a pouch containing tobacco and that he was taken to Calangute Police Station and was falsely impli cated
The trial court relying on the evidence of PWs 1 to 3 convicted the accused
The submissions on behalf of the accused before the trial court as well as the High Court have been that the search conducted on the person of the accused was in contravention of Section 50 of the and that there have been contradictions between the evidence of PWs 2 and 3 and that at any rate even if the prosecution case is to be accepted the 341 accused can be at the most held to be in possession of less than 5 gins
of Charas which is a small quantity and therefore is entitled to the benefit of Section 27
Before us more or less the same submissions are made
So far as the contentions in respect of seizure and drafting of panchnama and weight are concerned the question is whether the accused has been told that if he so desires he would be taken to a Magistrate before the search as provided under Section 50
Whether this has been complied with or not mostly depends on the evidence and they are only questions of fact
Both the courts below have considered the entire evidence and have rejected these submissions
Though these are questions of fact yet we have also considered the relevant evidence on these aspects and we agree with the findings of the courts below
The next and most important submission of Shri Lalit Chari the leaned senior counsel appearing for the appellant is that both the courts below have erred in holding that the accused was found in possession of 12 gins
of Charas
According to the learned counsel only a small quantity ie less than 5 gms has been sent for analysis and the evidence of PW1 the Junior Scientific Officer would at the most establish that only that much of quantity which was less than 5 gms
of Charas is alleged to have been found with the accused
The remaining part of the substance which has not been sent for analysis can not be held to be also Charas in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the 
Therefore the submission of the learned counsel is that the quantity proved to have been in the possession of the accused would be small quantity as provided under Section 27 of the and the accused should have been given the benefit of that Section
Shri Wad learned senior counsel appearing for the State submitted that the other piece of 7 gms
also was recovered from the possession of the accussed and there was no need to send the entire quantity for chemical analysis and the fact that one of the pieces which was sent for analysis has been found to contain Charas the necessary inference would be that the other piece also contained Charas and that at any rate since the accused has totally denied he can not get the benefit of Section 27 as he has not discharged the necessary burden as required under the said Section
Before examining the scope of this provision we shall first consider whether the prosecution has established beyond all reasonable 342 doubt that the accused had in his possession two pieces of Charas weighing 7 gms
and 5 gms
respectively
As already mentioned only one piece was sent for chemical analysis and PW1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms
From this report alone it can not be presumed or inferred that the substance in the other piece weighing 7 gms
also contained Charas
It has to be borne in mind that the applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances
In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only it is not safe to hold that 12 gms
of Charas was recovered from the accused
In view of the evidence of PW1 it must be held that the prosecution has proved posi tively that Charas weighing about 4570 gms
was recovered from the accused
The failure to send the other piece has given rise to this inference
We have to observe that to obviate this difficulty the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized
If it is not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law
Section 27 of the reads thus 27
Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance whoever in contravention of any provision of this  or any rule or order made or permit issued thereunder possesses in a small quantity any narcotic drug or psychotropic substance which is proved to have been intended for his personal consumption and not for sale or distribution or consumes any narcotic drug or psychotropic substance shall notwithstanding anything contained in this Chapter be punishable a Where the narcotic drug or psychotropic substance possessed or consumed is cocaine morphine diacetylmorphine or any other narcotic drug or any psychotropic 343 substance as may be specified in this behalf by the Central Government by notification i n the Official Gazette with imprisonment for a term which may extend to one year or with fine or with both and b Where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under clause a with imprisonment for a term which may extend to six months or with fine or with both Explanation 1 For the purposes of this section small quantity  means such quantity as may be specified by the Central Government by the notification in the Official Gazette
2 Where a person is shown to have been in possession of a small quantity 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 shall lie on such person In general possession of any narcotic drug or psychotropic substance has been prohibited by Section 8 of the and any person found in possession of the same contrary to the provisions of the or any rule or order made or permit issued thereunder is liable to be punished as provided thereunder to imprisonment for a term which shall not be less than 10 years and shall also be fined which shall not be less than Rs1 lakh
Section 27 of the  however is an exception whereby lesser punishment is provided for illegally possessing any smaller quantity  for personal consumption of any narcotic drug or psychotropic substance Under this section the following ingredient should be fulfilled a The person has been found in possession of any narcotic drug or psychotropic substance in small quantity  b Such possession should be in contravention of any provision of the or any rule of order made or permit issued thereunder and c The said possession of any narcotic drug or psycho 344 tropic substance was intended for his personal consumption and not for sale or distribution
 The first explanation to this Section lays down that the small quantity means such quantity as may be specified by the Central Government by a notification
By virtue of the notification issued on 141185 for the purpose of this 5 gms
or less quantity of Charas shall be the small quantity
Explanation 2 further lays down that the burden of proof that the substance was intended for the personal consumption and not for sale or distribution lies on such person from whose possession the same was recovered
As held above in the instant case the prosecution has proved that the quantity seized from the accused was less than 5 gms
Therefore it is within the meaning of small quantity for the purpose of Section 27
Then the other ingredient that has to be satisfied is whether the substance found in possession of the appellant was intended for his personal consumption and not for sale or distribution
No doubt as the Section lays down the burden is on the appellant to prove that the substance was intended for his personal consumption
As to the nature of burden of proof that has to be discharged depends upon the facts and circumstances of each case
Whether the substance was intended for personal consumption or not has to be examined in the context in which this exception is made
In the instant case the accused though in general has taken a plea of denial but his examination under Section 313 Cr
PC by the Magistrate reveals that there was such a plea namely that it was meant for his personal consumption
In the judgment of the trial court it is noted that the accused made an application on 23390 stating that the piece said to have been recovered from him was less than 5 gms
and not 12 gms
as alleged and that the application was written and signed by the appellant himself
The prosecution case itself shows that he was having this substance in a pouch alongwith a chillum smoking pipe and smoking material
The averments made by the appellant in the application and as extracted by the trial court would themselves show that it was meant for his personal consumption
The above surrounding circumstances under which it was seized also confirm the same
The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption
We are aware that the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely but in view of the provisions of Section 27 we are unable to hold that the small quantity found with the appellant was not 345 meant for his personal consumption and that on the other hand it was meant for sale or distribution
Therefore the appellant is liable to be punished as provided under Section 27 of the 
From the records it appears that the appellant has been in jail for more than three years but that may not be relevant since the sentence prescribed under Section27 is only six months
We are only just mentioning it as a fact
In the result the conviction of the appellant under Section 20bii of the and sentence of 10 years RI are set aside
Instead he is convicted under
Section 27 of the and is sentenced to undergo 6 monghs  RI and to pay a fine of Rs 1 lac in default of payment of which to further undergo 6 months  RI Subject to the above modifications the appeal is disposed of NPV Appeal disposed of


Summary:
The appellant s election to the Legislative Assembly was challenged by the Respondent in his election petition before the High Court
It was contended by the election petitioner that the respondent had used a religious symbol for the furtherance of his election prospects which was a corrupt practice under Section 1233 of the Representation of the People Act 1951
The High Court declared the election of the successful candidate to be void and set it aside
The successful candidate preferred the present appeal
On the question whether the use of a religious symbol in the election of Respondent amounted to corrupt practice us 1233 of the Representation of the People Act 1951 this court HELD11
There is no doubt that the offending poster is a religious symbol
The depiction of anyone in the attire of Lord Krishna blowing a shanku  and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion
The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party
350G H 12But there is no evidence to show that the offending poster was printed by or at the behest of the successful candidate
The successful 346 347 candidate himself in his evidence denied that he had the offending posters printed or pasted
The averment in the election petition that the offending posters were pasted by followers supporters and party men of the successful candidate is not established
351B D 13The evidence on record does not establish that the offending posters were used at the election by the successful candidate or his election agent or with their consent
352D 14The standard of proof in an election petition is rigorous having regard to the quasi criminal nature of the proceeding
The charge laid against the successful candidate under section 1233 has not been established on the basis of the evidence on record
351G