1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 19 OF 2007 Mr. Santosh Kumar Singh S/o. Jayvir Singh, R/o. Chawki Ghagahar, Ward No. 2, Mahadevi Stan., Dist. Shindulli, Janakpur, Nepal. Presently lodged in Central Jail Aguada. ....Appellant V/s State (through Public Prosecutor) Panaji-Goa. .... Respondent Ms. Asha Desai, Advocate for the Appellant. Ms. W. Coutinho, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 8th JULY, 2008 ORAL JUDGEMENT : This appeal is directed against the judgment dated 18/09/2006 of the learned Special Judge, NDPS Court, Mapusa by which the accused has been convicted under Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 2001, and sentenced to suffer Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo Simple Imprisonment for a period of 6 months. 2. Heard Ms. Asha Dessai, the learned Counsel on behalf of the appellant/accused and Ms. W. Coutinho, the learned Public Prosecutor on 2 behalf of the respondent. 3. The accused was charged and tried with the allegation that on 13/05/2004 between 14.30 hrs. to 18.30 hrs. the accused was found in illegal possession of 1.51. kgs of charas, near Kamat canteen at KTC bus stand. The case of the accused was of denial simpliciter. Later on the accused came up with the case that his name was not Santosh Kumar but was Jaiprakash Narayan. 4. In order to prove the case, prosecution examined 6 witnesses in all. Mahesh Kaissare/PW1 is the Junior Scientific Officer who examined the sample and found it to be charas with a total weight, without any wrappings, to be 1.445 kgs. Gaurish Mapari/PW2 is the Scientific Assistant who works in the office of the SP, CID, Crime Branch at Panaji. He received the sample from PI, ANCPS on 14/05/2004 and kept it in his safe custody and on the same day forwarded it to the Director of Food and Drugs Administration. Camilo Menezes/PW3 was an independent panch witness who accompanied the raiding party at the time of the raid. Anita Rodrigues/PW4 is the Dy. S.P. who was informed about the information received and at whose instructions the raid was conducted and in her presence as well. Roy Pereira/PW5 is the Police Inspector from ANC Police Station who conducted the raid. Joao Paes/PW6 is the Police Constable who at the instructions of PI Pereira 3 weighed and packed the seized substance at the scene and on the next day handed over the same to the said Scientific Assistant Gaurish Mapari/PW2. 5. Roy Pereira/PW5, the Police Inspector in charge of ANC Police Station has stated that on 13/05/2004, after receipt of specific and reliable information that a Nepali person would be coming near Kamat Canteen, KTC Bus Stand, Panaji between 2.00 and 3.00 p.m. to deliver charas to his customer, he reduced the said information into writing and handed over a copy of the same to Dy. S.P. Anita Rodrigues/PW4 and after receiving instructions, he conducted the raid in the presence of Shri Camilo Menezes/PW3 and one Raikar who were called by deputing constable Parab of ANC Police Station and after making necessary entries on the station diary. He also stated that he had tried to secure public servants from the Director, Printing and Stationery, Panaji and Directorate of Industries & Mines, but no persons were sent from the said Departments. Thereafter, he introduced the panchas to the members of the raiding party and at about 13.00 hrs, left in a private vehicle and a Government motorcycle for the said raid and at about 14.15 hrs., the accused came and sat near the cement bench near the staircase of the canteen and then they surrounded him. He stated that thereafter the accused gave his name as Santosh Kumar, son of Jayvir, presently residing at Pune. Thereafter, the accused was asked to hand over the bag carried by him, which was of pink colour with wordings 'Park 4 Avenue', etc. and upon search of the said bag there was a transparent polythene bag found inside containing in it 5 rectangular shaped substances wrapped in brown masking tape and upon opening, 3 slabs were found containing 2 pieces each wrapped individually in transparent polythene papers while 2 packets were found containing a single piece each wrapped individually in transparent polythene paper and after smelling the same he suspected them to be charas and the same were collectively weighed as 1.51. kgs. and the same thereafter were put in envelopes, packed and sealed with 7 seals of Anti Narcotic Cell Panaji-Goa 3 with Ashoka Emblem and the said sealed envelopes were signed by the two panchas, the accused and himself. He stated that he had made an offer to the accused to search the members of the raiding party including panchas, but he declined the said offer. He stated that he kept the seized property in his custody after making necessary entries in the Muddemal Register and then prepared a letter addressed to the Superintendent of Police, CID, CB, Panaji for onward despatch. He also stated that he sent the intimation as required under Section 57 of the Act to the concerned superiors on the same day. He stated that the he placed the accused under arrest, recorded the statements of witnesses and on the next day he sent the seized article to the Directorate of Food and Drugs Administration where it was examined by Mahesh Kaissare/PW1 who found that the substance contained was charas. 5 6. The learned Special Judge, after considering the evidence produced by the prosecution, came to the conclusion that the accused was found possessing the said contraband article at the relevant time and the substance found with him was duly sealed and kept in safe custody by the concerned investigating officer. The learned Special Judge also held that there was no possibility or reason to believe that there was any chance for the prosecution to tamper with the said sealed parcel before the same was handed over to the Chemical Analyser and thus the aspect of safe custody has been substantially established in as much as there was contemporaneous documentary evidence brought on record, which fully corroborated the version given by the prosecution witnesses. As regards the name of the accused, the learned Special Judge held that for the first time the accused had claimed that he was not Santosh Kumar but he was someone else i.e. Jaiprakash Narayan and he had bank account in the Bank of Baroda, Pune, wherein all his details were given. The learned Special Judge noted that in order to find out the correctness or otherwise of such statement made by the accused, a letter was issued to the Bank of Baroda to confirm as to whether there is any such account in the name of Jaiprakash Narayan, S/o. Virbahadur and in the reply received from the Bank of Baroda, it was disclosed that there was no such account in the name of Mr. Jaiprakash Narayan, son of Virbahadur in the said Pune Branch. The learned Special Judge therefore concluded that the accused had taken a false stand and he had not produced any document in 6 order to examine the any witnesses to support his contention. 7. At the hearing of this appeal, learned Counsel appearing on behalf of the accused has repeated the same submission that the accused is not Santosh Kumar but Jaiprakash Narayan. Whatever might have been the name of the accused whether Santosh Kumar or Jaiprakash Narayan, there was no dispute as regards the identity of the accused. The accused was identified by Roy Pereira/PW5 as the very person he had arrested who was found sitting near the cement bench near the staircase near Kamat canteen. Therefore it is obvious that the accused is one and the same person who was arrested and prosecuted even though it may be that he had different names given at different times. At the same time, it must be noted that the learned Special Judge has rightly concluded that the accused belatedly has taken the stand that his name was not Santosh Kumar but Jaiprakash Narayan. The learned Special Judge also observed that till the statements of the accused was recorded under Section 313 of the Code, the accused had previously not objected being called Santosh Kumar in as much either at the time of filing of the charge sheet or when he was produced before the Special Judge for remand from time to time. The learned Special Judge has also observed that when the charge sheet was handed over to the accused on 19/07/2004, he had signed the charge sheet at page 11 has Santosh Kumar and not as Jayprakash Narayan. In other words, the identity of the accused had never been in 7 dispute and the change of name at the belated stage did not help the case of the accused. At no stage did the accused deny that he had not given his name to Roy Pereira/PW5 as Santosh Kumar. In fact, it is he who asked the accused for his name and it is the accused who gave it as Santosh Kumar. 8. The learned Special Judge after considering the evidence of the witnesses particularly that of Roy Pereira/PW5 and Camilo Menezes/PW3 who is an independent witness has concluded that the case of the prosecution was sufficiently corroborated and the accused was found in possession of the said quantity of charas. The learned trial Court has also dealt with all the provisions of law which the prosecution was expected to comply in the course of the raid. The learned trial Court has also noted that the fact that the contraband remained in the custody of Roy Pereira/PW5 overnight for about 14 hours would lead to no doubt that the contraband was interfered with and this was because the seal with which it was sealed was already handed over to Dy. S.P. Rodrigues/PW4. Referring to Section 55 of the Act and the Division Bench judgment of this court in the case of Joseph Fernandes V/s. State of Goa (1995 (2) Goa L.T. 97), the learned Special Judge held that the said provision was not mandatory unless it was shown that prejudice was caused to the accused due to its non compliance. 9. In my view, the conclusion arrived at by the learned Special Judge 8 cannot be faulted, so also the sentence imposed. Considering the above, I find there is no merit in this appeal and consequently the same is hereby dismissed. N.A. BRITTO, J. NH/-