1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 33 OF 2008 Ganesh Bhandari, R/o. Village Gopal Nagar, Puwagaddi, District Bajang, Nepal. (Currently in judicial custody at Aguada Central Prison, Goa.) .... Appellant V/s The State of Goa, through the Anti-Narcotic Cell, Police Station, Panaji, Goa. .... Respondent. Mr. Marvin D'Souza, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 20 th APRIL, 2009 . JUDGMENT : This appeal is by the accused, who has been convicted and sentenced under Section 20(b)(ii)(C) of the NDPS Act, 1985 for having been found in possession of 4.85 kgs of charas on 6/03/2007 at 14.05 hrs. near the road junction leading to Club Cubana at Arpora, Bardez-Goa. 2. The case of the accused was one of denial simpliciter, though in the cross-examination of the witnesses examined by the prosecution, it was suggested that the accused was arrested from a party which was going on at Carona, Aldona, in connection with holi celebrations. 2 3. The prosecution had examined 6 witnesses including the police inspector Shri Dias, who had conducted the raid, based on a prior information. After considering the evidence produced by the prosecution, the learned Special Judge came to the conclusion that the prosecution had proved, on the basis of oral as well as contemporaneous documentary evidence, that the accused was found at that place in possession of suspected drugs which were seized and sealed from his possession and which when sent to the chemical analyzer, were confirmed to be charas for the possession of which the accused did not have any document to support, and, that too in commercial quantity. The learned Special Judge further held that the material brought on record clearly suggested that the accused was found in possession of the commercial quantity of charas entitling the prosecution to raise a presumption under Section 154 of the said Act which presumption the accused failed to rebut. 4. The facts proved by the prosecution show that the raid was conducted by police inspector Shri Dias/PW6 on 6/03/2007 on the basis of specific and reliable information received that a person with Nepali features, strong built, of 40 years of age, wearing white colour T-shirt with stripes, would be waiting at the junction at Calangute-Anjuna road to deliver drugs to his perspective customers which information he reduced into writing and 3 forwarded it to Dy. S.P. Shri Allen D’Sa/PW4 and thereafter secured the presence of 2 panchas namely Prashant Korgaonkar and Hanumant Naik to whom he explained about the information received and reduced in writing and thereafter, after introduction of the pancha witnesses to the members of the raiding party, proceeded to the place along with the necessary kit box containing weighing, packing and sealing material and reached there at about 14.00 hrs. when they noticed the accused with the stated description and they surrounded him and the panchas and the raiding party members were introduced and the accused gave his name and address and he was told about the information received and that his personal search was required to be taken. The accused at the time was carrying on his shoulder a bag of black and grey colour, and, was told that he had a right to be searched in the presence of gazetted officer or a Magistrate of his choice which offer the accused declined. The accused was also told that he had a right to search the members of the raiding party including the panchas but he again declined the offer whereupon the accused was asked to hand over the shoulder bag to him which had a logo “Polo Sports” and had two zipper compartments and one small compartment and upon opening the bigger compartment, there was a white colour polythene bag which was removed and was found to contain black colour sticky substance wrapped in polythene in different shapes and sizes suspected to be charas and upon further verification it was found to contain 60 pieces in longish flat shape, 3 pieces round in shape, one packet 4 with pieces in cylindrical shape and one packet with pieces in irregular shape and the same were found to weigh 5 kgs. Upon personal search of the accused, cash of Rs.560/- in different denominations was found in the blue colour pant worn by the accused and one laminated Identity card bearing the name of the accused was also found therein and which were packed, signed, sealed and seized and, thereafter, again the accused was asked to search the members of the raiding party which the accused declined. The accused was asked to produce legal documents but he could not produce the same and therefore he was taken in custody after detailed panchanama was drawn which concluded at about 16.30 hrs. A seizure report was prepared and the copies of the panchanama and report were given to the accused. The weighing and packing was done by Constable Narayan Morajkar and the sealing was done by Shri Dias. A letter addressed to Directorate of Food and Drugs Administration was prepared and a seal was affixed to it. A letter forwarding the seal and the seal impression was also prepared and it was sent through constable Amjad Karol/PW5 to be handed over to Dy.S.P. Shri D'sa, for safe custody, a fact which has been confirmed by him. Thereafter, the raiding party returned to the police station and where a complaint was lodged and registered under Crime No. 4/2007. The muddemal property was placed in the muddemal room in safe custody with necessary entries made on the muddemal property register and on the next day the seized article was forwarded to the office of S.P. CID through P.C. Narayan Morajkar for the 5 purpose of analysis where it was received by Shri Sushant Naik/PW2 at 10.40 hrs. on 7/03/2007. According to him, the seal cloth parcel was intact, readable, individually covered with cello tape tallying with the specimen seal provided, which parcel he kept in his safe custody under his lock and key and on the same day vide letter no. 173, he forwarded the same to the Director of FDA, Panaji, against receipt. 5. On 24/04/2007 Mahesh Kaissare/PW1, the Senior Scientific Officer in the said Directorate of Food and Drugs Administration, Panaji carried out the analysis of the said sample and according to him the sealed cloth parcel was tied with jute thread both vertically and across and had 7 seals which were intact, individually covered with cello tape and tallied with specimen sealed impression, sent separately on a letter of the Police Inspector. The sealed parcel was found to contain dark brown colour substances in various shapes and sizes namely flat oval, flat elongated and stick shape, some were individually and some were collectively wrapped in transparent polythene. According to him, weight of total substance with wrappings and polythene bags was 4.880 kgs. and the weight of the total substance with wrappings minus polythene carry bags was 4.850 kgs. On analysis of the substance, by several tests as stated by him, he came to the conclusion that it contained charas. Except for few denials put to him in cross-examination his report and evidence given by him in support thereof, has gone unchallenged. 6 6. I do not think it is necessary to reproduce what has been stated by Shri Korgaonkar/PW3, the pancha witness except to deal with the submissions made by the learned Counsel appearing on behalf of the accused, since otherwise, Shri Korgaonkar/PW3 has substantially corroborated the version given by Shri Dias/PW6. 7. The submission made by Shri D'Souza, the learned Counsel appearing on behalf of the accused, is regarding the weight and colour of seized substance. It can't be disputed that the weight of the substance as found by Shri Dias is 5 kgs. and colour described by him as well as the pancha witness, is black. The weight as found by Kaissare/PW1 is 4.850 kgs. i.e. 150 gms. less and the colour as described by him is dark brown. The contention of Shri D'Souza, therefore, is that the substance which was tested by Shri Kaissare/PW1 is not the same substance which was allegedly seized by Shri Dias/PW6 and on that count the accused deserves to be acquitted. 8. Shri Ferreira, the learned Public Prosecutor has submitted that no much significance can be attached to the colour being described by one witness as dark brown and by others as black, and he has further submitted that the difference in weight could be drying up of the seized substance due to passage of time, in carrying out the analysis. 7 9. In my opinion, the submission made on behalf of the accused cannot be accepted as far as the facts and circumstances of this case are concerned. Firstly, it may be stated that the substance was seized on 6/03/2007 when it was found to be 5 kgs. as stated by P.I. Shri Dias, but, it was tested on 24/04/2007 i.e. more than one month, after it was seized, and considering that charas is concentrated raisin taken from the leaves and stems of the plant, it is quite probable that with the passage of time and by evaporation of its moisture content it reduced in weight. Counsel on behalf of the accused rejoins and submits that the seized article was put in polythene bag and therefore moisture could not be evaporated. However, this submission too cannot be accepted as there is no guarantee that water contents would not evaporate if a substance is put in a plastic bag and sealed. Explanation as regards less weight being found at the time of analysis therefore appears to be plausible and probable. As far as the colour is concerned, there is nothing wrong in ordinary persons perceiving it as black, while the expert finding it as dark brown. This controversy has also to be seen in the light of the fact that the sample was found by Shri Kaissare/PW1 properly packed, sealed and secured with seals which were intact. There is ample evidence on record to show that the seal was transmitted to Dy.S.P. Allen D'Sa/PW4 and this has been deposed to not only by the pancha witness Shri Korgaonkar/PW3 but also by Amzad Karol/PW5 who carried it and handed it over to him and 8 which is also confirmed by Dy.S.P. D'Sa himself. The seal movement register was also produced in support of the aforesaid facts and it shows that Shri Dias had sent the said seal to Dy.S.P. D'Sa. Counsel on behalf of the accused submits that the letter handing over the seal does not bear the signature of Dy.S.P., having acknowledged the receipt of the seal. However, a copy of the letter at page 76 carries an endorsement that it was received. There is also evidence that during the intervening period, the seized article was kept in the muddemal room of the police station. It is, therefore, obvious that the seized article was properly packed and sealed and the seal was handed over to the Dy.S.P. so as to eliminate any doubts as regards allegations of tampering and the sample was kept in the muddemal room of the police station after an entry was made on muddemal register, till the next date, when it was taken to the Directorate of Foods and Drugs Administration through Sushant Naik/PW2. The case of Mr. Kamal Lama @ Akal Man Taman V/s. Union of India through Shri M.P. Vaz, Superintendent of Central Excise, Anti-Smuggling Unit, Margao, Goa. (2005 Vol. 107 (2) Bom. L.R. 754) stood on its own facts. In that case one of the samples which was found to be 50 gms. at the time of seizure was found to be 51.87 gms. in the laboratory. There was also no explanation forthcoming as to what had happened to the said samples between 8.30 p.m. of 14/11/2000 and 2.45 p.m. of 15/11/2000 and it is under those circumstances that the accused came to be given benefit of doubt. 9 10. Next, on behalf of the accused, Shri D'Souza, has tried to pick up holes in the evidence of Shri Korgaonkar/PW3 and Amzad Karol/PW5 contending that both the said witnesses were not present at the time of seizure. As regards the statement of Amzad Karol/PW5 that he had returned back to the police station along with the pancha witness, learned Counsel submits that the pancha witness has himself stated that he had gone to the police station on receiving a call from a constable. It is quite probable that Amzad Karol/PW5 first called him to police station on phone and then went along with him to the police station. Even if that is considered as a discrepancy, it is not at all sufficient, in my opinion, to discard the evidence of either of the said two witnesses. Next, it is being pointed out that Amzad Karol/PW5 stated that the typewriter was kept on the rear seat, while it was stated by the pancha witness Shri Korgaonkar/PW3 that the typewriter was kept on the Sumo vehicle. These statements are sought to be read out of context. Neither of them have stated that typing was done by keeping the typewriter either on the seat or on the vehicle. It is then pointed out that the pancha witness did not refer to the T-Shirt of the accused as having stripes. It is further pointed out that the pancha witness referred to one single piece of irregular shape when the case of Shri Dias was that there was one packet in pieces of irregular shapes. It is also pointed out that Shri Korgaonkar/PW3 could not remember which were the other documents which were prepared at the spot. It is also 10 pointed out that the distance mentioned by him is not in consonance with the distances given by Shri Dias. As regards last so called discrepancy, it may be stated that the distance given by the witness was about 30 mts. from the crematorium, while the distance given by Shri Dias was 75 to 80 mts. from the said crematorium. Nobody measured those distances and they are given by approximation. In my view, and as rightly held by the learned trial Court, the variations found in the evidence of Shri Korgaonkar/PW3 in relation to the evidence of Shri Dias/PW6 are too minuscule to be given any consideration, much less, any weight so as to discard their evidence. 11. Shri Korgaonkar/PW3 is the driver by profession and acted as pancha witness for the first time and there is no reason why he should have deposed against the accused and in favour of the prosecution. He has corroborated the version of Shri Dias on all material particulars. In my view, the prosecution evidence in this case has been consistent and corroborated by the evidence of Shri Korgaonkar/PW3, who is an independent pancha witness and, therefore, has rightly been relied upon by the learned trial Court. 12. I find that there is no merit in this appeal, and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-