Bombay High Court
Ketil Mardal vs State Of Goa on 10 October, 1996
Author: R.K. Batta
Bench: R.K. Batta, R.M.S. Khandeparkar
JUDGMENT R.K. Batta, J.
1. The appellant was tried for being in possession of 2214 grams of charas and 65 grams of ganja valued at Rs. 2,20,500/- without any valid documents or licence in contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the said Act) which is an offence punishable under Section 20(b)(i) and 20(b)(ii) of the said Act. In support of the said charges, the prosecution had examined seven witnesses. Out of the said recovery 14 gms. of charas was stated to have been recovered from the right back pant pocket of the appellant and the balance charas as well as ganja were recovered from the house which, according to the prosecution, was in exclusive possession of the appellant. The trial Court in fact came to the conclusion that the prosecution had established that 2.200 gms. of charas and 65 gms. of ganja were recovered from the house which was raided by the Police, but the Court found that the prosecution had failed to prove that the house in question was either in exclusive possession of the appellant or was leased to him. In view of the said finding, recovery relating to 2.200 gms. of charas and 65 gms. of ganja from the said house was not fastened on the appellant by the trial Court. The finding that the prosecution had failed to prove either the exclusive possession of the said house or that the same was leased to the appellant was based mainly upon the evidence of P.W. 3 T. Gomes as well as the C-Form which had been submitted to the authorities in connection with the occupation of the said house by a foreigner. Nevertheless, the trial Court found that recovery of 14 gms. of charas from the right back pant pocket of the appellant had been duly established and as such the appellant was held guilty and convicted for possession of 14 gms. of charas under Section 20(b)(ii) of the said Act. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh, in default to suffer R.I. for two years. The period of imprisonment already undergone by the appellant pending investigation and trial was set off in terms of Section 428 Cr.P.C.
2. This order of conviction and sentence has been challenged by the appellant in this appeal. In so far as his acquittal in respect of recovery of 2.200 gms. of charas and 65 gms. of ganja is concerned, the prosecution did not file any appeal in respect of the same.
3. Before dealing with the arguments advanced by learned Senior Advocate Shri Lalit Chari and Public Prosecutor Shri Bhobe, it is necessary to briefly state the prosecution case. Police Inspector G. M. Jadhav, who has been examined as P.W. 6 in this case is in-charge of Anti Narcotic Cell (for short ANC) and he had proceeded for drug checking on 27th December, 1994, from Panaji along with police party and panchas. The Police party reached Assagao at 2.00 p.m. near Badem when P. I. Jadhav received information that one foreigner was staying in the house of Victor D'Souza at Badem who is dealing in narcotic drugs. This information was reduced to writing by P. I. Jadhav and it was sent to the Superintendent of Police, A.N.C. through Police Constable Satyawan Naik on Motor Bike. After despatching the said information, the police party led by P. I. Jadhav proceeded towards the house of Victor D'Souza and it was noticed through the window of the kitchen of the house of Victor D'Souza that one foreigner was weighing black substance. The police party went to the rear side door of the said house and informed the appellant, who was in the house, that they had come for search of drugs and that in case the appellant so desired, he could be searched in the presence of Gazetted Officer or Magistrate, but the appellant declined to avail of the same. Thereafter, the Police recovered 2 kgs. of charas from the cemented table in the kitchen. The raiding party further recovered 200 gms. of charas on disclosure made by the appellant from the same house and besides that 65 gms. of ganja. Thereafter, a personal search of the appellant was carried out and 14 gms. of charas was found in the right rear pant pocket of the appellant. After completing necessary formalities charge-sheet was filed and the appellant was tried and convicted as already mentioned. The learned Senior Advocate Shri Lalit Chari has attacked the impugned judgment on four specific points, namely :-
(i) The evidence of P.W. 3 T. Gomes totally destroys the entire prosecution case;
(ii) Chain of events relating to custody of the seized drugs from the time of seizure till the same were received by the Public Analyst have not been satisfactorily explained, as a result of which possibility of tampering with the samples in question cannot be ruled out;
(iii) Material witness namely the Police Constable who took the samples from P. I. Jadhav and delivered the same to the Scientific Assistant Joshi (P.W. 4) has not been examined; and
(iv) The report of the Public Analyst does not state that the substance analysed was charas, but it merely states that the sample analysed contains charas and since the percentage of charas is not mentioned, the case of the appellant would fall within the definition of 'small quantity" under Section 27 of the said Act.
4. We shall deal with the said points one by one. Elaborating his first contention, learned Senior Advocate Shri Chari took us through the evidence of P.W. 3 T. Gomes as well as the C-Form (Exh. P.W. 3/A). After taking us through the evidence of the said witness T. Gomes, it was pointed out by him that the features which flow from the said evidence of this witness are :
(a) Raid started at 11.00 a.m.; (b) Police already had C-Form; (c) Tony Gomes was very much present at the raid at the time of search; and (d) Foreigner alleged to be of British Nationality was also present at that time.
He also pointed out that the trial Court in its judgment has held that one foreigner girl was present in the house which was raided at the time of search. This evidence of T. Gomes according to learned Senior Advocate Shri Chari, throws overboard the entire prosecution case. It was also contended that T. Gomes, who was the prosecution witness had deposed the truth at the trial which was not in any manner challenged by the prosecution by declaring the said witness as hostile.
5. In this connection, learned Public Prosecutor Shri Bhobe has submitted that even if a witness is not declared hostile by the prosecution, the prosecution is still entitled to establish from the testimony of such witness that he has not revealed the truth before the Court. He also pointed out that in fact, the learned trial Judge had come to the conclusion that the recovery from the house had been duly established the prosecution, but it is only on account of the evidence of P.W. 3 T. Gomes and discrepancies in the C. Form that the trial Court came to the conclusion that possession or lease of the house in question of the appellant had not been established, as a result of which the appellant was acquitted in respect of that part of the recovery. However, the said course adopted by the learned trial Judge does not in any manner affect or vitiate the recovery from the personal search of the appellant and in respect of which no fault has been found or alleged by the learned Senior Advocate Shri Chari.
6. In order to appreciate the rival contentions, it is necessary to make a detailed reference to the evidence of P.W. 3 and the C-Form (Exh. P.W. 3/A). Tony Gomes (P.W. 3) stated in his examination-in-chief that he was looking after the house of Victor D'Souza as a caretaker. However, during his cross-examination he spoke of another person who was looking after the said house and he clarified that the said person was Francis Fernandes. It is pertinent to note that this Francis Fernandes was present in Court when the deposition of Tony Gomes was recorded and Tony Gomes has further stated that the said Francis Fernandes had also accompanied him in the Court on the previous date of hearing. It may also be pointed out that Tony Gomes (P.W. 3) also stated during the cross-examination that he did not visit the said house at any time prior to the date of the present raid. This evidence would go to show that, in fact, this Tony Comes was not the caretaker of the house as claimed by him.
7. According to Tony Gomes (P.W. 3), the house in question was given on rent, to the appellant on a monthly rent of Rs. 1800/- and the appellant started residing in the said house from 25-12-94. He further states that the said house was given on rent by him to the appellant and he (P.W. 3) filled the C. Form in the Police Station at Mapusa. He identified Exh. P.W. 3/A as the said C-Form which according to him was filled by him before the Police on 26th December, 1994. This C-Form (Exh. P.W. 3/A) is in fact the original C-Form which was deposited with the concerned authority on 26-12-94 as can be seen from the endorsement on receipt of the same. P.W. 3 categorically stated that the details of column 1 and signature at point 'A' on the said C-Form (Exh. P.W. 3/A) was in his handwriting and the details of columns 2 to 13 are in the handwriting of the appellant and the signature of the accused/appellant is in column 13. During cross-examination he stated that the C-Form (Exh. P.W. 3/A) was filled in the house of Victor and apart from him and the appellant no other person was present when the C-Form was filled at about 11.00 a.m. He also stated that the entire C-Form was filled at one stretch including the signing of the Form by him and the accused; writing on the C-Form was made by him, in single ball pen belonging to him and the writing of the accused was in a single ball pen belonging to the accused. He also stated that he had checked the passport of the accused at the time of filling of the form and the entries pertaining to passport number, signature of the accused tallied with those in the passport and he found the same to be correct. Cross-examination of this witness was adjourned at this stage and further cross-examination was done on 19-1-96 and 25-1-96. In further cross-examination this witness has introduced certain details which have affected the prosecution case vis-a-vis possession of the house and lease of the house to the appellant. During further cross-examination this witness stated that he saw a foreigner girl with the accused on that day; that when the Police came to the house of accused, he came to see what was going on; Police came there at about 11 a.m. and left at 4.30 p.m.; that writing in column 1 and column 5 of Exh. P.W. 3/A was not in his handwriting; that the person who was looking after the said house wrote the writing in columns 1 and 5. He also stated that the Police was having C-Form (Exh. P.W. 3/A) with them even prior to 30-12-94 when his statement was recorded and that he did not hand over the C-Form to the Police at the time when his statement was recorded on 30-12-94. He also stated that he did not hand over C-Form to the Police but the Police took C-Form (Exh. P.W. 3/A) at the time when the accused was arrested. At this stage, it is also necessary to refer to the C-Form (Exh.- P.W. 3/A) which contains the name of the appellant against the column 'Name of Visitor' with Norwegian Nationality and Passport No. G-0925762 and other details relating to the said passport which are contained in columns 4 and 10 of the said C-Form. The passport which was attached by P.S.I. Mhamal (P.W. 7) bears a different number namely G-0926182-35. However, it is pertinent to note that all other details which are referred in columns 4 and 10 of C-Form (Exh. P.W. 3/A) tally with the said passport No. G 0926182-35, except for the number mentioned in column 4 of Exh. P.W. 3/A which is G 0925762. According to T. Gomes (P.W. 3), when the said C-Form was filled, he had checked the entries pertaining to passport number, signature of the accused with the passport and found the same to be correct. If that is so then it appears that probably the appellant had another passport bearing No. G 0925762 or that these facts deposed are totally false. According to T. Gomes the entries in columns 2 to 13 were in the handwriting of the accused including signature in column 13, but the accused has denied to have either filled the said form or having signed the same. Though initially Tony Gomes had stated that entries in column 1 were in his handwriting, yet subsequently he stated that the entries in columns 1 and 5 were in the handwriting of Isabela Fernandes (P.W. 5) who is daughter of Francis Fernandes who was looking after the said house. This Isabela was examined as P.W. 5. She has stated that she had never seen the accused earlier, though she stated that she wrote house number and other details at serial Nos. 1 and 5 of C-Form (Exh. P.W. 3/A). According to her, the above writing was made by her at her place. According to her, house No. 618 was rented out to many foreigners from time to time. But according to Gomes (P.W. 3) he was not aware of the said house being rented to any foreigners previously. Moreover, Gomes (P.W. 3) has stated that the entire C-Form was filled at one stretch in the house of Victor D'Souza namely the house in question, but Isabela (P.W. 5) states that entries in columns 1 and 5 were made in her house.
8. From the above discussion, it is clear that Tony Gomes (P.W. 3) was won over and his testimony is so unreliable that no reliance could have been placed on any part of his testimony including that either he or a foreigner girl were present at the time of search. In this respect P.W. 2 Pancha Ratwad, P. I. Jadhav P.W. 6 and P.S.I. Mhamal P.W. 7 have categorically stated that no one came in the house during the search. We have referred and discussed the above evidence especially on account of the fact that learned Senior Advocate Shri Chari had submitted that the evidence of Gomes (P.W. 3) destroys the entire prosecution case. In fact, even though the trial Court had believed recovery of 2.200 gms. of charas and 65 gms. of ganja from the house in question, yet on account of the discrepancies in the evidence of P.W. 3 and C-Form (Exh. P.W. 3/A), the Court held that the prosecution had failed to establish that the appellant was in exclusive possession of the house in question or that the house in question had been leased to him. In the absence of this submission made by learned Senior Advocate Shri Chari on this aspect, it probably would not have been necessary to deal with this part of the evidence since the appellant had been acquitted in respect of the recovery from the house and prosecution agency had not challenged the acquittal of the appellant by filing appeal.
9. Learned Senior Advocate Shri Chari has strenuously argued that even though P. I. Jadhav had categorically stated that neither the appellant nor Arthur, who was called to produce passport, had produced the passport before him, it is not known as to how P. I. Jadhav has recorded passport number as G-6925762 in letter Exh. P.W. 4/A written on 28-12-94 to Drug Controller. Admittedly, as per the record passport bearing No. G-0926182-35 was produced before P.S.I. Mhamal on 29-12-94 by the girl friend of the accused by name Zarina who is a British National. In this respect, the contention of learned Public Prosecutor Shri Bhobe is that the appellant was in custody of P. I. Jadhav till the investigation was handed over on 28-12-94, to P.S.I. Mhamal and it is during this period that the appellant was interrogated by P. I. Jadhav and during this interrogation the passport number, which is recorded in Exh. P.W. 4/A, was revealed. It is true that there is nothing in evidence to sustain the said contention of learned Public Prosecutor Shri Bhobe, yet the said contention cannot be simply brushed aside especially in view of the fact that even in the C-Form the passport number of the appellant which is given is G-0925762, but all other details in columns 4 and 10, in fact, tally with the passport No. G-0926182-35 which was produced before P.S.I. Mhamal on 29-12-94.
10. The next question which has to be examined is as to whether discrepancy relating to the number of passport in Exh P.W. 4/A is fatal to such an extent that the entire prosecution can be thrown overboard on account of the same. In our opinion, the effect of mentioning wrong passport number in C-Form as rightly contended by learned Public Prosecutor Shri Bhobe, will definitely create a doubt relating to possession or lease of the house in relation to the appellant, but it does not in any manner have adverse effect on the recovery of 14 gms. of charas from the person of the appellant.
11. In view of the above discussion, we are of the opinion that neither the evidence of P.W. 3 nor discrepancy in C-Form (Exh. P.W. 3/A) or in Exh. P.W. 4/A has the effect of the entire case being thrown overboard on account of the same. We, therefore, reject the first contention advanced by learned Senior Advocate Shri Chari.
12. Learned Senior Advocate Shri Chari had also pointed out discrepancy relating to at what stage P. I. Jadhav had informed the appellant of his right to be searched before a Gazetted Officer or Magistrate; and that, initially pancha P.W. 2 had referred to Mamlatdar as one of the authorities about whom the appellant was informed, though in cross-examination he had stated that the accused was told about his right of being searched before a Gazetted Officer or Magistrate, but the appellant did not avail of the same. Shri Chari further pointed out that the evidence of witnesses P.W. 2 and P.W. 7 before the trial Court is that all of them had rushed inside the house avid thereafter P. I. Jadhav informed the accused of his right of being searched before a Gazetted Officer or Magistrate, whereas P. I. Jadhav P.W. 6 states that the accused was informed of the said right while the police party was at the door. Our attention was drawn to the evidence as P. I. Jadhav (P.W. 6) in this respect. P.W. 6 had stated that they did not rush into the house, even though he admitted, that in the complaint filed by him, he had stated that he along with other members of the raiding party immediately entered the kitchen and surrounded the Foreigner. In fact, this discrepancy is of such a minor nature that it does not in any manner affect the prosecution case.
13. Shri Chari also pointed out that the seizure report does not mention the attachment of the scale even though it is the prosecution case that the said scale was attached and according to P. I. Jadhav he had seen the appellant weighing black substance in the kitchen. The attachment of scale is mentioned in the panchanama and even the panchas speak of attachment of the same. In any event omission to mention the same in seizure memo, by itself, would not be of much consequence in such circumstances.
14. We shall now pass on to the second and third challenges of the learned Senior Advocate Shri Chari relating to attack on the chain of events from the time of attachment of the drugs in question till the same reached the Public Analyst and non-examination of the Police Constable who took the sample from P. I. Jadhav to Scientific Assistant Manohar Joshi. The drugs in question were attached on 27th December, 1994, by P. I. Jadhav in-charge of ANC; the samples were retained by P. I. Jadhav in his personal custody and the remaining articles were handed over to the Head Constable of ANC; on the next day i.e. 28-12-94, the said samples were sent under forwarding letter (Exh. P.W. 4/A) to the Drug Controller through Scientific Assistant Manohar Joshi P.W. 4 and from there the same were forwarded to the Public Analyst where the said samples were received on 29-12-94. In this connection, it has been urged by learned Senior Advocate Shri Chari that there is no explanation whatsoever as to why P. I. Jadhav had retained the samples, whereas the other muddemal property was handed over by him to Head Constable; where they were kept and through whom they were sent to the Public Analyst since P. I. Jadhav does not remember of sending of the said samples through the Police Constable. On this aspect learned Public Prosecutor Shri Bhobe submitted before us that the custody of the samples by P. I. Jadhav, who was in charge of ANC cell, cannot in any manner be said to be unauthorised and there is satisfactory evidence on record that the same was in safe custody of P. I. Jadhav himself. He also submitted that P. I. Jadhav had kept the same with him since on the next day he wanted to send it to the Drug Controller for analysis. Shri Bhobe placed reliance on two authorities of this Court reported in Bhaskar Aayyar Kaunder v. The State of Maharashtra, (1993 Cri LJ 2761) (Bombay) and Smt. Meena Gopalkrishna Mudilyar v. State of Maharashtra, 1993 Cri LJ 3634 (Bom). On the strength of these authorities, it was contended that the samples in question were neither in unauthorised custody nor was there any delay in sending the samples which was not explained and as such there is no reason whatsoever to doubt the prosecution case in this respect. In Bhaskar Aayyar Kaunder's case (supra) there was delay of five days during which the sample packet had been entrusted to a Police Constable and it did not reach the office of the Chemical Analyser though the office was in the same town and there was no satisfactory explanation regarding the custody of the said sample for five days. In Smt. Meena Gopalkrishna Mudiliyar's case (supra), the challenge was that the Police Constable who had taken the sample from the Police Station to the Chemical Analyser had not been examined and the possibility of tampering during transit could not be ruled out altogether. In the said case it was found that the prosecution had established that the sample packet was sent to the Chemical Analyser with a forwarding letter and the receipt of the said letter was acknowledged and the said letter was tendered in evidence and besides that the seals of the letter were found intact. In view of the said facts the challenge was turned down.
15. In the case under consideration, the custody of the samples by P. I. Jadhav, who was in charge of ANC, after attachment of the samples on 27-12-94 till the same was despatched on 28-12-94 with a covering letter to the Drug Controller cannot neither be said to be unauthorised custody nor there is any reason to cast doubt on the prosecution case on the basis of the same. Though P. I. Jadhav did not rule out the possibility of the samples being sent by him to P.W. 4 Manohar Joshi through a constable, it is to be noted that the said samples were sent under letter Exh. P.W. 4/A which bears endorsement and signatures of Manohar Joshi (P.W. 4) at Point 'A' that he had received four sealed covers as mentioned in the said letter. Manohar Joshi (P.W. 4) has also confirmed in the course of his evidence that four sealed covers were brought by police constable Mahableshwar Naik of ANC on 28-12-94. In turn Manohar Joshi (P.W. 4) sent the said envelopes through another police constable to the Drug Controller where the same were received on 29-12-94, as can be seen from two letters Exhibits P.W. 1/A colly.
16. In the light of the above evidence, we do not find any force in the second and third submissions advanced by learned Senior Advocate Shri Chari. On the basis of evidence on record it cannot be said that there was any reasonable possibility of the samples being tampered in the process of sending the same to the Public Analyst. In this background, it was not necessary for the prosecution to have examined the police constable since the possibility of tampering prima facie does not get support from any material on record.
17. We shall now deal with the last contention advanced by learned Senior Advocate Shri Chari. Basically, his contention is that the Public Analyst has opined that the substance analysed contained charas and it does not say that the substance analysed is charas. Elaborating his contention, further, Shri Chari took us through the definition of 'cannabis' (hemp) as contained in section 27 of the said Act and it is necessary to transcribe the same :-
"2. (iii) "cannabis (hemp)" means -
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish :
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;"
According to Shri Chari cannabis can be in one of the three forms mentioned therein namely charas, ganja or any mixture of above of the above forms of cannabis. He further pointed out that in so far as charas and ganja are concerned, small quantities which would fall within the ambit of Section 27 have been notified, but there is no Notification relating to the third category of cannabis namely in mixture of charas and/ganja. He, therefore, contends that unless the prosecution is able to establish that the contents of charas in the samples are more than 5 gms. a plea would be available to the applicant under Section 27 to prove that the charas in question was small quantity within the meaning of Section 27 of the said Act and the same was for personal consumption. He submitted that the total substance which is analysed may contain charas, but unless it is shown that the charas contents are more than 5 gms., the sample in question may fall within the ambit of "small quantity" under Section 27 of the said Act and it is in this context that is submitted for determination of the percentage of charas it is necessary and since the percentage of charas has not been determined in this case, the benefit has to go to the appellant and the charas contents of the sample in question has to be treated as less than 5 gms. in respect of which the appellant would he entitled to lead evidence to establish that the same was meant for his personal consumption. On the other hand, learned Public Prosecutor Shri Bhobe submitted before us that there is absolutely no material on record to even prima facie come to the conclusion that the substance which was analysed by the Public Analyst was a mixture falling within Section 2(iii)(c) of the said Act. He took us through report of the Public Analyst and pointed out that sample No. III which was analysed by the Public Analyst shows that the description of the said substance was dark brown coloured substance having characteristic odour of charas; microscopic examination shows presence of hairs resembling 'charas hairs' and identification test for charas (Beam's Acid Test) was positive. He also referred to the report of the Public Analyst in respect of sample No. IV which was described as greenish-brown, dry, loose and non adherent leafy and flowery parts of plant; microscopic examination shows presence of hairs resembling 'ganja hairs' and the identification test for ganja (I.P.Test) was done.
On the basis of the above mentioned report, the Public Analyst (actual designation of this Officer is Junior Scientific Officer (Drugs)) opined that sample III contained charas. At this stage it is necessary to refer to Section 20 which deals with contravention relating to 'cannabis' plant and cannabis. Section 20(b)(i) provides that where such contravention relates to ganja or the cultivation of cannabis plant, it shall be punishable with rigorous imprisonment for a term which may extent to five years and shall also be liable to fine which may extent to fifty thousand rupees. Section 20(b)(ii) provides that where such contravention relates to cannabis other than ganja, the same shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. Thus, in a case of mixture of ganja and charas as referred to in Section 2(iii)(c), the clause which would be attracted would be Section 20(b)(i). In other words, in case of cannabis other than ganja namely charas or any mixture of charas and ganja, the same would fall under Section 20(b)(ii), it is no doubt true that small quantity of charas and ganja has been notified under Section 27 of the Act and mixture referred to in Section 2(iii)(c) has not been notified. In fact, Section 27 lays down that for the purpose of the said section, small quantity means such quantity as may be specified by the Central Government by Notification in the official Gazette. Thus, it is necessary that in order to operate Section 27 a notification is necessary by the Central Government to declare small quantity of narcotic drug or psychotropic substance so that the benefit of Section 27 is available to the persons possessing narcotic drug, or psychotropic substance.
18. In this respect reliance has been placed by learned Advocate Shri Chari on a judgment of this Court in Anthony D'Costa v. State of Goa, (Criminal Appeal No. 24/1991), which relates to a case of morphine in respect of which no notification has been issued by the Government in terms of Explanation (1) to Section 27. In the said case six packets of brown sugar weighing 930 gms. had been recovered from the accused and the report of the Chemical Analyst was that the sample analysed contained 34.4% of the morphine. On the basis of the same the learned Judges came to the conclusion that the quantity of morphine found in the substance was 319.9 m. gms. Admittedly the prosecution case therein was that the accused was drug addict and was found in possession of morphine for his personal consumption. After taking into account the intention of the legislature, that Section 27(a) intended to give sympathetic consideration to persons in possession of small quantity of morphine for personal consumption and that admittedly morphine was not referred in notification issued by the Government under explanation (1) to Section 27, the learned Judges concluded as follows :-
"This only means that either the Legislature ? (in fact Government) inadvertently failed to include morphine in the notification or deliberately excluded morphine from the said notification and left the issue of deciding the small quantity of morphine to the discretion of the Courts."
This conclusion was arrived at while dealing with the set of facts in that particular case and we do not have any material before us to come to a similar conclusion in so far as the controversy before us is concerned. Section 27 r/w Explanation (1) empowers the Central Government to specify small quantity by notification in the official gazette. The Central Government had issued the following notification in partial modification of notification No. S.O. 825(E) dated 14th November, 1985 :-
"In exercise of the powers conferred by Explanation (1) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), and in partial modification of the notification of the Government of India in the Ministry of Finance, Department of Revenue No. S.O. 825(E), 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 mentioned in the corresponding entry in column (2) of the said Table as "small quantity" for the purposes of that section.
TABLE
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Serial Name of Narcotic Quantity No.
Drug
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(1) (2) (3)
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1. Heroin or drug - 250 miligrams.
commonly known as
Brown Sugar or Smack
2. Hashish or Charas - 5 grams.
3. Opium - 5 grams.
4. Cocaine - 125 miligrams.
5. Ganja. - 550 grams."
It is necessary at this stage to also reproduce the notification which was superseded by the notification reproduced above which reads as under :-
"In exercise of the powers conferred by Explanation (1) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby specifies that "small quantity" of a narcotic drug or psychotropic substance for the purpose of that section shall be such quantity of such drug or substance, as may be specified, in each ease by the concerned district chief medical authority."
19. Therefore, a reading of the two notifications shows that initially the Central Government wanted to leave the determination of "small quantity" of narcotic drug or psychotropic substance for the purpose of this section to the concerned district chief medical authority. However, by subsequent notification which governs the question of "small quantity" the said discretion which was sought to be given to district chief medical, authority was done away with and certain drugs were specifically mentioned so as to qualify within the scope and ambit of small quantity under Section 27 of the said Act. Therefore, it appears that the conclusion arrived at in the case of Anthony D'Costa was based upon the facts and material placed before the Court in the said case.
20. Even on facts, we cannot accept the contention of learned senior advocate Shri Chari that reading of the words 'contains charas' found in the report of the Analyst would indicate that it did contain some other substance which could qualify the said substance as a mixture under Section 2(iii)(c) of the said Act. In sample No. III what was found by the Public Analyst was dark brown coloured substance having characteristic odour of charas and the Public Analyst did not find any greenish brown dry, loose and non-adherent leafy and flowery part of plant in the said sample so as to suggest that it was a mixture of two substances namely charas and ganja. Secondly, the Public Analyst found that the substance analysed sample III shows presence of hairs resembling charas hairs and in the said sample obviously the Public Analyst did not find any presence of ganja hairs because otherwise the Public Analyst would have referred to the same in the microscopic examination. The identification test for charas was also positice for charas. The definition of charas as contained in Section 2(iii)(a) states that charas is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. Therefore, in order that the substance qualifies as charas, the charas can be crude or purified. In crude for there would certainly be impurities besides charas and if it is so, the analysis of the substance would always show that it contains charas since charas may itself contain impurities being in crude form. Therefore, we are unable to accept the contention of learned Senior Advocate Shri Chari that the substance in question is mixture of charas and ganja and the same would fall within the definition of 'cannabis' as contained in Section 2(iii)(c).
21. In view of the above, we do not find force in any of the challenges advanced before us against the impugned judgment. Besides this, in fact, there was no specific challenge as such relating to recovery of 14 gms. from the personal search of the appellant. Even then, we have gone through the evidence on record and we are of the opinion that the findings of the trial Court on this aspect are based upon material on record and reading of the evidence of pancha P.W. 2, P. I. Jadhav (P.W. 6) and P.S.I. Mhamal (P.W. 7) proves beyond any doubt that the requirements Section 50 of the said Act have been duly complied with and the appellant had been informed of his right of being searched before a gazetted officer or a Magistrate. The evidence relating to recovery of 14 gms. of charas from the right back pant pocket of the appellant has also been substantiated and duly corroborated by the evidence of panch witness P.W. 2, P. I. Jadhav (P.W. 6) and P.S.I. Mhamal (P.W. 7). We, therefore, do not find any infirmity whatsoever when the trial Court found the appellant guilty of possession of 14 gms. of charas which was recovered from his person.
22. For the reasons mentioned above, we do not find any merit in this appeal and the appeal hereby dismissed.
23. Appeal dismissed.