Bombay High Court
Jeevanchand Baliram Thakur vs State Of Goa on 15 December, 1987
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT Couto, J.
1. This appeal is directed against the judgment and order dated 4/5th August, 1987 whereby the learned Assistant Sessions Judge, Panaji convicted the appellant under S. 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo ten years of rigorous imprisonment and to pay a fine of Rs. 1 lakh and in default of payment of fine to undergo further rigorous imprisonment for one year.
2. Broadly stated, the prosecution case is that on 27th February, 1987 at about 6.00 p.m. the appellant and one another person were found moving in suspicious circumstances and, therefore, they were taken to the Police Outpost of Anjuna for interrogation. Therefrom the appellant was taken to the Calengute Police Station, where on search of accused No. 2, a telegram and an inland were found in possession of accused No. 2, a reference being made in the telegram to the appellant. Also cash of Rs. 500/- was found hidden in the socks of accused No. 2. On further interrogation, accused No. 1 disclosed that he was putting up in Guest House run by one Chopra at Calangute Beach. Therefore, the police party proceeded to the said Guest House in the company of the appellant. Room No. 2 was opened and on search a wooden box was found. The said wooden box was opened by the appellant and some rolls of Charas, weighing 2 Kgs., were found in a false bottom of the same box. The Charas rolls were seized under a panchanama and a sample thereof was sent to the Chemical Analyser for the purposes of analysis.
3. The prosecution examined the owner of the Guest House as well as some of the police persons, namely Head Constable Uday Naik (P.W. 2), P.S.I. Tamas (P.W. 3), and P.S.I. Vaman Tari (P.W). A panch, namely Gurudas Palekar (P.W. 5) was also examined by the prosecution. On the basis of the evidence given by the prosecution witnesses, the learned Assistant Sessions Judge found the appellant guilty and consequently sentenced him under Section 20(b) of the Narcotic Drugs and psychotropic Substances Act, 1985, and sentenced him to ten years of rigorous imprisonment plus a fine of Rs. 1 lakh.
4. Mr. Rebello, the learned counsel appearing for the appellant, contended before us that the evidence on record is not sufficient to establish the link between the appellant and the Charas which was apprehended and, therefore, no conviction is warranted by that evidence on record. Elaborating, the learned counsel took us through the prosecution evidence in detail in order to show that there are serious discrepancies as regards the timing of the recording of the panchanamas as well as of the arrest of the accused. That apart, the learned counsel submitted that it is clear from the evidence of the panch witness as well as of the police officers that at the time of the search of both the accused, a few articles were found in their possession. As regards the appellants only a Kadamba bus ticket and an amount of Rs. 35/- were found and so far as the other accused is concerned, a telegram, a letter and an amount of Rs. 500/- were found in his possession. Also a key which is, according to P.S.I. Tari, of room No. 2 of the Chopra Guest House was found in possession of the said accused. Then Mr. Rebello took us through the evidence of P.W. 1 Chopra and in particular through the portion thereof where the witness stated that P.S.I. Tari had come to his Guest House and on that occasion, had shown to him one key asking him whether the said key was of any of the rooms of the Guest House. On being informed that the key was not of any of the rooms of the house, the same P.S.I. produced another key, which was identified by Chopra as being the key of the room which has been allegedly hired by the appellant. This circumstance, according to the learned counsel, clearly shows that the key was not in possession of the appellant and, therefore, it could not be believed that the said appellant opened room No. 2 of the Guest House with the key which was in his possession. As regards the key of the box, the learned counsel also submitted that in the light of the facts disclosed by the personal search on the person of the appellant, it is unbelievable that a key of the said box was in his possession and the said box had been opened with the said key. All these circumstances, according to Mr. Rebello, cast doubts on the prosecution case, benefit of which is to be given to the appellant.
5. It was, however, contended by Mr. Bhobe, learned Public Prosecutor, that the discrepancies about the timings pointed out by Mr. Rebello are not important and nothing turns on it. The learned counsel invited our attention to the statement given by ASI Tante to the effect that after the personal search was done on the appellant and the accused they had been allowed to keep in their possession their keys and personal belongings. Therefore, it is obvious that the keys of the room were in possession of the appellant.
This being so, according to the learned Prosecutor, it has been established beyond doubt that the appellant was in possession of the room in question as well as of the box from where Charas had been recovered by the police. Consequently, there is no reason for interference by this Court in the order of conviction of the appellant.
6. The appellant has been charged for being found in unlawful possession of two Kgs. of Charas in contravention of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 20 of the said Act deals with the punishment for contravention in relation to cannabis plant and cannabis. It provides that whoever, in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder cultivates any cannabis plant or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable, if the contravention relates to Ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; and where the contravention relates to cannabis other than Ganja, 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. S. 2(iii)(a) defines "Charas" as being cannabis that is 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. From the above provisions of law, it is clear that possession of Charas is an essential ingredient of offence under which the appellant has been charged with and ultimately, convicted. Therefore, it is necessary and pertinent to see whether the prosecution has succeeded in proving that the appellant was in unlawful possession of the Charas seized in this case. In our view, the prosecution has failed, since the evidence adduced to prove it is not sufficient to establish beyond any reasonable doubt that the appellant was in actual possession of the seized drugs. In fact, it is common ground that when the appellant was detained by P.W. 2 Uday Naik, he was moving on the Calangute beach and on search of his body, only a bus ticket and an amount of Rs. 35/- were found on his person. No goods of any kind as well as no drugs were found in his possession. Then, it has come clearly in the evidence of PSI Tari that the key of the room where the box with Charas was found was not with the appellant, but with accused No. 2. Similarly, nowhere in the evidence it has been brought on record that the key of the box was found in possession of the appellant. On the contrary, P.W. 1 Chopra, has stated that PSI Tari had approached him in the Guest House and shown a key asking whether the said key was of the particular room of the Guest House and on being answered in the negative, he had produced a second key which was the key of the room where Charas were found. In the light of this evidence it is clear that the prosecution has failed to establish that the appellant was in exclusive possession of the room in question. Although it has come on record, namely through the evidence of the same witness Chopra, that the appellant had hired the said room and has kept there his belongings, however, how the key of the said room was found by PSI Tari in possession of accused No. 2 has not been explained and the very fact that the key was found in possession of a person other than the appellant shows that somebody else had an opportunity of entering the room and keeping the seized Narcotic in the said compartment. Link between the seizure of the said Narcotic and the appellant has not, therefore, been established and consequently the prosecution has not established and proved beyond any reasonable doubt that the appellant was in actual possession of the said prohibited drugs. We can, therefore, safely hold that the prosecution having failed to prove one essential ingredient of the offence punishable under S. 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, no conviction would follow.
7. The result, therefore, is that the appeal succeeds and consequently the conviction of the appellant u/S 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the consequent sentence passed against him are hereby quashed and set aside. The appellant to be set at free forthwith, if not required in any other case. The seized property (Charas) stands confiscated.
8. Appeal allowed.