JUDGMENT

K. JAYACHANDRA REDDY, J.:— The appellant, a German National, has been convicted by the trial Court under S. 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act for short) and sentenced to undergo 10 years R.I. and to pay a fine of Rs. 1 lac, in default of payment of which to further undergo six months R.I. The appeal filed by the appellant was dismissed by the High Court. Hence the present appeal.

2. In brief the prosecution case is that on 29-9-89 the Police Sub-Inspector Gaonkar, P.W. 3 along with 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 pyjma 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, P.W. 1, the Junior Scientific Officer in the Directorate of Health Services carried out the chemical analysis of the substance weighing 4.570 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. P.W. 2, a panch witness supported the prosecution case. The accused when examined under S. 313, Cr. P.C. 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 implicated.

3. The trial Court relying on the evidence of P.Ws. 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 S. 50 of the Act and that there have been contradictions between the evidence of P. Ws. 2 and 3 and that at any rate even if the prosecution case is to be accepted, the accused can be, at the most, held to be in possession of less than 5 gms. of Charas which is a small quantity and therefore is entitled to the benefit of S. 27.

4. 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 S. 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.

5. The next and most important submission of Shri Lalit Chari, the learned 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 gms. of Charas. According to the learned counsel, only a small quantity i.e. less than 5 gms. has been sent for analysis and the evidence of P.W. 1, 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 cannot 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 Act. Th