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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. G.F. Couto G.D. Kamat, JJ.
Yashpal Mahindrapal Sonik .... Appellant.
Versus
State .... Respondent.
Criminal Appeal No. 1 of 1987, decided on 18-3-1987.
Advocates appeared :
M.B. D’Costa with S. Satardekar, for Satardekar, for appellant.
G.U. Bhobe, P.P., for respondent.
The prosecution has examined only three witnesses, a panch, secondly the Chemical Analyser and thirdly, the Dy. Superintendent of Police and considering this set of persons there is no independent witness examined in support of the prosecution case and, therefore, according .to him, the prosecution evidence must be viewed with greater caution. His grievance is that once the prosecution itself accepts that the appellant was talking to a local person in the market it was incumbent upon the prosecution to have examined that local person and that having not been done, a cloud is cast on the prosecution story.
There is no merit in what is urged by the Council. It has been rightly held by the Sessions judge that by the prosecution evidence it has been suggested that the appellant had merely a talk in the market with local man and thereafter the appellant proceeded to the house where he was apprehended and, therefore that local person is not a material witness. Admittedly, that local Person is not connected in any manner with the seizure of charas and, therefore, we fail to understand as to how non-examination of that local person as a witness can cast any slur on the prosecution.
Section 20 (b)(ii) and 54-Presumption of possession spoken to in Section 54-It may be presumed, unless or and until the contrary is proved, that the accused has committed on offence under Chapter IV with regard to any drug described therein when he is not able to account for his possession.
Crimes for appellant urged that even though the bag is discovered no Possession of charas from the person of the appellant is proved. Court is however, not with him on this point. Section 54 of the Act speaks of statutory presumption. The presumption of possession spoken to in this section is that in all trials, it may be presumed, unless and until, the contrary is proved, that the accused bas committed an offence under Chapter IV with regard to any of the drugs described therein when be is not able to account for his possession or fail to account for his possession satisfactorily. The fact remain that the bag or box which was found in his bands earlier was the same which was discovered at the house in which be entered and the same was discovered or apprehended no sooner the appellant effected entry into the house. Once the identity of the bag is established as held earlier, it is clear that the possession of narcotic drugs is established and, therefore, this argument must fail.
EVIDENCE ACT, 1872
Section 3-Witness could not be discarded merely because witness was a home guard and was taken from a particular place as search witness for conducting raid on drug pedlers- No case had been made out to put in doubt the evidence of witness.
There can be no doubt with regard to what is being laid down by these authorities and as general propositions they are to be agreed with. But the fact, however, remains that in the present case P. W. 1 is not a school kid who could be said to be a person pliable in the hands of the police and amenable to them to support their version blindly. He is a 20 year old man does who night schooling but his main calling is that he is a home-guard. It is common knowledge that the home guard have nothing to do with the police department. The apart, there is not even a suggestion made to P. W. 1 that he is a regular panch witness of the police or that be had obliged the police in searches before. If this be the case, it is impossible to accept the argument at this stage in appeal that merely because P.W. 1 is a home-guard his evidence ought not to be accepted. Secondly, there is not even a slur cast on him in the cross-examination that he is not a respectable person and hence it is not possible for us to hold that merely because P. W. 1 was taken from a particular place as a search witness for conducting the raid on drug pedlars or drug traffickers we are bound to discard his evidence. No case has been made out to put in doubt the evidence of P. W. 1.
2. The charge against the appellant is that on 24th February, 1986, at 8.45 hours at Chapora when the police party checked one house the appellant was found in possession of 3.300 kgs. of charas worth Rs. 16,500/- without any valid document and that is how he was tried for being in possession of the narcotic drugs under section 20(b) of the Act.
3. In support of the prosecution case three witnesses have been examined, P.W. 1 Shaikh Usman who is about 20 years of age is admittedly a homeguard and is attending a night school. In his statement he deposes that he was called by the Mapusa police and taken to Chapora in the morning of 24th February, 1986, alongwith/another panch and some police person personnel. He mentions that Dy. S.P. Deelip Kumar (P.W. 3) was also in the raiding party and their mission was to apprehend drug pedlars in Chapora area. As he reached alongwith others at Chapora, they saw the accused with a wooden bag covered with blue cloth and talking to a local person. At this time, P.S.I. Teli from Calangute Police Station also joined the raiding party. Since the appellant raised some suspicion. Head Constable Dessai was asked to follow him. The appellant went along a katcha road and, thereafter, entered on house having two rooms. This information was given to the raiding party by Head Constable Dessia and, accordingly, a raid was conducted. There three inmates in the house out of whom the appellant was one. According to this witness, the suitcase which he had earlier found in the hands of the appellant with a blue cloth cover was lying on the floor of the room. One of the Police Officers entered the house and he asked the appellant to open the bag. On opening the bag some clothes were removed and when the bag was checked on tapping it created different sounds. The suspicion was that the bag had some hidden compartments. Accordingly, the accused was directed to open the bag and it was then discovered that in three different spaces charas of the total weight of 3.300 kgs. had been stored in that bag. The police soon attached the same under a panchanama and sealed them. However, sample of the seized charas weighing about 50 gms. was separately sealed. This witness also proved the panchanama dated 24-2-1986 made by the police with regard to the seizure of the charas.
4. The next witness is P.W. 2, Mahesh Kaissare, an Assistant Chemist in the Directorate of Health Services, Government of Goa, Daman and Diu and works as Assistant for Food and Drugs in the same Directorate. His qualifications are that he is B. Pharm and is familiar with tests and analysis of foods and drugs. He mentioned that on 4th March, 1986, he received a letter from P.S.I. Gaonkar, Calangute Police Station with a sample covered in a brown paper for test and identification of the substance. Accordingly, he did the analysis and came to the conclusion on the basis of extraction of resin from the substance by bean acid test and by microscopic examination that the substance is charas. Accordingly, he prepared a report which he identified as the report forwarded by him in compliance with the request of the Police Officer which is marked at Exhibit P.W. 2/A.
The last witness examined on behalf of the prosecution is Deelip Kumar (P.W. 3) who was at the relevant time Dy. Superintendent of Police attached to Mapusa Police Station. He mentions that on 24th February, 1986, he had gone to chapora alongwith some of his subordinates, their intention being to conduct ra
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