Compliance with search and seizure provisions, competence of the analyst, and establishing conscious possession of contraband are crucial in N.D.P.S. Act cases.

Headnote:
N.D.P.S. Act - Conviction and Sentence - Section 20(b)(ii)
Fact of the Case:

The appellant appealed his conviction and sentence under section 20(b)(ii) of the N.D.P.S. Act for possessing charas. The raiding party found charas on the appellant's person and in the bushes near him.
Finding of the Court:

The court found that the appellant was in conscious possession of the charas found in the bushes, and there was no merit in the appeal.
Issues: Non-compliance with sections 42(2) and 50 of the N.D.P.S. Act, competence of the analyst, and doubt regarding the possession of charas found in the bushes.
Ratio Decidendi: The court held that compliance with section 42(2) was not necessary for a search carried out in the open. It also found that section 50 had been complied with, and the analyst's competence was not challenged in cross-examination. The court established a link between the appellant and the charas found in the bushes, affirming his conscious possession.
Final Decision: The appeal was dismissed, and the conviction and sentence were confirmed.

JUDGMENT - P.V. HARDAS, J.:---The appellant has filed the present appeal challenging his conviction and sentence passed by the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa in Special Criminal Case No. 23 of 1999, sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1 lakh, in default to undergo simple imprisonment for one year in respect of an offence punishable under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for the sake of brevity 'N.D.P.S. Act'. On the request of the appellant, this Court, on 14th December, 2000, had appointed Advocate Mr. Ashwin Bhobe from the Legal Aid Scheme to represent the appellant.

2. The brief facts necessary for decision of this appeal are set out hereunder :-

On 24th October, 1999 at 12.00 hours P.W. 4 P.S.I. Uday Naik attached to the Anti Narcotic Cell, Panaji, received a special and reliable information that one person from Kerala named Tommy Thomas, aged about 30 years, medium built, having a beard was selling charas at Tiwaivaddo, Calangute, near the house of one Silveira. P.W. 4 P.S.I. Uday reduced the said information to writing and a copy of the same was delivered to Deputy Superintendent of Police P.W. 6 Apa Kashiram Teli. The said information is at Exhibit P.W. 4/D Colly. P.W. 4 P.S.I. Uday thereafter secured the presence of two panchas, P.W. 3 Nitin Prabhakar Dhond and another panch and apprised them about the information received by him. The panch witnesses were then introduced to the members of the raiding party which consisted of P.W. 6 Deputy Superintendent of Police Teli, P.W. 5 P.I. Lavhu Mamledar, Head Constable Sheikh Sallia, T.T. Naik and Police Constables Harinam Naik, Sadashiv Shetye and Sandeep Shirvaikar. The raiding party then proceeded in a police jeep No. GGE-8 and on a private motorcycle No. GDN-4971 to Tiwaivaddo, Calangute at about 1.40 p.m. P.W. 4 P.S.I. Uday was carrying the official seal of the Anti Narcotic Coll, Panaji, Goa 2 and Head Constable T.T. Naik was carrying the kit box containing weighing scale, packing and sealing material. The raiding party reached Tiwaivaddo at 14.15 hours. P.W. 4 P.S.I. Uday inquired from a local person about the location of the house of Silveria and the raiding party then went on foot and reached the house of Silveira at about 2.40 p.m. There the raiding party saw one person searching for some thing in the bushes. Since his description matched with the description which had been received by P.W. 4 P.S.I. Uday, the members of the raiding party immediately rushed and surrounded him. P.W. 4 P.S.I. Uday identified himself and told the said person that he had received specific and reliable information that the said person was selling charas and that P.W. 4 P.S.I. Uday wanted to take his personal search. The said person was questioned regarding his name and he disclosed his name as Tommy Thomas. P.W. 4 P.S.I. Uday then apprised the said Tommy Thomas regarding his right to get himself searched in the presence of either a Gazetted Officer or a Magistrate and also that he had the right to get the members of the raiding party searched, but, he declined to exercise his right. Thereafter P.W. 4 P.S.I. Uday took the personal search of Tommy Thomas and in the right side pocket of the jean which he was wearing one polythene bag containing some blackish coloured substance was found. The said blackish coloured substance was in small pieces numbering 45 and was suspected to be charas. It was weighed and the weight was confirmed at 220 gms. The said substance was then put in an envelope, packed and sealed with the seal of the Anti Narcotic Cell, Panaji, Goa 2. The envelope was also signed by P.W. 4 P.S.I. Uday, P.W. 3 Nitin, the panch witness as well as the said Tommy Thomas. In the left hand pocket of the jeans P.W. 4 P.S.I. Uday found two currency notes of Rs. 100/- each which were returned to the said Tommy Thomas. The search of the bushes was undertaken

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2001 Supreme(Bom) 809

IN THE HIGH COURT OF BOMBAY(PANAJI BENCH)P.V. Hardas, J.Tommy Thomas .... Appellant.VersusState of Goa .... Respondent.Criminal Appeal No. 71 of 2000, decided on 5-9-2001.Advocates appeared :Ashwin Bhobe, for appellant under Legal Aid Scheme.A.P. Lawande, P.P., for respondent-State.

Compliance with search and seizure provisions, competence of the analyst, and establishing conscious possession of contraband are crucial in N.D.P.S. Act cases.

Cases Referred (2)

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
P.V. Hardas, J.
Tommy Thomas .... Appellant.
Versus
State of Goa .... Respondent.
Criminal Appeal No. 71 of 2000, decided on 5-9-2001.
Advocates appeared :
Ashwin Bhobe, for appellant under Legal Aid Scheme.
A.P. Lawande, P.P., for respondent-State.