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BOMBAY HIGH COURT
R. G. VAIDYANATHA, T. K. CHANDRASHEKHARA DAS, JJ.
JOSEPH FERNANDES
VERSUS
STATE OF GOA
Criminal Appeal No. 48 of 1993,
Decided On : 19 -8 -1995
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT - Investigation - Delay in sending sample packets to Chemical Examiner - Sealing of sample packets - Irregularities in investigation - Effect on trial - Mandatory provisions of the Act - Section 55 - Section 52(1) - Section 57 - Substantial compliance - Evidence - Appreciation - Joint charge - Framing of - Prejudice - Examination of accused under Section 313, Criminal Procedure Code - Improper examination - Prejudice.
Fact of the Case:
The appellant was convicted under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of charas. The prosecution case was that the appellant was found in possession of charas packets, which were wrapped in a transparent polythene cover, in his left side pant pocket and on the right side pant pocket. On being questioned whether he is in possession of more charas, the appellant took out the floor under the kitchen table and took out a plastic container having the name "Mac Dowell Diplomat" and on opening it, it contained five ploythene bags containing charas. The appellant denied the charges and pleaded not guilty.
Finding of the Court:
The court held that the prosecution has proved its case beyond reasonable doubt and the conviction of the appellant is justified. The court also held that the irregularities in the investigation, such as the delay in sending the sample packets to the Chemical Examiner and the improper sealing of the sample packets, did not vitiate the trial as they were not mandatory provisions of the Act. The court further held that the framing of a joint charge against the appellant and two other accused was not bad in law as it did not cause any prejudice to the appellant. The court also held that the improper examination of the appellant under Section 313 of the Criminal Procedure Code did not cause any prejudice to the appellant as his defence was one of total denial.
Issues: 1. Whether the irregularities in the investigation vitiated the trial? 2. Whether the provisions of Section 55, Section 52(1) and Section 57 of the Narcotic Drugs and Psychotropic Substances Act are mandatory? 3. Whether the framing of a joint charge against the appellant and two other accused was bad in law? 4. Whether the improper examination of the appellant under Section 313 of the Criminal Procedure Code caused any prejudice to the appellant?
Ratio Decidendi: 1. The court held that the irregularities in the investigation, such as the delay in sending the sample packets to the Chemical Examiner and the improper sealing of the sample packets, did not vitiate the trial as they were not mandatory provisions of the Act. The court relied on the decision of the Gauhati High Court in 'Md. Jainulabdin alias Nahamacha v. State of Manipur' to hold that Section 55 of the Act is not mandatory but only an enabling provision. The court also relied on the decisions of the Delhi High Court in 'Namdi Francis Nwazor v. Narcotics Control Bureau' and the Bombay High Court in 'Ramji Duda Makwana v. State of Maharashtra' to hold that Section 55 is only an enabling provision and does not preclude a specialized authority like a Narcotic Control Bureau from keeping the contraband articles in its safe custody. 2. The court held that the provisions of Section 55, Section 52(1) and Section 57 of the Narcotic Drugs and Psychotropic Substances Act are not mandatory and their violation does not vitiate the trial unless prejudice is caused to the accused. The court relied on the decision of the Apex Court in 'State of Punjab v. Balbir Singh' to hold that only certain provisions are mandatory the violation of which will vitiate the trial. The court also held that the substantial compliance of Section 52(1) and Section 57 of the Act was sufficient to prove the prosecution case. 3. The court held that the framing of a joint charge against the appellant and two other accused was not bad in law as it did not cause any prejudice to the appellant. The court held that the appellant knew what case he had to meet and that the framing of a joint charge did not cause any prejudice to him. 4. The court held that the improper examination of the appellant under Section 313 of the Criminal Procedure Code did not cause any prejudice to the appellant as his defence was one of total denial. The court held that the appellant did not demonstrate to the court as to what would have been his defence if a particular question had been put in a particular manner.
Final Decision: The appeal was dismissed and the conviction and sentence of the appellant were confirmed.
Vaidyanatha, J. :- This is an appeal against the judgement dated 29th September, 1993 in Special Criminal Case No. 14/92 on the file of the Narcotic Drugs and Psychotropic Substances Court, Mapusa. We have heard the learned counsel for the appellant and the learned Public Prosecutor.
2. The appellant and three other accused were prosecuted by the Police for an offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution case is that on 12th February, 1992, on reliable information the Sub-Inspector, Anti-Narcotic Cell, Panaji, along with panchas entered a hotel called Ali Baba Sea Food and Juice Corner at Baga. The appellant was found there. Then the Sub-Inspector Smt. Sunita told the appellant that he is suspected to be in possession of drugs and required to be searched. She also gave an option that if he desired he could be searched before a Magistrate or a Gazetted Officer, but the appellant declined the Offer. Then the person of the appellant was searched. In the left side pant pocket of the appellant cash of Rs. 2364/- was found and on the right side pant pocket charas sticks were found, which were wrapped in a transparent polythene cover. On being questioned whether he is in possession of more charas, the appellants, who is shown as accused No. 1 in the Court below, took out the floor under the kitchen table and took out a plastic container having the name "Mac Dowell Diplomat" and on opening it, it contained five ploythene bags containing charas. It was seen that the accused Nos. 2 and 3 were sleeping in the adjacent room. They were also questioned and they were searched, but nothing incriminating was found. The recovery of charas from the possession of the appellant and the recovery of charas from under the kitchen table were seized under a panchanama. Sample packets were prepared from both the seized charas packets. Then the Sub-Inspector Sunita took the three accused to Calangute Police Station and lodged a complaint and then a case was registered in that Police Station. During the course of Investigation, attempts were made to trace the owner of the hotel namely accused No. 4, but he was absconding. The charas samples were sent to the Chemical Examiner who confirmed that they contained charas. After usual Investigation chargesheet was filed alleging that all the accused have committed offences punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Further, accused No. 4 was charged for an offence under Section 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The defence of all the accused was one of total denial.
4. After trial, the learned Special Judge held that no case is made out against accused Nos. 2 to 4 and acquitted them. As far as accused No. 1 is concerned the present appellant, the learned trial Judge held that the prosecution has proved its case and convicted the appellant and sentenced him to suffer Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- or, in default to suffer six months of Rigorous Imprisonment. The appellant was also given the benefit of set off of the period already undergone from the date of arrest till the date of sentence under Section 428 of the Code of Criminal Procedure. Being aggrieved by the conviction and sentence, the accused No. 1 has come up with this appeal.
5. The learned counsel Mr. J. P. D'Souza, appearing for the appellant, has questioned the correctness and legality of the impugned judgement. It was argued that the prosecution has not proved its case beyond reasonable doubt and the conviction of the appellant is bad. It was also argued that the prosecution has not complied with many of the provisions of the Narcotic Drugs and Psychotropic Substances Act and therefore the trial is vitiated and the conviction is liable to be set aside. It was also argued that the Sub-Inspector Sunita who was in charge of the Ant
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