The main legal point established in the judgment is the compliance of Section 50 of the NDPS Act and its applicability in cases of search and seizure of contraband material.

JUDGMENT :

Prithviraj K. Chavan, J.

Feeling aggrieved with the judgment of conviction dated 06/12/2014 passed by the Special Judge, NDPS Court, South Goa in Special Case (NDPS) No.6/2013 of the offences under Section 20(b) (ii)(C) of the NDPS Act, by which the appellant is sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1.00 lakh, in default to suffer imprisonment for one year, the present appeal has been filed.

2. Facts as emerged from the record are as follows:

The Anti Narcotic Cell, Panaji Goa on 11/04/2011 at about 17.30 hours received an information that a person having Nepali features aged between 42 to 45 years with medium built, will be coming to deliver narcotic drugs on the same day between 19.45 hours to 20.45 hours to his prospective customer near La Grace Hotel, KTC bus stand, Margao - Goa. PW7 Shitakant Nayak PSI attached to ANC Police Station reduced the information into writing and a copy of the same was sent to the Dy. S.P. ANC, PW2 Naresh Mhamal, for his information.

3. He secured presence of two pancha witnesses namely PW4 Nilesh Sawant and one Venkatesh Bijli. After appraising the pancha witnesses about the raid to be conducted and after introducing the panch witnesses to the members of the raiding party, the entire team proceeded towards the place as per the information. PW7 Shitakant Nayak also carried with him the kit box containing weighing, packing, sealing material, search lights, torches, field testing kit, etc. They proceeded in a private vehicle and reached near La Grace Hotel, KTC Bus Stand at about 19.40 hours. They concealed their presence in the surrounding area.

4. Around 20.15 hours, PW7 Shitakant Nayak saw a male person having Nepali features carrying a shoulder bag on his shoulder, whose description tallied with the information received, coming towards the KTC bus stand. He informed the members of the raiding party and the panchas that he would be the same person in respect of whom information was received. The said person was standing near La Grace Hotel waiting for his prospective customer. PW7 Shitakant Nayak immediately rushed towards him and also simultaneously signalled the panchas and the members of the raiding party to rush towards him.

5. The said person was accosted by PW7 Shitakant, who introduced himself as the sub-inspector of Anti Narcotic Cell and also the members of the raiding party and panchas to the said person. Upon asking, he disclosed his identity as Ishwar Buddha, son of Itche Buddha, aged 46 years, native of Rukumb, Zilla-Kakri Gabesar, Odo no.3, Rapti Ansal, Nepal. After appraising the appellant about the information, he was made aware that his personal search as well as the search of his shoulder bag is to be carried out and, therefore, he was informed that the said search will be conducted in the presence of a Gazetted Officer or a Magistrate. The appellant declined the request. He also declined the request of PW7 Shitakant Nayak to search the members of the raiding party.

6. During the search of the shoulder bag, which was having a label stitched on it as "D-Diesel", the witness found in one of the compartments a transparent auto press polythene packet containing in it blackish colour sticky substances in irregular cylindrical shape wrapped individually in a transparent polythene wrapper. There were 54 such cylindrical shape articles. PW7 Shitakant took a pinch of one of the said sticky articles and tested by means of the drug testing kit, which was found to be positive for "charas", a narcotic drug. The substance was weighed and found to be about 1.115 kgs along with the auto press polythene packet.

7. During personal search of the appellant nothing objectionable could be noticed, except his identity card and a cash of Rs. 200/-. The appellant was arrested and was again offered the search of the raiding party and panchas, however, he declined the same. After completing further regular necessary formalities, PW7 Shitakant filed a charge sheet i