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2019 Supreme(Bom) 1469
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
PRITHVIRAJ K. CHAVAN, J.
Yusuji Hinagata - Appellant
Versus
State - Respondent
Criminal Appeal No. 36 of 2016
Decided On : 01-10-2019
Advocate Appeared:
Caroline Collasso, Adv., S.R. Rivankar, Adv.
Headnote:
Code of Criminal Procedure, 1973 - Section 374 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8/ 22/ 20 - Rigorous imprisonment – Claim of compensation – Jurisdiction – Thereafter took search of the 3/4th pant of the appellant which had six pockets. During search, a blue coloured plastic polythene bag with a knot was recovered, wherein there were 55 black coloured balls enclosed in a transparent wrapper. When the balls were minutely observed, they were found smelling of charas which is a narcotic drug. A small piece of charas was tested with the help of field testing (drug detection) kit. The test was positive - Thereafter, during further search, the appellant was found in possession of a glass bottle with white coloured cap having a dropper. The bottle was of amber colour. It contained some liquid. When the liquid was smelled, it was suspected to be LSD, a psychotropic substance – Held, This is significant in the light of the fact that the appellant does not know English language. It is more surprising to note that the learned Special Judge in an order dated 04/09/2014 at page no.24 of the paper book had stated that the learned Advocate appearing for the appellant did not argue the matter on charge and left it to the Court, which also can be said to be against the right of the accused to be heard at the time of framing the charge. It is apparent that the charge was framed sans giving a proper hearing to the appellant - Police Constable Mayur Gawade, PW6 Mahendra Colvalkar, who is the pancha witness of seizure and search, as well as PW8 Vidhya Pagui, the informant and complainant, have spoken in tune. Their evidence is literally the same as regards the raid, search and seizure of the appellant as well as drawing of panchanama. If the evidence of the aforesaid witnesses is juxtaposed, one thing is quite clear that none had testified that the appellant understood English conversation between PW5 PI Suraj Halarnkar and PW8 PSI Vishya Pagui vis-a-vis the appellant. If the defence of the appellant is accepted in view of the weather report, that on 17/07/2013, there were rains, then how could the contraband articles be seized as the raid was conducted in an open place near the football ground at small Vagator around midnight? It is neither the case of the prosecution that any one of the members of the raiding party was well versed with Japanaese language nor it is their case that the appellant understood Konkani. The Investigating Officer had neither seized the clothes of the appellant on his person from where the contraband articles were alleged to have found nor his passport came to be seized for the reasons best known to him. Had the appellant understood the conversation, perhaps, he would have agreed to be searched before the Magistrate or a Gazetted Officer - Appeal is allowed
JUDGMENT :
PRITHVIRAJ K CHAVAN, J.
1. By this appeal under Section 374 of the Code of Criminal Procedure, 1973, the appellant impugns the judgment and order dated 25/01/2016, by which he has been convicted by the Special Judge of Narcotic Drugs and Psychotropic Substances Court, Mapusa of an offence punishable under Section 8(c) read with Section 22(C) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short 'NDPS Act') for being found in illegal possession of 1.81 gms of LSD liquid and 568 gms of charas. He has been sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for one year and rigorous imprisonment for 5 years with fine of Rs. 50,000/-, in default rigorous imprisonment for one year, respectively. The substantive sentences were directed to run concurrently.
2. Factual matrix can be summarised as follows:
The Anti-Narcotic Cell, Panaji, Goa on 17/07/2013 received reliable and secret information that on 18/07/2013, a wheatish complexion, tall male of medium built, aged about 45 to 50 years wearing yellow colour T-shirt and dark grey colour 3/4th pant will be coming on a black colour Activa scooter bearing no.GA-03-T-9811 to deliver narcotic drugs between 00.00 hrs. to 1.00 hrs. to his prospective customer near football ground, small Vagator, Anjuna, Bardez-Goa. The Investigating Officer PW8 PSI Vidhya Pagui reduced the information into writing. A copy of the information was sent to PW3 Dy.S.P. ANC, Shri Sammy Tavares. PW8 Vidhya Pagui, thereafter, made necessary preparation for conducting a raid with the help of police staff and panch witnesses. The panch witnesses PW6 Mahendra Colvalkar and Bhalchandra Murgaonkar were introduced with the members of the raiding party. The panchas were also shown the Ashoka Emblem to be used during the raid.
3. The raiding team proceeded to the spot of incident in two private Swift cars bearing numbers GA-04-C-1860 and GA-03-C-6768. At around 00.25 hrs. they saw a male of the given description proceeding to the football ground on a scooter from Anjuna side. He alighted from the scooter and stood near it. Since his description matched with the information, he was intercepted by the raiding team led by PW8 Vidhya Pagui. She introduced herself and the other members of the team. On being asked, the said person disclosed his name as Yasuji Hinagata, son of Katsuni, aged 50 years, Japanese National. He was informed by PW8 Vidhya Pagui, about the information received by the Anti Narcotic Cell and about the personal search to be effected. PW8 Vidhya Pagui, thereafter, requested PW5 PI Suraj Halarnkar to conduct personal search of the appellant. PW5 PI Suraj Halarnkar informed the appellant that he had a right to be searched in presence of Gazetted Officer or a Magistrate and, if he desires, a search will be conducted in the presence of Officer/s. However, the appellant declined the offer. The appellant had also declined to take search of the members of the raiding party when he was asked to do so.
4. Pw5 PI Suraj Halarnkar, thereafter, took search of the 3/4th pant of the appellant which had six pockets. During search, a blue coloured plastic polythene bag with a knot was recovered, wherein there were 55 black coloured balls enclosed in a transparent wrapper. When the balls were minutely observed, they were found smelling of charas which is a narcotic drug. A small piece of charas was tested with the help of field testing (drug detection) kit. The test was positive.
5. Thereafter, during further search, the appellant was found in possession of a glass bottle with white coloured cap having a dropper. The bottle was of amber colour. It contained some liquid. When the liquid was smelled, it was suspected to be LSD, a psychotropic substance.
6. In the presence of panchas, those contraband articles were duly seized by following the regular procedure. The substances were weighed. The glass bottle along with the
