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2020 Supreme(Bom) 1358
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK, M.S. JAWALKAR, JJ.
Ivan Miguel – Appellant
Versus
STATE (As represented by the Officer Incharge, Pernem Police Station, Pernem, Goa & Another – Respondent
Criminal Appeal No. 57 of 2016
Decided On : 12-10-2020
For the Appellant :Dolorosa Chiquita Tulkar, Advocate.
For the Respondents: Pravin Faldessai, Additional Public Prosecutor.
Headnote:
CRIMINAL APPEAL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 22(C), 21(B), 20(B)(II)(B) - POSSESSION OF MDMA, COCAINE, LSD, AND CHARAS - SEARCH AND SEIZURE - COMPLIANCE WITH SECTION 50 OF THE ACT - ANALYSIS OF SUBSTANCES - EVIDENCE OF CHEMICAL ANALYSTS - SUFFICIENCY - REASONABLE DOUBT - SENTENCING - REFORMATIVE ELEMENT.
Fact of the Case:
The Appellant was convicted under Sections 22(c), 21(b), and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possessing MDMA, cocaine, LSD, and charas. The Appellant challenged the conviction on the grounds of non-compliance with Section 50 of the NDPS Act, insufficiency of evidence of the Chemical Analysts, and the severity of the sentence.
Finding of the Court:
1. The Court held that the provisions of Section 50 of the NDPS Act were not attracted in this case as the contraband was recovered from the Appellant's bag, not from his person. Even if Section 50 was attracted, the Court found that the requirements of the section were duly complied with. 2. The Court found that the evidence of the Chemical Analysts was sufficient to establish that the substances attached from the Appellant's bag were narcotic drugs and psychotropic substances. The Court rejected the Appellant's contention that the testimonies of the Chemical Analysts were vague or bereft of details. 3. The Court held that the Appellant was not entitled to the benefit of doubt as the Prosecution had proved its case beyond reasonable doubt. 4. The Court reduced the sentence of rigorous imprisonment under Section 22(c) of the NDPS Act from 15 years to 12 years, considering the Appellant's young age and the reformative element in sentencing.
Issues: 1. Whether the provisions of Section 50 of the NDPS Act were attracted in this case and whether the requirements of the section were duly complied with. 2. Whether the evidence of the Chemical Analysts was sufficient to establish that the substances attached from the Appellant's bag were narcotic drugs and psychotropic substances. 3. Whether the Appellant was entitled to the benefit of doubt. 4. Whether the sentence of rigorous imprisonment under Section 22(c) of the NDPS Act was excessive.
Ratio Decidendi: 1. The Court held that the provisions of Section 50 of the NDPS Act were not attracted in this case as the contraband was recovered from the Appellant's bag, not from his person. Even if Section 50 was attracted, the Court found that the requirements of the section were duly complied with. 2. The Court found that the evidence of the Chemical Analysts was sufficient to establish that the substances attached from the Appellant's bag were narcotic drugs and psychotropic substances. The Court rejected the Appellant's contention that the testimonies of the Chemical Analysts were vague or bereft of details. 3. The Court held that the Appellant was not entitled to the benefit of doubt as the Prosecution had proved its case beyond reasonable doubt. 4. The Court reduced the sentence of rigorous imprisonment under Section 22(c) of the NDPS Act from 15 years to 12 years, considering the Appellant's young age and the reformative element in sentencing.
Final Decision: The Court partly allowed the appeal, upholding the conviction but reducing the sentence under Section 22(c) of the NDPS Act from 15 years to 12 years.
JUDGMENT :
M.S. Sonak, J.
1. Heard Ms. Dolorosa Tulkar, the learned Counsel for the Appellant and Mr. Pravin Faldessai, the learned Additional Public Prosecutor for the State.
2. This Appeal is directed against the Judgment and order dated 30th June/14th July, 2016, made by the learned Special Judge, in NDPS Criminal Case No.16/2014, by which the Appellant was held guilty of the offences under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for 15 years and payment of fine of Rs.1,00,000/-, and in default of payment of the fine, to undergo further rigorous imprisonment for one year.
3. The Appellant, by the same Judgment and Order, was also held guilty of the offences under Sections 21(b) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for 7 years and payment of fine of Rs.50,000/- for each of the offences and in default of payment of fine, to undergo further rigorous imprisonment for one year and six months, respectively.
4. The Prosecution case is that on 14/1/2014, the Investigating Officer (IO) Dinesh Gadekar (PW.9), the Police Sub- Inspector of ANC Police Station, received reliable information that one foreign national, male person, aged between 30-35 years, medium built, fair complexion, average height, wearing a green colour T-shirt and white colour pant, will be coming to deliver narcotic drugs on 14/1/2014 between 0.00 hours to 01.00 hours to his prospective customers at Football Ground, Ashvemwado, Mandrem, Pernem, Goa. Thereupon, PW.9 reduced this information into writing and sent a copy of the same to Dy. S.P. VamanTari (PW.3) for his information. He then secured the presence of two Panchas, informed them about the information received, showed them the seal of the Anti Narcotic Cell Police Station 4, with Ashoka Emblem, along with the Panchas and some other officers of the ANC proceeded to the stated spot for the raid. At about 0.10 hours, they saw the Appellant coming towards the football ground. Thereupon, the raiding party members surrounded the Appellant. PW.9 introduced himself and other members of the raiding party to the Appellant. He was informed about the information received and that his search was to be conducted. The Appellant was informed of his right to be searched before a Gazetted Officer or a Magistrate. The Appellant was also given the offer to search the members of the raiding party if he so desired. The Appellant declined both the offers. The bag carried by the Appellant was first searched. In it the raiding party found one transparent autopress polythene packet, containing whitish brownish colour crystal form substance, one autopress polythene packet containing whitish colour powder and one whitish colour plastic bottle with a white colour cap containing some liquid. The raiding party, with the drug detection kit which they had with them, carried out tests and found that one of the substances was MDMA which was then packed, sealed and marked as Exhibit I. The whitish colour powder was found to be cocaine. It was packed, sealed and marked Exhibit II. The liquid was poured in a vial, and it was tested and found to be LSD. This was marked as Exhibit III. The bottle in which the liquid was found, was also weighed, packed, sealed and was marked Exhibit IV. The raiding party found another polythene packet containing pieces of black substance in different sizes and shapes in the bag of the Appellant. This was tested and found positive for charas. This was packed, sealed and marked as Exhibit V. All such substances were weighed. The weight of the MDMA was found to be 72 grams, cocaine 5.5 grams, LSD liquid 2.5 grams and charas 785 grams. All these substances were sent for chemical analysis, and the chemical analysis officers confirmed that these substances were indeed MDMA, cocaine, LSD and charas, respectively.
5. The Prosecution accordingly filed ch
