IMPORTANT POINT
Under Narcotic Drugs Act the burden of proving that the possession of the prohibited drugs is legal is on the accused and not on the prosecution.

JUDGMENT

G F. Couto, J. - The appellant a native of Rajasthan, has been tried and ultimately convicted of an offence punishable under Section 20 (b)(ii) read with Section 2(iii)(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 by Judgment dated 30th October, 1980. He was, thereafter sentenced to undergo 10 years of rigorous imprisonment and to pay a fine of Rs. 1 lakh and in default, to undergo a further period of imprisonment for 2 years.

2. The case of the prosecution is that on 13th March, 1986, the Excise Inspector Manuel Jose Afonso conducted a raid for narcotic and psychotropic substance at Azrem Beach of Vagator and on such occasion, he found the appellant in unauthorised possession of 40 gms. of charas.

3. The accused pleaded not guilty to the charge, his case being that be is doing business of selling 'chillums' and. therefore, he had come to Goa from Rajasthan for the purpose of selling the said 'chillums'. He denied the case of the prosecution that he was found in possession of any charas.

4. The prosecution examined three witnesses in order to prove its case, namely, the complainant Afonso, the Panch Witness Nakul Murari and the Chemical Analyser M.M kaissari. On basis of this evidence, the learned Sessions Judge, Panaji, held that the prosecution bad succeeded in proving that the appellant was in possession of 30 gms of charas. He gave the benefit of doubt as regards the other Quantity of charas, which had been recovered by the Excise Inspector from near the mat where the appellant was lying. Accordingly, the learned Judge convicted the appellant for an offence punishable under Section 2o(b)(ii) read with Section 2(iii)(a) of the said Act and thereafter; sentenced him to undergo 10 years of rigorous imprisonment and to pay a fine of Rs. 1 lakh.

5. Mr. Dessai, the learned counsel appearing for the appellant, began to invite our attention to the harsh punishment prescribed under the Act for the offence with which the appellant had been charged. He contended that harsher the punishment, stricter should be the analysis of the evidence so as to record a clear finding that the prosecution had been able to prove its case beyond any reasonable doubt. He, then, invited our attention to Section 20 of the Act, namely, that the said provision of law lays down that only those who are found in possession of the prohibited drugs and substances in contravention of the Act commit an offence under the said Section. Then, he urged that though under Section 54 of the same Act, a presumption of Possession of illicit articles is drawn against a person who is found with such substances, the fact remains that it is for the prosecution to prove that the person found in possession of such substances is in Illegal possession thereof. In the present case, this burden has not been discharged by the prosecution and, therefore, the conviction of the appellant was not justified.

6. We find no substance at all the in above submission of Mr. Dessai. As rightly pointed out by the learned Public Prosecutor, Mr. Bhobe, Section 54 of the Act specifically provides that in trials under the Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect, inter alia, to any narcotic drug or psychotropic substances. Now, the expression unless and until the contrary is proved clearly imposes the burden of proving that the possession of the prohibited substance is legal on the accused himself, and that dispenses entirely the prosecution from proving that possession of such substances is illegal. In its turn, Section 20 provides that whoever in contravention of any provision of the Act or any Rule or order made or condition of licence granted there under, inter alia, produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable in cases where such contravention relates to cannabis other than ga