22002244::BBHHCC--GGOOAA::11669955 CRIA 20 OF 2022.ODT Esha IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 20 OF 2022 WITH CRIMINAL MISC. APPLICATION NO. 223 OF 2023 (F)

IN CRIMINAL APPEAL NO. 20 OF 2022 Mr. Subodh Levi, s/o Sambarbhushanam Levi, age 21 years, labour work, n/o Trilanga, Bhopal, Madhya Pradesh, convict prisoner, presently in custody at Modern Central Jail at Colvale, Bardez, Goa. … Appellant Versus

1. State, (Through Police Inspector, Anti Narcotic Police Station, Panaji, Goa).

2. The Public Prosecutor, High Court of Bombay at Goa, Porvorim, Goa.

… Respondents *****

Mr. Pavithran A.V., Advocate under the Legal Aid Scheme for the Appellant.

Mr. Pravin Faldessai, Additional Public Prosecutor for the Respondents.

CORAM: BHARAT P. DESHPANDE, J.

RESERVED ON: 19^th SEPTEMBER 2024 PRONOUNCED ON: 7^th OCTOBER 2024

JUDGMENT:

1.

The Appeal was admitted on 24.03.2023 and thereafter, Record & Proceedings were called and on furnishing a paperbook, the matter was taken up for final disposal since the Accused is in custody.

2.

Heard Mr. Pavithran who is appearing on legal aid basis for the Appellant and Mr. Pravin Faldessai, learned Additional Public Prosecutor for the State.

3.

The Appellant has challenged the conviction and sentence passed by the learned Special Court vide judgment and order dated 13.10.2021, thereby holding the Appellant guilty for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act, for short] and accordingly, sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh and in default to suffer imprisonment for a period of one year.

4.

The challenge to the impugned judgment is raised on three points as under:

(a) That there is non-compliance of Section 50 of the NDPS Act;

(b) That there is non-compliance of Section 52-A of the NDPS Act and (c) That the possibility of tampering with the contraband is evident.

5.

The points for determination are as under together with my findings against it.

Points for determination Findings (I) Whether the Raiding Officer complied with Section 50 of the NDPS Act before searching the Accused ?

(II) Whether the Incharge of the Police Station complied with Section 52-A of the NDPS Act on receipt of the In the contraband from the Raiding Officer ?

Affirmative (III) Whether the prosecution proved that the contraband sealed at the spot, is the same which was forwarded to the Laboratory and was found to be the narcotic substance ?

SUBMISSIONS OF APPELLANT:

6.

Mr. Pavithran in his elaborate submissions would submit that there is a clear breach of Section 50 of the NDPS Act as the Accused was not informed about his right to be searched before the Gazetted Officer or the Magistrate. He would submit that the Pancha nowhere disclosed the actual words spoken by the Raiding Officer in Hindi, while informing the Accused of his actual right, as what the Raiding Officer deposed in his evidence. According to Mr. Pavithran, this is a major discrepancy and non-compliance of the provisions.

7.

Mr. Pavithran would then submit that there is a clear discrepancy in the evidence of the Raiding Officer and that of the Pancha witness as the only independent witness failed to support the contentions of the Raiding Officer about compliance with Section 50 of the NDPS Act.

8.

Mr. Pavithran would submit that there is serious doubt about the exact procedure followed by the Raiding Officer at the spot and more particularly, the weight of the substance as a small piece was taken out of the paper sheet for the purpose of testing and the only Pancha witness is clearly deviating from such material. He would submit that the panchanama would clearly go to show that the weight of the substance was told to the Pancha witness by the Raiding Officer. According to Mr. Pavithran, this would clearly mean that the Pancha did not personally verify the weight of the substance. He would further submit that such a fact is clear from the deposit