The failure to prove the link between the accused and the seized contraband negates the conviction under the Narcotic Drugs and Psychotropic Substances Act.

1. The appellant is an accused in Special Criminal Case No. 6/95 on the file of the Narcotic Drugs and Psychotropic Substances Court of Mapusa. He challenges the convictions and sentence passed by the Special Judge under S.20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 , whereby the appellant was sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, or in default, to suffer Rigorous Imprisonment for two years.

2. According to the prosecution, on 5th January, 1995, a raiding party of the Anti Narcotic Cell, Panaji, led by Mr. G. M. Jadhav, Police Inspector, was a making a random check in Calangute area. The raiding party also consisted of one Dy. SP Shri Shukla, On information received, the raiding party went to the house where the accused was staying. Admittedly, it was at 8'O clock in the night. When P.I. Jadhav entered the verandah of' the house where the appellant was staying, it was open. He knocked at the door and in response, the appellant, who is the co - owner came to the door. P. I. Jadhav introduced himself and the other members of the raiding party including the panchas and also Shri I. D. Shukla, Dy. SP of Anti Narcotic Cell, as Gazetted Officer and told the appellant that they wanted to search the person and the house of the appellant. He also told the appellant, that he could be searched in the presence of a Magistrate or Gazetted Officer and also informed him that Mr. Shukla was a Gazetted Officer. Appellant agreed to be searched in the presence of Mr. Shukla. The raiding party then searched the person and recovered charas from the bag which was worn by the appellant at that time and it weighed 12 gms. Sample was taken and sealed in the presence of panchas as per the rules.

3. It is the case of the prosecution that on asking the appellant whether any more charas were kept there in the house, the appellant took the raiding party to the adjacent room and there they found under the cot, two bundles. One bundle which was wrapped with cloth contained 365 gms. and another lot was found in an aluminum container of the appellant which contained 640 gms. of charas. Samples also were taken, packed and sealed in conformity with law. These recoveries are marked as S. 1, S. 2 and S. 3 respectively. After following the formalities the raiding party took custody of all these articles. The samples were sent for analysis and the Chemical Analyser of the Government Laboratory confirmed that the samples contained charas.

4. The prosecution has examined six witnesses in support of its case. PW 1 is Mahesh Kaisare, a Junior Scientific Officer in the Food and Drugs Laboratory, who had analysed the samples. PW 2 is Shri Suhas Halarnkar, a panch witness, PW 3 is Carmina D'Souza, who is said to be the owner of the house where the appellant was staying, PW 4 is Shri Manohar D. Joshi, Scientific Assistant in the CID Crime Branch, Panaji, who forwarded the samples to the Chemical Analyser, PW 5 is Shri Gopal Jadhav, the Investigating Officer and PW 6 is Shri Kiran Paduwal, who has partly investigated the case. The lower court has considered the evidence of the witnesses and found the appellant guilty.

5. The main defence taken on behalf of the appellant before the lower court was that the search was made after sunset and there is neither compliance of the proviso to S. 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 , nor the place is a public place to attract the Explanation to S. 43 of the Act. The lower court has found that the house is a public place which was let out to tourists and the appellant is also a tourist. The lower court has also found that the recovery from the person of the appellant is valid