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TMI Blog1989 (8) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... th a modification of the default sentence from one year to six months on the indictment that the appellant on 7.12.87 at about 0.40 hours at Colva was found in possession of prohibited drugs/namely 51 gms. of brown sugar, 45 gins. of ganja oil and 55 gms. of opium all worth approximately ₹ 13,465 without valid documents. Adumberated in brief, the relevant facts of the prosecution case giving rise to this appeal are as follows. On 6th December, 1987 at about 11.00 p.m. the Assistant Sub Inspector of Police, Shri Laxman Mahalsekar (PW-7) while along with his police party was on his patrol duty at the 3rd ward of Colva, saw the appellant speeding up his motor- cycle, bearing Registration No. GDK 851 ignoring his signal to stop. The appellant in such attempt, presumably to escape from being nabbed by the police lost control over the vehicle and fell down. No sooner he stood up and removed a paper wrapping from his pant pocket and threw it away. PW-7 on entertaining suspicion over the conduct of the appellant verified that wrapping to contain small quantity of brown sugar and then he took the appellant along with his motor- cycle to the nearby Police Out Post. A handbag, bluish i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on the ground that the appellant was in possession of prohibited drugs without a valid licence or permit or authorisation in violation of Section 8 punishable under the penal provisions of the Act. The defence of the appellant is one of total denial. As pointed out in the earlier part of this judgment both the Trial Court and the Appellate Court have concurrently found the accused guilty. Mr. Govind Mukhoty, learned senior advocate appearing on behalf of the appellant directed a manifold scathing attack on the prosecution case raising the following contentions: 1. The absence of any visible injury on the person of the appellant while apprehended belies the prosecution version that the appellant had fallen down from the vehicle on accelerating the speed; 2. The fact that the Investigating Officer did not deliberately join with him respective inhabitants of the locality i.e. within the vicinity of the Police Out Post to witness the seizure but had taken pain to secure PW-1 and Connie D'Silva who were residing far away from the place of seizure and who seem to have been readily willing and obliging to be pancha witnesses devalues the evidence regarding the seizure of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant fell down from the motor-cycle at a place where the street lights i.e. the fluorescent tube lights and bulbs were on and thereafter immediately stood up. The evidence on these two witnesses and the other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police. It is not the case of the prosecution that the appellant sped away to some distance and then had fallen down from the speeding vehicle. PW-3, the Medical Officer attached to Hospicio Hospital speaks to the fact that when she examined the appellant on 8.12.87 at about 8.00 p.m., the appellant complained of bodyache, nosia etc. but PW-3 does not whisper of having seen any visible injury on the person of the appellant. After carefully scanning the evidence of PWs 4 and 7 coupled with the recovery of the articles Nos 1 to 14, we unhesitatingly hold that the appellant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt. Hence in the light of the above evidence, we are constrained to hold that this submission made by the learned defence counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defence has come forward with two diametrically contradictory suggestions in that, the suggestion made to PW-1 is that he only subscribed his signatures on some papers whilst a new story, suggested to PW-7 is that the panchanama was fabricated around the 5th of January 1988 in order to save one Ramesh, brother of PW-5 from being prosecuted in connection with this seizure. To establish the seizure of all the articles including the contrabands, the prosecution rests its case not only on the testimony of PW-1 but also on the evidence of PWs 5 and 7 whose evidence is amply corroborated by the towering circumstances attending the case. From the records, it is found that PW-7 divided the contrabands into three categories and sent the samples from each of the categories for analysis. No doubt, it would have been appreciable, had PW-7 sent sufficient representative quantity from each of the packets but however this omission in the present case does not affect the intrinsic veracity of the prosecution case. PW-6 has fairly stated that she was able to thoroughly assay only the substances found in two envelopes marked as Ex. P-1 and P-3 and the substances in envelop Ex. P-2 was not suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscontinuing the drug which, it seems, he was taking on his own as borne out from the testimony of the Medical Officers (PWs 2 and 3) under whose observation the appellant has been kept for some days. Incidentally, he has added that though ignorance of law is not an excuse and it cannot be permitted to be pleaded, yet this Court may take note of the fact that the appellant who is a foreigner should have been lacking awareness of the stringent provisions of the Act. Firstly, let us examine whether the offence would fail within the mischief of Section 27(a) of the Act. This section provides punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance. The expression 'small' quantity occuring in that section is explained under Explanation I annexed to that Section which reads thus: "For the purposes of this section 'small quantity' means such quantity as may be specified by the Central Government by notification in the Official Gazette." In compliance with this explanation, the Ministry of Finance (Department of Revenue) has issued notification No. S.O. 827(E) dated November 14, 1985 published ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errible menace which is completely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade." With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming pro- portions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. As we have now rejected the plea of the defence holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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