ORDER
R.K. Batta, J.
1. The appellant was tried for possession of 115 grams of charas under section 20(b)(ii) of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter called the N.D.P.S. Act) by the Special Judge, Mapusa. The prosecution had examined four witnesses in support of the charge. The appellant was held guilty for possession of 108.6 grams of charas vide impugned judgment dated 20th November, 1997, which is subject matter of challenge in this appeal. The appellant was ordered to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lakh, in default to suffer rigorous imprisonment for two years under section 20(b)(ii) of the N.D.P.S. Act. The period of imprisonment already undergone during the course of investigation and trial was ordered to be set off with effect from 8-5-97.
2. The prosecution case, in brief, is that on 8-5-97 P.I. Jadhav (P.W. 4) of Anti Narcotic Cell, Panaji, received specific and reliable information that one Roy, who was staying in House No. 1714 belonging to Smt. Mendonca at Soranto, Anjuna was dealing in narcotic drugs such as charas. The information was reduced to writing and the copy of the same was sent to S.P., A.N.C. and after securing the presence of two panchas P.I. Jadhav proceeded to Anjuna. When they reached the said house, they saw the appellant getting down from the steps of the house, P.I. Jadhav introduced himself and the other members of the raiding party as well as the panchas to the appellant and told him of the specific and reliable information he had received and that he come to take search for drugs. P.I. Jadhav informed the appellant that he had a right to be searched in the presence of a Gazetted Officer or Magistrate, but the appellant did not avail of the said offer. Likewise P.I. Jadhav also told him that he had a right to take search of the raiding party of the panchas before the commencement of the search, but the appellant declined to avail of the said offer as well. From the waist belt cum-pouch which the appellant was having on his person, 12 tablets suspected to be ecstasy tablets were seized from the first zipper compartment. From the second zipper compartment of the said waist belt-cum-pouch one polythene packet containing black substances in various shapes and sizes suspected to be charas were seized. The same were weighed and the weight was 115 grams. The said substances were packed and sealed in an envelope and a panchanama was drawn which was signed by the panchas, P.I. Jadhav and the
appellant. The said tablets and charas were sent for analysis to the Central Forensic Science Laboratory, Hyderabad where the same were analysed by the Junior Scientific Officer, Murthy (P.W. 1). The tablets were not found to be containing narcotic drugs or psychotropic substances. However, on examination of the suspected charas, it was found that it gave positive test for charas.
3. Learned Advocate Shri J.P. D’Souza, appearing on behalf of the appellant, has basically made three submissions namely :-
(i) There is difference in weight of the contraband attached and one received by the Laboratory and, as such, there is every possibility that the sample was tampered;
(ii) The offer recorded in the panchanama (P.W. 3-A) was capable of several interpretations and at any rate it did not convey to the appellant that he had a right to be searched in the presence of a Gazetted Officer or Magistrate; and
(iii) The Junior Scientific Officer had not analysed all the substances sent to him and in the absence of details as to how much substance was analysed by him, the appellant is entitled to the benefit of ‘small quantity’ in terms of section 27 of the N.D.P.S. Act. In support of this contention, reliance has been placed upon the judgment of the Apex Court in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, 1993 Cri.L.J., 1485.
4. Learned Public Prosecutor Shri Lawande, submitted before us that the offer has to be examined in the context in which it was given to the appellant; that it was never suggested to any of the prosecution witnesses that the appellant understood the said offer as is now sought to be interpreted by the learned Advocate for the appellant; that the difference in weight is on account of the scientific balance which is used in the Laboratory as compared to the balance used by the police and that no case is made out for grant of benefit under section 27 of the N.D.P.S. Act.
5. We have examined the record with reference to the contentions advanced before us. We shall first deal with the question whether the offer as contemplated under section 50 of the N.D.P.S. Act was made to the appellant. It has to be borne in mind that P.I. Jadhav had conducted the search of the appellant on receipt of specific and reliable information that the appellant was dealing in narcotic drugs such as charas. This information was reduced to writing and copy thereof was sent to S.P., A.N.C., Panaji. Thereafter the raiding party had gone to the house of the appellant who was found getting down from the steps of the house. The appellant was apprised of the specific and reliable information and he was told that P.I. Jadhav wanted to take his personal search as well as search of his house for drugs. It is in this context that the offer made is to be understood. It is urged before us that the offer is capable of several interpretations. However, we find that it was nowhere suggested by the appellant to pancha (P.W. 3) or P.I. Jadhav (P.W. 4) when they were in the witness box that the appellant had understood the offer as is being now suggested during the course of arguments. Learned Advocate for the appellant suggested that if the offer recorded in the panchanama is literally interpreted, it would mean that the appellant had a right to take search of P.I. Jadhav in the presence of a Gazetted Officer or Magistrate or alternatively that P.I. Jadhav had a right to take the search of the appellant in the presence of the Gazetted Officer or Magistrate. The context in which this offer is recorded in the panchanama and has been later on explained by pancha (P.W. 3) and P.I. Jadhav during the course of their sworn testimony, we find it difficult to accept the contention of learned Advocate for the appellant. When read in the context, we find that the
appellant was duly informed that he had a right to be searched in the presence of a Gazetted Officer or Magistrate and this offer was not availed of by the appellant. The first submission of the learned Advocate for the appellant is, therefore, without any merit.
6. Regarding the second submission, we have to state that there is minor difference in the weight which has been explained on account of the scientific balance used in the Laboratory in relation to the one used by the Police. The envelope in which the contraband charas was sealed had signature of the appellant and this envelope was received with all seals intact and the seals tallied with the specimen seals sent with the reference letter which rules out any case of tampering. We therefore do not find any merit in this submission of learned Advocate for the appellant on this aspect. Admittedly, 108.6 grams of contraband was received by the Junior Scientific Officer Murthy (P.W. 1). He admits that he did not carry out the test on each and every substance from the said envelope, but he had carried out test as per the standard sampling procedure. The standard sampling procedure has been explained to mean that a part of some of the substances is taken for test and the entire substance is not analysed. This deposition of Murthy (P.W. 1) thus makes it clear that he had taken representative sample and as such there is no material on record to come to the conclusion that the appellant was liable to be punished only for the quantity which was analysed which, according to learned Advocate for the appellant, was much less than 25 grams. Learned Advocate for the appellant had relied upon the deposition of P.W. 1 when he agreed that it was not possible to express any scientific opinion in respect of the substances which were not tested as to whether or not they were containing charas. Factually it may be correct, but when standard sampling procedure is followed and representative samples are taken, this fact does not have any significance. Even if there was material to hold that the appellant was found in possession of small quantity, yet the appellant has not been able to probabilise, on basis of the material on record, that the substance recovered from the appellant was meant for his personal consumption. Learned Advocate for the appellant had placed reliance on the judgment of the Apex Court in Gaunter Edwin Kircher v. State of Goa (supra) wherein 12 gms. of charas was recovered and only one piece weighing less than 5 grams was sent for chemical analysis which was found to contain charas. The other piece weighing 7 grams was not sent for analysis. In the case under consideration before us the entire contraband was sent and the same was analysed by standard sampling procedure. Moreover, in the said case it was pointed out by the Apex Court that when benefit of small quantity is claimed, burden is on the appellant to prove that the substance was intended for personal consumption. Therefore, the nature of burden of proof that has to be discharged would depend upon facts and circumstances of each case. In the said case before the Apex Court, the accused had in general taken the plea of denial, but in his examination under section 313 Cr.P.C., plea was taken that contraband which was less than 5 grams and was recovered from the appellant was meant for his personal consumption. It was also noticed that in the said case that along with the substance in the pouch was a chillum (smoking pipe) and smoking material. It was in these surrounding circumstances that the Apex Court accepted the plea of the appellant under section 27 of the N.D.P.S. Act. The facts are entirely different in the case under consideration. The appellant throughout the trial had taken the plea of total denial of any recovery of contraband from his person and this stand was confirmed by the appellant in his statement under section 313 Cr.P.C. wherein the entire prosecution case was stated to be false. However, at the end of his statement under section 313 Cr.P.C., the appellant filed written statement stating that he is user
of charas, but at the same lime the appellant categorically averred that no drugs were found on his person. In these circumstances, mere statement of the appellant that he is user of drugs without any material on record which could probabilise his stand is not considered sufficient for the purpose of bringing the case of the appellant within the scope and ambit of section 27 of the N.D.P.S. Act. We are, therefore, unable to accept the submission of learned Advocate for the appellant on this count as well.
7. For the aforesaid reasons, we do not find any merit in this appeal and the appeal is dismissed. The conviction and sentence imposed by the Special Judge is confirmed.
8. Appeal dismissed.