9911796707
TMI Blog1993 (3) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1 lakh, in default of payment of which to further undergo six months' R.I. The appeal filed by the appellant was dismissed by the High Court. Hence the present appeal. In brief the prosecution case is that on 29.9.89 the Police Sub Inspector Gaonkar, P.W3 alongwith a police party was patrolling at Calangute Beach near Panjim and they came across the accused who was sitting on a wooden log. On suspicion they went near him and noticed a chillum (smoking pipe) in front of him lying on the log. He secured the presence of panch witnesses and searched the accused and recovered a polythene pouch from his pyjama pocket in which there were tobacco, one cigarette paper packet and two cylindrical pieces of 'Charas". The two piec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, is entitled to the benefit of Section 27. Before us more or less the same submissions are made. So far as the contentions in respect of seizure and drafting of panchnama and weight are concerned, the question is whether the accused has been told that if he so desires he would be taken to a Magistrate before the search, as provided under Section 50. Whether this has been complied with or not mostly depends on the evidence and they are only questions of fact. Both the courts below have considered the entire evidence and have rejected these submissions. Though these are questions of fact, yet we have also considered the relevant evidence on these aspects and we agree with the findings of the courts below. The next and most important su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of Section 27 as he has not discharged the necessary burden as required under the said Section. Before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it can not be presumed or inferred that the substance in the other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable- (a) Where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notification i n the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and (b) Where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under clause (a) with imprisonment for a term which may extend to six months or with fine or with both Explanation (1) For the purposes of this sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption and not for sale or distribution." The first explanation to this Section lays down that the small quantity means such quantity as may be specified by the Central Government by a notification. By virtue of the notification issued on 14.11.85 for the purpose of this Act 5 gms. or less quantity of Charas shall be the small quantity. Explanation 2 further lays down that the burden of proof that the substance was intended for the personal consumption and not for sale or distribution, lies on such person from whose possession the same was recovered. As held above in the instant case the prosecution has proved that the quantity seized from the accused was less than 5 gms. Therefore, it is within the meaning of 'small quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption. We are aware that the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely but in view of the provisions of Section 27, we are unable to hold that the small quantity found with the appellant was not meant for his personal consumption and that on the other hand it was meant for sale or distribution. Therefore, the appellant is liable to be punished as provided under Section 27 of the Act. From the records it appears that the appellant has been in jail for more than three years but that may not be relevant since the sentence prescribed under Section27 is only six months. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
