CRIA/29/2001 of GERARD TSCHAPPAT Vs STATE OF GOA on 5 December 2002

JUDGMENT

CORAM : P.V. KAKADE, J.

DATED: DECEMBER 5, 2002.

The Appellant has preferred this Appealagainst Judgment and Order passed by the SpecialJudge, N.D.P.S. Court, Mapusa, in Special CriminalCase No.8 of 2000 wherein the Appellant wasconvicted for offence punishable under Section 21of the N.D.P.S. Act 1985 and was sentenced toundergo Rigorous Imprisonment for 10 years and topay fine of Rupees One Lakh or in default to undergo another 6 months Simple Imprisonment. Thedetention period as undertrial was directed to beset off under Section 428 of the Cr.P.C..

2. The facts giving rise to the case, inshort, are thus:

The Appellant, a Swiss National, was foundpossessing 7 grams of heroine, between 00.15 hoursto 2.40 hours in Municipal Garden in front of HinduPharmacy, Panaji, Goa on 8.1.2000 by P.S.I. ofA.N.C. Police Station. This seizure wasconsequent upon the information received by PSIPrabhudessai at 22.40 hours on 7-1-2000. Thetelephonic message was given and the saidinformation was reduced to writing and was sentaccordingly to his superior Officer. The raid wasconducted according to law in presence of panchasand seizure was made after compliance of theprovision of Section 50 of the N.D.P.S. Act.

After the seizure, the sample of thenarcotic was duly sealed and was eventually sent tothe Chemical Analyser whose report was received indue course which was positive and on such basis, oncompletion of investigation, the charge-sheet wassent to the Special Court.

The learned Special Judge framed chargeagainst the Appellant/accused to which he pleadednot guilty. The prosecution led its evidence andon completion thereof, the learned Special Judgecame to the conclusion that the substance found inthe custody of the Appellant was heroine and theprosecution had proved the offence contemplatedunder Section 21 of the N.D.P.S. Act against theAppellant/accused. It was further held that theplea of the accused that the quantity found withhim was "small quantity" within the meaning ofprovision of Section 27 of the N.D.P.S. Act wasnegatived and, as such, benefit of Section 27 ofthe said Act was denied to the Appellant.Consequently, the Appellant was convicted andsentenced accordingly and hence the Appeal.

3. I heard Mr.Chari, the learned SeniorCounsel, as well as Mr. J.P. D’Souza, the learnedCounsel for the Appellant. I also heardMr.Lawande, the learned Public Prosecutor, atlength and perused the entire record with theirassistance.

4. In the course of the arguments, thelearned Counsel for the Appellant brought to mynotice that it is the prosecution case that the

contraband article found in possession of theAppellant was less than 7 grams. The evidence ofthe Chemical Analyser also shows that when heopened the envelope containing the contraband andweighed the contents in the envelope, the contentswere weighed at 6.20 grams of creamish powder andthe entire weight of the contraband along with thebag where it was kept, was 7 grams. In view ofthis position, the learned Counsel for theAppellant submitted that the learned trial Judgeshould have given serious consideration for theirplea for benefit of Section 27 of the N.D.P.S. Actto hold that it was "small quantity" contemplatedunder the provisions of the said Act and the Rulesthereunder. It may be noted at this stage that thesmall quantity envisaged by the provision ofSection 27 of the said Act is that of 5 grams and,therefore, it must be said that this case is aborderline case.

5. Mr. Lawande, the learned PublicProsecutor, brought to my notice that thecontraband found with the Appellant was more thanquantity of 5 grams and, therefore, technically itcould not be said to be "small quantity" within themeaning of Section 27 of the said Act. In thisregard, the learned Counsel for the Appellant invited my attention to the unreported ruling ofthe Division Bench of this Court in CriminalAppeals No.8 of 1991 and 9 of 1991. In a similarsituation, the Division Bench of this Courtobserved thus:- " We are conscious thatsmall quantity has beendefined to be 5 gms. and whatis apprehended from accusedMarco is 7.240 gms. ofsubstance containing charas.Nevertheless, there is noindication whatsoever that theaccused Marco is a drugpedlar. It is commonknowledge that foreigners comehere and they are either drugaddicts or enjoy themselveswith drugs. The factnone-the-less remains thatwhat was finally recoveredfrom him is slightly in excessof the small quantity asdefined by the notificationissued by the CentralGovernment. In the absence ofany indication that he is apeddlar and regard being hadto the stringency of penaltywe feel that the circumstancesof the case will justify thathis conviction be upheld forpossession a small quantityand therefore he is liable tobe punished under Section 27of the Act instead of Section20(b)(ii) of the Act."

In my considered view, the ratio appliedby the Division Bench in the said Appeals canequally be adopted in this case. Here, theAppellant is found possessing contraband articles weighing 6.20 grams whereas in the case underconsideration of the Division Bench earlier, thequantity held by the Appellants there was 7.240grams. In this case also the Appellant is a SwissNational and, obviously, there is absolutely noindication to hold that he is a drug peddlar. Itis common knowledge that foreigners come here andthey are either drug addicts or enjoy themselveswith drugs. Thee facts involved do show that whatwas finally recovered from the Appellant isslightly in excess of the "small quantity" asdefined by the Notification issued by the CentralGovernment. Therefore, in the absence of anyindication that he is a peddlar and regard beinghad to the stringency of the penalty, I feel thatthe circumstances of the case would justify thathis conviction be upheld for possessing smallquantity and therefore, he would be liable forpunishment under Section 27 of the Act instead ofSection 21 of the Act.

It is also brought to my notice that theAppellant is in custody since 8-1-2000, i.e.almost 3 years. The provision of Section 27(a)provides for imprisonment for a term which mightextend for one year or with fine or with both. Mr.D’Souza, the learned Counsel for the Appellant, submitted that the benefit of Section 27 to theAppellant should entail his immediate releaseholding that the imprisonment already undergone wassufficient to cover his conviction and sentence.Mr. Lawande, the learned Public Prosecutor,insisted that the Appellant should be made to payfine instead of giving benefit of shorter sentencein default of payment of fine. Mr. D’Souza, thelearned Counsel for the Appellant, agreed that theAppellant will deposit the fine amount which wouldbe directed by this Court, provided his substantivesentence is reduced to which already undergone byhim.

circumstances, I pass the following Order:- The Appeal is partly allowed. Theconviction and sentence passed by the learned trialJudge under Section 21 of the N.D.P.S. Act ishereby set aside and instead, the Appellant isconvicted under Section 27 of the N.D.P.S. Act andis directed to undergo imprisonment for the periodwhich he has already undergone and to pay fine ofRs.50,000/-, in default, to undergo RigorousImprisonment for 3 months. On payment of fine, theAppellant would be entitled to immediate release from the prison holding that he has undergone thesentence as directed by this Court, if not requiredin any other case.

P.V. KAKADE,J.

ac.