Case Note & Summary
The appellant, Ishwar Buddha, was convicted by the Special Judge, NDPS Court, South Goa, for an offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for possession of 4.5 kg of ganja, a commercial quantity. He was sentenced to rigorous imprisonment for ten years and a fine of ₹1,00,000, with a default sentence of one year. The appeal challenged the conviction on grounds that the prosecution failed to prove conscious possession and that mandatory provisions of Section 50 of the NDPS Act were not complied with. The High Court of Bombay at Goa dismissed the appeal, upholding the conviction and sentence. The court found that the prosecution had proved beyond reasonable doubt that the appellant was in conscious possession of the contraband. The evidence of PW7, the investigating officer, and PW2, the Dy.SP, was credible and consistent. The panch witness turned hostile, but the court held that the testimony of official witnesses was sufficient. The court also held that the requirement under Section 50 of the NDPS Act was complied with, as the appellant was informed of his right to be searched before a Gazetted Officer or Magistrate, which he declined. The court rejected the appellant's argument that he was merely a carrier, noting that he failed to rebut the presumption under Section 54 of the NDPS Act. The appeal was dismissed, and the conviction and sentence were confirmed.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(C) - Possession of Commercial Quantity - Conscious Possession - The appellant was found in possession of 4.5 kg of ganja, a commercial quantity. The court held that the prosecution established conscious possession through evidence of seizure, panchnama, and chemical analysis. The appellant's defense of being a mere carrier was rejected as he failed to rebut the presumption under Section 54 of the NDPS Act. (Paras 2-10, 15-20) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search of Person - Compliance - The court held that the requirement of informing the accused of his right to be searched before a Gazetted Officer or Magistrate was complied with. The appellant declined the offer, and the search was conducted in the presence of panchas. The fact that the panch witness turned hostile did not vitiate the trial as the testimony of official witnesses was credible. (Paras 5-8, 12-14) C) Evidence Act, 1872 - Section 114 - Presumption as to Official Acts - The court applied the presumption that official acts were regularly performed. The evidence of PW7 (PSI) and PW2 (Dy.SP) was found trustworthy despite the panch turning hostile. The court held that the prosecution's case was proved beyond reasonable doubt. (Paras 12-14, 18-20)
Issue of Consideration
Whether the prosecution proved conscious possession of contraband beyond reasonable doubt and whether the mandatory provisions of Section 50 of the NDPS Act were complied with.
Final Decision
Appeal dismissed. Conviction and sentence under Section 20(b)(ii)(C) of NDPS Act upheld.
Law Points
- Conscious possession
- Section 20(b)(ii)(C) NDPS Act
- Section 50 NDPS Act compliance
- Burden of proof on accused
- Credibility of official witnesses
- Panch witness turning hostile
