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PETITIONER: GAUNTER EDWIN KIRCHER

       Vs.

RESPONDENT: STATE OF GOA, SECRETARIAT, PANAJI, GOA

DATE OF JUDGMENT16/03/1993

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J)

CITATION:  1993 AIR 1456            1993 SCR  (2) 337  1993 SCC  (3) 145        JT 1993 (2)   285  1993 SCALE  (2)28

ACT: Narcotic Drugs and Psychotropic Substances Act, 1985 : Section  27--Benefit  of--When  could  be  extended  to  the accused--Two pieces of charas seized from accused--Only  one piece   weighing  less  than  5  gins.  sent  for   chemical examination--Laboratory  report confirming the piece  to  be containing  charas--Accused pleading that it was  meant  for personal consumption--Whether entitled to benefit of  lesser punishment--Procedure  for  sending substance  for  chemical analysis indicated

HEADNOTE: The  appellant,  a foreign national, was  convicted  by  the trial  court under Section 20(b)(ii) of the  Narcotic  Drugs and  Psychotropic  Substances  Act, 1985  and  sentenced  to undergo  ten years’ rigorous imprisonment and to pay a  fine of  one  lakh  rupees, and in default,  to  further  undergo rigorous imprisonment for six months. According  to  the prosecution, two  cylindrical  pieces  of charas, weighing 7 gms. and 5 gms. respectively, were seized from the appellant by a Police Patrol Party and on  chemical analysis  of  one  of  the pieces, it  was  found  that  the substance contained charas. The  trial  court, relying on the evidence of PW  1,  Junior Scientific  Officer of the Director of Health Services,  who examined the substance, PW 2, a panch witness and PW 3,  the Police   Inspector,  who  was  heading  the  Patrol   Party, convicted  the  appellant.   The High  Court  dismissed  the appellants appeal. In the appeal before this Court, on behalf of the  appellant it  was  contended that both the courts below had  erred  in holding that the accused was found in possession of 12 gins. of Charas; since only a small quantity i.e. less than 5 gms. had  been  sent  for  analysis the  remaining  part  of  the substance,  which had not been sent for analysis, could  not be  held  to  be also Charas and,  therefore,  the  quantity proved to have been in the 338 possession  of  the  accused would  be  small  quantity,  as provided under Section 27 of the Act and the accused  should have been given the benefit of that Section.

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On  behalf of the State, it was submitted that there was  no need to send the entire quantity for chemical analysis,  and the fact that one of the pieces which was sent for  analysis had  been found to contain Charas, the  necessary  inference would  be  that the other piece also  contained  Charas  and that, at any rate, since the accused had totally denied,  he could  not  get  the benefit of Section 27, as  he  had  not discharged  the  necessary  burden  as  required  under  the section. Disposing of the appeal, this Court, HELD:1.1.  In  the absence of positive proof that  both  the pieces recovered from the accused contained Charas only,  it is  not  safe to hold that 12 gms. of Charas  was  recovered from  the accused.  In view of the evidence of P.W.  1,  the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. [342C] 1.2.In   general,  possession  of  any  narcotic   drug   or psychotropic  substance has been prohibited by Section 8  of the  Narcotic Drugs and Psychotropic Substances Act and  any person  found  in  possession of the same  contrary  to  the provisions  of the Act or any rule or order made  or  permit issued  thereunder  is  liable to be  punished  as  provided thereunder to imprisonment for a term not less than 10 years and a fine not less than Rs. 1 lakh.  However, Section 27 is an  exception,  whereby lesser punishment  is  provided  for illegally  possessing  any ’smaller quantity’  for  personal consumption of any narcotic drug or psychotropic  substance. By  virtue  of  the notification issued  on  14.11.85  under Explanation  (1) of the Section, 5 gms or less  quantity  of Charas  has been specified by the Central Government  to  be the small quantity. [343E-F, 344B] 1.3. In  the instance 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’  for the purpose of Section 27. [344C] 1.4. No doubt, as Section 27 lays down, the burden is on the appellant  to prove that the substance was intended for  his personal  consumption  As to the nature of burden  of  proof that has to be discharged 339 depends  upon  the  facts and circumstances  of  each  case. Whether the substance was intended for personal  consumption or  not  has  to be examined in the context  in  which  this exception is made. [344D] 1.5.  The  accused  though in general has taken  a  plea  of denial,but  his examination under Section 313 Cr.   P.C.  by the  Magistrate  reveals that there was a plea that  it  was meant  for  his personal consumption.  The trial  court  has also  noted  in its judgment that the accused  had  made  an application  stating  that  the  piece  said  to  have  been recovered from him was less than 5 gms., and not 12 gms.  as alleged.   The  prosecution case itself shows  that  he  was having  this  substance  in  a  pouch  alongwith  a  chillum (smoking pipe) and smoking material.  The averments made  by the  appellant  in the application and as extracted  by  the trial court would themselves show that it was meant for  his personal  consumption.  The surrounding circumstances  under which it was seized also confirm the same. [344E-G] 1.6.The appellant is a foreigner and as a tourist appears to have  carried this substance for his  personal  consumption. No  doubt, 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, it cannot be held that the  small quantity found with the appellant was  not  meant for  his personal consumption.  Therefore, the appellant  is

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liable  to be punished as provided under Section 27  of  the Act. [344G-H, 345A] 1.7.Accordingly,  the  conviction  of  the  appellant  under Section 20(b)(ii) of the Act and sentence of 10 years’  R.I. are  set aside, and he is convicted under Section 27 of  the Act  and sentenced to undergo 6, months’ R.I. and to  pay  a fine  of  Rs.  1 lakh, in default of  payment  of  which  to further undergo 6 months’ R.I. [345C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 642  of 1991. From  the Judgment and Order dated 25.4.1991 of  the  Bombay High Court in Criminal Appeal No. 25 of 1990. Lalit  Chari,  Peter  D’  Souza and  Mukul  Mudgal  for  the Appellant. J.S. Wad, and Ms. A. Subhashini for the Respondent. 340 The Judgment of the Court was delivered by K.  JAYACHANDRA REDDY, J. The appellant, a German  National, has  been  convicted  by  the  trial  court  under   Section 20(b)(ii) of the Narcotic Drugs and Psychotropic  Substances Act,  1985  (’Act’ for short) and sentenced  to  undergo  10 years  R.I. and to pay a fine of Rs.  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 pieces  of  Charas were weighed and found to be 7 gms. and 5 gms. respectively. They  were  seized  under a panchnama  and  were  separately sealed  in  two  different envelopes.   One  of  the  pieces weighing  less than 5 gms. was? sent for  chemical  analysis and the other piece weighing 7 gms. was not sent nor part of it  by way of sample was sent for chemical analysis.   Maria Caldeira,  P.W.1,  the  Junior  Scientific  Officer  in  the Directorate  of  Health Services carried  out  the  chemical analysis of the substance weighing 4.570 gms. consisting  of three  cylindrical pieces sticking together and she  deposed that  the substance which was examined by her was  found  to have contained Charas.  P.W.2, a panch witness supported the prosecution  case.  The accused when examined under  Section 313  Cr.  P.C. denied being in possession of any Charas  and said that he had only a pouch containing tobacco and that he was taken to Calangute Police Station and was falsely impli- cated.  The  trial  court relying on the evidence of P.Ws  1  to  3 convicted  the  accused.  The submissions on behalf  of  the accused  before  the trial court as well as the  High  Court have  been  that the search conducted on the person  of  the accused  was in contravention of Section 50 of the  Act  and that there have been contradictions between the evidence  of P.Ws 2 and 3   and that at any rate even if the  prosecution case is to be accepted, the 341

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accused  can  be, at the most, held to be in  possession  of less  than 5 gins. of Charas which is a small quantity  and, therefore, 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 submission of Shri Lalit  Chari, the  leaned  senior counsel appearing for the  appellant  is that  both the courts below have erred in holding  that  the accused  was  found  in possession of 12  gins.  of  Charas. According to the learned counsel, only a small quantity i.e. less than 5 gms. has been sent for analysis and the evidence of  P.W.1, the Junior Scientific Officer would at  the  most establish  that  only that much of quantity which  was  less than 5 gms. of Charas is alleged to have been found with the accused.  The remaining part of the substance which has  not been sent for analysis can not be held to be also Charas  in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the Act.  Therefore the submission of the learned counsel is that the quantity proved to have been  in the  possession  of the accused would be small  quantity  as provided under Section 27 of the Act and the accused  should have  been  given the benefit of that  Section.   Shri  Wad, learned  senior  counsel appearing for the  State  submitted that  the other piece of 7 gms. also was recovered from  the possession of the accussed and there was no need to send the entire quantity for chemical analysis and the fact that  one of the pieces which was sent for analysis has been found  to contain  Charas, the necessary inference would be  that  the other piece also contained Charas and that at any rate since the  accused has totally denied, he can not get the  benefit 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 342 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   psychotropic substances  and  not  to all  other  kinds  of  intoxicating substances.   In any event in the absence of positive  proof that  both the pieces recovered from the  accused  contained Charas  only, it is not safe to hold that 12 gms. of  Charas was recovered from the accused.  In view of the evidence  of P.W.1 it must be held that the prosecution has proved  posi- tively  that Charas weighing about 4.570 gms. was  recovered from  the accused.  The failure to send the other piece  has given  rise to this inference.  We have to observe  that  to obviate this difficulty, the concerned authorities would  do

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better if they send the entire quantity seized for  chemical analysis so that there may not be any dispute of this nature regarding the quantity seized.  If it is not practicable, in a  given case, to send the entire quantity  then  sufficient quantity  by  way  of samples from each of  the  packets  or pieces  recovered  should be sent for  chemical  examination under a regular panchnama and as per the provisions of law.               Section 27 of the Act reads thus:               "27.   Punishment  for illegal  possession  in               small quantity for personal consumption of any               narcotic  drug  or psychotropic  substance  or               consumption of such drug or substance whoever,               in contravention of any provision of this Act,               or  any  rule or order made or  permit  issued               thereunder, possesses in a small quantity  any               narcotic drug or psychotropic substance, which               is  proved  to  have  been  intended  for  his               personal  consumption  and  not  for  sale  or               distribution, or consumes 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 343               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               section  "small quantity’ means such  quantity               as may be specified by the Central  Government               by the notification in the Official Gazette.               (2)  Where a person is shown to have  been  in               possession  of a small quantity of a  narcotic               drug or psychotropic substance, the burden  of               proving that it was intended for the  personal               consumption of such person and not for sale or               distribution, shall lie on such person." In  general possession of any narcotic drug or  psychotropic substance  has been prohibited by Section 8 of the  Act  and any  person found in possession of the same contrary to  the provisions  of the Act or any rule or order made  or  permit issued  thereunder  is  liable to be  punished  as  provided thereunder  to  imprisonment for a term which shall  not  be less  than 10 years and shall also be fined which shall  not be less than Rs.1 lakh.  Section 27 of the Act, however,  is an  exception  whereby  lesser punishment  is  provided  for illegally  possessing  any "smaller quantity’  for  personal consumption of any narcotic drug or psychotropic  substance, Under  this  section  the  following  ingredient  should  be fulfilled:               "(a)  The person has been found in  possession               of any narcotic drug or psychotropic substance               in "small quantity’;               (b)   Such    possession    should    be    in

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             contravention  of any provision of the Act  or               any  rule  of  order  made  or  permit  issued               thereunder; and               (c)   The said possession of any narcotic drug               or psycho- 344               tropic substance was intended for his personal               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" for the purpose of Section 27. Then  the  other  ingredient that has  to  be  satisfied  is whether  the substance found in possession of the  appellant was  intended for his personal consumption and not for  sale or  distribution.   No doubt as the Section  lays  down  the burden  is on the appellant to prove that the substance  was intended for his personal consumption.  As to the nature  of burden  of proof that has to be discharged depends upon  the facts and circumstances of each case.  Whether the substance was  intended  for  personal consumption or not  has  to  be examined in the context in which this exception is made.  In the  instant case the accused though in general has taken  a plea  of  denial but his examination under Section  313  Cr. P.C.  by the Magistrate reveals that there was such  a  plea namely  that it was meant for his personal consumption.   In the judgment of the trial court it is noted that the accused made an, application on 23.3.90 stating that the piece  said to have been recovered from him was less than 5 gms. and not 12 gms. as alleged and that the application was written  and signed  by  the  appellant himself.   The  prosecution  case itself  shows that he was having this substance in  a  pouch alongwith  a  chillum (smoking pipe) and  smoking  material. The  averments made by the appellant in the application  and as extracted by the trial court    would   themselves   show that  it was meant for his personal consumption.  The  above surrounding  circumstances  under which it was  seized  also confirm  the  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 345 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 only just mentioning it as a fact. In the result the conviction of the appellant under  Section 20(b)(ii)  of the Act and sentence of 10 years R.I. are  set aside.   Instead he is convicted under.  Section 27  of  the

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Act and is sentenced to undergo 6 monghs’ R.I. and to pay  a fine of Rs. 1 lac in default of payment of which to  further undergo  6 months’ R.I. Subject to the above  modifications, the appeal is disposed of N.P.V.                              Appeal disposed of. 346