GAUNTER EDWIN KIRCHER versus STATE OF GOA, SECRETARIAT, PANAJI, GOA

Citation: [1993] 2 S.C.R. 337 · Decided: 16-03-1993 · Supreme Court of India · Bench: K. JAYACHANDRA REDDY · Disposal: Disposed off

Judgment (excerpt)

GAUNTER EDWIN KIRCHER 
A 
__,,,... 
v. 
STATE OF GOA, SECRETARIAT, PANAJI, GOA 
MARCH 16, 1993 
(K. JAYACHANDRA REDDY AND G.N. RAY, JJ.] 
B 
.-'4_ 
Narcotic Dntgs and Psychotropic Substances Ac~ 1985 : 
Section 27-Benefit of-When could be extended to the accused-Two 
pieces of cltaras seized from accused-Only one piece weighing less than 5 c 
gms. sent for chemical examinati01r--Laboratory report confimiing the piece 
to be containing charas-Accused pleading that it was meant for personal 
consumpti01t-Whether entitled to benefit of lesser pwiishment-f'rocedure 
_,_ 
for sending substance for chemical analysis indicated. 
The appellant, a foreign national, was convicted by the trial court D 
under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substan-
ces 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, . E 
~· 
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 F 
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 
appellant's appeal. 
In the appeal before this Court, on behalf of the appellant it wa• G 
contended that both the courts below had erred in holding that the 
accused was found in possession of 12 gms. of Charas; since only a small 
. -.>---
quantity i.e .. fess 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, tl1e quantity proved to have been in the H 
.l 
337 
' 
338 
SUPREME COUR'F REPORTS 
[1993) 2 S.C.R. 
A 
possession of the accused would be small quantity, as provided nnder 
Section 27 of the Act and the accnsed sbonld have been given the benefit 
of that Section. 
B 
c 
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 
bnrden as required under the section. 
Disposing of the appeal, this Court, 
HELD: 1.1. .Io 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 accus.ed. In view of the 
D evidence of P.W. 1, the prosecution has proved positively that Charas 
E 
F 
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 prohilJited 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 punish· 
ment is provided for illegally possessing any 'smaller quantity' for per· 
sooal consumption of any narcotic drug or psxchotropic substance. By 
virtue of the notification issned 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, 3448) 
1.3. lo the instance case;the prosecution has proved that the quan-
G · tity seized from the accused was less than 5 gms. Therefore, it is wit.bin the 
meaning of :'small quantity" for the purpose of Section 27. [344C] 
H 
1.4. No doubt, as Section 27 lays down, the .burden is on the appel-
lut to prove that the substance was intended for bis personal coosump-
doa. As to the nature of burden of proof that has to be discharged 
•
-
GAUNTER EDWIN v. STATE OF.GOA 
339 
depends upon the facts and circumstances of each case. Whet

Excerpt shown. Read the full judgment & AI analysis in Lexace.