JUDGMENT (ORAL) G.D. Kamat, J. - This Appeal is directed against the judgment dated 20th February, 1993, in Sessions Case No. 12/92 by the Additional District and Sessions Judge, South Goa, Margao, whereby the appellant has been convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo two years and six months of Rigorous Imprisonment and to pay a fine of Rs. 1,000/- and, in default of payment of fine to undergo a further period of ten months of Rigorous Imprisonment. 2. The prosecution case against the appellant was that on 16th February, 1992, the appellant when questioned on a tip that he was dealing in ganja, revealed a 1ittle away from his house near a drain, that he had burried 16 kgs. and 50 gms. of ganja in write cement sacks. The ganja was taken in possession under a Panchanama and the appellant was put on trial before the Additional Sessions Judge at Margao. In support of the prosecution case four prosecution witnesses have been examined and they are Nelson Albuquerque (P.W. 1), who is a Police Sub Inspector and a member of the raiding party which was headed by Ramesh Angle, another Police Sub Inspector, who is P.W. 4, Anthony Fernandes, P.W. 2, who is a panch witness and P.W. 3, Maria Caldeira, who is the Chemical Analyser. 3. It must be made clear at this stage itself that under Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act" for short), under the heading, "Prohibition, Control and Regulation", cultivation of coca plant or opium, poppy or any cannabis plant, or production, manufacture possession, selling, purchasing, transporting of narcotic drug or psychotropic, substance is prohibited. The proviso under that Section enables the Central Government to add ganja as a prohibited item with effect from such a date the Central Government may, by notification specify in the Official Gazette. It is common ground that the Notification under the Proviso to section 8 of the Act is issued on 29th May, 1989 bringing about prohibition on ganja by virtue of the proviso to Section 8 as from 13th December, 1989. It is common ground that the Notification under the Proviso to section 8 of the Act is issued on 29th May, 1989 bringing about prohibition on ganja by virtue of the proviso to Section 8 as from 13th December, 1989. I have made a mention to this aspect of the matter although it has no bearing on the controversy in the present appeal except to say that ganja has been added to the list of prohibited items much after the Act was brought into force. 4. Mr. Lotlikar, learned Counsel appointed under the Legal Aid Scheme to argue this Appeal on behalf of the appellant, has contended that a great doubt is cast on the prosecution case and suspicion raised over the so-called recovery of 16 kgs. and 50 gms. of ganja. He therefore, urged that the possibility of the appellant being framed in the case cannot be ruled out. He says that one Narayan Tarde is said to have disclosed to the Margao Police that the appellant was dealing in ganja as the said Narayan had himself purchased it from the appellant. Mr. Lotlikar says that Narayan Tarde has not been examined as a prosecution witness and great doubt is cast on the evidence whether Narayan Tarde had at all gone with the raiding party for the purposes of identifying the appellant. The next grievance is that it is inconceivable that having found no incriminating material in the house of the appellant the Police party would seize a crow - bar on an imagination that the crowbar must have been used for burrying ganja a little away from the house of the appellant. 5. Lastly, he urged that ganja was recovered from a place near a nullah admittedly 10 to 15 metres away from the residential house of the appellant and therefore, the question arises whether the appellant was at all connected with the recovery of ganja. 6. All these matters relate to the appreciation of evidence. It is therefore necessary to refer to the relevant prosecution witnesses. P.W. 1 Nelson Albuquerque, was attached to the Margao Police Station in February, 1992. On 16th February, 1992, around 1 p.m. he says that P.S.I. Angle (P.W. 4) briefed him about the raid to be conducted near P.W. D. Water Tank, Gogol, Margao. It is therefore necessary to refer to the relevant prosecution witnesses. P.W. 1 Nelson Albuquerque, was attached to the Margao Police Station in February, 1992. On 16th February, 1992, around 1 p.m. he says that P.S.I. Angle (P.W. 4) briefed him about the raid to be conducted near P.W. D. Water Tank, Gogol, Margao. According to him, P. W. 4 informed him that one accused who was concerned in an offence under Section 20(b)(i) of the Act, by name Narayan Tarde had disclosed that the appellant. Deepak, Resident of Gogol, had supplied narcotic drugs viz. ganja, to the residents of the locality. He says that he alongwith P.S.I. Angle, Police Constable Peter Fernandes and P.C. Pratap Satardekar alongwith two Panchas by name Anthony and Mauvin proceeded to the spot in a Police jeep driven by Police driver. Having reached the spot at about 13.30 hours Narayan Tarde pointed out at two men who were sitting on a 'Katcha' road and the appellant was one of them. Upon apprehending the appellant he disclosed his name, appellant was then informed that he was being searched for narcotic drugs. He was asked whether he would like to be searched in the presence of the S.D.P.O. or of the Magistrate and the appellant declined. The witness then says that members of the Police party offered themselves to be searched by the appellant but he also declined such a search. He then says that the appellant was searched and nothing incriminating was also found when the search of the house was taken, but a crow - bar which was soiled and smeared with earth was found which was attached and taken in possession. Upon interrogation the appellant admitted that he had some drugs and kept them burried near a nullah passing at a distance of 20 mts. from the house. He says that the appellant thereafter led them to a spot near the nullah and pushed a cement pipe lying nearby, cleared some stones and removed a plastic bag tied at the mouth with a jute string. The plastic bag was of white colors generally used for packing cement. Upon untying, narcotics were discovered. According to him the incriminating material was weighed which came to about 6½ Kgs. 7. The plastic bag was of white colors generally used for packing cement. Upon untying, narcotics were discovered. According to him the incriminating material was weighed which came to about 6½ Kgs. 7. 20 gms, were separated for sample testing and the same were sealed in a separate envelope alongwith the signature of the panchas the Officer now says that there were more stones on the ground and at a distance of ½ from the previous hole. The appellant removed from a hole another plastic cement bag and upon weighing inclusive of the bag it came to roughly about 3½ kgs. This time also a sample of 20 gms. was separated and sealed separately. From near the bank of the nullah, another cement bag tied with a string was recovered in which some quantity of narcotic was found along with one shoulder bag of cloth. In the shoulder bag there was a wooden box containing weights and a scale. The total weight from the last recovery was around 5½ kgs. This time also 20 gms. of narcotics were separated for sample testing after duly scaling and signing by the Panchas and Investigating Officers. According to the witness, everything was recorded in the panchanama and the appellant was brought to the Police Station alongwith apprehended drugs. He also identified the crowbar. The only omission amounting to contradiction in the cross - examination highlighted was that he had not disclosed the name of Narayan Tarde in the statement recorded earlier, as also there was no particular reference to shoulder bag. 8. P.W. 2 is Anthony Fernandes, who is a Panch Witness. He as called by P.S.I. Angle to act as a Panch Witness, he says that he went with the raiding party headed by P.S.I. Angle (P.W. 4) and another Panch in a jeep to Gogol and when they came in front of a house, appellant and another person were sitting there. According to him, Police disclosed their objective regarding raid and asked the appellant as to where he had kept the ganja. The witness says that the appellant led the Police and the Panchas at the foot of a hillock about 10-15 mts. away from the house of the appellant near a gutter. He then refers to shifting of a pipe and removal by the appellant of some bag (sack). On opening the sack what was discovered was ganja. The witness says that the appellant led the Police and the Panchas at the foot of a hillock about 10-15 mts. away from the house of the appellant near a gutter. He then refers to shifting of a pipe and removal by the appellant of some bag (sack). On opening the sack what was discovered was ganja. He speaks about the weighing done by the Police, but does not remember the exact weight. After the recovery of the first bag the witnesses speaks of the recovery of the second bag. He then speaks of recovery of another bag alongwith shoulder bag which had a wooden box and in the box there was a weighing balance. He clearly speaks of attesting the sealed items and identifying the signature. He also identified the crow - bar which had been attached as also the weighing balance. 9. Prosecution witness No. 3 is Miss Maria Caldeira, who is the Junior Scientific Officer working in the Food and Drugs Laboratory. After usual identification she speaks about the test carried out on the three samples forwarded by the Margao Police carrying weight of 18.92 gms., 19.94 gms and 18.92 gms. Her test revealed that all the samples are ganja, containing ganja hairs. 10. P.S.I. Ramesh Angle, who is the Investigating Officer, is P.W. 4 in this case. He deposes that P.I. Raut Dessai was in charge of Police Station at the relevant time. On 15th February, 1992 he had arrested one Narayan Tarde for possessing ganja and during interrogation Tarde revealed that he used to purchase drugs from appellant Deepak Bhat and he further volunteered to point out the place where the appellant was staying, saying that it is at Gogol, Margao. The witness says that on 16th February, 1992, at 13.10 hours he alongwith P.S.I. Nelson, P.W. 1, 2 panchas and 2 Police Constables alongwith Narayan Tarde, proceeded in a jeep to Gogol taking with them sealing and weighing materials. He says that Narayan Tarde pointed out the house of the accused which is near P.W.D. Water Tank at Gogol. Out of two persons sitting on the katcha road according to him, Narayan Tarde pointed out Deepak Bhat and accordingly, Nelson, P.W. 1, went to the accused and disclosed his identity. He says that Narayan Tarde pointed out the house of the accused which is near P.W.D. Water Tank at Gogol. Out of two persons sitting on the katcha road according to him, Narayan Tarde pointed out Deepak Bhat and accordingly, Nelson, P.W. 1, went to the accused and disclosed his identity. The witness discloses that he hold the appellant that his search was required to be taken and if the appellant wanted he could be taken to the S.O.P.O. Santoba Desai, but the appellant declined. He also says that he allowed the appellant to search the witness if he wanted. He then speaks of the personal search of the appellant as also his house and attachment of crow - bar. Upon interrogation, according to him, appellant disclosed that he was having ganja and took the Police party and the Panchas to a nearby nullah. He says that there were some pipes, the appellant rolled one pipe and unearthed a plastic bag which was tied with a jute thread. On opening the same, some grassy material looking like ganja was found and upon weighing it came to 5 - kgs. 150 gms. He separated 20 gms., put it in a separate envelope for the purposes of chemical analysis. The balance was put back in a plastic bag, retired and sealed with the panchas signatures obtained on a piece of paper and tied to the bag. According to him, appellant thereafter removed some more stones, another plastic bag as found containing 3 kgs. 60 gms. of ganja. Again 20 gms. were separated for sample following the procedure as in the first case. According to him, the appellant led them nearby another cement pipe 3 mts. away and removed another bag in which there was a shoulder bag of cloth which contained a wooden both with stainless steel balance with a writing upon the same, "Anand Hirachand Savari Kundi 22". On the other side of the balance the following was found in devangari script, "5950 gms. Keliya Class B". In the wooden box according to him, there were weights, two units of 20 gms., one unit of 10 gms. and one unit of 5 gms. and there was a black plastic box with milligrammes weights in it. The third box contained ganja with the weight of 6.700kgs. According to the witness, again 20 gms. Keliya Class B". In the wooden box according to him, there were weights, two units of 20 gms., one unit of 10 gms. and one unit of 5 gms. and there was a black plastic box with milligrammes weights in it. The third box contained ganja with the weight of 6.700kgs. According to the witness, again 20 gms. were taken for sample analysis, which were forwarded to the office of the Drug Controller at Panaji. He speaks of the details of the panchanama of the items recovered as also the crow - bar, identifies his signatures on attached articles. According to him, articles under letter were despatched to Anti-narcotic Cell as directed by P.R. Raut Dessai and thereafter he filed the complaint against the accused; that he recorded Statement of P.W. 1 Nelson and others and later on received the report of the Chemical Analyser. 11. It is true that Narayan Tarde has not been examined in this case. This by itself ought not to defeat the prosecution case. From the evidence, it is clear that Narayan Tarde was a drug addict and he clearly indicated when he was apprehended on 15th February, 1992 that he had been purchasing ganja from appellant. Though P.W. 1 Nelson did not make a reference to Narayan Tarde having accompanies the Police party such omission cannot be held fatal. P.W. 1 Nelson as also P.W. 4 have clearly stated that it is Narayan Tarde who identified appellant Deepak. There can be no doubt of this story as Narayan Tarde was arrested on the earlier day and he was under investigation for an offence under Section 20 (b) (i) of the Act 12. The fact of recovery of ganja hidden under - ground near the nullah and below the cement pipes is established by the prosecution witnesses. Once the recovery is accepted then, in my view, the story of recovery of crow bar from the house of the appellant does not assume much significance. Mr. Lotlikar may be right in pointing out that having a crow - bar in the house which ordinarily people keep, could not have led to the imagination of the Police that ganja was hidden somewhere. But, as mentioned earlier, once the recovery is beyond suspicion, there is no point in elaborating much on a small factor of attachment of crow - bar from the house of the appellant 13. But, as mentioned earlier, once the recovery is beyond suspicion, there is no point in elaborating much on a small factor of attachment of crow - bar from the house of the appellant 13. As mentioned earlier, the recovery of ganja from near the residential house of the appellant came about at the information of Narayan Tarde who was arrested on the earlier day. Being so, it is difficult to fault with the prosecution evidence that the apprehended ganja though outside the residence of the appellant was not connected with him. Upon apprehension of the appellant himself, it is he who upon unearthing removed three bags, one after the other. It is difficult to accept that if Police were to frame up the appellant, they could have framed up in this manner. Finally, it must be borne in mind that it is not merely recovery of ganja, but also a scale with weights. I think the recovery cannot be faulted with and there is nothing to hold that Police planted ganja only with a view to frame up the appellant. 14. Though it is stated that the appellant possessed 16 kgs. and 50 gms. of ganja, from the evidence it is clear that that weight includes the weight of the three plastic cement bags. In reality, dehors bag, the weight of recovery of ganja must be less. 15. The appellant could not even engage a lawyer before the trial Court. The trial Court provided hint a defence counsel under Legal Aid Schemes. Similar is the position before, this Court. Appellant was admittedly arrested in 16th February, 1992 and as on today he has undergone substantive imprisonment of two years, one month and fifteen days. Upon convicting the appellant under Section 20(b)(i) of the Act the sentence awarded to the appellant is two years and six months of Rigorous Imprisonment and a fine of Rs. 1,000/- and, in default of payment of fine to undergo ten months of Rigorous Imprisonment, with a direction that the appellant is entitled for a set off under Section 428 Criminal Procedure Code right from the day of the detention, namely 16th February, 1992. Substance ganja appears to be least offensive amongst the other substances like brown sugar or charas. 1,000/- and, in default of payment of fine to undergo ten months of Rigorous Imprisonment, with a direction that the appellant is entitled for a set off under Section 428 Criminal Procedure Code right from the day of the detention, namely 16th February, 1992. Substance ganja appears to be least offensive amongst the other substances like brown sugar or charas. The fact remains that possession of ganja was brought into the net of prohibition much after the Narcotic Drugs and Psychotropic Substances Act of 1985 was forced. In the facts and circumstances of this case, I am inclined to grant some benefit to the appellant in the Sentence. Though the conviction of the appellant is confirmed under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, I sentence him to two years of Rigorous Imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to undergo sentence of one month and fifteen days. The result is the sentence is restricted to the period already undergone and suffered by him as on today. 16. The impugned judgment and order of the learned Additional Sessions Judge Margao, dated 20th February, 1993 insofar as the sentence is concerned shall stand to that extent modified and the Appeal accordingly partly succeeds in that the conviction of the appellant under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is confirmed but the sentence awarded to him shall stand modified as the appellant has already undergone substantive sentence of two years one and half month (from the date of his appreciation, viz.16th February, 1992), the same shall be restricted to the period already undergone by the appellant in jail so far. Accordingly, appellant is liable to be released, if not wanted in any other case. Appeal allowed partly.