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2006 DIGILAW 182 (RAJ)

Akbar Khan v. State of Rajasthan

2006-01-17

H.R.PANWAR

body2006
JUDGMENT 1. - This criminal jail appeal is directed against the judgment and order dated 6.8.2003 passed by the Special Judge, N.D.RS. Cases, Pratapgarh, district Chittorgarh (for short, "the trial Court" hereinafter) in Sessions Case No. 10/2002, whereby the trial Court convicted the appellant for the offence under Section 8 read with Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (foi short, "the NDPS Act" hereinafter) and sentenced to undergo ten years rigorous imprisonment and a fine of Rs. One lac and in default of payment of fine further to undergo 21/2 years rigorous imprisonment. Aggrieved by the judgment and order impugned the appellant has filed the instant jail appeal. 2. The facts of the case, to the extent, they are relevant and necessary for the decision of this appeal, are that on 29.12.2001 at about 9.00 PM, PW. 14 Bhanwar Singh, Station House Officer, Police Station, Pratapgarh, received a secret information that the appellant is coming to Basad bus stand possessing brown sugar. The secret information was reduced to writing in the Roznamcha and sent to the higher officer. He, alongwith other police officials, started from the police station at 9.10 PM, called the Motbirs, took their consent and at 9.50 PM, while holding Nakabandi, noticed a person coming from Basad side. On seeing the police party, that person started running but was apprehended. On being asked, he disclosed his name as Akbar Khan, the appellant. He was served with a notice under Section 50 of the NDPS Act giving him an option to be searched by the nearest Magistrate or a gazetted officer or by the concerned Station House Officer. The appellant consented to be searched by the concerned SHO On search being carried out. a plastic bag containing I.100 kg of brown sugar (heroin) was found tied on the waist of the appellant under the shirt which the appellant was putting on. Two samples of 30 grams each were taken, sealed and the remaining brown sugar (heroin) was also sealed on the spot. The appellant was arrested and after usual investigation, the police filed Challan against the appellant for the offence noticed above. 3. The appellant was charged with the aforesaid offence, to which he denied the charge and claimed to be tried. The prosecution adduced evidence by producing as many as 14 witnesses and the documents Exhibit P-1 to Exhibit P-23. The appellant was arrested and after usual investigation, the police filed Challan against the appellant for the offence noticed above. 3. The appellant was charged with the aforesaid offence, to which he denied the charge and claimed to be tried. The prosecution adduced evidence by producing as many as 14 witnesses and the documents Exhibit P-1 to Exhibit P-23. The appellant made statement under Section 313 Cr.PC. and denied the allegation. The Trial Court, on appreciation of the evidence, came to the conclusion that the prosecution has proved the case against the appellant beyond reasonable doubt and accordingly he was convicted and sentenced as noticed above. Hence, this appeal. 4. I have heard learned Amicus Curiae appearing for the appellant and the Public Prosecutor for the State, carefully gone through the judgment and order impugned as also the record of the trial Court. I have carefully scanned, scrutinised and evaluated the evidence on record. 5. PW. 14 Bhanwar Singh, the Seizure Officer and the SHO, Police Station Pratapgarh, stated that on 29.12.2001 at about 9.00 PM, he received a secret information that the appellant, who is trading in brown-sugar, is coming towards Basad bus stand carrying brown-sugar. The information was reliable and it was reduced to writing in the Roznamcha. The secret information was sent to the higher officer through PW. 4 Tara Chand, Constable. He, alongwith the police officials, went from the police station in the Government jeep with investigation kit to the place of Nakabandi. At about 9.15 PM, they noticed a person coming from Basad side, who on seeing the police party started running but was surrounded by the police and apprehended. On being inquired, he disclosed his name as Akbar Khan S/o Peer Khan. The name of the appellant tallied with the name disclosed in the secret information received by him. The appellant was served with a notice under Section 50 of the NDPS Act and was given option that if the requires his search to be carried out before a nearest Magistrate or gazetted officer or by the SHO, himself. The appellant exercised his option and gave consent that he be searched by the SHO, himself. The appellant was served with a notice under Section 50 of the NDPS Act and was given option that if the requires his search to be carried out before a nearest Magistrate or gazetted officer or by the SHO, himself. The appellant exercised his option and gave consent that he be searched by the SHO, himself. He has proved the notices to the Motbirs Exhibit P-5 and Exhibit P-16, notice to the appellant under Section 50 of the NDPS Act Exhibit P-6, the proceedings under Section 42(2) of the NDPS Act Exhibit P-13, the secret information written in the Roznamcha Exhibit P-19A the information sent to the higher officer i.e., the Superintendent of Police, Chittorgarh, Exhibit P-22. He further stated that the search was carried out and brown sugar (heroin) in a polythene bag, tied by the appellant on his waist under the shirt put on by him was recovered. On being asked whether the appellant had licence or permit to possess and carry the said contraband i.e., the brown sugar, he failed to show any licence or permit to carry and possess the brown sugar, on the contrary the brown sugar on being weighed, was found 1.1U0 kg. Two samples of 30 grams each were taken and sealed as also the remaining brown sugar was seized and sealed. The sample and the counter sample were marked Article A/1 and A/2 and the remaining contraband brown- sugar was marked as Article A. He stated that he arrested the appellant. He has proved the seizure memo of the brown sugar Exhibit P-7. Notice under Section 52 of the NDPS was served on the appellant vide Exhibit P-8 and the appellant was arrested vide Exhibit P-9. The samples and the contraband seized from the appellant were deposited with the Malkhana Incharge vide Exhibit P-21. He has stated that the compliance of Section 55 of the NDPS Act was made vide Exhibit P-4. He has proved the appellant's consent Exhibit P-5 and the notice to the appellant Exhibit P-6. a detailed reported regarding compliance of Section 57 was sent to the Superintendent of Police vide Exhibit P-22. The samples were sent to the State Forensic Science Laboratory for chemical analysis through PW.1 Dinesh Chandra vide forwarding letter Exhibit P-2 and the receipt issued by the FSL Exhibit P-11. The FSL report Exhibit P-23 has also been placed on record. 6. The samples were sent to the State Forensic Science Laboratory for chemical analysis through PW.1 Dinesh Chandra vide forwarding letter Exhibit P-2 and the receipt issued by the FSL Exhibit P-11. The FSL report Exhibit P-23 has also been placed on record. 6. It is contended by the leaned Amicus Curiae appearing for the appellant that the FSL report Exhibit P-23 does not disclose the percentage of morphine and, therefore, it cannot be said that the contraband recovered from the appellant was brown sugar (heroin). It is further contended that the notice under Section 50 of the NDPS Act Exhibit P-6 does not bear the signature of the appellant and, therefore, according to the learned Amicus Curiae no notice under Section 50 of the NDPS Act was served on the appellant. According to the learned Amicus Curiae, at any rate even if the notice is found to be served on the appellant still it cannot be said that the appellant consented or gave option to PW. 14 to search him. If the notice is given in writing then it is necessary for the seizure officer to take the consent regarding exercising the option by the appellant in writing. 7. Learned Public Prosecutor appearing for the State has supported the judgment and order impugned and contended that Section 2(xvi)(e) of the NDPS Act provides that opium derivative means all preparations containing more that 0.2 per cent of morphine or containing any diacetylmorphine. According to the learned Public Prosecutor, so far as diacetylmorphine is concerned, there is no requirement that it should contain more than 0.2 per cent of morphine. To construe as contraband opium derivative if the contraband, on being analysed, (is) found containing diacetylmorphine then it establishes that the contraband is brown-sugar (heroin). I have carefully gone through the FSL report Exhibit P-23 received from the State Forensic Science Laboraty, which states that on micro-chemical examination, the sample contained in the packet marked A/1 gave positive tests for the presence of diacetylmorphine (heroin) in traces alongwith morphine and strychnine Thus, according to the definition, the preparation containing any diacetylmorphine establishes that it is opium,derivative. Thus, the offence punishable under Section 8 read with Section 21(C) of the N.D.P.S. Act has been fully proved as the contraband seized from the appellant gave positive test for the presence of diacetylmorphine. 8. Thus, the offence punishable under Section 8 read with Section 21(C) of the N.D.P.S. Act has been fully proved as the contraband seized from the appellant gave positive test for the presence of diacetylmorphine. 8. So far service of notice under Section 50 of the NDPS Act is concerned, PW. 14 Bhanwar Singh, the seizure officer, categorically stated that a notice under Section 50(1) of the NDPS Act was served in writing on the appellant and an option was given to the appellant for his search by a nearest Magistrate or a gazetted officer or the concenred SHO. The appellant exercised the option and gave a consent to be searched by PW. 14 Bhanwar Singh and thereafter a search was carried out. It is relevant that when the appellant was arrested, a copy of the notice under Section 50 of the NDPS Act was found with him, which clearly goes to establish that a notice under Section 50 of the NDPS Act (Exhibit P-6) was served and while arresting the appellant, apart from his other wearing, it was found in his pocket. PW. 14 Bhanwar Singh, in his cross-examination also reiterated that the notice Exhibit P-6 under Section 50 of the NDPS Act was given in writing to the appellant and the appellant gave oral consent to be searched by him. He categorically denied having not given any option to the appellant to be searched by a nearest Magistrate or a gazetted officer. 9. PW. 1 Dinesh Chandra carried the sealed brown-sugar (heroin) from the Malkhana first to the office of the Superintendent of Police, Chittorgarh and after obtaining the forwarding letter Exhibit P-2 from the Office of the Superintendent, handed over the sample Article to the FSL and obtained the receipt Exhibit P-1. He has stated that the seals on the articles carried by him to the FSL remained intact throughout till they were handed over to the FSL. Exhibit P-23 is the FSL report which clearly shows that the articles received by it were properly sealed bearing impressions, which tallied with the specimen seal impression forwarded and the seals were intact. 10. PW. 2 Balwant Singh, Malkhana Incharge, stated that on 29.12.2001, he was the Malkhana Incharge. Exhibit P-23 is the FSL report which clearly shows that the articles received by it were properly sealed bearing impressions, which tallied with the specimen seal impression forwarded and the seals were intact. 10. PW. 2 Balwant Singh, Malkhana Incharge, stated that on 29.12.2001, he was the Malkhana Incharge. The contraband brown sugar packet marked Article A, the samples marked A/1 and A/2 in the sealed condition were deposited with him and the seals on those articles remained intact throughout the period they remained with him. He has proved the entry at serial number 286 Exhibit P/3-A) in the Malkhana register. He has stated that the sample Article A/1 was sent on 7.1.2002 for FSL examination through PW.1 Dinesh Chandra, which was deposited with FSL by a forwarding letter. 11. PW. 4 Tara Chand is the person who carried the information to the higher officer. He has proved Exhibit P-13 and Exhibit P-13-A and stated that the information was received first by the Additional Superintendent of Police and thereafter by the Superintendent of Police Anil Paliwal and he has proved their signatures on the receipt. 12. PW. 9 Praveen Vyas has proved the subsequent investigation and stated that on 29.12.2001, in Crime Report No. 516/200, the investigation was handed over to him by PW. 14 Bhanwar Singh and thereafter he conducted the subsequent investigation. 13. PW. 11 Jamna Lai, PW. 12 Mahendra Singh, PW. 13 Tej Singh are the other police officials who accompanied PW. 14 Bhanwar Singh, SHO to hold the Nakabandi and they have proved the search and seizure carried out by PW. 14 Bhanwar Singh. The contraband brown sugar (heroin), which was recovered from the personal possession of the appellant, has been proved by these witnesses. 14. On close scrutiny of the statements of the prosecution witnesses and the materials placed on record, the contentions raised by the learned Amicus Curiae appearing for the appellant cannot be accepted and are worth rejection for the reason that it has been proved beyond reasonable doubt that the compliance of the provisions of Sections 42, 50, 52, 55 and 57 of the NDPS Act has been made. It has further been proved that it was the appellant who was in possession of the brown sugar (heroin) weighing 1.100 kg, which on being chemically analysed by the State Forensic Science Laboratory, was found to be containing diacetylmorphine. It has further been proved that it was the appellant who was in possession of the brown sugar (heroin) weighing 1.100 kg, which on being chemically analysed by the State Forensic Science Laboratory, was found to be containing diacetylmorphine. So far as diacetylmorphine is concerned, there is no percentage prescribed under the NDPS Act, as held by the Delhi High Court in Yogesh Tyagi & Ors. v. State 2004 Cr.LJ 3907 , wherein it has held that the use of percentage in relation to the heroin is only indicative of its purity/potency and not the weight. The percentage of purity of diacetylmorphine is immaterial for invoking the provisions of the Act because the Act does not prescribe any minimum percentage purity/potency of diacetylmorphine for its possession to be unlawful. 15. In view of the aforesaid discussion, I do not find any error, illegality or perversity in the judgment and order impugned. 16. Consequently, the jail appeal falls and is hereby dismissed. The judgment of conviction and order of sentence dated 6.8.2003 passed by the Special Judge, NDPS Cases Pratapgarh, district Chittorgarh, in Sessions Case No. 10/2002 convicting and sentencing the appellant for the offence under Section 8 read with Section 21(C) NDPS Act, is hereby affirmed.Appeal dismissed. *******