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Madhya Pradesh High Court · body

2009 DIGILAW 286 (MP)

Dadu S/o Hasam Ajmeri v. State of M. P.

2009-03-02

S.S.DWIVEDI

body2009
JUDGMENT : Theappellants have preferred these two appeals aggrieved by the impugned judgmentof conviction and sentence dated 12.7.2005 passed by Special Judge, Mandsaur in Special Sessions Trial No. 37/2001, wherebyheld both the appellants guilty for the offence punishable under Section 8 readwith Section 21 (c) of Narcotic Drugs and Psychotropic Sub-stances Act(hereinafter referred to as the 'NDPS Act' for brevity) and sentenced each ofthem to ten years RI with a fine of Rs . 1.00 lac . In default of payment, further ordered to sufferimprisonment for two years, 2.Briefly stated the facts of the case are, on 18.2.2001 the Sub-Inspector ofPolice R.N. Pal, posted at Police Station Yashodhraman Nagar , Mandsaur , receivedthe secret information that two accused persons were coming from Village Gorkhedi having contraband article with them. Thisinformation had been recorded in the daily diary and necessary Panchnama had been prepared; superior officer had also beeninformed and thereafter with two independent witnesses the concerning policeofficers reached on the spot and found both the appellants present on the spot;gave them necessary notice for the search and seizure; After obtaining theirconsent, on search of appellant Dadu found apolythene bag tied on his waist and on opening the concerning bag found brownsugar in it. On weight, the total quantity found to be 1100 Gms .; out of which twosamples of 5 Gms . each were taken out and sealedproperly. Similarly, on search of appellant/accused Ibrahim a polythene bag had been found tied on his waist. On opening of the polythenepacket found the brown sugar in it. On weight, the total quantity found to be 1Kg.; out of which also two samples of 5 Gms . eachwere taken out; both the samples as well as seized article had been sealedproperty and necessary Panchnama had been prepared;returned back to the Police Station, registered the case under Section 8/21 ofthe NDPS Act; arrested the accused persons, informed the, superior officerswith regard to the seizure of contraband article, deposited the seized articleas well as sealed packets of sample for safe custody in the Police Station.Thereafter, the seized samples of the contraband articles had been sent forchemical exanimation to FSL Sagar , from where thereport received, wherein in the samples of the contraband article seized fromthe possession of accused Dadu the total morphinepercentage is found to be 22.88 Gms . Similarly, inthe sample of the contraband article seized from the possession of the accused Ibrahim the total morphine percentage is found to be 21.91 Gms . After due investigation the chargesheet has been filed against both the accused persons. 3.Both the appellants/accused abjured the guilt and their defence is of false implication in this case. The learned Trial Court after dueappreciation of the entire evidence on record held both the appellants guiltyfor the offence under Section 8 read with Section 21 (c) of the NDPS Act andsentenced them as stated hereinabove; aggrieved by which the appellants havepreferred these two appeals. 4.As both the appellants have preferred separate appeals against the sameimpugned judgment, hence both these appeals are being decided by this commonjudgment. 5.Having heard the learned counsel for the appellants as well as the learnedGovernment Advocate appearing for the State and perused the record. 6.It is submitted by the counsel for the appellants that the appellants are notchallenging the seizure of the contraband article from the possession of theaccused persons but the only prayer is that on examination of second sample ofthe seized article the morphine percentage is reduced and found 5.6% from thesample of the article seized from the possession of accused Dadu and 5.4% from the sample of the article seized from the possession of accused Ibrahim and on the basis of the decision of the Hon'ble Apex Court in case of E. Micheal Raj vs. Intelligence Officer, Narcotic ControlBureau, reported in (2008) 5 SCC 161 , it has been held that "on the basisof morphine percentage the actual quantity of the seized article should beassessed" then the actual quantity of the seized article is found to beonly 61.6 Gms . and 54 Gms .which is the actual quantity seized from the possession of accused Dadu and Ibrahim , which isadmittedly found to be below the commercial quantity and for that the minimumsentence often years is not provided under Section 21 (b) of the NDPS Act and,therefore, only prayed for just reduction of the jail sentence awarded to theappellants. 7.In reply, learned Public Prosecutor for the State supported the impugnedjudgment and submits that the actual quantity of the contraband article seizedfrom the possession of the accused persons is admittedly the commercial-quantity,and no grounds are available for any interference in the impugned judgmentpassed by the Trial Court, hence, prayed for dismissal of both the appeals. 7.In reply, learned Public Prosecutor for the State supported the impugnedjudgment and submits that the actual quantity of the contraband article seizedfrom the possession of the accused persons is admittedly the commercial-quantity,and no grounds are available for any interference in the impugned judgmentpassed by the Trial Court, hence, prayed for dismissal of both the appeals. 8.As before this Court the appellants are not challenging the seizure of thecontraband article from their possession, therefore, the seizure of thecontraband article brown sugar from the possession of accused Dadu and Ibrahim is found proved,which is the punishable offence under Section 21 of the NDPS Act. 9.Now the only question remains for consideration is that on the basis of FSLreport what should be the actual quantity of the seized article whether it isabove the commercial quantity or less than the commercial quantity. 10. Two report are on record. On first examination of thesample by the FSL the morphine percentage is found to be 22.08% from the sampleof the contraband article seized from the possession of the accused Dadu . Similarly, from the sample of the contraband articleseized from the possession of the accused Ibrahim thequantity of morphine percentage is found to be 22.91%. Thereafter, onapplication filed by the appellants/accused before the Trial Court the secondsample had been sent to the Central Drug Laboratory at Delhi and on examinationof the second sample of the contraband article the concerning chemical examinerof the Central Drug Laboratory at Delhi found the morphine percentage of 5.6%in the first sample seized from the possession of accused Ibrahim .There is much difference in both these reports submitted by the FSL as well asCentral Drug Laboratory, Delhi . 11.Learned counsel for the appellants has placed reliance on the decision of the Hon'ble Apex Court in the case of Sami Ullaha vs. Superintendent, Narcotic Central Bureau,report in 2009 Cr.L.R . (SC) 30, wherein it is heldthat "when two views are possible' the view leans in favour of accused must be favoured ." 12.In view of the aforesaid decision of the Hon'ble ApexCourt, in the present case certainly the report of the Central Drug Laboratorysupersedes the report of the FSL, which is the examination report of the firstsample of the contraband article and in such circumstances, this can be heldthat the percentage of morphine is found to be only 5.6% and 5.4% respectivelyon chemical examination of the sample by Central Drug Laboratory. 13.In view of the decision of the Hon'ble Apex Court incase of E. Machoel Raj (supra), the actual quantity ought to be ascertained on the basis of presenceof morphine percentage then the actual quantity is found to be 61.6 Gms . alleged to be seized from the possession of accused Dadu and 54 Gms . Alleged to beseized from the possession of accused Ibrahim andadmittedly both these quantities are less than the commercial quantity asprovided in the Schedule of NDPS Act, wherein the commercial quantity is shownto be more than 250 Gms . of the brown sugar. 14.If that being so, on the basis of the actual quantity of the seized article,which is admittedly less than the commercial quantity then theappellants/accused can be held guilty for the offence under Section 21 (b) ofthe NDPS Act and not under Section 21 (c) of the NDPS Act as held by the TrialCourt and for the offence under Section 21 (b) there is no requirement for theminimum sentence often years with fine of Rs . 1.00 lac . 15.Resultantly, both these appeals preferred by the appellants are allowed inpart. The finding of conviction of appellants under Section 8 read with Section20 (c) of the NDPS Act and the sentence often years RI with a fine of Rs . 1.00 lac as awarded by theTrial Court is set aside and instead therefore both the appellants are heldguilty for the offence under Section 8 read with Section 21 (b) of the NDPSAct. 16.It is submitted that both the appellants are in jail since last more than eightyears and six months. Considering the aforesaid period of detention the jailsentence already undergone by the appellants with a fine of Rs .10.000/- (Rupees Ten Thousands only) appears to be just and reasonablesentence. 17.Therefore, both the appellants are sentenced to the period already undergone bythem in jail (eight years six months) with a fine of Rs .10.000/- (Rupees Ten Thousands only) on each. In default of payment of finethey will suffer further imprisonment for three months. 18.With this modification in the sentence, both the appeals stand disposed of.