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2010 DIGILAW 1442 (PNJ)

Pappu Singh v. State of Haryana

2010-04-08

HEMANT GUPTA, JASWANT SINGH

body2010
JUDGMENT Hemant Gupta, J.:- This appeal is against judgment of conviction dated 1.10.2005 passed by Learned Special Judge, Panipat convicting the appellant for offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the Act”) for keeping in his possession 600 grams of Smack without any lawful authority and sentencing him to undergo RI for twelve years and to pay a fine of Rs.1,25,000/-. In default of payment of fine, the appellant was ordered to undergo RI for three years. 2. On 22.8.2004, in the area of Bus Stand, Panipat, 600 grams of Smack was recovered from the appellant by police party headed by ASI Bhagat Singh-PW5. It is the case of the prosecution that when police party headed by the aforesaid ASI was patrolling outside the Bus Stand, accused carrying a bag in his hand was seen coming from inside Bus Stand. On seeing the police party, he turned back and started walking briskly. It arose suspicion. Appellant was apprehended. On inquiry, he was suspected to carry contraband. A notice under Section 50 of the Act was served upon him. Appellant opted to be searched in the presence of some Gazetted Officer. Shiv Dayal, DSP was called at the spot. He has been examined as PW3 in this case. As per directions of Gazetted Officer, bag in possession of the accused was searched and from that bag, 600 grams smack wrapped in a polythene was recovered. Two samples of 5 grams each were separated and residue along with sample parcels were taken into possession. A ruqa was sent to Police Station. On the basis thereof, a formal First Information Report (Ex.PG) was lodged. Accused along with case property and witnesses were produced before PW7-Om Singh, Inspector/SHO, Police Station City Panipat, who verified the investigation and put his seal on both the sample parcels. Investigating Officer was directed to deposit the case property with Moharar Head Constable, Police Station City Panipat. From the report (Ex.PX) of Forensic Science Laboratory, Haryana Madhuban, the contents of the sample were found to be that of diacetylmorphine. After conducting other formal investigations, prosecution was launched against the accused. 3. Learned counsel for the appellant has halfheartedly sought to dispute recovery process by associating Gazetted Officer. We do not find any merit in the said argument. From the report (Ex.PX) of Forensic Science Laboratory, Haryana Madhuban, the contents of the sample were found to be that of diacetylmorphine. After conducting other formal investigations, prosecution was launched against the accused. 3. Learned counsel for the appellant has halfheartedly sought to dispute recovery process by associating Gazetted Officer. We do not find any merit in the said argument. The manner of recovery of contraband has been proved by the prosecution by examining PW5-ASI Bhagat Singh, PW4-Balwan Singh ASI and PW3-Shiv Dayal DSP. PW2-HC Dharam Pal has proved that the sample and the residue were kept in safe custody and were not tampered with by any person during the period, the same remained in his custody. Since the search on the person of the accused has been carried over by the DSP, a Gazetted Officer, we do not find that process of search and recovery suffers from any illegality. 4. Argument, which was raised with substantial force, was that the report (Ex.PX) of Forensic Science Laboratory shows 8.9 % diacetylmorphine in the sample weighing 5 grams. It is contended that if such content of diacetylmorphine is taken into consideration in 600 grams of total contraband recovered, it shall be a non-commercial quantity and therefore, punishment awarded is not sustainable. The learned counsel for the appellant has relied upon judgments of Hon’ble Supreme Court reported as AIR 2008 SC 1720 E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau and [2009(2) LAW HERALD (SC) 1183] : AIR 2009 SC 1977 State of NCT of Delhi v. Ashif Khan @ Kalu. 5. Learned counsel for the respondent-State has argued that though the aforesaid judgments have taken the view that the percentage of diacetylmorphine is to be taken into consideration to determine total quantity of contraband recovered as to whether the contraband recovered is of commercial, non-commercial quantity or small quantity but the said contents are against the statute. 6. It is argued that the provisions of Sub Clause (e) of Sub Section (xvi) of Section 2 of the Act have not been taken into consideration in the correct perspective. As per the aforesaid provisions, all preparations containing more than 0.2 % of morphine or containing “any diacetylmorphine” is a opium derivative. 6. It is argued that the provisions of Sub Clause (e) of Sub Section (xvi) of Section 2 of the Act have not been taken into consideration in the correct perspective. As per the aforesaid provisions, all preparations containing more than 0.2 % of morphine or containing “any diacetylmorphine” is a opium derivative. Thus, it is contended that since preparation containing any amount of diacetylmorphine is a opium derivative in terms of the aforesaid provisions, therefore, it is a total weight of the contraband, which has to be taken into consideration rather than strength of diacetylmorphine found in the sample. 7. In E. Micheal Raj’s case (supra), Hon’ble the Supreme Court has examined the provisions of law including provisions of Section 2(xvi) (e) of the Act and returned a finding that additions of neutral substance with a narcotic drugs or psychotropic substance will not make the entire quantity as that of Narcotic Drug or Psychotropic substance. It has been held to the following effect: “Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms is mixed with 50 kgs of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance’s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.” 8. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.” 8. Since the issue has been examined by Hon’ble the Supreme Court in E. Micheal Raj’s case (supra), we find that the argument raised by the learned state counsel cannot be accepted. The contents of diacetylmorphine are 8.9 % in 5 grams of sample. Therefore, in 600 grams, the contents of diacetylmorphine will come out to be 108 grams. Such quantity is less than the commercial quantity as defined under the Act. 9. In view of the said fact, we modify the sentence imposed upon the appellant to that of period already undergone, which is more than 05 years 06 months. It may be noticed that the appellant is in custody since the date of his arrest i.e 22.8.2004. Accordingly, he be released forthwith if not wanted in any other case. Appeal is thus allowed partly. ------------