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2016 DIGILAW 3233 (ALL)

Deepak Kumar Singh v. Union of India

2016-09-21

HARSH KUMAR

body2016
JUDGMENT Harsh Kumar, J. Heard learned counsel for the applicant, learned counsel for Union of India and perused the record. 2. Learned counsel for the applicant contended that the applicant has been falsely implicated for the recovery of 32.450 litres of Acetic Anhydride in six containers; that the recovery is alleged to have been made on 2.11.2014 from the two bags of applicant which was found to be Acetic Anhydride upon testing on the spot and was allegedly admitted to be so by the applicant; that manufacture, trade, commerce, possession and consumption of the recovered commodity without unique registration number has been prohibited by way of Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013 (hereinafter referred to as "2013 Order") wherein in all the three Schedules-A, B & C the above commodity of Acetic anhydried has been mentioned at No.1 and its manufacture, distribution, sell, purchase, possession, storage, consumption as well as export and import is subject to control as specified in this 2013 Order; that no commercial quantity of above substance has been prescribed either in the N.D.P.S. Act or 2013 Order; that recovery of above narcotic substance has been falsely planted on applicant of which there is no independent witness; that Shafiq Khan, the witness of recovery has submitted an affidavit A-3 on 12.12.2014 stating that the arrest of and recovery from applicant was not made in his presence; that compliance of provisions of Section 50 of N.D.P.S. Act was not made; that the applicant has not committed any offence under Section 9A/25A of N.D.P.S. Act; that the case law laid down by the Apex Court in the case of Union of India Vs. Kuldeep Singh and others, 2004 (2) SCC 590 , is not applicable to the facts of this case as the commodity of contraband seized therein was altogether a different commodity of contraband from the commodity which is alleged to have been recovered from the applicant; that in above case 'Acetic N hydride' while in the present case 'Acetic Anhydride' was allegedly recovered which are two different commodities; that the progress of trial is very poor as despite framing of charges against sole accused, the applicant on 30.4.2015, only one witness has been produced for examination and there is no likelihood of early disposal of trial; that the applicant has no criminal history; that the applicant undertakes that he will not make misuse the liberty of bail; that the applicant is in custody since 2.11.2014. 3. Learned counsel for Union of India, Department of Narcotics vehemently opposed the prayer of bail and contended that due compliance of provisions of N.D.P.S. Act was made at the time of recovery; that huge quantity of narcotic substance has been recovered from the applicant, which may not be falsely planted; that above liquid form of narcotic is also used in manufacturing of Heroin and the percentage of Acetic Anhydride in the samples of six containers sent for chemical examination was found to be between 94.1% to 95.5% in each of the six samples taken out from the six containers; that the recovery has been made in presence of independent witness and the applicant has admitted the commission of crime due to greed of money in his statement U/s 67 of N.D.P.S. Act which is binding on him; that allegations about submission of any affidavit by Shafiq Khan on 22.12.2014 denying recovery in his presence are false and incorrect and no such affidavit was produced before the Sessions court, who has rejected bail application of applicant on 22.1.2015; that even if the applicant has obtained any such affidavit from Shafiq Khan by exerting his influence or under threat, the same is not admissible in evidence and may not be considered for disposal of bail application; that in the case of Union of India Vs. Kuldeep Singh and others (supra) the Apex Court taking note the volume of contraband article 880 litres of Acetic N hydride or Acetic Anhydride, held it to be sufficient for obtaining/extracting a quantity of 300 Kgs. Kuldeep Singh and others (supra) the Apex Court taking note the volume of contraband article 880 litres of Acetic N hydride or Acetic Anhydride, held it to be sufficient for obtaining/extracting a quantity of 300 Kgs. of finished product of Heroin; that considering the percentage of Acetic Anhydride in the samples of each containers and considering the fact that 300 Kgs. Heroin could have been extracted out of 880 litres of Acetic Anhydride, from the recovered quantity of 32.450 litres, around 11.06 Kg. of Heroin could have been extracted which is much more than the commercial quantity of Heroin which is 250 gms. prescribed under the N.D.P.S. Act; that in this manner the applicant was carrying on commercial quantity of prohibited narcotics in liquid form which is used for manufacturing of Heroin; that Acetic Anhydride and Acetic N hydride are one and the same things and it will be incorrect to say that the material referred in the case of Union of India Vs. Kuldeep Singh and others (supra) is different material from that which has been recovered from the applicant and which has been brought under the category of prohibited substance by way of 2013 Order; that in view of provisions of Section 37 of N.D.P.S. Act, since there is nothing to believe that applicant was not involved in the crime and that in case of release, he will not involve in similar type of offences, his application for bail is liable to be rejected. 4. Upon hearing parties counsel, I find that Act No.61 of 1985 The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S. Act, 1985') was enacted on 16.9.1995 with following aims and objects: - "An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances [to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances] and for matters connected therewith." 5. The above Act controls and regulates the operations relating to three types of contrabands viz. The above Act controls and regulates the operations relating to three types of contrabands viz. Narcotics Drugs, Psychotropic Substances and Controlled Substances, defined in Section 2(xiv)(xxiii) & (viid) which are as under: - "2(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods; (xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule; (viid) "controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance." 6. The prohibited contraband "Acetic Anhydride" does not find place in the Schedule of N.D.P.S. Act, 1985. The Section 9A has been added in N.D.P.S. Act w.e.f. 29.5.1989 conferring power to control and regulate controlled substances. The exercise of powers conferred in Section 9A along with Section 25A prescribs punishment for contravention of orders, made under Section 9A. The provisions of Section 9A and Section 25A of N.D.P.S. Act, 1985 are as under: - "9A. Power to control and regulate controlled substances.-(1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generality of the power conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition of any controlled substance. 25A. Punishment for contravention of orders made under section 9A. -If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees." 7. In exercise of powers conferred by Section 9A of N.D.P.S. Act, 1985 the 2013 Order' came into force w.e.f. 26.3.2013 prohibiting the manufacture, trade and commerce, possession and consumption of controlled substances as well as for transportation and selling of controlled substances mentioned in Schedule A and also prohibiting export and import of controlled substances mentioned in Schedules B & C. The above 2013 Order' consists three Schedules A, B & C and the controlled substance "Acetic Anhydride" is mentioned at no.1 in all the three schedules. 8. Considering the possible use of Acetic Anhydride in the production or manufacture of Heroin or Methaqualone and also to implement the provisions of United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 vide Notification No.l50198E dated 24.3.1993, the Acetic Anhydride was brought within the definition of controlled substance under Section 2(viid) of N.D.P.S. Act. A list of controlled substances Notifications, issued under the N.D.P.S. Act 1985 is reproduced as under: - Sl. No. Substance Gazette Notification and date 1. Acetic Anhydride Controlled Notification No. S.O. 198(E), dated 24-03-1993 2. Ephedrine & its Salts Controlled Notification No. S.O. 1296(E), dated 28-12-1999 3. Pseudoephedrine & its Salts Controlled Notification No. S.O. 1296(E), dated 28-12-1999 4. N-Acetyl Anthranilic Acid Controlled Notification No. S.O. 763(E), dated 24-10-1994 5. Anthranilic Acid Controlled Notification No. S.O. 239(E), dated 26-02-2003 9. From above position of provisions of Act and Controlled Order with regard to Acetic Anhydride, it is absolutely clear that Acetic Anhydride had been defined as a controlled substance, even before 2013 Order' which came into force w.e.f. 26.3.2013. The argument of learned counsel for the applicant that since the case of "Union of India Vs. Kuldeep Singh and others (supra)" relates to an incident dated 12.12.1995 and was decided by the Apex Court on 8.12.2003 much before the 2013 Order' came into existence and that Acetic N hydride and Acetic Anhydride are different substance having no relevancy or applicability to the facts of the case, has no force. 10. It is pertinent to mention that a study of above controlled substances shows that: - "Acetic anhydride, or ethanoic anhydride, is the chemical compound with the formula (CH3CO)2O. Commonly abbreviated Ac2O, it is the simplest isolable anhydride of a carboxylic acid and is widely used as a reagent in organic synthesis. 10. It is pertinent to mention that a study of above controlled substances shows that: - "Acetic anhydride, or ethanoic anhydride, is the chemical compound with the formula (CH3CO)2O. Commonly abbreviated Ac2O, it is the simplest isolable anhydride of a carboxylic acid and is widely used as a reagent in organic synthesis. It is a colorless liquid that smells strongly of acetic acid, which is formed by its reaction with moisture in the air. Acetic anhydride was first synthesized in 1852 by the French chemist Charles Frederic Gerhardt (1816-1856) by heating potassium acetate with benzoyl chloride. Because of its use for the synthesis of heroin by the diacetylation of morphine, acetic anhydride is listed as a U.S. DEA List II precursor, and restricted in many other countries." 11. In the case of Union of India Vs. Kuldeep Singh and others (supra), the accused was convicted under Section 9A/25A for recovery of 880 litres of Acetic N hydride from him and upon conviction was sentenced with 10 years rigorous imprisonment and Rs.1 lac fine. In appeal the High Court considering the plea that father of accused was a person of 85 years, mother had expired and the accused was not a habitual offender, reduced the sentence to the period of custody undergone which was taken to be 6½ years and fine was also reduced to Rs.25,000/-. In appeal by Union of India, the Apex Court setting aside the judgment passed by the High Court allowed the appeal and directed the accused to surrender to custody to suffer the remainder of the sentence as awarded by the trial court. Paras 16 to 25 of the above judgment and order of the Apex Court are being quoted as under: - "16. Similar view has also been expressed in Ravji v. State of Rajasthan, ( 1996 (2) SCC 175 ). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". 17. An offence relating to narcotic drugs or psychotropic substances is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. That the legislature intended to make the offences under the Act so serious to be dealt with sternly and with an iron hand is made clear by providing for enhanced penalties, including even death sentence, in certain class of cases, when convicted for the second time. 18. It is true as contended by learned counsel for the respondent- accused that no minimum sentence is prescribed, but the sentence imposed should fit in with the gravity of offence committed but in the teeth of the other indications in the enactment, mere absence of a provision for minimum sentence is no reason or justification to treat the offences under the Act as any less serious as assumed by the High Court. It was highlighted by learned counsel for the respondent that the Court had a discretion which according to him has been rightly exercised. The High Court seems to wholly misdirected itself not only as to the seriousness of the offences but also with reference to the relevant consideration which should weigh with the Court in exercising its discretion. 19. Discretion is to know through law what is just. Where a Judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. Not any one of the reasons attempted to be enumerated by the High Court in this case could in law be viewed as either relevant or reasonable reasons carrying even any resemblance of nexus in adjudging the quantum of punishment in respect of an offence punishable under the Act. 20. When anything is left to any person, Judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty of power of acting without other control than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary). 21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp v. Wakefield, (1891) Appeal Cases 173). It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp v. Wakefield, (1891) Appeal Cases 173). Also (See S.G. Jaisinghani v. Union of India and Ors. ( AIR 1967 SC 1427 ). 22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable," said (Lord Camden, L.C.J., in Hindson and Kersey (1680) 8 How, St. Tr.57.) 23. If a certain latitude or liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review. 24. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent judges in somewhat different forms of words but with substantial identity. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (Per Willes J. in Lee v Budge Railway Co., (1871) LR 6 CP 576, and in Morgan v. Morgan, 1869, LR 1 P & M 644). 25. As indicated supra, the discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. 25. As indicated supra, the discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. When the volume of contraband articles is taken note of, it is sufficient for a conclusion that the quantity of finished product out of it which would have been extracted it would have been nearly 300 kilograms of heroine, and the accused would have got about forty kilograms as admitted by him. The disastrous effect (of this quantity of heroin) would be mind-boggling. The High Court seems to have been swayed by the age of accused's father, his family problems and more importantly he being not a "habitual offender". Such considerations are really meaningless when one considers the fact that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance. But it is really inconsequential for a drug trafficker and smuggler. The reasons given by the High Court to reduce the sentence, according to us, have no foundation. The inevitable conclusion is that the appeal deserves to be allowed which we direct. To put it differently, the sentence imposed by the trial Court is restored. The respondent has been released pursuant to the High Court's judgment. He shall surrender to custody to suffer remainder of the sentence as awarded by the trial Court. The appeal is allowed." 12. There is nothing to show that Acetic N hydride and Acetic Anhydride are different substances and the learned counsel for the applicant has failed to show that Acetic N hydride or Acetic Anhydride was not in category of controlled substance prior to issuance of 1993 Notification' and 2013 Order'. It is pertinent to note that 'Acetic N Hydride' was not been within the category of controlled substance, or had it been different from 'Acetic Anhydride', there could have been no occasion for trial and conviction of Kuldeep Singh by trial court for recovery of its huge quantity on 12.12.1995 and confirmation on sentence by the Apex Court. It appears that in the judgment of the case of 'Union of India Vs. It appears that in the judgment of the case of 'Union of India Vs. Kuldeep Singh and others (supra)', the spelling of the controlled substance of contraband, Acetic Anhydride has been mentioned as Acetic N hydride considering that 'N' is separate N from hydride and is not included in the spellings of Anhydride which does not make any difference. In above case, the Apex Court has considered the disastrous effect of the seized contraband 880 litres of Acetic N hydride (Acetic Anhydride) and has held that from such quantity of controlled substance in liquid a quantity of 300 Kg. of Heroin could have been extracted. In view of above observation made by the Apex Court, it may safely be accepted, as has been contended by Sri Sanjay Kumar Singh, learned counsel for the Union of India (Narcotics Department) that from above quantity of liquid controlled substance, approximately 1/3rd quantity of Heroin can be extracted and so from the recovered quantity of 32.450 litres approximately 11.06 Kg. of Heroin may be extracted. Undisputedly the commercial quantity of Heroin as prescribed in the N.D.P.S. Act is 250 gms. and so the above quantity of liquid controlled substance from which approximately 11 Kg. of Heroin could have been extracted, and which has been brought under the list of controlled substance vide control Notification in 1993 and further by 2013 Order', was recovered from the applicant. In view of recovery of such a huge quantity of controlled substance from applicant, it may be said that applicant has virtually been apprehended with recovery of 11 Kg. of Heroin (commercial quantity) for him. It is also contended that the applicant has been accused in murder case in reply to which the learned counsel for the applicant submitted that in above case he has been acquitted and also produced a certified copy of judgment and order dated 15.5.2009 passed by Additional Sessions Judge, Court No.11, Bareilly in S.T. No.794 of 2007 for perusal. However, learned counsel for the first informant states that merely due to the acquittal in the case based on circumstantial evidence, it may not be considered that the applicant is not a person of criminal antecedents. 13. However, learned counsel for the first informant states that merely due to the acquittal in the case based on circumstantial evidence, it may not be considered that the applicant is not a person of criminal antecedents. 13. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, recovery of commercial quantity of prohibited contraband/controlled substance, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I do not find it a fit case for bail and the bail application of Deepak Kumar is liable to be rejected. 14. The bail application of applicant Deepak Kumar Singh in Case Crime No.06 of 2014, Complaint Case No.01 of 2015, under Sections 9A/25A N.D.P.S. Act, Central Narcotics Bureau, Lucknow, is rejected accordingly.