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2017 DIGILAW 1042 (JK)

Sayyed Mohd. Sadiq v. State of J&K

2017-11-30

BADAR DURREZ AHMED, SANJEEV KUMAR

body2017
JUDGMENT : Badar Durrez Ahmed, J. 1. The present appeal is directed against the judgment dated 28.01.2016 delivered by the Additional Sessions Judge (Special Judge), Udhampur, whereby the appellants have been convicted for offences under Sections 8(c) which is punishable under Section 20(b)(ii)(C) of the of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). The appeal is also directed against the order dated 28.01.2016 whereby the appellants have been sentenced to undergo rigorous imprisonment of 12 years each and to pay a fine of Rs. 1.5 Lacs each. In case of default in payment of fine, the appellants were, each, required to undergo further rigorous imprisonment for one year. The period of incarceration already undergone during trial was directed to be set off. The impugned judgment and the order on sentence arose out of FIR No. 240/2011 registered at Police Station, Udhampur on 01.11.2011. The prosecution case was that on 01.11.2011 certain police officers were on patrolling duty and they were checking and frisking vehicles at Jekhani Nallah. At about 11.10 p.m. they intercepted a vehicle, which was a red Qualis, which was approaching from the direction of Srinagar and going towards Jammu. When the said vehicle was signaled to stop, the driver thereof drove it in another direction and tried to flee. The said vehicle was chased and was ultimately intercepted near Sansar Palace. Two persons, namely, accused Sadiq and Haroon Sheikh were sitting in the vehicle and the third, namely, Raaza had fled away. The vehicle had the registration No. MH 04-BY-8939. The same was searched and upon conduct of such search, 7 packets were recovered. On smelling the same, it was found to be charas by the said police team. Thereupon, FIR No. 240/2011 was registered and investigation was taken over by Sub Inspector Padam Dev Singh. The 7 packets were opened and on such opening 95 balls were found. The total weight of these 95 balls was found to be 16 kilograms. A small portion was taken from each of the 95 balls by way of sample and two packets marked as 'A' & 'B' of 100 gms each were prepared by way of samples. Another packet marked 'C' was of the remaining 15.8 kgs of the seized contraband. A fourth packet marked 'D' was prepared which contained the packing material. 2. A small portion was taken from each of the 95 balls by way of sample and two packets marked as 'A' & 'B' of 100 gms each were prepared by way of samples. Another packet marked 'C' was of the remaining 15.8 kgs of the seized contraband. A fourth packet marked 'D' was prepared which contained the packing material. 2. From the above it is clear that, as per the prosecution, 16 kgs of alleged contraband was recovered which smelt like charas. Small portions from each of the 95 balls were taken to prepare two sample packets marked 'A' & 'B' of 100 grams each. The remaining 15.8 kgs of the seized material was also sealed in a separate packet marked 'C. One of the sample packets ('A') was sent to the Forensic Science Laboratory for forensic examination. 3. It has come in evidence through the Scientific Officer, PW Pawan Abrol from Forensic Science Laboratory, Jammu, that on opening the packet marked 'A' it was found to contain numerous small flat pieces and powdered greenish black coloured material which were collectively given the exhibit No. P-1840/11 by him. Importantly, the said PW-Pawan Abrol stated that the weight of the entire exhibit, that is, the contents of the packet marked 'A' was only 60 gms. It may be noted that according to the prosecution, the sample was of 100 gms whereas according to the Scientific Officer, PW Pawan Abrol, what he received was only 60 gms. The contents of the said exhibit were subjected to various chemical tests, microscopical and chromatographic examination and the report was that charas was detected in the said sample. The report of the said Scientific Officer was exhibited as Ext-P12. 4. The point raised by the learned counsel for the appellant was that although the appellants were found to be carrying contraband, that is, charas, it was indeterminate as to whether the quantity carried by them fell within the category of commercial quantity or an intermediate quantity. He submitted that this doubt has been created because of the manner in which the samples were collected. 5. As pointed above, the prosecution case is that a small amount was taken from each of the 95 balls and they were consolidated in two packets marked as 'A' & 'B', each of 100 gms. He submitted that this doubt has been created because of the manner in which the samples were collected. 5. As pointed above, the prosecution case is that a small amount was taken from each of the 95 balls and they were consolidated in two packets marked as 'A' & 'B', each of 100 gms. Therefore, according to the learned counsel for the appellants, it cannot be said that the entire 95 balls weighing 16 kilograms was charas or only some part of it was charas. He of course pleaded that since only 60 gms were examined by the Forensic Science Laboratory, the appellants could be held to be carrying only 60 gms, which would be a small quantity. 6. This argument, however, is not, at all, appealing to us nor is it logical. Each of the 95 balls obviously weighed more than 100 gms and even if one of them was found to be carrying charas, the quantity would be in excess of 100 gms and therefore, would not qualify to be a small quantity. It is, therefore, clear that the only question that needs to be addressed is whether recovery was of a commercial quantity or an intermediate quantity. In other words whether the quantity recovered was within one kilogram or one Kilogram and beyond, is the question which needs to be determined. 7. After having heard learned counsel for the parties and examining the entire matter threadbare and particularly the Malkhana register as also the report of the Forensic Science Laboratory, there is no doubt that the appellants were carrying contraband which was charas. There is also no doubt that they were carrying a quantity in excess of the small quantity. However, there is doubt as to quantum of charas with regard to the quantity being a commercial quantity or an intermediate quantity. This would make all the difference to the sentencing. 8. The learned counsel for the appellant, at this stage, submitted that the appellants have already undergone incarceration for over six years and, therefore, this court may, in the backdrop of doubt, hold that the quantity was an intermediate quantity and, accordingly reduce the sentence to the period undergone which would be in keeping with the sentence for an intermediate quantity. He also pleaded that accordingly the amount of the fine would also have to be reduced proportionately. 9. He also pleaded that accordingly the amount of the fine would also have to be reduced proportionately. 9. In the backdrop of doubt as to whether the quantity of charas recovered was a commercial quantity, the benefit would have to go to the appellants. Therefore, while we maintain the conviction of the appellants for offence under Section 8(c) of the said Act, their sentences would have to be altered to be in line with Section 20(b)(ii)(B) of the said Act, which prescribes the sentence for an intermediate quantity. 10. Keeping the totality of circumstances, we accordingly reduce the sentence awarded to the appellants to the period undergone and also direct that the imposition of fine be reduced to Rs. 50,000/- each. In case of default in payment of fine, the appellants shall undergo further rigorous imprisonment of six months each. The appeal stands allowed partly.