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2018 DIGILAW 102 (GAU)

NOOR ALI v. STATE OF ASSAM

2018-01-23

HITESH KUMAR SARMA

body2018
JUDGMENT/ORDER : 1. This is an appeal under Section 374 (2) of the Cr.PC against the judgment and order, dated 10.08.2017, passed by the learned Special Judge, Dhubri in Special Case No. 16/2015 convicting the accused-appellant under Section 21 (b) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) and sentencing him to rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 50,000/- with a default clause. 2. The fact leading to the case is that the accused-appellant, Noor Ali was found possessing 90 bottles of Eskuf Cough Syrup and 32 nos of Spasmo Proxyvon Capsules while his house was searched by the SI of Police Lalhari Sharma of Gauripur Police Station on receipt of secret information. Suspecting the accused to have possessed the narcotic drugs, the SI of Police aforesaid lodged the FIR with the Gauripur Police Station which was registered as FIR No. 123/2013 on 01.04.2013 under Section 22 of the NDPS Act. 3. After investigation was completed as well as after obtaining the report of the Forensic Science Laboratory in respect of the contents of the seized articles, charge-sheet was laid against the accused-appellant under Section 22 of the NDPS Act. 4. After exhausting all the required formalities, the trial commenced for charge under Section 22 (b) against the accused-appellant. 5. In this case, the prosecution examined as many as 8 (eight) witnesses whereas the defence examined none. 6. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.PC and in his such statement, he is heard denying the allegation made against him by the prosecution. 7. I have scanned the evidence on record. I have also heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. F.U. Borbhuiya, learned counsel for the accused-appellant as well as Mr. B. Sarma, learned Additional Public Prosecutor, appearing for the State respondents. 8. During the course of hearing, the learned senior counsel for the accused-appellant has raised two points to bring home that the judgment of the learned trial court convicting and sentencing the accused-appellant is not based on evidence on record and rather it is perverse to the evidence on record. 8. During the course of hearing, the learned senior counsel for the accused-appellant has raised two points to bring home that the judgment of the learned trial court convicting and sentencing the accused-appellant is not based on evidence on record and rather it is perverse to the evidence on record. The first point he has raised is that the contraband recovered from the possession of the accused-appellant is of smaller quantity covered by Section 21 (a) of the NDPS Act and that the learned trial court did not consider the Forensic Science Laboratory report to find out the quantity of contraband found in the sample examined by it. Had the quantity of contraband, found on examination of the samples, being considered by the learned trial court, the learned trial court would have found that it is of small quantity and therefore covered by Section 21 (a) of the NDPS Act. The second leg of argument by the learned senior counsel for the accused-appellant is that the sample of the contraband seized were not produced in the Court physically so as to substantiate the seizure made by the Investigating Agency from the accused-appellant and thus he has referred to the decision of the Honble Supreme Court in the case of Noor Aga Vs. State of Punjab and Another, reported in (2008) 16 SCC 417 , particularly paragraphs 96, 100 and 101 thereof which this Court would refer after a while. Learned senior counsel for the accused-appellant has further submitted that the seizure witnesses did not support the prosecution case. 9. For the decision on the first point raised by the learned senior counsel for the accused-appellant, I have visited the evidence on record. 10. PW4 is the Forensic Science expert and he has exhibited the forensic science laboratory report as Ext-4. I have perused the Ext-4 available in the record of the learned trial court. 11. The evidence of the PW4 coupled with Ext-4 makes it appear in respect of the Eskuf Cough Syrup as follows :- "Total 90 bottles each 100 ml were seized (as per seizure list) In 2 bottles of 100 ml each were sent for FSL and total 178.43 mg codeine found In 1 bottle codeine is 178.43/2=89.21 mg In 90 bottle codeine is 89.21 x 90=8028.9 mg If converted to gram then=8028.9/1000=8.0289 gram which is less than small quantity. Calculation in terms of notification dated 18.11.2009 taking entire composition as narcotic substance 90 bottles and each bottle contains 100 ml liquid Therefore total= 90x100=9000 ml. If the same is converted to gram=9000/1000= 9 gram (codeine in total) The small quantity for codeine is 10 gram and apparently in the instant case the narcotic substance is 9 gram which is below small quantity and attracts section 21 (a) of NDPS Act." In respect of 32 nos of the contraband of Spasmo Proxyvon Capsules, it appears as follows :- "5 nos of capsules were sent for examination to the Forensic Science Laboratory which found 98.50 mg Dextropropoxyohene in 5 capsule. So in 1 capsule Dextropropoxyohene will be=98.50/5=19.7 g Therefore 32 capsule= 19.7 x 32=630.4 mg If converted the same into gram then=630.4/1000=.6304 gram The small quantity for Dextropropoxyohene is 20 gram and apparently in the instant case the narcotic substance is .6304 gram which is below small quantity and attracts section 21 (a) of NDPS Act." 12. During the course of hearing, the learned senior counsel for the accused-appellant has pointed out to the above position with a calculation sheet to suggest that in no case the quantity of contraband seized from the possession of the accused-appellant falls within the purview of Section 21 (b) of the NDPS Act and rather it falls under Section 21 (a) of the NDPS Act. 13. The learned Additional Public Prosecutor, Assam is found to be fair enough to admit this position in view of the report of the PW4/Expert of the Forensic Science Laboratory. 14. That being so, this Court has no hesitation to hold that the contraband seized from the possession of the accused-appellant is of small quantity covered by the provisions of Section 21 (a) of the NDPS Act. 15. As regard the second leg of argument, as indicated above, the learned senior counsel for the accused-appellant has referred to the evidence of the seizure witnesses, i.e., PWs 2, 3 and 7. He has referred to the evidence of PW2 that has put his signature in the blank sheet which has been produced in the Court as Ext.1 as seizure list. PW3, who is another seizure witness, is heard saying in his evidence that the seizure was not made in his presence although he has admitted his signature in the seizure list. He has referred to the evidence of PW2 that has put his signature in the blank sheet which has been produced in the Court as Ext.1 as seizure list. PW3, who is another seizure witness, is heard saying in his evidence that the seizure was not made in his presence although he has admitted his signature in the seizure list. PW7, another seizure witness, appears to have stated in his evidence that he did not witness the seizure which has been exhibited. He has taken the plea that while his signature was obtained in the seizure list, exhibited as Ext.1, it was blank. 16. So far the proof of seizure of the contraband is concerned, the seizure witnesses, referred to above, makes it clear in the evidence that they had put their signatures in the seizure list, which according to two of them, were blank at the time of putting their signatures. 17. Whether the seizure list, Ext.1, was blank or not at the relevant time of obtaining signature of the seizure witnesses is a question of fact to be proved by evidence and when there is contents in the seizure list and the signatures therein have been admitted by the aforesaid seizure witnesses, it amounts to admission of the contents also. Therefore, in the considered view of this Court, the submission to the effect that the seizure witnesses had to sign on a blank sheet which was later on converted to a seizure list appears to have no merit. 18. So far non production of the samples before the learned trial court in physical form, the learned senior counsel for the accused-appellant has referred to the decision mentioned above. Paragraph 96 of the said decision reads as follows :- "Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act." 19. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act." 19. A reading of the judgment as a whole, and para 96 of the aforesaid judgment in particular, makes it appear that apart from this aspect of non production of the samples before the learned trial court as primary evidence, there were some other issues involved in the said case and as such the facts of the case on which the Hon’ble Supreme Court rendered the above decision is not same in the instant case. 20. At the same time, during the course of hearing, the learned senior counsel for the accused-appellant has referred to the Ext-4 which is the report of the forensic science laboratory from which we have already gathered that the quantity found was covered by Section 21 (a) of the NDPS Act. Such submission made by the learned senior counsel for the accused-appellant means acceptance of the forensic science laboratory report meaning thereby that taking samples of the contraband is a fact admitted. That being so, non-production of the samples in the Court in physical form is of no consequence. 21. Whatever it may be, it has been already found that the quantity of contraband recovered from the possession of the accused-appellant is of small quantity covered by Section 21 (a) of the NDPS Act, holding the accused-appellant guilty of the offence under Section 21 (b) of the NDPS Act and sentencing him accordingly appears to have not been based on materials on record, and therefore, the judgment of the learned trial court needs interference by this Court in appeal and the accused-appellant needs to be convicted and sentenced under Section 21 (a) of the NDPS Act. 22. The punishment prescribed under Section 21 (a) of the NDPS Act is imprisonment which may extend to one year or fine of Rs. 10,000/- or both. 23. 22. The punishment prescribed under Section 21 (a) of the NDPS Act is imprisonment which may extend to one year or fine of Rs. 10,000/- or both. 23. The trial court record shows that the accused-appellant was in judicial custody during the trial from 02.04.2013 to 13.09.2013 and as such for a period of 5 months and 11 days, and since the date of delivery of judgment, 5 months and 13 days as on date and as such he is in custody during the trial and after the trial for a period of 10 months and 24 days. As stated above, the maximum substantive sentence prescribed is 1 year under Section 21 (a) of the NDPS Act. 24. That being so, the substantive sentence imposed upon the accused-appellant is reduced to period already undergone, i.e., 10 months 24 days and the fine imposed upon the accused-appellant by the learned trial court is reduced to Rs.3,000/- from Rs.50,000/- and in default of payment of fine, simple imprisonment for 2 (two) months in accordance with the provisions of Section 21 (a) of the NDPS Act. 25. The judgment of the learned trial court is, accordingly, modified to the extent aforesaid. The appeal is partly allowed. 26. Send down the LCR along with a copy of this judgment within a period of 4 (four) days from today. 27. The learned trial court will release the accused-appellant after payment of the fine of Rs. 3,000/- and in default of payment of fine, after undergoing the simple imprisonment for 2 (two) months.