Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
========================================================= CHHOTIBIBI DAUDBBAI CHHIPA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR RAJESH M AGRAWAL for Appellant(s) : 1,MR MB MASARIA for Appellant(s) : 1, MR RC KODEKAR, APP.
========================================================= CORAM :
HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE N.V. ANJARIA Date :08/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) This appeal is preferred against judgment and order dated 16.07.2004 of learned Additional Sessions Judge, Court No.5, Ahmedabad City, in Sessions Case No.103 of 2003 convicting the appellant for the offence under section 8(c) read with sections 20 (sic) and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`the N.D.P.S. Act', for sake of brevity) and sentencing her to rigorous imprisonment for twelve years with fine of Rupees one lakh, and in default of payment of fine, to undergo rigorous imprisonment for further three months. The appellant Chhotibibi Chhipa was accused No.1 before the trial court. Accused No.2 was acquitted.
2. The prosecution case was that on 17.01.2003 at around 8.00 p.m. the Police Inspector of Shah Alam Police Station received secret information which he forwarded to his second Police Inspector that one Chhotibibi Chhipa, wife of Daudbhai Vakhatji, staying near Suryanagar underpass, was keeping in her house quantity of brown sugar and opium. As it was apprehended that she may elope with the contraband, the police swung into action. The higher officer was intimated in writing. Upon his instruction to conduct raid and after doing necessary panchnama and making an entry in the station diary, the officer with his staff along with panchas and a lady Constable swiftly reached Chandola, near Nawaz Masjid, at Suryanagar Chhapra. parked their jeep in front of a shop named S.S. Decorators. The raiding party entered a narrow street through a gate on the opposite of that shop. Leaving two gates, a woman was found sitting near the third gate, who, on being asked, identified herself in presence of panchas as Chhotibibi. The officer introduced himself to her that he was a police official from Maninagar Police Station, and wanted her house to be searched as he had definite information about contraband material illegally kept and possessed by her. She was explained and asked in writing whether she wanted to be searched in presence of a Gazetted Officer or an Executive Magistrate, to which she replied in negative.
2.1 The house of appellant Chhotibibi was searched. In the third room of the house, on closure look at the ground floor, it was noticed that a cooking stove (sagdi) was kept in the southeast corner of the wall. Few bricks and wooden logs were lying scattered near to it. When those materials were removed, a steel dish was seen having been kept inside the sagdi. Below it a round shaped tin box sized one foot was found. It contained transparent plastic bags filled with brown coloured powder. In another transparent plastic bag, blakish sticky substance was found. Prima facie, they smelt like brown sugar and opium respectively.
2.2 The officer of Forensic Science Laboratory (F.S.L.) was called at the place, who, on examination, confirmed the substances to be brown sugar and opium. The powder weighed one kilogram, whereas the sticky substance weighted 1.845 kg. Two samples of ten grams each from the quantity of powder were taken out, packed and sealed as per procedure, and were placed in different covers. Similarly, two samples of 50 grams each of the opium were taken out, and were properly sealed. The panchnama of raided place was carried out. The panchnama in respect of seizure and weighing of contraband material was also done. The appellant was arrested. The samples in sealed condition were sent to the Forensic Science Laboratory for testing.
2.3 The appellant and accused no.2 were charged for the offences under sections 8(c), 20, 21 and 29 of the N.D.P.S. Act. In course of trial, the prosecution examined ten witnesses and led documentary evidence. The statements of the accused persons under section 313 of the Criminal Procedure Code, 1973, were recorded. The trial culminated into the impugned judgement and order, convicting and sentencing the accused no.1, and acquitting accused no.2.
3. This court heard learned advocate Mr. R.M. Agarwal appearing for the appellant, and learned Assistant Government Pleader Mr. R.C. Kodekar on behalf of the State.
3.1. Learned advocate for the appellant initially raised several points to assail the conviction of the appellant recorded under the impugned judgment. However, on going through the relevant evidence on record, it was established that the seizure of the contraband material was as per the procedure required in law, and all other statutory requirements were complied with. Therefore, in the end, learned advocate fairly restricted his case on the punishment part with reference to the quantitative aspect of the contraband material. In that context, it was submitted that the results of the tests of the contraband substances in question conducted by the chemical analyst of the Forensic Science Laboratory both showed that they were a mixture of more than one substance, and fell within the definition of 'manufactured drug' under section 2(xi) of the N.D.P.S. Act. He submitted that the trial court was not justified in imposing the sentence under Sec.21(c) of the Act on the appellant on the basis that the contravention involved commercial quantity. It was submitted that the percentage presence of different substances contained in the total quantity was not indicated. He relied on the Supreme Court decision in E. Michealraj vs. Intelligence Officer, Narcotic Bureau [(2008) 5 SCC 161] and decision of the Division Bench of this court in Chandrasing @ Bharat Mansing Waghela v. State of Gujarat (2011 CrLR Guj 402).
3.2. On the other hand, learned A.P.P. submitted that eventhough percentage of all substances in the mixture was not shown in the laboratory test, in the facts and circumstances, for the purpose of conviction, the contraband substance was liable to be termed as commercial quantity in view of definition of `opium derivative' which itself was a contraband substance for which the small and commercial quantities are prescribed by the Central Government. He submitted that 1.845 kg. was commercial quantity, and therefore, the sentence imposed was proper.
3.3. Since the parties have limited the controversy in the matter, it is not considered necessary for the court to go into and discuss all other evidence on record, except those relevant to address the issue involved.
4. Prabhatsinh Patel (PW-7, Exh.42) the police personnel, deposed that he had at the relevant time received muddammal at Maninagar Police Station in sealed condition comprised of two sealed jars and four sealed packets packed in khakhi envelopes. The said muddammal was later sent to F.S.L. The F.S.L. report (Exh.50) showed that muddammal was received in sealed condition and was intact. The sample of powder were marked as `A' and the samples of black substance opium were marked `B'.
4.1. Physical analysis was done and various chemical tests were performed on the samples by the chemical analyst. The F.S.L. report (Exh.50) indicated the results. Sample `A' tested positive and was found to be containing different substances being morphine, codeine, diacetylmorphine (heroin), monoacetylmorphine, codeine, acetylcodeine, papaveri, thebaine and narcotin. The report opined that the material in sample `A' had in it substances listed above and in view of the presence of those substances/ingredients, the material could be described as crude heroin, known as brown sugar.
4.2. In the F.S.L. tests, sample `B' which was blakish-brown sticky substance described as opium also tested positive. That substance was confirmed to be opium, which had present in it 3.7% of anhydride morphine. The F.S.L. Report opined that it was opium derivative. It was also stated that `opium derivative' was covered under the N.D.P.S. Act. As was revealed in the laboratory test that the substance crude heroin or brown sugar being mixture of various substances, it was a `manufactured drug' as defined in section 2(xi) of the N.D.P.S. Act. Similarly, sample `B' contained opium and the tests brought out that it contained 3.7% anhydride morphine. It also fell within the definition of `manufactured drug'.
5. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, brought in the statute book with effect from 02.10.2001, substituted section 21. New section 21 provided for graded punishment for contravention in relation to manufactured drugs and preparations, depending upon the quantity of contraband involved. Sub-clauses (a),
(b) and (c) graded the punishment on the basis whether the contravention involved `small quantity', `lesser than commercial quantity' but greater than small quantity' or `commercial quantity' respectively. Definitions in section 2(viia) and in section 2(xxiiia) were inserted by the Amending Act defining `commercial quantity' and `small quantity' respectively. Section 2(xvi) defines `opium derivatives'.
5.1 The Central Government has by Notification dated 27.09.2001 published in the Gazette of India Extra., Pt.-II, sec. 3(ii) dated 27.09.2001 has specified the `small quantity' and `commercial quantity' in relation to the narcotic drugs and psychotropic substances mentioned in the corresponding entry in the columns of the table of that Notification. Entry 56 for heroin mentions the `small quantity' to be 5 grams, and `commercial quantity' to be 250 grams. Entry No.93 deals with `opium derivatives'. Here also `small quantity' is specified to be 5 grams and `commercial quantity' is specified to be 250 grams.
5.2 The evidence of F.S.L. Report (Exh. 50), the analysis results of sample `A' of brown sugar, and sample `B' of opium, is the basis on which the punishment of the appellant has to rest. So far as contraband heroin is concerned, evidence in the form of Exh.50 report brought out that it was a mixture of different narcotic substances. However, the various tests undertaken did not specify the quantitative extent of those different substances. Though it was shown that contraband in sample `A' was a mixture of one or more narcotic substances, in absence of evidence of percentage presence of the different substances, the actual quantity of such substances forming part of the mixture was not ascertainable and hence could not be adjudged. In other words, it was not possible to conclude on the precise quantity composition of the mixture in question. It was thus not possible to pin up the quantity for the purpose of fixing criminal liability as to whether the contraband was in `small quantity' or in `commercial quantity'.
5.3 In Chandrasing (supra), the Division Bench of this court held in similar set of facts, that as the F.S.L. report had not revealed the percentage of contraband, which was a mixture of one or more narcotic or other substance, the case would fall in the category of `less than commercial quantity but more than small quantity' and the punishment under section 21(b) would attract therefor. Chandrasing(supra) relied on the apex decision in E.
Michealraj (supra).
The contention of learned advocate for the appellant on the aspect of quantity of the contraband holds good to the extent of above discussion.
6. However, the matter does not rest there. Report (Exh. 50) when considered with regard to sample `B' containing the substance described to be opium, the chemical test found that it contained anhydride morphine to the extent of 3.7%. The opinion of the F.S.L. experts mentioned below Exh.50 stated that the tested substance is found to be in the category of `opium derivative'.
6.1. At his stage, it is useful to consider definition of `opium derivative' provided in section 2(xvi) of the N.D.P.S. Act:-
(xvi) " opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia- morphine or heroin and its salts; and
(e) all preparations containing more than 0. 2 per cent. of morphine or containing any diacetylmorphine;
6.2 As per the above definition, the substance mentioned in clauses (a),
(b), (c), (d) and (e) would form part of `opium derivatives'. Clause
(e) is relevant in the facts of the present case. As provided in that clause, all preparations containing more than 0.2% of morphine or containing any diacetyl morphine would classify as `opium derivative'.
7. In Amarsing Ramji Barot v. State of Gujarat [(2005) 7 SCC 550] the Supreme Court examined the question of applicability of section 21 in the context of almost identical facts. The appellant of that case was found in possession of 950 grams of black liquid, which was prima facie an opium substance. The F.S.L. report indicated that the substance recovered contained 2.8% anhydride morphine, apart from pieces of poppy flowers found in the sample. Considering the term opium derivative in section 2(xxvi) and the expression `manufactured drug' defined in section 2(xi), it was observed that all opium derivatives fell within expression `manufactured drug' and the offence would fall within section 21 of the Act for illicit possession of `manufactured drug'. The Supreme Court observed, "15.
The evidence also does not indicate that the substance recovered form the appellant would fall within the meaning of sub-clauses (a), (b),
(c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to ``opium derivative'' within the meaning of Section 2(xvi)(e). Clause (a) of Section 2(xi) defines the expression ``manufactured drug'' as:
``(xi) ``manufactured drug'' means -
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) ...'' All ``opium derivatives'' fall within the expression ``manufactured drug'' as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was "manufactured drug" within the meaning of Section 2(xi) of the NDPS Act."
7.1. Negativing the contention that the punishment could fall within clause (a) or clause (b) of section 21 of the Act, the Apex Court in Amarsing (supra) proceeded to observe and hold as under:
"16.
The learned counsel for the appellant raised a further contention that even if the appellant is guilty of an offence under Section 21 of the NDPS Act, the punishment could only fall within clause (a) of Section 21 as the ``manufactured drug'' involved was of ``small quantity''. In our view, this contention is untenable. The Amending Act of 2001' introduced the concept of ``small quantity'' and ``commercial quantity'' for the purpose of imposing punishment. The punishment thereunder is graded according to whether the contravention involved ``small quantity'', ``commercial quantity'' or a quantity in between the two. By reason of Section 41(1) of the Amending Act of 2001, the amended provisions apply to pending cases. ....
"17.
In respect of opium derivatives (at sr. no. 93) in the said notification, 5 grams is specified as ``small quantity'' and 250 grams as ``commercial quantity''. The High Court was, therefore, right in finding that the appellant was guilty of unlawful possession of ``commercial quantity'' of a manufactured drug. Consequently, his case would be covered by clause (c) and not clause (a) or (b) of Section 21 of the NDPS Act."
7.2 In the above case, F.S.L. had opined that the contraband was opium as described in the N.D.P.S. Act. The Supreme Court observed that that was not binding to the court and laid down as above by interpreting relevant provisions of the Act. In the present case, the F.S.L. opinion clearly stated that the substance in sample `B' was `opium derivative' containing 3.7% anhydride morphine. Thus, the evidence (Exh.50) clearly established that it was opium derivative. The appellant was in possession of 1.845 kg. Of the contraband `opium derivative'. Entry No.93 in the Schedule to the Central Government Gazette is for `opium derivative' and specifies 250 grams to be the commercial quantity.
8. In view of above discussion, the punishment imposable on the appellant has to be under section 21(c) for contravention involving commercial quantity, the contraband substance being `opium derivative' in commercial quantity found in the possession of the appellant. The maximum punishment under section 21(c) to be not less than ten years and is extendable to twenty years, and a fine not to be less than rupees one lakh which may extend to rupees two lakhs is imposable. The trial court has sentenced the appellant for rigorous imprisonment for twelve years and a fine of rupees one lac with default imprisonment for further three months rigorous imprisonment It does not warrant any interference. The conviction and sentence of the appellant is accordingly confirmed as it was established on evidence that she was found in possession of commercial quantity of `opium derivative'
9. Before concluding it may be mentioned that there appears to be an inadvertent error or printer's devil in the order of the trial court, i.e., mentioning the conviction and sentence to be under section 20 of the Act. It is clarified and ordered that the appellant is convicted for the offence under section 8(c) read with section 21(c) of the Narcotics and Psychotropic Substances Act, 1985, and is sentenced to undergo rigorous imprisonment for twelve years and fine of rupees one lakh, and in default of payment of fine to undergo rigorous imprisonment for further three months as ordered by the trial court.
10. The appeal accordingly fails and stands dismissed.
(A.L. DAVE, J.) (N.V.
ANJARIA, J.) [SN DEVU PPS] L> Top