1. Applicant prays for bail in Case Crime No.120 of 2012 under Section 8/21 Narcotic Drugs & Psychotropic Substances Act, Police Station Jaidpur, District Barabanki.
2. For brevity sake, order dated 16.10.2012, is extracted here below :-
"Applicant prays for bail in Case Crime No.120 of 2012 under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act'), Police Station Jaidpur, District Barabanki.
Learned counsel appearing for the applicant contends that allegedly, 260 Grams of morphine has been recovered from the applicant which would constitute non-commercial quantity.
Recital in the F.I.R. indicates that approximately 260 Grams of morphine was recovered from the applicant. The F.I.R./recovery memo does not indicate that a weighing scale was used for weighment of the substance.
Morphine above 250 Grams would constitute commercial quantity as per table provided under Section 2 of the N.D.P.S. Act.
The quantum of sentence varies to a large extent under Section 21(a) of the N.D.P.S. Act where small quantity is involved; under Section 21(b) where quantity recovered is less than commercial but greater than small quantity; and under Section 21(c) where quantity involved is commercial. The Court has to perceive the gravity of offence in context of the sentence to be awarded.
The Director General of Police, Uttar Pradesh is directed to consider as to under what circumstances the investigating officers/raiding parties working in various police stations are not using weighment scale and recording that weighment scale was used at the time of recovery of substance under N.D.P.S. Act. Merely saying that substance was of "approximately 260 Grams" would be not a clear indicator to the Court to consider the quantity of the substance to be commercial.
Let reply be filed in the above context by Director General of Police, Uttar Pradesh on or before 20.11.2012, as to under what circumstances in a large number of cases weighing scales are not used while weighing narcotic drugs or psychotropic substance. The D.G.P. shall also indicate the remedial measures adopted in this regard.
Administration of criminal justice is being seriously and adversely affected in cases under the N.D.P.S. Act, particularly in a State like Uttar Pradesh where it has border with Nepal, Bihar, Rajasthan and Haryana and Madhya Pradesh. Benefit of such ambiguity and improper investigation is given to the accused who gets away with acquittal or lesser sentence, though he might have committed a serious offence. It results in failure of justice.
Let copy of this order be transmitted to Director General of Police, Uttar Pradesh through Ms. Suniti Sachan, learned Government Advocate."
3. An affidavit has been filed by Shri Ambrish Chandra Sharma, Director General of Police, U.P. It has been stated in the affidavit that two circulars have been issued for improving the quality of investigation so as to avoid ambiguity such as left in the present case. Circular dated 15.5.2012 and Circular dated 9.11.2012 have been appended with the affidavit as Annexure Nos.SA-1 and SA-2.
4. In circular dated 15.5.2012 issued to Senior Police Officers in the State, while making reference to orders of this Court, the following directions have been given :-
"It is, therefore, requested to kindly direct all the subordinate Sub-Inspector, Inspector and Gazzeted Officers to ensure that on the recovery of Narcotic Drugs/Psychotropic Substance the prescribed measurement instrument(Tarazu-Bant) shall be used for measurement of recovered contraband and the actual weight of the recovered contraband and the instrument used for measurement shall also be mentioned in the First Information Report/Recovery Memo and in the investigation records necessarily".
5. In Circular issued by Director General of Police, Uttar Pradesh to Senior Police Officers dated 9.11.2012, the following has been provided:
It has come to my notice that on the recovery of Narcotic Drug/Psychotropic Substance the recovery officer in some matters are mentioning the recovered contraband in the Recovery Memo & First Information Report by using the words about/near about/presuming.
2. In this relation it is to inform that in the crime which relates to Narcotics the punishment is prescribed by amending the relevant Sections of N.D.P.S. Act, 1985 through N.D.P.S.Act (Amendment) Act, 2001 according to the quantity of recovered Narcotic Drugs/Psychotropic Substances. In the above context the Government of India, Finance Department, Revenue Department, New Delhi by issuing a Notification No.-773, dated 19-10-2001 has categorized the Narcotic Drugs/Psychotropic Substances according to the small quantity, large quantity and commercial quantity which is mentioned in gram and kilograms and about/near about/presumed word is no where mentioned.
3. That before the above amendment in N.D.P.S. Act, 1985 in respect of taking sample, seizure of sample, examination of sample and for disposal thereof by informing the prescribed proceedings to you direction in respect of the classification of recovered drug by name, for weighing and for preparation of samples at the place of incident has been given through the letter no.C.B.-14/97 (Naar), dated 11-04-1997 of C.B.C.I.D alongwith the order no.1/89, dated 13-06-1989 of Narcotics Control Bureau, New Delhi in para 2.1 whereof it has been mentioned that All drugs shall be properly classified, weighed etc., and carefully sampled on the spot of seizure.
4. After the disposal of the cases related to N.D.P.S. in respect of the disposal proceedings of the recovered/seized Narcotic Drugs & Psychotropic Substance it has been mentioned in the letter no.C.B.-14/97(Nar), dated 27-08-1999 of the C.B.C.I.D. alongwith the para 2(3.1) of order dated - 2/88 of Narcotic Control Bureau, New Delhi that All Drugs should be properly classified, carefully weighed and sampled on the spot of seizure.
5. As per the standing order of the direction issued by the Additional Director General of Police (Ap/Ka & Vyav.), U.P. Lucknow by the office memorandum no.D.G.-Seven-S-3(40)/2002 dated 11-02-2002 to all the Zonal Inspector Generals it has been provided that all drugs shall be classified, measured on the spot and the samples shall be taken.
6. In the above context the Hon'ble High Court, Lucknow Bench in Criminal Misc. Case No.2165/2012(Bail) Nekpal @ Vinod Singh @ Lambhua Versus State of U.P. in respect of Case Crime No.-485/2010 under Section 8/20 N.D.P.S. Act, Police station Risiya, district Bahraich has observed in the judgment that "In the absence of weighing scale, the quantity/weight of the narcotic/psychotropic substance cannot be assessed so as to bring it within a particular category. With the increase in weight of the substance, the sentence also increases. In the absence of precise weight of the narcotic/psychotropic substance recovered from an accused, the trial court would not know as to whether to deal with the case under Section 20(b) (ii) (A), 20(b) (ii) (B) or 20(b) (ii) (C ). In case wieghing scale is not used, it would adversely affect administration of criminal justice in context of case under N.D.P.S. Act The benefit of such ambiguity committed at the hands of investigating agency is likely to go in favour of the accused."
7. In the light of the above observation of the Hon'ble High Court, Lucknow Bench the C.B.C.I.D., Uttar Pradesh vide its letter no.C.B.-5/2012 (Nar), dated 15th May, 2012 had issued clear directions that on the recovery of Narcotic Drugs/ Psychotropic Substances the prescribed weight instrument (Tarazu-Bant) shall be used for actual weight of the recovered contraband and the instrument used in weighing shall be mentioned in the First Information Report/Recovery Memo and in the records of the investigation mandatorily.
8. That the Hon'ble High Court, Lucknow Bench again directed in the order passed in Crl. Misc. Case No.4208(B) of 2012 Musheer Ahmd @ Munna S/O Chutkan R/O H.NO.90/70 Preetam Nagar Police Station Dhumanganj, district Allahabad Versus State of U.P. in relation to Case Crime No.20/2012 under Section 8/21 N.D.P.S. Act, Police Station Jaidpur, district Barabanki in which the quantity of the recovered contraband is mentioned about 260 grams, tha "The Director General of Police, Uttar Pradesh is directed to consider as to under what circumstances the investigating officer/raiding parties working in various police stations are not using weighment scale and recording that weighment scale was used- at the time of recovery of substance under N.D.P.S. Act. Merely saying that substance was of "approximately 260 Grams" would be not a clear indicator to the Court to consider the quantity of the substance to the commercial."
9. It is clear that in the provisions of N.D.P.S. or Government of India/Narcotic Control Bureau/C.B.C.I.D. or in the letters/directions issued by this Headquarter at the time of recovery of the Narcotic Drugs/ Psychotropic Substances the weight should carefully be done, in which about/near about/estimate word is not mentioned with the weight.
10. Therefore, you must ensure that on the recovery of the Narcotic Drugs/ Psychotropic Substances approximate about/near about/estimate words shall not be used with the weight in the Recovery Memo/First Information Report/records of investigation in any case, in fact the weight shall be mentioned only in Kilogram/gram/milligram. In furtherance the procedures for taking sample, for sending for examination and for storing and disposal of recovered/seized Narcotic Drugs @ Psychotropic Substance the directions of the Government of India/Narcotic Control Bureau/C.B.C.I.D. or the directions of this Headquarter shall be ensured strictly.
(Ambrish Chandra Sharma) D.G.P., Uttar Pradesh."
6. Considering the fact that the appropriate instructions have been issued by Director General of Police, who would be senior most law enforcing officer in the State, the Court has been assured by the learned Additional Government Advocate that the circulars shall be strictly implemented and in future, all the investigating officers/raiding parties shall weigh the contraband recovered and provide the exact weight of the substance recovered.
7. It is further required to be provided that every investigation is required to be completed without unnecessary delay. In any case, considering the intent of law, investigation should be concluded within ninety days of the detention of the accused. Prolonged investigation, when accused is in custody, defeats the rights of the person in custody. In such circumstances, the forensic reports which are necessary for the prosecution case, are required to be furnished as soon as possible and in any case not beyond ninety days of custody of the accused.
8. To cite an example, some substance is recovered from an accused, which in the perception of the investigating officer, is narcotic or psychotropic substance. The accused is taken into custody. The chemical examiner's report is not received in close proximity of time. Subsequently the substance is not found to be narcotic or psychotropic. It would result in failure of criminal justice system, if in such circumstances an accused is kept in custody only to await the result from the forensic science laboratory. This example would highlight the relevance and importance of minimum time frame that should be provided for furnishing reports by the forensic science laboratories.
9 So far as the present case is concerned, allegedly approximately 260 grams of morphine was recovered.
10. Considering peculiar facts and circumstances of the case in particular the fact that weight of the substance recovered is in close proximity to the weight provided for less than commercial quantity, application for grant of bail to the applicant is allowed.
11. Bail to the satisfaction of the court concerned.
12. Heavy surety.
19.12.2012.
Shukla.