IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1762 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA =========================================================
========================================================= VIRENDRAPRATAP RAMDAVAR YADAV Versus THE STATE OF GUJARAT ========================================================= Appearance :
MR RAJESH M AGRAWAL for the Appellant MR R C KODEKAR ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE N.V. ANJARIA Date :09/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) This appeal is directed against judgment and order dated 31.07.2006 of the learned Additional Sessions Judge, Court No.11, Ahmedabad in Sessions Case No.337 of 2004, whereby appellant, accused No.1 before the trial court, was convicted under section 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for sake of brevity), and sentenced to undergo rigorous imprisonment for 13 years and to pay fine of Rs.1 lakh, and in default of payment of fine to undergo further rigorous imprisonment for 1 year. Accused No.2 was acquitted by the trial court.
2. The profile of relevant facts was that the police inspector of GIDC Vatva police station received secret information, at around 10.45 a.m., on 09.10.2004 that a person of particular description would pass walking CTM canal kachha road via Trikampura Patia, towards Jasodanagar road carrying with him quantity of brown sugar without permit. Necessary procedure of informing his superior and registering the information in station diary was undergone. The members of raiding party reached at the place of information on Mahemdabad highway at around 12.35 p.m. to keep a watch. At around 2.45 p.m., one person with description as per information came walking from CTM canal road and was proceeding towards Jasodanagar road. He was intercepted by the police personnel. He revealed his name to be Virendrapratap Ramdhaval Yadav. The officers of the police staff disclosed their identity to him and conducted search. Before searching, he was asked whether he wanted to be searched in the presence of any Gazetted Officer or an Executive Magistrate, to which he replied in negative.
2.1 Virendrapratap was carrying with him a plastic bag, in which 4 packets were found. When asked as to what the packets contained, he stated that it was brown sugar for which there was no permit. The officers of Forensic Science Laboratory were called at the place, who confirmed that the substance in his possession was brown sugar. The four packets in his possession weighted 278 grams, 286 grams, 282 grams and 286 grams respectively and they were marked as ‘A’, ‘B’, ‘C’ and ‘D’. The total weight of all the four packets was 1142 grams. From each of the four packets, total eight samples of 10 gram were taken out and were marked as ‘A1’, ‘A2’ to ‘D1’, ‘D2’
3. The offence under the NDPS Act was registered against the appellant at Crime RegisterII No.3102 of 2004. He was charged (Exh.11) for the offence under section 22 and section 29 along with the other accused. In the trial, the prosecution examined six witnesses and led documentary evidence. The trial court convicted Virendrapratap, the accused No.1appellant herein.
4. This court heard Mr. R.M.Agrawal, learned advocate for the appellant and Mr. R.C.Kodekar, learned Assistant Public Prosecutor for the State.
4.1 Learned advocate for the appellant initially raised number of factual and legal contentions in support of the appeal. However, having not been able to successfully assail the findings recorded by the trial court on the procedure followed in law for search and seizure, and on the factum of appellant being found in possession of the contraband, he in the end fairly restricted his contention on the quantitative aspect of the contraband recovered and the sentencing part. It was, therefore, not necessary for the court to go into any other aspect of evidence except the evidence of Forensic Science Laboratory report which showed the quantitative analysis of the samples of the contraband substance on the basis of the tests undertaken by it.
4.2 It was submitted on behalf of the appellant that the FSL report (Exh.53) shows the total quantity of contraband recovered from the accused was a mixture of various other narcotic substances as per FSL tests and the exact quantity of those substances forming part of the mixture was not shown. It was submitted that the percentage of the contraband substance present in the total quantity was not established. It was submitted that the substance was 'manufactured one' and in that view, the conviction and punishment of the appellant ought to have been considered under Section 21 of the Act.
5. The provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 with effect from 02.10.2001. The object was to rationalize the structure of punishment under the Act. Section 21came to be substituted, providing for punishment for contravention in relation to manufactured drugs and preparations. The graded punishment was introduced depending upon the quantity of the contraband involved, categorized as 'small quantity', 'quantity lesser than commercial but greater than small quantity' and the 'commercial quantity'.
5.1 Section 21 of the Act as newly substituted reads as under.
“21. Punishment for contravention in relation to manufactured drugs and preparations. Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses or sells, purchases, transports, imports interState, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lac rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”
5.2 Section 21 as stood prior to the amendment was as under.
“21. Punishment for contravention in relation to manufactured drugs and preparations. Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports, interState, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”
5.3 The definitions of ‘commercial quantity’ in section 2(viia) and ‘small quantity’ in section 2(xxiiia) were incorporated by the Amending Act. The ‘commercial quantity’ was defined to mean in relation to narcotic drug and psychotropic substance, any quantity greater than the quantity specified by the Central Government by notification in the official gazette. The ‘smaller quantity’ means any quantity lesser than the quantity specified in the official gazette.
5.4 Section 2(xi) already in the statute before the amendment defined ‘manufactured drug’. It reads as under.
“2(xi) manufactured drug means –
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug;
but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;”
Subsection (xvi) of section 2 contains definition of ‘opium derivative’.
6. Adverting to relevant evidence on record, Bhim Bahadur (PW6, Exh.51) was the investigating officer who received seizure memo and report. He recorded statements of members of the raiding party and of Chandubhai, police personnel at Vatva GIDC police station. The evidence of Chandubhai Naik (PW4, Exh.47) showed that he received the mudhamal contraband in sealed condition which was later taken in the sealed condition to the Forensic Science Laboratory. The FSL received the samples in sealed condition (Exh.41, Exh.46 and Exh.48).
6.1 The FSL report (Exh.53) indicated the result of physical analysis as well as chemical analysis that the samples of 10 gram each contained grey coloured powder and the various chemical tests showed positive. On the basis of these tests, it was opined that the samples contained different narcotic substances described as opium derivatives being morphine, diacetylmorphine (heroine), monoacetyl morphine, codeine, acetylcodeine, thebaine, papaverine and narcotin. It was opined that the substance was crude heroine also known as brown sugar and was a mixture of the various substances mentioned above. The substance was thus a ‘manufactured drug’ as defined in section 2(xi) of the Act.
6.2 As per evidence Exh.53, (FSL report) the test did not indicate the percentage of different opium derivatives / substances forming part of the mixture. The samples were of 10 grams each taken from the four packets weighing 278 grams, 286 grams, 282 grams and 286 grams respectively recovered from the possession of the appellant. It is pertinent to mention that the Central Government has specified 5 grams to be the ‘small quantity’ and 250 grams to be the ‘commercial quantity’ for the contraband Heroine as per Entry No.56 in the Notification dated 27.09.2001 published in the Gazette of India Extra, PtII, sec.3(ii) dated 27.09.2011.
6.3 Though it was shown that the contraband comprised of opium derivatives and was mixture of one or more narcotics or other substances, since the percentage presence of different substances was not established in the FSL test, it was not possible to conclude or adjudge on the actual quantity of different substances with which the mixture was made of.
6.4 In Chandrasingh @ Bharat Mansingh Waghela Vs. State of Gujarat [2011 Cr.L.R. (Guj.) 402], Division Bench of this court dealt with more or less similar fact situation, and held that as the FSL report showed that the contraband substance was opium derivative, but since the laboratory test had not revealed percentage quantity in the contraband seized which was a mixture of one or more narcotics or other substances, the case would fall in the category of ‘less than commercial quantity but more than small quantity’. In that case the FSL report indicated the presence of various substances as recorded in paragraph 7 of the judgment, which being relevant, is reproduced hereunder.
“7. The FSL report is at Exhibit117. This document would indicate that the laboratory had received the samples in duly sealed and intact condition. So far as sample 'A1' is concerned, the presence of following substances was revealed (i) morphine, (ii) diacetylmorphine (heroine), (iii) monoacetyle morphine, (iv) codeine, (v) acetyle codeine, (vi) papaverine (vii) narcotics (viii) thebaine (ix) methoqualone. So far as the sample 'B1' is concerned, the presence of the following substances was found. (i) morphine (ii) diacetylmorphine (heroine), (iii) mono acetyle morphine, (iv) codeine, (v) acetylecodeine, (vi) thebaine (vii) papaverine (viii) narcotics (ix) methoqualone.”
6.5 Decision in Chandrasingh (supra) was based on the Apex judgment in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau [(2008) 5 SCC 161]. In that judgment, the substance was Heroine mixed with other substances. It was observed by the Supreme Court interalia as under.
“... Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.”
7. Following the ratio in Chandrasingh (supra) which rested on E. Micheal Raj (supra), it would be appropriate to grade the punishment for the offence committed by the appellant under Section 21(b) of the NDPS Act. The quantity of contraband being Heroine mixed with the narcotic substance treated as discussed above as lesser than commercial quantity but greater than small quantity, it would attract corresponding punishment provided therefor. The maximum punishment under section 21(b) is rigorous imprisonment for a term extending to ten years and fine extending to one lac rupees.
8. In light of above discussion, the impugned judgment of the trial court holding the appellant guilty of offence punishable under Section 22 of the NDPS Act and sentencing to 13 years rigorous imprisonment, warrants interference. Thus Court having held that the offence committed by the appellant, is one punishable under Section 21(b) of the Act, in the facts and circumstances of the case, imposing maximum punishment of rigorous imprisonment for ten years and fine of one lac rupees would meet the ends of justice.
9. As a result, the judgment of the trial court is set aside and the conviction and sentence of the appellant is altered and the appellant is convicted for the offence punishable under section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and is ordered to undergo rigorous imprisonment of ten years and to pay fine of rupees one lakh and in default of payment of fine to undergo rigorous imprisonment for further one year.
10. The appeal is allowed in part accordingly.
[A. L. DAVE, J.] Amit [N. V. ANJARIA, J.]