Biswajit Sen @ Bapan vs State Of Tripura

[1] This appeal is filed by the convict challenging the judgment dated 28th June, 2017 passed by the learned Special Judge, Unakoti Judicial District, Kailashahar in Special 6(NDPS) of 2015. The learned Judge was pleased to convict the appellant accused for offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). He was sentenced to rigorous imprisonment of seven years in addition, fine of ₹15,000/- was imposed, in default of payment of which the accused would undergo further rigorous imprisonment of six months.

[2] Case of the prosecution is that on 26.06.2015 on a prior intelligence that two boys coming from Kanchanpur side for selling drugs were likely to pass by Pecharthal Police Station area, the police authority had laid a trap. At about 2.30 p.m two boys came on a motorcycle who were stopped by the police party. The driver of the motorcycle escaped. The pillion rider i.e. the accused was apprehended. 47 small plastic pots (small capsules) were recovered from him. The pots contained powder. The entire seized material was taken to a nearby jewellary shop where it was weighed. After drawing seizure panchanama, samples were sent to the Forensic Science Laboratory(FSL for short) for analysis. It was established that the powder contained in the said pots was heroin, one of the narcotic drugs. Upon completion of investigation a charge sheet was filed. The learned Judge framed a charge alleging that the accused had contravened the provisions of Section 8(c) of NDPS Act and thereby committed offence punishable under Section 22(b) of the said Act.

[3] During the course of trial the prosecution examined several witnesses who formed the raiding party as well the panch witnesses and the Investigating Officer. It is not necessary to refer to evidence of these witnesses at length since the entire issue revolves around a narrow compass namely, whether the prosecution had successfully established that the substance seized weighed more than the small quantity prescribed under the Act. The laboratory report Exbt.6 certified that the substance found was heroin. The defence has not questioned this aspect and therefore, we proceed on such basis. As is well known, the NDPS Act defines the terms "small quantity" and "commercial quantity" in clauses (xxiiia) and (viia) of Section 2 respectively. The description of different drugs and substances as small and commercial quantities is to be found in the Schedule to the Act. Entry No.56 therein pertains to heroin and it prescribed that the small quantity would be 5 grams and commercial quantity would be 250 grams.

[4] The case of the prosecution is that the weight of heroin seized from the accused was more than the small quantity but less than the commercial quantity and that is how the prosecution had proceeded before the trial Court. The trial Court had also convicted the accused on such basis and handed down sentence in terms of Section 22(b) of the NDPS Act.

[5] Learned counsel for the appellant took me extensively through the evidence on record and contended that there was no evidence on record produced by the prosecution to establish that the quantity of heroin seized was more than the small quantity. In order to show that the quantity was more than small quantity, the prosecution had to establish that the total weight of the seized substance was more than 5 grams. In absence of any such evidence, the counsel argued, that at best the accused can be convicted for being found in possession of a quantity which is a small quantity. He pointed out that as per Section 22(a) of the NDPS Act under such circumstances maximum sentence could be of imprisonment for a period of one year.

[6] On the other hand, learned Additional Public Prosecutor opposed the appeal contending that proper procedure was followed for search and seizure of the contraband goods. Evidence in this respect was led before the trial Court. The trial Court has given elaborate reasons for accepting the prosecution version. No interference is, therefore, called for. In the context of the total quantity of heroin seized the learned counsel relied on the deposition of PW-5, the employee of the jewelry shop where the substance was weighed soon after its seizure and the report of the FSL, Exbt.6. He pointed out that the learned trial Court in the impugned judgment has taken the quantity of seized heroin at 23.5 grams.

[7] As noted earlier, I have focused only on the proof of the quantity of heroin seized from the accused. In this context there is reference to the weight of the heroin only in two documents namely, in the deposition of Nitai Banik, PW-5 and FSL report Exbt.6. In his deposition PW-5 had stated that he was employed in a jewelry shop located at Pecharthal. At about 9 p.m on 26.06.2015 the police had come to his shop with 47 seized capsules and he had noted down the weight of the capsules. These contained coloured substances. He found that every capsule weighed 0.500ml. I would refer to his evidence later. Second reference to the weight of the substance is to be found in the FSL report, Exbt.6. In this report it was stated that a sealed packet was sent for testing, the packet contained three sealed zip lock plastic packets each containing one small plastic capsule with a cap. Weight of each exhibit sample was found to be 21mg, 25mg and 24mg respectively. These samples sent to the FSL may be co-related with the evidence of Investigating Officer PW-10, Nakul Debbarma. In his deposition he had stated that out of 47 containers six containers were collected out of them and out of six samples three samples with marking A,B,C were sent to the FSL and the remaining the three samples marked as A1, B1, C1 were kept in a police custody.

[8] Now, coming back to the deposition of the employee of the jewelry shop, PW-5, he had stated that he weighed all 47 capsules each according to him weighed 0.500ml. His deposition creates more confusion than it clears. To begin with he was referring to weight of capsules. He has certified the weight in terms of milliliters. As is well known, milliliter is a measurement of volume and not weight. Very clearly therefore, his reference to the weight to each capsules being 0.500ml is wholly erroneous. His entire evidence therefore, on the question of weight of the seized substance must be discarded. Even if one were to attempt to read his deposition with minor correction, it can only mean that according to him each capsule weighed 0.500mg. This itself is highly improbable since half a milligram is a weight which ordinary jeweler's scale would not record. One would require a scientific electronic scale to measure substance so minuscule in weight. However, the evidence of this witness must be read as it is. I cannot read his deposition as stating that each of the 47 capsules contained weight .5 grams. Evidence of this witness therefore, to arrive accurately at the total weight of the seized heroin would be of no use to the prosecution.

[9] This only leaves the reference made to the weight of the samples in the certificate of the FSL, Exbt.6. According to this certificate, the three samples sent to the FSL weight 21mg, 25mg and 24mg respectively. I have already referred to the deposition of the Investigating Officer who had stated that out of 47 capsules he had taken six out, sent three of them for forensic testing and retained the three with him for matching. Thus what was sent to the FSL was the three capsules out of the 47 seized from the accused. The weight of substance in the remaining capsules has nowhere been brought on record. Even if one were to project the total weight of substance contained in 47 capsules on the basis of the three samples tested and weight by FSL, the total would not exceed .5 grams i.e. 500mg. The learned trial Judge committed a serious error in reading the deposition of PW-5 as suggesting that each capsule contained substance weighing .5 grams. It was in this manner the learned trial Judge came to the conclusion that 47 capsules would contain a total of 23.5 grams of heroin. The said witness had never stated that each capsule contained .5 grams of heroin. Calculating total of 23.5 grams and 47 capsules was thus an apparent error.

[10] Under the circumstances clearly the prosecution failed to establish that the total weight of seized heroin recovered from the accused was more than 5 grams. He can therefore, be convicted only for being found in possession of small quantity of heroin for which punishment prescribed in Section 22(a) of the NDPS Act, 1985 is a maximum term of one year with fine. He had already undergone nearly two years of sentence. Even if default fine is taken into consideration he has undergone the same.

[11] Under the circumstances, the conviction of the appellant is converted into one under Section 22(a) of the NDPS Act, 1985. The judgment of the trial Court is modified accordingly. He having served out entire maximum permissible sentence for the said offence and also served more than six months which was a default sentence imposed on him, he shall be released forthwith if not required in connection with any other criminal case.

[12] Appeal is disposed of accordingly. Pending application(s), if any, also stands disposed of.