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Judgment
S. Palanivelu, J.—These Criminal Appeals filed u/s 374(2) of the Code of Criminal Procedure to set aside the judgments of the conviction and sentence made in C.C. No. 12 of 2006 dated 20.10.2008 and 23.10.2008 on the file of the Additional District and Sessions Court cum Essential Commodities Act, Special Court, Tanjore.
The following is the prosecution case succinctly stated:
2.1. On 18.08.2005, at 6.00 am, P.W.1, Sub-Inspector of Police (Special Investigation) on a tip-off, available from an informer registered a case under Ex.P.1. P.W.1 informed the Inspector of Police concerned about the receipt of information, proceeded to Sengathali along Thirutharipundi-Vedaranyaum road along with P.W.2 Head Constable, Rajendran and First Grade Police Constable Ravi and the informer as well. At about 8.30 a.m. two persons were carrying plastic carry bag each whom the informer identified. Immediately, the informer left the place.
2.2. Both of them were arrested and P.W.1 enquired them and introduced themselves. He asked both of them that he wanted to enquire and examine them. He asked the passers-by to be the witnesses. They refused by stating that they have to go to some other work. P.W.1 further asked both of the accused that whether they might be taken to the learned Judicial Magistrate or to the Gazetted Officer for physical examination, for which both of the accused told that P.W.1 himself could examine them. The consent for this purpose given by the accused were recorded as a consent letter by P.Ws.1 and 2 and the signatures of the accused were obtained.
2.3. On seeing inside the polythene bag, P.W.1 came to know that it was brown powder heroin, which was a prohibited narcotics substance and on weighing, it was 750 gms. He took 5 gms from of the parcels and packed remaining 740 gms each separately. M.Os.1 to 6 are the above said parcels and two samples and they were recovered in the presence of the police officials under a cover of magazar, Ex.P.3. He examined the accused and recorded their statements. They were arrested as evident from Exs.P.4 and 5 arrest cards. He brought the accused to the police station and registered a case in Crime No. 41 of 2005 u/s 8(c) read with 21(c) of NDPS Act. The FIR is Ex.P.6. He also sent a detailed report, Ex.P.8 to the superior officers. Ex.P.7 is Form 95, under which he sent the properties to the Court. P.W.2 attested Ex.P.3 the Observation Mahazar.
2.4. P.W.4, the then Inspector of Police received Ex.P.8 as well as the other records. He examined witnesses and recorded their statements. M.Os.2 and 5 were forwarded for analysis as per the requisition of P.W.4 to the Forensic Science Department, Chennai. P.W.3, the Scientific Assistant of the Narcotics Department analysed the said samples and found the samples weighing 9.5 gm and 8.5 gm respectively and came out with a conclusion that the samples contained heroin, namely, di-acetyl-morphine and issued Ex.P.9, analysis report.
2.5. After receipt of the said report, P.W.5, the Inspector of Police laid charge sheet against the accused. After oral evidence was recorded by the Special Court, namely, the trial Court, both the accused were questioned u/s 313(1)(b) Cr.PC as to incriminating materials available against them, they denied complicity in the offence. The first accused has stated before the Court that no contraband was recovered from him, that he is a gold smith, that the police came to his house and asked him to come to the police station stating that he received stolen jewels, that the public attacked the vehicle in which the police came and that the case has been falsely foisted against him. The second accused has submitted that the police took him to the police station by stating that he helped the first accused in receiving the stolen properties. They have not examined any evidence nor they had produced any documents.
After analsying the evidence and other materials available on record, the learned Special Judge for the Essential Commodities Act came to the conclusion that the charges framed against the accused have been established beyond reasonable doubt and sentenced both the appellants to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 and in default to undergo one year simple imprisonment. Hence both the accused are before this Court with these appeals.
Point for consideration:
Whether the charges framed against the accused have been established beyond reasonable doubt?
Point:
P.W.1 narrated apprehending of the accused and recovery of the contraband from them. There is not much dispute with regard to the procedure adopted by the appellants in the matter of recovery of contraband. However, Mr. B. Kumar, learned Senior Counsel appearing for the first accused and Mr. A. Ganesh, learned Counsel for the second accused would contend that the prosecution has miserably failed to ascertain the quantum of heroin present in the entire quantity of contraband and since the purity test was not conducted by the prosecution, there cannot be conviction of the accused u/s 21(c) of NDPS Act.
5.1. The learned Counsel for the appellants have concentrated upon this legal position. Ex.P.9 is the analysis report which has been marked and proved by the Scientific Assistant, P.W.3. In Ex.P.3, it has been stated that both the samples contained dy-acetyle morphine which is derived from opium algaloid morphine. It has also been stated that the sample was dark brownish sticky substance. In her examination, she has stated that heroin could be seen in a powder form and it is not a sticky one. In her examination, she has also stated that in a neutral substance one kg of dy-acedyle morphine is mixed, the result would be positive.
5.2. The scientific evidence above stated would show that the percentage of heroin present in the total quantity was not ascertained. Mere presence of heroin alone has been found out. In this context, the learned Counsel for the appellants have placed reliance upon a decision of the Supreme Court which is a celebrated judgment on this subject reported in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, in which Their Lordships have observed as under:
In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substances(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.
Their Lordships have also referred to another judgment reported in 2004 (4) SCC 446 : 2004 SCC (Crl) 130 Ouseph v. State of Kerala and observed that the Court has considered presence of quantity of narcotic drug or psychotropic substance found in the mixture, relevant for the purpose of imposition of punishment. Their Lordships have concluded that when any narcotic or psychotropic substance is found mixed with one or more neutral substances, for the purpose of imposition of punishment, it is the percentage of the narcotic drug or psychotropic substance which shall be taken into consideration.
Subsequently, the Supreme Court has relied upon the principles laid down in the above said judgment and held that the percentage of heroin content translated into weight is relevant as decided in 2009 (3) SCALE, State of NCT of Delhi v. Ashif Khan @ Kalu.
6.1. The operative portion of the judgment is as follows:
The report revealed that samples were found to contain 0.95% diacetylmorphine. In view of the percentage contained the weight of heroin came to be 2.945 gms of heroin. It was observed by the High Court that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substance the quantity of the neutral substance or substances is not to be taken while considering whether small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered but only the actual contents by weight of the narcotic drug or psychotropic substance as the case may be relevant for determining whether it would constitute a small quantity or commercial quantity. The High Court therefore held that the quantity seized was a small quantity and, therefore, the conviction would be u/s 21(a). The appeal was accordingly dismissed by upholding the conclusions of the trial Court.
6.2. In the above said illuminating judicial pronouncements, the Supreme Court has made the subject clear and as per the guidelines and principles rendered therein, it is incumbent upon the prosecution to prove the exact percentage of narcotic substance, namely, heroin in the total neutral substances and in the absence of such proof, there shall be no conviction u/s 21(c) of the Act.
This Court has also followed the above said two cases in the following decisions:
(i) 2009 (2) MLJ (Crl) 756, Rekhaparameswari v. The Asst. Collector of Customs Prosecution Cell.
(ii) 2009 (3) MLJ (Crl) 475, M.N.Thasaleen v. Superi ntendent of Custo ms.
In the case of Rekhapara meswari''s case cited supra, the analysis report does not show the percentage of di-acetyl-morphine, that merely because the powder was in the brown colour it cannot be said that the total quantity of the powder is only a di-acetyl-morphine and no adverse inference can be drawn in the absence of any specific evidence.
In M.N.Thasaleen''s case cited supra, the learned singe Judge found that the police did not prove the commercial quantity and the same is in between the commercial and small quantity and hence, the accused are punishable only u/s 21(b) of the NDPS Act and not u/s 21(c) of NDPS Act. In the said case also, there is no evidence to show that the seized commodity is weighing more than 1.25 gms contained commercial quantity of 250 gms of di-acetyl-morphine and in such circumstances, this Court has necessarily come to the conclusion that it is in between quantity.
In view of the above said decisions of the Apex Court, followed by this Court on earlier occasions, this Court reaches a conclusion that since the percentage of di-acetyl-morphine has not been ascertained, therefore, the conviction u/s 21(c) of the NDPS Act is not lawful. It has to be observed that the contraband seized from the accused contained heroin less than the commercial quantity and greater than small quantity and the possession of the same is punishable u/s 21(b) of the NDPS Act.
In the judgment of the trial Court, it has been mentioned that both the accused have been in incarceration for 1,163 days, i.e.18.08.2005 and the same shall be set off. This Court records conviction of sentence for both the accused u/s 21(b) of NDPS Act and sentence them to undergo imprisonment for the period four years eleven months and 15 days, which the accused have already undergone. There is no modification in the imposition of fine, in default of payment of fine, they shall undergo rigorous imprisonment for one year. The materials objects shall be disposed of as per the direction of the trial Court. The appeals are allowed in part as indicated above. Consequently, connected M.P. is closed.