Karimkha Ajijkha vs State Of Maharashtra
2002 Latest Caselaw 1133 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant was tried for possession of one gram of brown sugar under Section 20(b)(ii) of the N.D.P.S. Act, 1985 (hereinafter referred as the said Act). The appellant pleaded not guilty. The prosecution had examined seven witnesses in support of the charge. The trial Court vide judgment dated 25th October 1999 held the appellant guilty for the said charge and sentenced him to undergo R.I. for ten years and fine of Rs. 1,00,000/-, in default, R.I. for two years. The appellant was in detention in connection with crime from 23-2-1999 till the date of Judgment which was set off in terms of Section 428 of Criminal Procedure Code. The appellant continues to be in jail after his conviction till to date.

2. The prosecution case, in brief, is that on 27-11-1998, the appellant had returned back from the court hearing and at night time, one Sanjay Ruikar, Sepoy informed the Jail Superintendent Swati Sathe (PW-1) that the activities of the appellant who was in Barrack No. 6, were suspicious. The Jail Superintendent along with staff came there and upon taking search of the appellant by Jailor Dabir, one Sitara Gutkha Pudi (Pouch) was found in the mouth of the appellant. The said pouch was taken out and it was found that the same contained about one gram of brown sugar. One Pannie paper was also found in the left pocket of paijama of the appellant. The matter was reported to the Police, PW-7, P.S.I., Uttam Choudhary came to the jail premises and attached the said pouch containing brown sugar. The same was forwarded to the Chemical Analyser, who found that the samples sent contained heroine (diacetyl morphine) and the same falls under Section 20(xi)(e) of N.D.P.S. Act.

3. Learned Advocate for the appellant took me through the evidence on record and pointed out that Sepoy Sanjay Ruikar who had first reported about suspicious movement of the appellant has not been examined. He also pointed that the convict overseer Wankhede and Jirapure, Sepoy who had also informed about the suspicious movement of the appellant in Barrack No. 6 have not been examined. He then urged that no panchnama of recovery was prepared by the Jail Superintendent and no Jail inmate has been examined to prove the said recovery

from the appellant. It was also pointed out that there is nothing on record to show that the contraband recovered was weighed and even pancha who was later called for the purpose of attachment speaks of only weighing of the contraband and has not stated anywhere as to what was its weight. It is also pointed out that even the Chemical Analyser to whom the entire sample was sent for examination, has nowhere mentioned weight of the contraband which according to the Investigating Officer was half gram. In the light of the evidence on record, learned Advocate for the appellant has pointed out that the recovery is not duly proved nor the exact quantity of the contraband which is stated to have been recovered. He, therefore, submits that for failure on the prosecution to prove the charges, the appellant is entitled for acquittal. Alternatively it was urged before me that the fact that according to the prosecution the contraband was found in the mouth of the appellant would by itself go to show that the same was for his personal consumption though no such defence has been taken. Relying upon Notification No. S.O. 503(IC) dated 16th July 1996, it is urged that the quantity found is a small quantity and as such benefit of Section 27 of the N.D.P.S. Act be extended to the appellant.

4. Learned A.P.P., on the other hand, argued that the recovery has been duly established and that since no plea of personal consumption was taken, the appellant cannot be given benefit of Section 27 of the said Act and that the appeal be rejected.

5. The prosecution case is that information relating to suspected activities of the appellant in Barrack No. 6 was given by Sanjay Ruikar, Sepoy, convict Overseer Wankhede and Jirapure, Sepoy, but none of them have been examined by the prosecution. The prosecution has examined only the Jail staff for recovery in question. The Jail Superintendent in whose presence the said recovery was effected by jailor Dabir did not even prepare any panchnama of the said recovery. The recovery must have been in the presence of the other undertrials or convicts. None of them was associated with the search or recovery. It was subsequently only that P.S.I. (PW-7) who had come to the jail upon complaint filed by the jail authorities that the contraband in question was attached before panchas. The contraband is alleged to have been recovered from the appellant who was confined in the Jail. No independent person and not even any other convict was associated with the recovery by the jail staff. In the circumstances, the recovery appears to be shrouded in mystery. Even if the recovery is believed, the case of the appellant, in my opinion, would fall under Section 27 of the said Act. Section 27 of the said Act reads as under:--

"27. Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance. -- Whoever, in contravention of any provision of this Act, or any rule or order made or permit issued thereunder, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable,

(a) where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notification in the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and

(b) where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under Clause (a), with imprisonment for a term which may extend to six months or with fine or with both.

Explanation. -- (1) For the purposes of this section "small quantity" means such quantity as may be specified by the Central Government by notification in the Official Gazette.

(2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person."

It is no doubt true that no specific stand has been taken by the appellant that the contraband was meant for his personal consumption. The burden of proving that the case of the appellant falls under Section 27 of the Act is undoubtedly on the accused. This burden can be discharged by the accused on the basis of evidence on record or by adducing defence evidence during the trial that the contraband which is recovered from him was meant for his consumption and not for sale or distribution. The Division Bench of this Court in Wessel Van Beelan v. State of Goa reported in 2000 Cri.L.J. 271 to which I was party has laid down that the burden to prove that the contraband was meant for personal consumption has to be discharged during the course of trial itself and not afterwards when the accused is heard on the point of sentence. For the purpose of discharging the burden, evidence on record can be taken into consideration. Admittedly, according to the prosecution case, the contraband in question was found in a polythene and was kept in Sitara Gutkha Pudi (pouch) which was in the mouth of the appellant. One pannie paper was also found in the left pocket of paijama of the appellant. These facts, on the face of it, prove that the contraband in question was meant for personal consumption. Notification No. S.O. 503 (1C) dated 16th July 1996 prescribes small quantity and reads as under:--

"Notification No. S.O. 503 (1C) dated 16th July, 1996. -- In exercise of the power conferred by Explanation (1) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of the Notification of the Government of India, the Ministry of Finance Department of Revenue Nos. S. O. 825 (E) dated 14th November, 1985 and S.O. 827 (E), dated the 14th November, 1985, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies the quantity mentioned in the Column (3) of the Table below in relation to the Narcotic Drugs and Psychotropic Substances mentioned in the corresponding entry in Column (2) of the said Table, as 'small quantity', for the purposes of Clause (a) of that section."

Sl. No.

Name of Narcotic Drugs and Psychotropic Substances

Quantity (in grams)

1.

Cocaine, its salts and preparations containing cocaine or its salts.

2.

Morphine, its salts and preparations containing morphine or its salts.

3.

Diacetylmorphine (Heroin), its salts and preparations containing diacetylmorphine or its salt.

Section 27 of N.D.P.S. Act shows that Clause (a) of the said section deals with cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government. Clause (b) would apply to narcotic drug or psychotropic substance other than those specified in or under Clause (a) regarding which the notification is referred to above. According to this notification, 5 gms. of heroine is a small quantity. Therefore, at any rate, the quantity of contraband found which is 500 mg./half gram would fall within the ambit of small quantity under Section 27 of the Act. Therefore, the benefit of Section 27 can be extended to the appellant.

6. For the aforesaid reasons, the conviction of the appellant under Section 20(b)(ii) of the N.D.P.S. Act is hereby quashed and the appellant is found guilty for possession of half gram of diacetylmorphine (brown sugar) for the purpose of personal consumption under Section 27 of the N.D.P.S. Act. The maximum sentence thereunder is one year or with fine or both. The appellant has been in custody with this offence from 23-2-1999 and the sentence imposed on him is required to be set off under Section 428 of Criminal Procedure Code. The appellant is, therefore, deemed to have been undergone the sentence. The appellant is, therefore, ordered to be released in case he is not required in any other case. The appeal is allowed in aforesaid terms.