Delhi High Court

Mohd. Tarique Khan vs State Of Nct Of Delhi on 11 December, 2008

Author: Aruna Suresh

                 "Reportable"
*     HIGH COURT OF DELHI AT NEW DELHI


+            CRL. APPL. No. 984/2001 & Crl. M. (B)
             No. 1328/2008


                                 Date of decision : 11.12.2008


#     MOHD. TARIQUE KHAN               ..... Appellant
!             Through : Mr. Anish Dhingra, Adv.
                        Mr. Puskal Gogoi, Adv.


                              Versus


$     STATE OF N.C.T. OF DELHI
                                               .... Respondent
^                     Through : Mr. Lovkesh Sawhney, APP
                                SI Vivek Pathak

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?           Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                  Yes

                         JUDGMENT

ARUNA SURESH, J. (Oral)

1. In the present appeal, appellant has impugned the

judgment of the trial court dated 4.10.2001 and the

order on sentence dated 8.10.2001 whereby he was

convicted for the offence under Section 21 of the

Narcotic Drugs and Psychotropic Substances Act

(hereinafter referred to as NDPS Act) and was

sentenced to suffer rigorous imprisonment for 10

years and fine of Rs. 1 lac and in default of

payment of fine to undergo further simple

imprisonment for 3 years.

2. In brief the prosecution case is that Inspector

Chandra Prabha, SHO, Police Station Narcotics

Branch, Kamla Market received a secret

information from SI Attar Singh about the accused

having smack in his possession who would come to

Lokesh Cinema via T Point while coming from

Peeragarhi side. A raiding party was organised and

accused was apprehended. Necessary notice was

given to the appellant about information with the

police and SHO also offered his search and search

of his raiding members before conducting the

search of the appellant to which the appellant is

stated to have refused. On search of the appellant,

a transparent polythene was recovered from right

side pocket of his wearing pant which was found to

contain smack weighing about 300 grams. The

Investigating Officer took samples of 5 grams each

and sealed the recovered smack and the samples

separately. After completing necessary formalities

the accused was arrested and FIR was registered.

Samples were sent to FSL for chemical examination

and as per the FSL report the recovered substance

was found to be smack. Chargesheet was

accordingly filed. Prosecution had examined as

many as eight witnesses who supported the case

being police officials. The recovered substance and

the polythene containing the smack and other

exhibits were proved in evidence. Statement of the

accused under Section 313 Cr.P.C. was also

recorded wherein appellant stated that he was

falsely implicated in this case.

3. After considering the prosecution evidence in

detail, the learned trial court was pleased to

conclude that the prosecution had successfully

proved its case that the entire procedure

prescribed under NDPS Act was duly followed and

also proved the recovery of 300 grams smack in

presence of the witnesses from the accused beyond

any reasonable doubt. Accordingly the appellant

was convicted for offence under Section 21 of the

NDPS Act.

4. During the pendency of the appeal, appellant

moved an application for getting the quantitative

test of the contraband material seized from the

appellant to verify the actual quantity of diacetyl-

morphine present in the contraband goods. Vide

order dated 25.1.2008, the application of the

appellant was allowed and learned APP for the

State also conceded for carrying out the necessary

test within a period of two months. The FSL report

after quantitative test of the smack was received by

this Court on 9.7.2008.

5. After receipt of the FSL report of quantitative test

appellant moved Crl. M. (B.) No. 1328/2008 for

waiver of fine of Rs. 1 lac and remit in default

sentence of simple imprisonment of three years and

release of the appellant on the sentence already

undergone. In view of this report, the appeal has

not been pressed on merits.

6. Learned counsel for the appellant while relying on

Ansar Ahmed v. State (Govt. of NCT of Delhi) -

2005 (3) JCC (Narcotics) 193, State through

CBI v. Gyan Singh - 1999 SCC (Crl.) 1512,

Gulrej Mian v. State - Crl. A. No. 657/2004,

Mohd. Yunus v. CBI and Chander Shekhar v.

State has argued that in a mixture of narcotic drug

or a psychotropic substance with one or more

neutral substances, the quantity of the neutral

substance or substances is not to be taken while

considering whether a small quantity or a

commercial quantity of the narcotic drug or

psychotropic substance was recovered. The Court

is only to consider the actual content by weight of

the narcotic drug or the psychotropic substance for

determining whether it would constitute a small

quantity or commercial quantity. Appellant is a

first offender. He should not be subjected to a

penalty greater than which might have been

inflicted under the law in force at the time of

commission of offence.

7. It is further submitted that since appellant has

already undergone more than eight years of

imprisonment, his sentence should be reduced to

the undergone period and the fine imposed upon

him be waived in view of the circumstances of this

case and also keeping in mind that the wife of the

appellant has delivered a child very recently and

needs medical attendance.

8. Since appeal is not being challenged on merits,

conviction of the appellant is maintained and order

of the trial court is affirmed.

9. Now it is to be seen if the contraband (smack)

recovered from the appellant could be considered

as small quantity for the purposes of reduction of

the period of sentence inflicted upon the appellant

by the trial court.

10. As per the FSL report dated 25.4.2008 on

examination of the sample, Dr. Madhulika Sharma,

Assistant Director (Chemistry) gave result of the

examination/opinion as follows:

"(i) On Chemical, Thin Layer Chromatography, G.C. & GC-MS

examination, exhibit „X‟ was found to contain Paracetamol, Caffeine, Acetylcodeine, Monoacetylmorphine, Codeine, Morphine, & Diacetylmorphine.

(ii) However, on Gas Chromatography examination, exhibit „X‟ was found to contain Diacetylmorphine, Morphine & Codeine 0.3%, 6.9% & 0.6% respectively."

11. The quantity of diacetylmorphine is found to be of

small quantity. Same is about Codeine and the

quantity of morphine found is of intermediate

quantity. Therefore, the total quantity which

comes to 23 grams is a small quantity. The

appellant was inflicted sentence of rigorous

imprisonment of ten years and fine of Rs. 1 lac

keeping in mind the quantity of drugs found in the

recovered substance as of commercial quantity. In

view of this FSL report, it cannot be said that the

recovery of contraband from the person of the

appellant was of commercial quantity. It was