[email protected] vs The State Nct Of Delhi
2011 Latest Caselaw 1081 Del

               * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of Reserve: 27th January, 2011
                                                  Date of Order: 23rd February, 2011

+ Crl. Appeal 863 of 2005
%                                                                        23.02.2011

SALIM @ KALLU                                                     ..... Appellant
                                   Through: Mr. M.D. Farman, Advocate

                          versus

THE STATE NCT OF DELHI                            ..... Respondent
                    Through Mr. O.P. Saxena, Addl. PP


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. This appeal has been preferred by the Appellant against the judgment

of learned Special Judge (NDPS Act) dated 1st July, 2005 convicting the

appellant under Section 21(c) of NDPS Act for possessing 400 grams of

smack and sentencing him to RI for 12 years and to pay a fine of ` 1,20,000/-

and in default of payment of fine of ` 1.20 lakh, SI for 14 months.

2. The Appellant was apprehended on 3rd September, 2001 at about 3.45

pm opposite Shyam Lal College after information was received that he would

be carrying contraband. He was holding a black-colour polythene in his right

hand. IO disclosed to him his identity and told him that he had to be searched

because of the information and told him that he had a right to be searched

before a Gazetted Officer or a Magistrate. A notice under Section 50 of

NDPS Act was given to him. In reply to the notice the appellant wrote in his

own hand that he was not willing to be searched before a Gazetted Officer or

a Magistrate. Thereafter his search was conducted by the IO. From his

search, one black colour polythene was recovered which further contained

one transparent polythene containing dark brown colour powder. The powder

was tested on field testing kit and it was found to be smack. The powder was

weighted and it was found to be 400 grams including the weight of transparent

polythene bag. Two samples of 10 grams each were taken out and were

separately packed and sealed and the remaining smack was kept back in the

same transparent and black colour polythene bags and sealed. The accused

was arrested. Information of his arrest was sent to Police Station and an FIR

was got registered. Samples were sent to FSL. FSL report showed that the

seized substance was smack. Charge-sheet was filed against the accused

and he was put to trial. After recording of evidence the learned Special Judge

(NDPS Act) came to conclusion that the mandatory requirement of serving a

notice under Section 50 of NDPS Act was complied with. Though,

independent public witness was not associated at the time of recovery,

however, an effort was made to associate independent public witness but

none had agreed and non-association of independent public witness was not

such an infirmity that prosecution should fail. The other discrepancies in the

evidence of witnesses pointed out by the appellant at the time of trial were

dealt with by the Trial Court and the Trial Court came to conclusion that

discrepancies in the evidence of the witnesses were minor and trivial in nature

and cannot be given such importance as to defeat the case of prosecution.

The Trial Court held petitioner guilty of possessing narcotic substance and

sentenced as above.

3. During pendency of trial the appellant made an application before this

court for sending sample of the drug recovered from him again to FSL so as

to determine the percentage of narcotic substance in the sample. It was

submitted that initially when the sample was sent to FSL, the FSL did not

determine the percentage of the diacetylmorphine in the substance and

therefore justice was not done to the appellant. Vide order dated 24 th August,

2007, this Court declined to order further investigation in the case and or

again sending the sample to FSL for determination of percentage of narcotic

substance in exercise of its inherent powers. However, by concealing this

order from the subsequent Bench, the petitioner moved another application

and obtained an order dated 20th April, 2009 for sending the sample to FSL

for determination of percentage of diacetylmorphine in the sample.

Accordingly the sample was sent and a report dated 18th June, 2009 was

received from FSL about the percentage of narcotic substance. The

percentage of diacetylmorphine was found to be 0.22 per cent in the sample.

4. On the basis of this report, the counsel for the petitioner argued that

the quantity recovered from the accused fell in small quantity being only 0.88

grams [(400 grams x 0.22)/100]. He, therefore, stated that the sentence

awarded to the Appellant should have been in view of small quantity of the

diacetylmorphine in the substance.

5. I consider that the quantity of drug recovered from accused cannot be

determined on the basis of percentage of diacetylmorphine in the substance

given in FSL report when the sample was tested after about eight years of its

collection/seizure. The percentage of diacetylmorphine is relevant only if the

same is tested soon after the recovery of narcotic substance. Percentage is

not relevant when the sample is tested after a long time or after eight years.

Narcotic substance extracted from opium or other natural products, like any

other chemical or medicines or drug is subject to degradation. Like any other

chemical or drug, a narcotic substance has a shelf life. The shelf life denotes

the period after which the substance becomes useless since it has none of

the properties of the chemical left in it. It is for this reason that it is mandatory

for all drug and medicine manufacturers, whether they are Allopathic,

Homeopathic or Ayurvedic, to mention on all packaging of medicines the date

of manufacture and expiry date. Expiry dates denotes by which date the

medicine shall become ineffective and the quantity of chemical in the

medicine, whether tablet, injection or syrup, becomes so negligible that it

would not cure the disease. Every chemical substance, unless it is an inert

substance, has a tendency to react with atmospheric gases and

disintegrates/corrodes / lose its properties. This disintegration can take place

in certain chemicals and medicines without even coming into contact with air,

on mere exposure to the sunlight or heat. Even sunrays initiate process of

disintegration. Some of the chemicals are required to be stored in cool

atmosphere below certain degree of temperature so as to retain their

properties for even shelf life period, which only implies that even if the

chemical does not come in contact with air, mere heat and a high temperature

initiates disintegration process or the process of change in chemical

composition. Thus, when diacetylmorphine or any other narcotic substance is

recovered, if it is tested within a short period, say, within 10 days or so, it

would give approximately correct purity/percentage of the chemical at the time

of seizure. However, if the testing is done after lapse of time, with passage of

every day, the percentage of chemical is bound to fall and after a period of

approximately 90 days to three years depending on quality of

diacetylmorphine, the percentage in FSL test would be negligible in the

narcotic substance. This is the reason that in this case the percentage of

diacetylmorphine in test has come out to be 0.22 per cent since the test was

done after about 8 years. In respect of diacetylmorphine a scan through the

literature on internet does not show any exact period of shelf life, however, the

maximum shelf life has been shown to be 3 years in a high purity drug if

stored in cool atmosphere away from sunrays.

6. The percentage of carbon in diacetylmorphine is around 68 per cent

and the percentage of oxygen is around 22. Hydrogen and Nitrogen are

around 6 per cent and 4 per cent respectively. Diacetylmorphine (smack) and

Hashish, both are subject to degradation by oxidation as well as by exposure

to heat and sunlight. Both are also degradable by hydrolysis i.e. by coming in

contact with moisture. However well a sample may be preserved, after 3

years of preservation, the sample will show negligible percentage. I, therefore

consider that the analysis done by FSL in 2009 of a sample seized in 2001

cannot be relied upon to determine the actual quantity of smack seized. Only

if the analysis was done by FSL, soon after the seizure of sample, that

analysis could be considered a reliable test. Such analysis should have been

done maximum within 30 days of the seizure so as to give a true picture of the

percentage. Any analysis done thereafter would not give a true picture of the

percentage since degradation process starts soon after the manufacturing

process. The petitioner, therefore, cannot be acquitted of the offence on this

basis.

7. The other argument taken by the petitioner is non joining of public

witness by IO. IO had specifically deposed that public persons were asked to

join the raiding party, but, none agreed. It was not necessary for IO to keep

on asking public persons at every stage, one - at the time of constituting

raiding party, then at the time of search etc. If the IO had asked public person

to join the raiding party initially, that shows that the Investigating Officer's

intention was to seek help of public. Even otherwise, this Court has observed

time and again that mere non joining of public person cannot defeat the case

of prosecution. The treatment which is given by police and courts to the

witnesses deters public persons from joining any investigation and public

persons are justified in refusing to join. The accused cannot be given benefit

of this.

8. The counsel for the appellant has pointed out two discrepancies in the

statements of witnesses, about time and about request made to public person

etc. The trial court rightly rejected this argument. It is not expected of

witnesses to keep everything recorded in diary or on paper and thereafter by

rote reproduce it in the court. It has been proved by scientific studies that two

persons may differ in perceiving the same incident and if they are asked to

give an account of the incident later they are bound to differ.

9. In view of the above discussions, I find no force in the Appeal. The

trial court rightly convicted the Appellant.

10. However, the Trial Court awarded sentence of 12 years RI and a fine of

` 1.20 lakh to the appellant. I consider, considering the quantity of

diacetylmorphine recovered from the Appellant, a sentence of 10 years RI,

which is the minimum prescribed sentence, and a fine of ` 1.00 lakh (Rupees

one Lakh only), which is the minimum prescribed fine, would meet the ends of

justice. In default of payment of fine, the petitioner shall further undergo

imprisonment for a period of six months. The appeal is allowed to the above

extent of modification in quantum of sentence. The appeal as against the

conviction of the Appellant is dismissed. A copy of this judgment be sent to

Jail Superintendent concerned.

FEBRUARY 23,         2011                      SHIV NARAYAN DHINGRA, J.
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