Yashoda vs State
2016 Latest Caselaw 7151 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                       +          CRL.A. No.329/2000
                                    Date of Decision : 30th November, 2016

     YASHODA                                          ..... PETITIONER
                           Through       Mr.M.L. Yadav, Adv.

                           versus

     STATE                                             ..... RESPONDENT

                           Through       Mr.Mukesh Kumar, APP with ASI
                                         Dinesh, PS Narcotic Cell, Crime
                                         Branch.

     CORAM:
     HON'BLE MR. JUSTICE P.S.TEJI

     P.S.TEJI, J

1. Aggrieved by the judgment of conviction dated 26th April,

2000 convicting the appellant finding her guilty under Sections

21/61/85 of the Narcotic Drugs & Psychotropic Substances Act,

1985 (hereinafter referred to as NDPS Act, 1985) and order on

sentence dated 26th April, 2000 vide which the sentence was passed

to suffer rigorous imprisonment for a period of ten years and to pay

a fine of Rs.1,00,000/- for the offence punishable under Section 21

of the NDPS Act, in default of payment of fine, convict was to

suffer further simple imprisonment for two years.

2. The facts in brief are that a secret information was received

on the basis of which the police of Narcotic Branch, on 20th

October, 1998 at about 9.30 a.m., apprehended the appellant

Yashoda sitting outside her house on a cot. Notice under Section

50 of the NDPS Act, 1985 was issued and on a search, 60 gram of

smack was alleged to have been recovered from her possession.

Out of 60 gram smack recovered, ten gram was separated as

sample smack and rest fifty gram was kept in six polythenes in

which the same were recovered, and they were converted into two

separate parcels which were sealed with the seal of SS and CFSL

form. A seizure memo was prepared in this regard; FIR

No.16/1998 was registered by Police Station Narcotics, Kamla

Market, Delhi and the appellant was arrested. It emerges from the

record that charge under Section 21 of the NDPS Act was framed

against the accused to which she pleaded not guilty and claimed

trial.

3. The prosecution had examined as many as nine public

witnesses namely PW 1 HC Bhagwat Dayal; PW 2 Nar Singh; PW

3 Lady Constable Nirmala; PW 4 Sukhbir Singh; PW 5 HC Bharat

Singh; PW 6 SI Satbir Singh; PW 7 Dr.R.M. Tripathi; PW 8

Inspt.Mahesh Sharma & PW 9 Cont.Sumer Singh. The statement

of the accused Yashoda was recorded under Section 313 of the

Cr.P.C.

4. The appellant was held guilty by the learned Special Judge,

Delhi and by an order dated 26th April, 2000, sentenced to undergo

rigorous imprisonment for ten years and fine of rupees one lakh for

the offence punishable under Section 21 of the NDPS Act, 1985.

5. The challenge to the judgment of conviction and order on

sentence inter alia on the following grounds:-

(i) The impugned order is challenged on the ground that the

same is contrary to law inasmuch as the mandatory provisions have

not been complied with.

(ii) It is alleged that the notice under Section 50 of the NDPS

Act was not duly proved to have been given to the appellant and

that the same was drafted during the course of investigation after

registering the FIR.

(iii) It is alleged that the appellant being an illiterate lady, it was

imperative for the investigating officer to have explained the

contents of the alleged notice under Section 50 of NDPS Act.

Therefore, the learned ASJ erred in law in concluding that the

notice was duly proved to have been given to the appellant.

(iv) It is further alleged that the impugned judgment is bad in law

inasmuch as learned ASJ relied upon an inadmissible point to the

effect that the appellant was selling smack, however, it is a matter

of record that there was not a single evidence to prove that she was

selling any contraband.

(v) The impugned judgment is also challenged on the ground

that the report of the Central Forensic Science Laboratory is based

on qualitative sampling and not on quantitative method, and,

therefore, mere saying that Diacetylmorphine (Heroin) has been

detected in the Exhibit-1, would not suggest that a case under

Section 21 of the NDPS Act was made out inasmuch as possession

of small quantity makes out a case for lesser offence.

(vi) A challenge to the judgment passed by learned Additional

Sessions Judge, is also laid on the ground that reliance was

wrongly placed upon the alleged recoveries made by the police as

no public witness of the locality/neighbours were asked to join the

raiding party. It is further alleged that the punishment is too harsh

for a lady who has four minor children to support.

6. Apart from challenging the judgment of conviction, learned

counsel for the appellants further submitted that in the nominal roll

filed by the Deputy Superintendent, Central Jail, Tihar, on 31st

January, 2013, it was mentioned that as on 4th April, 2002, the

appellant had undergone sentence of three years, four months and

four days. It further reflects that four weeks interim bail was

granted to the appellant by the order dated 16th March, 2001 passed

by this Court and that the appellant surrendered in time.

7. Per contra, arguments advanced by learned Additional

Public Prosecutor for the State is that the appellant was rightly held

guilty under Sections 21/61/85 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. It is submitted that on a secret

information received by the police, the search was effected through

a lady constable after serving the notice under Section 50 of the

NDPS Act giving her option to give search either before a Gazetted

Officer or a Magistrate which the appellant declined and that 60

gram of smack was recovered from her possession.

8. Upon hearing the rival contentions of the parties at length,

evidence led is being examined.

(I) PW 1 HC Bhagwat Dayal in his testimony deposed that

while working as MHC(M) at Narcotics Branch, he received two

sealed parcels mark "A" & "B", both sealed with the seal of MCS

& SS and a form of CFSL on which seals of MCS & SS were

affixed. The said witness sent the sample for chemical analysis.

(II) PW 2 Nar Singh happened to be SO to ACP, where the

report under Section 57 of the Act was received.

(III) PW 3 Lady Constable Nirmala was a member of the raiding

party. This witness in her statement deposed that she conducted

the search and recovered six packets of polythene containing

smack from the possession of the accused. She had also deposed

in her testimony that ASI Satbir Singh had asked five passers by to

join the raiding party but they all refused and went away without

giving their name and address. It was further recorded in her

testimony that thereafter SI Prem Chan briefed the raiding party

and at about 9.30 a.m, the accused/appellant was apprehended

apprising her secret information and a notice under section 50 of

the NDPS Act was given to her. She also deposed that it was

explained to the accused that she would be required to be searched

and if she wanted, she could be searched before a Gazetted Officer

or a Magistrate, to which the accused declined the offer of the IO.

It is also in the testimony of PW 3 that the said notice was signed

by her at point 'A' and the thumb impression of the accused was

obtained at point 'B' of the notice. This witness further deposed

that, thereafter, the investigating officer told the accused that she

was required to be searched by Lady Ct. Nirmala and if she

wanted, she could be searched before a Gazetted Officer or a

Magistrate but the accused declined this offer. This witness

further deposed that on search of the accused, a thelli of brown

colour was recovered from her possession which contained six

packets of polythene and when opened, found containing smack of

brown colour powder. This witness further deposed that the

contents of all the six polythenes were taken out and were weighed

which were found to be 60 gram and out of this, ten gram smack

was taken out as sample which was further kept in a polythene and

converted into a cloth parcel and was given mark 'A' while the

remaining smack and the empty polythene packets were sealed in a

separate cloth parcel which was marked 'B' and sealed with the

seal of SS. Form CFSL was also filled and a seal of SS was

affixed on it.

(IV) PW 4 Sukhbir Singh in his statement stated that on 30th

October, 1998, while he was posted as duty officer at PS Narcotic

Branch, he recorded the FIR on the basis of rukka and DD entries.

(V) PW 5 HC Bharat Singh deposed that he accompanied the

raiding team and when they reached the spot, ASI Satbir Singh

requested five public persons to join the raiding party who were

passersby on the road but nobody joined them. This witness

further deposed that SI Prem Chand briefed the members of the

raiding party and posted them at different places. This witness

further deposed that thereafter at about 11 a.m., he was called by

ASI Satbir Singh from the place where he was posted and one

rukka, two sealed parcels, CFSL form and a copy of the seizure

memo were handed over to him. This witness thereafter sealed

parcels and CFSL form with seizure memo and carried it from the

spot to the SHO for safe custody.

(VI) PW 6 SI Satbir Singh in his statement deposed that while

posted at PS Narcotic Branch on 30th October, 1998, he received

information that one lady Yashoda, resident of G-100, Punjabi

Colony, Narela, was a drug peddler and was selling smack in front

of her house. On receiving this information, this witness informed

the SHO and constituted the raiding party, conducted the raid and

got recovery of 60 grams smack which was effected through lady

Ct.Nirmala. Thereafter, investigation in this regard was conducted

by him.

(VII) PW 7 Dr. R.M. Tripathi in his statement stated that the

parcel containing sample was marked to him for the purpose of

chemical analysis. He deposed in his statement that there was one

matchbox containing brown coloured powder and on chemical

examination/analysis, it was found to contain Diacetylmorphine.

Detailed report in this regard was submitted by this witness which

was Exh.PW 6/G bearing his signature at point 'A'.

(VIII) PW 8 Insp.Mahesh Sharma, Special Cell, Lodhi Road, in his

statement deposed that on 30th October, 1998, while he was posted

as SHO, Narcotic Branch, Kamla Market, at about 12.15 p.m., HC

Bharat Singh handed over to him two pullandas marked 'A' & 'B'

from CFSL which were having seals of SS and a copy of seizure

memo. He further deposed that he affixed the seal of MCS on both

parcels and CFSL form; kept them in his safe custody and then

handed over the same to HC Bhagat Dayal, MHCM for safe

custody. He also deposed that so long as the same remained in his

custody, nobody tampered with it. He further deposed that

thereafter the accused was produced before him and he verified the

facts from the accused and his statement was recorded by the

investigating officer.

(IX) PW 9 Cont.Sumer Singh in his statement stated that he was

posted as Constable at PS Narcotic Branch and on that day, he had

received one pullanda, CFSL form having seal of SS and MCS

from HC Bhagat Dayal, vide RC No.21/21 for depositing the same

to the CFSL, Chandigarh and that he had taken the same to

Chandigarh and deposited the same in CFSL office on the same

day. This witness also in his statement deposed that so long as the

same remained with him, nobody had tampered with them.

9. As per the testimony of PW 6 Satbir Singh, on the date of

incident, on receipt of information that the appellant who was a

drug peddler, was selling smack in front of her house, he organised

a raiding party after making entry vide DD No.PW 4/A. A raid

was conducted and the accused was apprehended in front of her

house while sitting on a cot. A notice under Section 50 of the

NDPC Act, 1972 Exh.PW 3/A was served upon her and thereafter

on her search, one pouch was recovered which was found

containing six small pouches having smack. On weighing, it was

found to be 60 grams. After preparing a separate sample packet,

remaining smack was seized vide memo PW 3/B. Rukka Exh.PW

6/B was prepared and case was got registered. PW 6 SI Satbir

Singh prepared site plan PW 6/C. Search of the appellant was

taken vide PW 6/D. She was arrested vide memo Exh.PW 3/C and

a report under Section 57 of the NDPS Act Exh.PW 6/F was

prepared by him. He identified the pouch recovered from the

appellant Exh.P 1, six small pouch Exh.P 2/1 to 6 and recovered

smack which was exhibited as Exh.P 3.

10. The testimony of PW 6 has duly been corroborated by other

raiding party members i.e. SI Prem Chand; PW 5 HC Bharat Singh;

Const. Krishan Kumar; PW 9 Cont.Sumser Singh; Cont.Harpal,

Cont.Roshan Lal; and PW 3 Lady Cont. Nirmala. All these

witnesses in a same breath have stated that raid was conducted in

which the appellant was apprehended with the contraband i.e.

smack. They have also stated in the same line that the proceedings

were conducted by the investigating officer and the in-charge of

raiding team at the spot and that recovery of smack, its seizure,

search of appellant, notice under Section 50 of NDPS Act were

served upon the appellant and the other proceedings were effected.

11. All the above witnesses were cross-examined at length but

the defence had failed to put any dent to their testimony. They

remained unshaken with regard to conducting of raid and

apprehension of the appellant with the contraband. They have also

stated in a single voice that smack weighing 60 grams was

recovered from the appellant; serving of notice under Section 50 of

the NDPS Act upon her and with regard to the proceedings

conducted at the spot.

12. Contention of the learned counsel for the appellant that there

was no proper service of notice under Section 50 of the NDPS Act

upon the appellant, is without any basis inasmuch as notice under

Section 50 of the NDPS Act Exh.PW 3/A shows that after

apprehension of the appellant, she was offered to get herself

searched in the presence of a gazetted officer of a magistrate before

conducting her search. Endorsement Exh.PW 6/A on the said

notice Exh.PW 3/A shows that the appellant herself chose not to be

searched before any gazetted officer or a magistrate. She also

chose to be searched through any female. Thumb impression of

the appellant is appearing at Point `B' on endorsement Exh.PW

6/A. This clearly proves that the contents of notice under Section

50 of the NDPS Act were duly explained to the appellant before

conducting her search and thus there is mandatory compliance of

Section 50 of the NDPS Act by the police before conducting search

of the appellant.

13. The testimony of the raiding party members has also been

duly corroborated by CFSL report Exh.PW 6/G which shows that

when the sealed sample was opened and examined, the same was

identified as diacetylmorphine (heroine). The report ExhPW 6/G

duly proves the case of the prosecution that the recovered

substance from the appellant was a contraband i.e. smack.

14. The discussion made above shows that the testimony made

by the police officials including the raiding party members is

trustworthy and their testimony coupled with CFSL report Exh.PW

6/G brings the case of prosecution within the four corners of the

alleged commission of offence which culminated into the

conviction of the appellant. This court is of the considered opinion

that the prosecution has successfully proven the guilt of the

appellant.

15. As a result, no error or illegality is found in the view taken

by the Trial Court and the judgment of conviction dated 26th April,

2000 and the same is upheld.

16. A prayer is made by learned counsel for the appellant to the

effect that a lenient view may be taken in terms of sentence

awarded to the appellant keeping in view the fact that the appellant

is facing trial since 1999 and that almost seventeen years have been

elapsed. Learned counsel for the appellant has further submitted

that the appellant was awarded punishment under the Narcotic

Drugs & Psychotropic Substances Act, 1985 which was amended

in the year 2001 and in view of the amended Act, the punishments

for the offences under the Act, have been reduced. Likewise, the

sentence in the present case may also be reduced.

17. In the judgment passed by the High Court of Rajasthan, it

was held as under:-

"When a legislation is brought into existence, it is for the benefit of the people and the Court should give such interpretation which is not only beneficial to the person who takes benefit out of it but it should also be in consonance with the Statement of Objects and Reasons given in the Amending provisions. The Statement of Objects and Reasons appended to the Bill is as follows:

Statement of Objects and Reasons:-

Amendment Act 9 of 2001:- The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years rigorous imprisonment which may extend upto twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial, it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with

deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure, provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences.

12. This Statement of Objects & Reasons itself is beneficial for the interest of the accused who are languished in jail for a considerable time on account of being minimum ten years punishment in contraband drugs and are denied right of bail as against those who are indulged in large scale quantity of drugs trafficking. This Amendment provides rationalization in the matter of grant of bail as well as in the matter of awarding sentence by distinguishing the narcotic drugs & psychotropic substances in three categories viz;

(i) small, (ii) commercial and (iii) in between small & commercial. If the legislation is silent on a particular issue which his apparently in the present case about applicability of the Amending Act' In case where sentence has been passed prior to Amendment and no appeal has been filed after the Amendment, then the Court should give that interpretation which is in furtherance of the intention of the legislature given under its preamble or Statement of Objects & Reasons."

[Prema alias Prem Singh Vs. State of Rajasthan in S.B. Crl.J. Appeal No.738/2001 Dt.19.07.2007]

18. This Court on similar facts and circumstances, has held as

under:-

"It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the

sentence for the same office, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence."

[Sultan Vs. State 2004 (73) DRJ 460]

19. India is a party to three United Nations Drug Conventions

and to give effect to the treaties, NDPS 1985 enacted in order to

provide adequate penalties for drug trafficking, strengthen

enforcement powers, implement international conventions to which

India was a party and enforce controls over the contraband.

NDPS Amendment Act 1989 came into effect to combat drug

trafficking which was influenced by the signing of 1988 Convention

by India. After this amendment, people caught with small amounts

of drugs faced long prison sentences and hefty fines. The said

amendment of 1989 was criticized for harsh and disproportionate

sentencing structure and a momentum for reform was created. By

way of amended Act of 2001, scale of sentencing and fine was

reduced depending upon the substance and quantity found. It

basically provides for determining the amount of drugs involved in

an offence while sentencing an accused. It also provides for

deterrent punishment for the drug traffickers while a reformative

approach towards addicts has been adopted. Therefore, three

different quantity of drugs have been involved i.e. small,

commercial or intermediate while sentencing. The legislature was

wise enough to provide different punishments for possessing small

or commercial quantity of drugs.

The amended Act of 2001 is a beneficial legislation which

provides for lesser punishment in case of drug addicts who are

found with the lesser quantity of prohibited substance as

compared to the drug traffickers who are found having

commercial quantity of contraband which attracts harsh

punishment and hefty fines.

20. In the present case, the appellant has already undergone

about three years and four months incarceration for possession of

60 grams of smack. The peculiar circumstances of the present case

are that the appellant was arrested on 20th October, 1998 and as per

the sentence awarded to her, she would have completed ten years

in the 2008 if she remained confined in jail for the said period.

Keeping in view the judgment in the case of Sultan (supra) and

the beneficial provisions of the amended NDPS Act of 2001, the

sentence awarded to the appellant is reduced to the period already

undergone with fine of Rs.50,000/-. In default of payment of fine,

the appellant shall undergo simple imprisonment of one year.

21. The appellant is directed to pay the fine within a period of

one month else surrender before the trial court concerned.

22. With the above modification in the sentence of

imprisonment, the present appeal is disposed of.

(P.S.TEJI) JUDGE NOVEMBER 30, 2016 aa