Delhi High Court
Sandeep Kumar vs Central Bureau Of Narcotics on 8 July, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 462/2016 & CRL.M.A.17384/2017
SANDEEP KUMAR ..... Appellant
Through: Mr. Akshay Bhandari, Adv.
versus
CENTRAL BUREAU OF NARCOTICS ..... Respondent
Through: Mr. Ripu Daman Bhardwaj, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
08.07.2019
1. This appeal assails judgment, dated 3rd August, 2015, as well as
order, dated 4th August, 2015, whereby the learned Additional
Sessions Judge (hereinafter referred to as ―the learned ASJ‖) has
convicted the appellant for having committed the offences punishable
under Section 21(c), and Section 23(c) read with Section 28 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as ―the NDPS Act‖). The appellant stands sentenced to 10
years' rigorous imprisonment (RI) and a fine of ₹ 1 lakh, with default
sentence of 6 months' simple imprisonment (SI), for the offence under
Section 21(c), and to 10 years' RI and a fine of ₹ 1 lakh, with 6
months' SI as default sentence, for the offence under Section 23(c)
read with Section 28, of the NDPS Act, both the sentences having
been directed to run concurrently.
CRL.A. 462/2016 Page 1 of 57
2. The charge against the appellant, which stands confirmed by the
impugned judgment of the learned ASJ, is of attempting to export, out
of India, 460 grams diacetylmorphine (heroin), by courier, by
presenting the said consignment at M/s Alliance Overseas Logistics
(hereinafter referred to as ―AOL‖), Ludhiana, on 29th March, 2010.
The consignment, it is alleged, was intended for delivery to Louis
Galo, Barcelona, Spain. According to the prosecution, the
consignment was to be exported, out of India, by M/s Aramex India
Pvt. Ltd, Mahipalpur, New Delhi (hereinafter referred to as
―Aramex‖), to whom the consignment was sent by M/s Overseas
Logistics Pvt. Ltd., Bhikaji Cama Place (hereinafter referred to as
―Overseas Logistics‖) who, in turn, received the consignment from
AOL, Ludhiana.
3. The respondent-Central Bureau of Narcotics (hereinafter
referred to as ―CBN‖) alleged, before the learned ASJ, that, pursuant
to receipt of intelligence, a team of its officers visited the office of
Aramex, where the package was produced, at their instructions, by
Harihar Thakur (PW-7) and Devender Negi (PW-8), employees of
Aramex, and that the package, on being opened, was found to contain,
inter alia, eight pairs of ladies slippers, with one small polythene
packet of heroin concealed in the sole and two small polythene
packets of heroin concealed in the heel, of each slipper. As a result,
sixteen packets of heroin were recovered, in total, from the soles and
thirty-two packets of heroin were recovered from the heels of the said
slippers, working out to a total of forty-eight packets. The gross
weight of the packets was found to be 500 grams, with the weight of
CRL.A. 462/2016 Page 2 of 57
the powder (found, on analysis at the spot, to be heroin) to be 460
grams. The powder was mixed into one homogeneous lot, out of
which two samples of powder, of 5 grams each, were retrieved and
placed in two packets, marked ‗A' and ‗B', which were sealed with
seals bearing the insignias ‗RV, CBN'. The samples were,
subsequently, tested in the Central Revenues Control Laboratory
(CRCL), and were found to be heroin, of 1.4% w/w purity.
4. Finding the case of the CBN, against the petitioner, to contain
substance, the impugned judgment, the learned ASJ, convicts and
sentences the appellant, in the terms already set out in para 1 supra.
Impugned judgment of the learned ASJ
5. In convicting the appellant, and sentencing him, the learned ASJ
has proceeded on the following reasoning:
(i) The CRCL report, as proved by PW-2 A.K. Maurya, the
Chemical Examiner of the CRCL, confirmed the recovery of
heroin. The manner in which the raid had been conducted, and
the heroin had been recovered, also stood proved by the
statements of the various witnesses of the raiding team as well
as the employees of Aramex, which corroborated each other.
Production of the case property before the empowered officer,
in compliance with Sections 52 and 55 of the NDPS Act also
stood proved by PW-1 M.K. Gupta, who also made an entry, in
this effect, in the Malkhana register (Ex. PW-1/F).
CRL.A. 462/2016 Page 3 of 57
(ii) PW-4 Inspector S.K. Sachdev had proved the submission
of the report, under Section 57, NDPS Act (Ex. PW-1/D),
regarding the seizure of the heroin, to his immediate superior,
i.e. PW-1 M. K. Gupta.
(iii) The testimony of PW-5 SI Rakesh Verma made it clear
that the samples drawn from the recovered substance was, in
proper custody, conveyed to the CRCL for examination, and the
statement of PW-2 A.K. Maurya, Assistant Chemical Examiner,
CRCL, proved that the sample had tested positive for heroin,
i.e. diacetylmorphine. These testimonies remained undisturbed
in cross-examination.
(iv) That the parcel had, in fact, been booked by the appellant
at AOL, Ludhiana, was also established by the following
facts/evidence:
(a) The seizure of the parcel at the premises of
Aramex took place in the presence of two panchas,
namely Harihar Thakur (PW-7) and Devender Negi (PW-
8), both officials of Aramex.
(b) The original airway Bill, affixed to the parcel, had
been proved as Ex. PW-7/A. The copy, thereof, taken
from the computer system of Aramex, had been proved as
Ex. PW-7/B. The copy of the PAN card of the consignor,
furnished as proof of identity for booking the
consignment, was proved as Ex. PW-7/C. The manifest
CRL.A. 462/2016 Page 4 of 57
and the invoice, relating to the parcel, also stood proved
as exhibits PW-7/D and PW-7/E, respectively. All these
documents were in the name of the appellant, and bore
his signatures. Moreover, the Ex. PW-7/C also carried the
appellant's photograph and his Permanent Account
Number (PAN).
(c) Aramex had received the parcel from Overseas
Logistics, which was also vouchsafed by PW-12 Manoj
Gupta, the Director of Overseas Logistics, who further
deposed that the parcel had been received, by his
Company from AOL. The statement of Manoj Gupta,
recorded under Section 67 of the NDPS Act, also stood
proved as Ex. PW-1/I.
(d) Ravinder Maurya @ Ravi (PW-23) had correctly
identified the appellant, in court, as the person who had
booked the parcel on 29th March, 2010. He also deposed
that the appellant had furnished the copy of his PAN card
as identity document with the parcel, and that he had
prepared the Airway Bill (Ex. PW-7/A) on the basis
thereof. He further confirmed that the parcel had been
sent, onward, to Overseas Logistics, New Delhi, and
proved his statement, recorded under Section 67 of the
NDPS Act, as Ex. PW-4/B. His statement was
corroborated by the statement of Ramandeep Singh (PW-
6), also of AOL. The cross-examination of these
CRL.A. 462/2016 Page 5 of 57
witnesses did not elicit anything which could impeach the
creditworthiness of the original testimonies. The original
application form, submitted by the appellant for issuing
the PAN card, alongwith a copy of his matriculation
certificate, electricity bills and rent receipt furnished with
the application, had been produced, during trial, by PW-
11 Vinda Mahadik, Manager, UTI Technology Services,
and had been proved as Ex. PW-11/A to Ex. PW-11/B3.
In his statement under Section 313, Code of Criminal
Procedure, 1973 (hereinafter ―Cr.P.C.‖), the appellant
had admitted his signature on the application form for
issuance of PAN card (Ex. PW-11/A), as well as the fact
that the matriculation certificate (Ex. PW-11/B-1)
belonged to him. Though he had sought to contend that
he had not applied for any PAN card and that he had
intended to migrate to England in January-February,
2009, these defences remained unproved, without any
evidence in support thereof. They were, therefore, only in
the nature of bald assertions.
(e) Jyoti Rana, in her statement under Section 67 of
the NDPS Act (Ex. PW-1/U) - which had been proved by
PW-1 M. K. Gupta as well as PW-9 Inspector Alpna
Gupta, testified that she was instrumental in issuance of
the PAN card to the appellant, with whom she had come
in contact through her acquaintance Rajender Resham,
and that she had furnished the copy of the electricity bill
CRL.A. 462/2016 Page 6 of 57
of her previous address, to support the application form
of the appellant. In his statement under Section 67 of the
NDPS Act, the appellant admitted to knowing Jyoti Rana,
and contended that she was the one who used to smuggle
contraband abroad in parcels, through him. He also
admitted using his PAN card for booking the parcel in
question.
(f) In view of the above evidence, the contention that
the appellant was not a resident of the address figuring in
the PAN Card did not make any real difference. Neither,
in these circumstances, could the failure, on the part of
the investigating officers, to have the signature, on the
PAN card, verified by handwriting expert, help the
defence.
(g) It was correct that the exercise of having the
appellant identified by Ravi (PW-23), in the Police
Station at Ludhiana, was not proper. However, in view of
the positive identification, by PW-23, of the appellant in
court, the earlier identification in the Police Station
merely acted as corroboration thereof. Reliance was
placed, in this regard, on Ashok Debbarma Alias Achak
Debbarma v. State of Tripura, (2014) 4 SCC 747 and
Satwantin Bai v. Sunil Kumar, MANU/SC/0416/2015.
CRL.A. 462/2016 Page 7 of 57
Holding, on the basis of the above material, that the appellant
stood irrevocably linked to the offence, alleged to have been
committed by him, the learned ASJ proceeded, vide the
impugned judgment and order, to convict and sentence the
appellant, as already noted hereinabove.
Evidentiary value of statements recorded under Section 67, NDPS Act
6. Before proceeding to reconnoiter the evidence, it would be
advantageous to examine the evidentiary value, and relevance, of
statements recorded under Section 67 of the NDPS Act. Section 67
reads thus:
―67. Power to call for information, etc. - Any officer
referred to in section 42 who is authorised in this behalf
by the Central Government or the State Government
may, during the course of an enquiry in connection with
the contravention of any provisions of this Act, -
(a) call for information from any person for the
purpose of satisfying himself whether there has
been any contravention of the provisions of this
Act or any rule or order made thereunder;
(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;
(c) examine any person acquainted with the
facts and circumstances of the case.‖
7. Section 53A(1) of the NDPS Act, which deals with relevancy of
statements, in prosecutions, reads as under:
CRL.A. 462/2016 Page 8 of 57
―53A. Relevancy of statements under certain
circumstances. - (1) A statement made and signed by a
person before any officer empowered under section 53
for the investigation of offences, during the course of any
inquiry or proceedings by such officer, shall be relevant
for the purpose of proving, in any prosecution for an
offence under this Act, the truth of the facts which it
contains, -
(a) when the person who made the statement is
dead or cannot be found or is incapable of giving
evidence, or is kept out of the way by the adverse
party, or whose presence cannot be obtained
without an amount of delay or expense which,
under the circumstances of the case, the court
considers unreasonable; or
(b) when the person who made the statement is
examined as a witness in the case before the court
in the court is of the opinion that having regard to
the circumstances of the case, the statement should
be admitted in evidence in the interest of justice.‖
8. In view of Section 53A of the NDPS Act supra, it is clear that
statements, recorded under Section 67 of the said Act, would, ipso
facto and proprio vigore, be relevant for proving the truth of the
contents of such statements. The protection, which is afforded, to
statements recorded under Section 161 Cr.P.C., by Section 162
thereof, and the protection afforded by Section 27 of the Indian
Evidence Act, 1872 (hereinafter referred to as ―the Evidence Act‖),
stand, therefore, statutorily foreclosed, in the case of statements
recorded under Section 67 of the NDPS Act. The Supreme Court, in
Kanhaiyalal v. Union of India, (2008) 4 SCC 668, enunciated this
principle, in the following words (in para 47 of the report):
CRL.A. 462/2016 Page 9 of 57
―It may also be recalled that though an application was
made for retracting the confession made by the appellant,
neither was any order passed on the said application nor
was the same proved during the trial so as to water down
the evidentiary value of the said statement. On the other
hand, in the absence of such evidence on record, the
High Court had no option but to proceed on the basis of
the confession as made by the appellant under Section 67
of the NDPS Act. Since it has been held by this Court that
an officer for the purposes of Section 67 of the NDPS Act
read with Section 42 thereof, is not a police officer, the
bar under Sections 24 and 27 of the Evidence Act cannot
be attracted and the statement made by a person directed
to appear before the officer concerned may be relied
upon as a confessional statement against such person.
Since a conviction can be maintained solely on the basis
of a confession made under Section 67 of the NDPS Act,
we see no reason to interfere with the conclusion of the
High Court convicting the appellant.‖
(Emphasis supplied)
9. One may also refer, profitably, to the following passages, from
Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347,
which relied upon Kanhaiyalal (supra):
―14. From what has been observed above, the officers
vested with the powers of investigation under the Act are
not police officers and, therefore, the confessions
recorded by such officers are admissible in evidence.
Therefore, the question posed at the outset is answered in
the affirmative and it is held that officers of the Central
Bureau of Narcotics are not police officers within the
meaning of Sections 25 and 26 of the Evidence Act and,
hence, confessions made before them are admissible in
evidence. In view of the aforesaid there is no escape from
the conclusion that the confessions made by the appellant
before PW 6 Jagdish Mawal and PW 8 Mahaveer Singh
are admissible in evidence and cannot be thrown out of
consideration.
CRL.A. 462/2016 Page 10 of 57
15. Now we proceed to consider the second question
set out at the outset and in order to answer that we deem
it appropriate to reproduce Section 24 of the Evidence
Act which reads as follows:
―24. Confession caused by inducement, threat or
promise, when irrelevant in criminal proceeding.
--A confession made by an accused person is
irrelevant in a criminal proceeding, if the making
of the confession appears to the court to have been
caused by any inducement, threat or promise,
having reference to the charge against the accused
person, proceeding from a person in authority and
sufficient, in the opinion of the court, to give the
accused person grounds, which would appear to
him reasonable, for supposing that by making it he
would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings
against him.‖
From a plain reading of the aforesaid provision it is
evident that a confession made by an accused is rendered
irrelevant in criminal proceeding if the making of the
confession appears to the court to have been caused by
any inducement, threat or promise with reference to the
charge against the accused.
16. A confession, if it is voluntary, truthful, reliable
and beyond reproach is an efficacious piece of evidence
to establish the guilt of the accused. However, before
solely acting on confession, as a rule of prudence, the
court requires some corroboration but as an abstract
proposition of law it cannot be said that a conviction
cannot be maintained solely on the basis of the
confession made under Section 67 of the Act.
*****
18. In our opinion, when an accused is made aware of
the confession made by him and he does not make
complaint within a reasonable time, the same shall be a
relevant factor to adjudge as to whether the confession
was voluntary or not. Here in the present case the
appellant was produced before the court on several dates
and at no stage he made any complaint before the Special
Judge of any torture or harassment in recording the
confession. It is only when his statement was recorded
under Section 313 of the Code of Criminal Procedure that
he retracted and denied making such a confession and
went to the extent of saying that his signatures were
obtained on blank pages. In the facts and circumstances
of the case we are of the opinion that the confessional
statements made by the appellant were voluntary in
nature and could form the basis for conviction."
(Emphasis supplied)
10. These decisions hold, therefore, that an officer, conferred with
the power of the Police Officer under Section 53 of the NDPS Act did
not become, merely by virtue of that fact, ipso facto, a police officer,
for the purposes of Section 25 of the Evidence Act and that, therefore,
the statement recorded by such officer was admissible in evidence, so
long as it was not found to have been extracted by coercion or by
adopting unlawful methods.
11. Another Bench of two Hon'ble judges of the Supreme Court,
however, departed from this view in Noor Aga v. State of
Punjab, (2008) 16 SCC 417, holding that the statement, recorded
under Section 67 of the Act, would attract Section 25 of the Evidence
Act, and would not be admissible in evidence.
12. In Nirmal Singh Pehlwan Alias Nimma v. Inspector, Customs,
Customs House, Punjab (2011) 12 SCC 298, Noor Aga (supra) was
followed, and Kanhaiyalal (supra) specifically doubted, in para 15 of
the report, which reads thus:
―We also see that the Division Bench in Kanhaiyalal
case [(2008) 4 SCC 668 : (2008) 2 SCC (Cri) 474] had
not examined the principles and the concepts underlying
Section 25 of the Evidence Act, 1872 vis-à-vis Section
108 of the Customs Act and the powers of a Customs
Officer who could investigate and bring for trial an
accused in a narcotic matter. The said case relied
exclusively on the judgment in Raj Kumar case[(1990) 2
SCC 409 : 1990 SCC (Cri) 330] . The latest judgment in
point of time is Noor Aga case [(2008) 16 SCC 417 :
(2010) 3 SCC (Cri) 748] which has dealt very elaborately
with this matter. We thus feel it would be proper for us to
follow the ratio of the judgment in Noor Aga
case [(2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748]
particularly as the provisions of Section 50 of the Act
which are mandatory have also not been complied with.‖
13. In view of this difference in view, a later bench of the Supreme
Court, speaking through A.K. Sikri, J. held, in Tofan Singh v. State of
Tamil Nadu, (2013) 16 SCC 31, that the matter deserved to be
referred to a Larger Bench - which still remains to be constituted.
14. Tofan Singh (supra) was also noted in a very recent decision of
the Supreme Court, speaking through Uday Umesh Lalit, J.,
in Surinder Kumar Khanna v. Intelligence Officer, Directorate of
Revenue Intelligence, (2018) 8 SCC 271.
15. Clearly, therefore, the position, in law, regarding the
admissibility of a statement, recorded by an officer of the CBN, under
Section 67 of the NDPS Act, the relevancy of such statement, the
issue of whether such an officer would be treated as a ―police officer‖,
and the sustainability of a conviction, based solely on such a
statement, which is not appropriately retracted, is in a state of flux.
16. In this context, it is also relevant to note the judgment of the
Supreme Court in U.O.I. v. Bal Mukund, (2009) 12 SCC 161, which
holds that there was a presumption, in the case of recording of the
statement under Section 67 of the Act in the office of the Narcotics
Control Bureau (hereafter referred to as ―NCB‖), that the statement
was not voluntary. This principle, it may easily be surmised, would
apply with even greater force where the statement is recorded by
officers of the CNB, or the Narcotics Control Bureau, within the
confines of a Police Station.
The Evidence
17. To the extent it is relevant, the evidence that emerged, during
the proceedings before the learned ASJ, may be reconnoitered, thus.
18. The manner in which search, and seizure of the heroin, before it
could be exported out of India, took place, stands set out, in detail, in
the testimonies of PW-1 M. K. Gupta, Superintendent, Preventive
PW-4 Inspector S. K. Sachdev and PW-5 SI Rakesh Verma, of the
CBN, and there statements corroborate each other. According to the
depositions of the said three witnesses, pursuant to receipt of secret
information regarding the possible export of heroin by courier via
Aramex, they reached the office of Aramex at 11:50 PM on 30th
March, 2010, where they met PW-7 Harihar Thakur and PW-8
Devender Negi, employees of Aramex. At their request, the said
employees produced a parcel, regarding which the CBN had received
secret information. The packet reflected the name of the appellant as
the sender, and that of Louis Galo, Barcelona, Spain, as the consignee.
The packet was described as containing shoes and ―haar" (necklaces).
On opening the package, it was found to contain eight pairs of ladies
slippers and five necklaces. The sole and the heel of each slipper was
found to contain polythene packets, with one polythene packet
concealed in the sole, and two polythene packets concealed in the heel
of each slipper. As a result, sixteen packets were recovered from the
soles and thirty-two packets were recovered from the heels of the said
eight pairs of ladies slippers, working out to a total of forty-eight
packets. The gross weight of the packets was found to be 500 grams.
Each packet was found to contain a brown powder, with the total
weight of powder working out to 460 grams. The powder was
retrieved and homogeneously mixed. Two samples, of 5 grams each,
were retrieved from the said homogeneous mixture, and sealed, with a
sealed marked ‗RV, CBN', and marked ‗A' and ‗B'. They were seized
in the presence of two panchas and the members of the raiding team.
The remaining powder was kept in a white cloth, and the forty-eight
empty polythene packets were transferred to a larger white polythene
packet. Similarly, the slippers and the necklaces were also be placed in
the carton and kept in a larger polythene packet. All the packets were
seized, at 5:15 AM on 31st March, 2010, vide Seizure Memo Ex. PW-
1/B. The facsimile of the seal used to seal the packages was exhibited
as Ex. PW-1/C. A report, under section 57 of the NDPS Act was
prepared by PW-4 Inspector S. K. Sachdev and submitted to PW-1 M.
K. Gupta, Superintendent. The property was deposited in the
Malkhana, and entry Ex. PW-1/F was made, in the Malkhana register,
in respect thereof. The entry bore the signatures of PW-1 and PW-4.
The statement of Harihar Thakur (PW-7) was recorded, and exhibited
as Ex. PW-1/H.
19. The above witnesses further deposed that, on inquiry with the
office of the Director of Income Tax (Systems), the CBN officials
were informed, orally, that, by way of proof of address, for obtaining
the aforesaid PAN Card, stated to have been presented by the
appellant at the courier counter of AOL at Ludhiana, proof of the
applicant residing at House No 243-A, Old Pole No. 46, Village
Navada, Uttam Nagar, was produced. Acting on the basis thereof, the
raiding team proceeded, on 2nd April, 2010, to House No 243-A,
where they met the owner of the said premises, Jai Kishan (PW-10).
Jai Kishan disclaimed all knowledge of the appellant, and stated, vide
his statement Ex. PW-1/K that the appellant had never been his tenant.
20. The raiding team proceeded, thereafter, to the office of AOL at
Ludhiana. There, they met the owner of the said premises, Ramandeep
Singh (PW-6), who identified the PAN card of the appellant, and
verified the fact that the appellant had presented the said PAN Card as
proof of identity, at the time of booking the aforesaid parcel. He,
however, acknowledged that, on the date of booking of the parcel, i.e.
29th March, 2010, he was out of Ludhiana, and the parcel had,
therefore, being accepted by his employee Ravinder Maurya @ Ravi
(PW-23). Ravi (PW-23), on being asked, acknowledged having
booked the subject parcel on 29th March, 2010, and also identified the
copy of the PAN Card, of the appellant, as the document submitted by
way of proof of identity, at the time of booking the parcel. He further
stated that he had received a letter, from the Director of Income Tax
(Systems) (Ex. PW-1/L), stating that the documents, on the basis of
which PAN card had been issued to the appellant, would be supplied
by M/s UTI Technology Services Ltd. who, in turn, supplied the said
documents under cover of letter Ex. PW-1/M. He further deposed that
the said documents indicated that the appellant had used the electricity
bill of, and the rent receipt issued by, Balkishan (PW-25), resident of
House No 243-A, Uttam Nagar, in order to obtain the PAN card. PW-
25 Balkishan, however, on being questioned, disclaimed knowing the
appellant, and deposed that the appellant had never been his tenant. He
also denied his signature on the electricity bill and the rent receipt,
stated to have been presented at the time of obtaining the PAN card.
He further produced, for the perusal of the raiding officials, the
identity card issued to him by the Delhi Transport Corporation (DTC),
a perusal of which indicated that the signature of Bal Kishan (PW-25),
found therein, was not similar to the signature of Bal Kishan as
contained on the allegedly forged documents.
21. To the same effect were the depositions of PW-4 Inspector S.K.
Sachdev, PW-5 SI Rakesh Verma, PW-7 Harihar Thakur of Aramex,
PW-8 Devender Negi of Aramex, PW-12 Manoj Gupta of Overseas
Logistics and of Ravinder Maurya @ Ravi of AOL, Ludhiana,
deposing as PW-23.
22. PW-1 M.K. Gupta deposed, further, that the appellant was
arrested on 12th April, 2010, and was, subsequently, identified by PW-
4 Inspector S.K. Sachdev. He testified, further, that the statement of
the appellant was recorded by PW-4, wherein he admitted booking of
the aforesaid parcel, on 29th March, 2010, at AOL, Ludhiana,
consigned to Spain, and of concealing, therein, heroin in the heels and
soles of the slippers fact in the parcel. He further identified the
documents submitted by him at the time of booking of the parcel at
AOL, and also admitted having concealed heroin into earlier parcels
by him for Slovakia and one earlier parcel booked by him for Spain.
PW-1 correctly identified the appellant in Court. He also deposed that
the appellant had been identified, in the Police Station at Ludhiana, by
PW-23 Ravi.
23. A perusal of the statement of the appellant, under Section 67 of
the Act, and exhibited as Ex. PW-4/C, discloses that the appellant had,
in fact, admitted the allegations against him, in the manner stated by
PW-1. It has to be borne in mind, however, that the statement was
recorded within the confines of the Police Station. Applying the law
laid down in Bal Mukund (supra), therefore, it may not be possible to
found a conviction solely on the basis of the said statement.
24. Ramandeep Singh and Ravi, of AOL, Ludhiana, deposing as
PW-6 and PW-23, respectively, testified that the appellant had,
indeed, booked the offending parcel, on 29th March, 2010. Ramandeep
Singh deposed that, though he was not present in Ludhiana on the date
of booking of the parcel, no parcel was accepted, by AOL, unless it
was accompanied by proof of identity of the person booking the parcel
(rather than of the consignor). He deposed that the proof of identity of
the appellant had also been obtained, before the parcel was accepted,
from him, on 29th March, 2010. Ravi (PW-23) clearly deposed that the
appellant had shown his PAN card as a proof of his identity, at the
time of booking the parcel. He also proved his statement, recorded
under Section 67 of the NDPS Act, as Ex. PW-4/B, and deposed that
he had, indeed, identified the appellant in the Police Station on 13 th
April, 2010. He also proved his subsequent statements, given in the
Police Station as Ex. PW-4/D and given later, in November 2010 as
Ex. PW-1/V. He submitted that he had accepted the PAN card of the
appellant as the photograph, on the said card, was that of the appellant.
He also correctly identified the appellant in court. In cross-
examination, PW-23 clearly stated that AOL never accepted any
parcel, if the person who came to book it was not the consignor, and
that the proof of identity, which was required to be furnished, had to
be of the person who came to book the parcel. He submitted, further,
that his statement Ex. PW-4/B had been recorded in his office,
whereas the statement Ex. PW-4/D, wherein he identified the
appellant, had been recorded in the Police Station at Ludhiana.
25. Vinda Mahadik, Divisional Manager, M/s UTI Technology
Services Ltd., deposing as PW-11, testified that she had submitted the
documents, given to her by the appellant, for having the PAN card
issued in his name, vide her letter Ex. PW-1/M, which included the
electricity bills and rent receipt of House No. 243, Nawada, as well as
the matriculation certificate of the appellant, issued by the Punjab
School Education Board, which were individually exhibited. She
acknowledged, however, that it was not necessary for an applicant,
applying for a PAN card, to visit the office personally, and that she
could not, therefore, testify, positively, that the appellant had
personally visited her office for forwarding of his documents for
obtaining PAN card.
26. It is in the backdrop of the above evidence that the justifiability,
of the impugned judgment and order, passed by the learned ASJ,
convicting and sentencing the appellant, has to be examined and
analysed.
Submissions advanced before the Court
27. Appearing on behalf of the appellant, Mr. Akshay Bhandari
advanced the following submissions:
(i) There was no compliance with Section 42(2) of the
NDPS Act, as there was no evidence that PW-1 had forwarded
the information received by him to his immediate superior.
(ii) The raiding team had come after sunset and before
sunrise, without any search warrant, and there was no reason,
forthcoming, therefor. This, too, violated Section 42 (1) of the
NDPS Act.
(iii) PW-8 Devender Negi had, in his testimony during trial,
deposed that the powder, on weighment, was found to be 4 kg 6
grams, and not 460 grams.
(iv) The learned ASJ had erroneously permitted the learned
Special Public prosecutor (SPP) to examine his own witness,
which was not permissible, as per the law laid down in State v.
Surender MANU/DE/2281/2014.
(v) The manner in which the alleged heroin had been
sampled was not proper.
(vi) PW-5 SI Rakesh Verma had, in his the deposition during
trial, not testified to the case property having remained
untampered, before it was forwarded to the CRCL.
(vii) The statement of the appellant, recorded under Section 67
of the NDPS Act, could not be relied upon, as it had been
recorded while he was in custody. It was also hit by Section 35
of the NDPS Act.
(viii) The case, therefore, was dependent solely on the
statement of PW-23 Ravi. The said statement could not be the
sole basis to convict the appellant, as there had been no Test
Identification Parade (TIP). There was no CCTV recording, in
the premises of AOL, to confirm, positively, that it was the
appellant who had booked the parcel on 29th March, 2010. Call
Detail Records had not been relied upon. Reliance was solely
placed on forged documents, on the basis of which the PAN
card had been obtained, purportedly that of the appellant.
(ix) No reliance could be placed on the alleged statement of
Jyoti Rana as she had not been brought in the witness box.
In view of the above infirmities, Mr. Bhandari contended that his
client was entitled to acquittal of the charge against him.
28. Mr. Ripu Daman Bhardwaj, learned APP submitted, per contra,
that the identity of the appellant had been established from the PAN
card submitted at the time of booking of the parcel at AOL which was
admitted, by the appellant, to be his, in his statement under Section
313, Cr.P.C. Moreover, the PAN card bore his photograph as well as
his signatures. The appellant had also been identified, by PW-23,
during trial. Apropos the admissibility of the statement, of the
appellant, under Section 67 of the NDPS Act, it was submitted that, in
the absence of any evidence of pressure/coercion, in the recording of
the said statement, despite cross-examination of the prosecution
witnesses, the statements were admissible and relevant in evidence. In
any event, even de hors the statement, of the appellant, under Section
67 of the NDPS Act, learned APP would submit that the evidence was
more than sufficient to justify the conviction and sentence of the
appellant.
Issues
29. In the above circumstances, this Court is, in the present case,
called upon to determine, essentially, (i) whether the seizure of heroin,
from the slippers in the parcel at the office of Aramex, stood proved,
(ii) whether the parcel, seized at Aramex, New Delhi, was the parcel
originally consigned at the office of AOL, Ludhiana and (iii) whether
it was established that the appellant had tendered the said parcel at
AOL, Ludhiana.
Re. presence of heroin in the seized parcel
30. The fact that the parcel, seized by the CBN team at the premises
of Aramex on 30th March, 2010, contained slippers, in the soles and
heels of which heroin was concealed, cannot be doubted, in view of
the report of the CRCL (Ex. PW-2/C), which confirmed that the
powder was found to be heroin of purity 1.4% W/W. The said report
was proved by the Chemical Examiner of the CRCL A.K. Maurya
(PW-2), who testified, during trial, stating that testing of the sample
had been done using colour test and TLC. The credibility of the said
position remained undisturbed in cross-examination. PW-2 A.K.
Maurya also identified the remnant sample, when shown to him in
Court.
31. Equally, the fact that the parcel containing the slippers, in which
the heroin was concealed, had been booked at AOL, from where it had
been forwarded to the office of Overseas Logistics in Delhi and,
further, to Aramex, for onward export to Spain, can also not be denied,
as the relevant documents were all exhibited, supported by the
statements of Ramandeep Singh, the owner of AOL (PW-6), Manoj
Gupta of Overseas Logistics (PW-12) and Harihar Thakur and
Devender Negi of Aramex, who deposed as PW-7 and PW-8
respectively. These witnesses also proved their respective statements,
recorded under Section 67 of the NDPS Act, which stand exhibited as
Ex. PW-4/A (of PW-6 Ramandeep Singh), PW-1/I (of PW-12 Manoj
Gupta) and Ex. PW-7/C (of PW-7 Harihar Thakur). The statements
remained undisturbed in cross-examination and, not having been
recorded either in the premises of the CBN or in any Police Station,
are admissible and relevant in evidence, in view of Section 53-A of
the NDPS Act.
32. It was sought to be contended, by Mr. Bhandari, that there had
been fatal infraction, on the part of the CBN, of Section 42(2) of the
NDPS Act, as there was no evidence to indicate that the information,
received by PW-1 M. K. Gupta had been forwarded to his immediate
superintendent within 72 hours. In this context, I may reproduce
Sections 41 and 42 of the NDPS Act, thus:
―41. Power to issue warrant and authorisation. - (1)
A Metropolitan Magistrate or a Magistrate of the first
class or any Magistrate of the second class specially
empowered by the State Government in this behalf, may
issue a warrant for the arrest of any person whom he has
reason to believe to have committed any offence
punishable under this Act, or for the search, whether by
day or by night, of any building, conveyance or place in
which he has reason to believe any narcotic drug or
psychotropic substance or control substance in respect of
which an offence punishable under this Act has been
committed or any document or other article which may
furnish evidence of the commission of such offence or
any illegally acquired property or any document or other
article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act is
kept or concealed.
(2) Any such officer of gazetted rank of the
Departments of Central Excise, Narcotics, Customs,
Revenue Intelligence or any other Department of the
Central Government including the para-military forces or
the armed forces as is empowered in this behalf by
general or special order by the Central Government, or
any such officer of the Revenue, Drugs Control, Excise,
Police or any other Department of a State Government as
is empowered in this behalf by general or special order of
the State Government, if he has reason to believe from
personal knowledge or information given by any person
and taken in writing that any person has committed an
offence punishable under this Act or that any narcotic
drug or psychotropic substance or control substance in
respect of which any offence punishable under this Act
has been committed or any document or other article
which may furnish evidence of the commission of such
offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of
this Act is kept or concealed in any building, conveyance
or place, may authorise any officer subordinate to him
but superior in rank to a peon, sepoy, or a constable to
arrest such a person or search a building, conveyance or
place whether by day or by night or himself arrest such a
person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section
(1) is addressed and the officer who authorised the arrest
or search or the officer who is so authorised under sub-
section (2) shall have all the powers of an officer acting
under Section 42.
42. Power of entry, search, seizure and arrest without
warrant or authorisation. - (1) Any such officer (being
an officer superior in rank to a peon, sepoy or constable)
of the Departments of Central Excise, Narcotics,
Customs, Revenue Intelligence or any other Department
of the Central Government including paramilitary forces
or armed forces as is empowered in this behalf by general
or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy
or constable) of the Revenue, Drugs Control, Excise,
Police or any other Department of a State Government as
is empowered in this behalf by general or special order of
the State Government, if he has reason to believe from
person's knowledge or information given by any person
and taken down in writing that any narcotic drug, or
psychotropic substance, or control substance in respect of
which an offence punishable under this Act has been
committed or any document or other article which may
furnish evidence of the commission of such offence or
any illegally acquired property or any document or other
article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act is
kept or concealed in any building, conveyance or
enclosed place, may, between sunrise and sunset, -
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to
be liable to confiscation under this Act and any document
or other article which he has reason to believe may
furnish evidence of the commission of any offence
punishable under this Act or furnish evidence of holding
any illegally acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of this Act
and;
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act:
Provided that in respect of holder of a license or
manufacture of manufactured drugs or psycotropic
substances or control substances, granted under this Act
or any rule or order made thereunder, such power shall be
exercised by an officer not below the rank of sub-
inspector:
Provided further that if such officer has reason to believe
that a search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed
place at any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto, he shall, within seventy-
two hours send a copy thereof to his immediate official
superior.‖
(Emphasis supplied)
The impugned order and judgment discloses that no such ground was
ever taken, by the appellant, before the learned ASJ. No such ground
is to be found, even in the grounds of appeal filed in the present case.
Examination of this ground would, require the Court to going into
disputed facts and, as this ground does not figure, either in the
judgment of the learned ASJ, or in the grounds of the appeal before
this Court, ordinarily, there is no reason why this Court should permit
the appellant to urge such a ground, for the first time.
33. That apart, apropos Sections 41 and 42 of the NDPS Act, the
Supreme Court has, in M. Prabhulal v. Assistant Director,
Directorate of Revenue Intelligence, (2003) 8 SCC 449, held thus (in
para 41 of the report):
―Section 41(1) which empowers a Magistrate to issue
warrant for arrest of any person whom he has reason to
believe to have committed any offence punishable under
the NDPS Act or for search, has not much relevance for
the purpose of considering the contention. Under Section
41(2) only a Gazetted Officer can be empowered by the
Central Government or the State Government. Such
empowered officer can either himself make an arrest or
conduct a search or authorize an officer subordinate to
him to do so but that subordinate officer has to be
superior in rank to a peon, a sepoy or a constable. Sub-
section (3) of Section 41 vests all the powers of an officer
acting under Section 42 on three types of officers (i) to
whom a warrant under sub-section (1) is addressed, (ii)
the officer who authorized the arrest or search under sub-
section (2) of Section 41, and (iii) the officer who is so
authorized under sub-section (2) of Section 41.
Therefore, an empowered Gazetted Officer has also all
the powers of Section 42 including the power of seizure.
Section 42 provides for procedure and power of entry,
search, seizure and arrest without warrant or
authorization. An empowered officer has the power of
entry into and search of any building, conveyance or
place, break open any door, remove obstruction, seize
contraband, detain, search and arrest any person between
sunrise and sunset in terms provided in sub-section (1) of
Section 42. In case of an emergent situation, these powers
can also be exercised even between sunset and sunrise
without obtaining a search warrant or authorization, in
terms provided in the proviso to sub-section (1) of
Section 42. Sub-section (2) of Section 42 is a mandatory
provision. In terms of this provision a copy of
information taken down in writing under sub-section (1)
or ground recorded for the belief under the proviso
thereto, is required to be sent by the officer to his
immediate superior official. It is clear from Section 41(2)
that the Central Government or State Government, as the
case may be, can only empower an officer of a gazetted
rank who can either himself act or authorize his
subordinate on the terms stated in the section. Under sub-
section (1) of Section 42, however, there is no restriction
on the Central Government or the State Government to
empower only a Gazetted Officer. But on an officer
empowered under sub-section (1) of Section 42, there are
additional checks and balances as provided in the proviso
and also provided in sub-section (2) of Section 42. It is
clear from the language of sub-section (2) of Section 42
that it applies to an officer contemplated by sub-section
(1) thereof and not to a Gazetted Officer contemplated by
sub-section (2) of Section 41, when such a Gazetted
Officer himself makes an arrest or conducts search and
seizure. It would be useful to also notice Section 43
which relates to power of seizure and arrest in a public
place. Any officer of any of the departments mentioned in
Section 42 is empowered to seize contraband etc. and
detain and search a person in any public place or in
transit on existence of ingredient stated in Section 43. It
can, thus, be seen that Sections 42 and 43 do not require
an officer to be a Gazetted Officer whereas Section 41(2)
requires an officer to be so. A Gazetted Officer has been
differently dealt with and more trust has been reposed in
him can also be seen from Section 50 of the NDPS Act
which gives a right to a person about to be searched to
ask for being searched in the presence of a Gazetted
Officer. The High Court is, thus, right in coming to the
conclusion that since the Gazetted Officer himself
conducted the search, arrested the accused and seized the
contraband, he was acting under Section 41 and,
therefore, it was not necessary to comply with Section
42.‖
(Emphasis supplied)
34. In para 42 of the report in Ritesh Chakravarti v. State of
M.P.,MANU/DE/2281/2014 the Supreme Court holds that the officer
who had conducted the search in that case, ―being a Superintendent of
Bureau was a gazetted Officer‖. In the judgment of the High Court of
Madhya Pradesh, in Hardeo Singh v. Central Bureau of Narcotics,
(2004) 2 MPLJ 541, too, it is observed that the Superintendent of the
CBN, who had conducted the raid, was a gazetted Officer. The
website of the CBN, i.e. www.cbn.nic.in, too, indicates that the
Superintendent in the Preventive and Intelligence Cell is a Group ‗B'
Gazetted Officer. PW-1 M. K. Gupta was also, admittedly, a
Superintendent in the CBN, at the time when the search, in the present
case, was conducted by the raiding team. The ground of infraction of
sub- section (2) of Section 42, besides having been taken for the first
time during arguments in the present case, also merits rejection in
view of the above, as, in his capacity as Superintendent in the
Preventive wing of the CBN, PW-1 must also have been a gazetted
Officer. The judgment of the Supreme Court in U.O.I. v. Satrohan,
(2008) 8 SCC 313, is also relevant in this context, inasmuch as the
said judgment holds that, where the search is itself conducted by a
gazetted Officer, no further compliance with Section 42 of the NDPS
Act, is necessitated. In view thereof, this contention, advanced by Mr.
Bhandari is rejected.
35. In the context of Section 42(2) of the NDPS Act, the following
passages, from Karnail Singh v. State of Haryana, (2009) 8 SCC
539, too, merit reproduction:
―32. Under Section 42(2) as it stood prior to the
amendment, such empowered officer who takes down
any information in writing or records the grounds under
the proviso to Section 42(1) should forthwith send a copy
thereof to his immediate official superior. If there is total
non-compliance with this provision the same would
adversely affect the prosecution case and to that extent it
is mandatory. But if there is delay, whether it was undue
or whether the same has been explained or not, will be a
question of fact in each case, it is to be concluded that the
mandatory enforcement of the provisions of Section 42 of
the Act non-compliance with which may vitiate a trial has
been restricted only to the provision of sending a copy of
the information written down by the empowered officer to
the immediate official superior and not to any other
condition of the section.
33. Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC
(Cri) 496] had been decided on 1-2-2000 but thereafter
Section 42 has been amended with effect from 2-10-2001
and the time of sending such report of the required
information has been specified to be within 72 hours of
writing down the same. The relaxation by the legislature
is evidently only to uphold the object of the Act. The
question of mandatory application of the provision can be
answered in the light of the said amendment. The non-
compliance with the said provision may not vitiate the
trial if it does not cause any prejudice to the accused.‖
(Emphasis supplied)
36. Except for contending that there had been non-compliance with
the provisions of Section 42(2) of the NDPS Act, Mr. Bhandari has
been unable to demonstrate any prejudice that has resulted to the
appellant, as a consequence thereof. Even on this score, therefore, this
ground of challenge has necessarily to fail.
37. Mr. Bhandari further voiced a complaint that the raiding team
had visited the premises of Aramex after sunset and before sunrise,
without a search warrant, and without recording any reason for doing
so. In this context, the evidence on record indicates that, though the
raiding team reached the premises of Aramex at 11:50 PM on 30 th
March, 2010, the raiding exercise was concluded, and the contraband
and documents taken into possession at 5:15 AM on 31st March, 2010.
It is not possible for this Court to arrive at a factual finding that this
exercise was concluded before sunrise. That apart, no such ground
appears to have been urged either before the learned ASJ, or in the
grounds in the present appeal. This contention of Mr. Bhandari, too,
therefore, does not merit further consideration.
38. Mr. Bhandari also expressed misgivings regarding the manner
in which sampling of the alleged contraband heroin had taken place in
the present case. However, a perusal of the depositions of PW-1, PW-
4 and PW-5, over the members of the raiding party, do not disclose
any stark inconsistency in the manner in which sampling took place.
These depositions corroborate each other in testifying that the heroin
contained in all sixteen slippers was consolidated into one lot, out of
which two samples were withdrawn and sealed. Though Mr. Bhandari
also drew my attention to the deposition of PW-8 Devender Negi,
where he referred to the total quantity of powder found as 4 kg 6
grams, this one inconsistency, in my view, does not detract from the
sum total of the evidence, which makes it clear that the total quantity
of powder found in the parcel was 460 grams, with the gross weight of
the parcel being 500 grams.
Was the applicant complicit?
39. All that remains to be considered is, therefore, whether the
appellant had, in fact, booked the aforesaid consignment, containing
the slippers, in which heroin was concealed, at AOL, Ludhiana.
40. The findings of the learned ASJ on this aspect of the matter, as
set out in para 5 (supra), in my view, eminently merit acceptance. As
has been rightly found by the learned ASJ in the impugned judgment,
the photograph of the appellant was reflected on the PAN card, which
was tendered at the time of booking of the parcel at the AOL office at
Ludhiana. The appellant, when questioned on this aspect, during the
recording of his statement under Section 313 of the Cr.P.C., deposed
thus:
―I have nothing to say with respect to the afore-
mentioned facts as I had never applied at any office for
the issuance of the pan card. I however state that the copy
of application form Ex. PW11/A shown to me today has
my photograph affixed on it and also bears my signature.
The photocopy of the matriculation certificate, Ex.
PW11/B is the copy of my matriculation certificate only.
... I further wish to state that the Ex. PW 11/A was got
signed by me from one person called Resham who was an
agent who used to help people to go abroad.‖
(Emphasis supplied)
That the application for issuance of the PAN Card - admitted by the
appellant to be his - was accompanied by Ex. PW-11/A to Ex. PW-
11/B3, stands proved by the evidence of PW-11 Vinda Mahadik,
Divisonal Manager, M/s UTI Technology Services Ltd. Seen in the
light thereof, and in view of the admission, by the appellant, of his
having signed the application, on the basis whereof the PAN Card,
which was submitted at the time of booking of the consignment at the
AOL office at Ludhiana, was issued, and his admission that the
matriculation certificate, submitted at the time of applying for the
PAN Card, also related to him, the link, between the appellant, and the
PAN Card, which was tendered at the time of booking of the
consignment, stands firmly established. Insofar as the evidence of
Ravi (PW-23) is concerned, though the learned ASJ has, rightly,
discountenanced his identification, of the appellant, as it had taken
place within the confines of the Police Station at Ludhiana, Ravi had,
separately, tendered his statement, under Section 67 of the NDPS Act
(Ex. PW-4/B), and again identified the appellant in Court. In view
thereof, there can be little doubt about the fact that the appellant had,
in fact, booked the parcel, for ultimate delivery, at the AOL office at
Ludhiana. The absence of any Test Identification Parade, or any
CCTV recording cannot, in such circumstances, imperil the case of
the respondent, or bolster the case of the appellant.
41. The contention, of Mr. Bhandari, that the case was founded
solely on the statement of Ravi (PW-23) cannot, therefore, be said to
be correct. There is ample evidence, including and excluding the said
statement, to link the appellant to the parcel, which was seized at the
Aramex office at Delhi, and found to contain heroin concealed in
slippers.
The sequitur
42. The sequitur, of the above discussion has, necessarily and
inevitably, to be the confirmation of the decision, of the learned ASJ,
to convict the appellant of having committed the offences under
Section 21 and 23, read with Section 28 of the NDPS Act.
43. However, in the opinion of this Court, the learned ASJ has
erred in invoking sub- section (c) of the said Sections 21 and 23;
rather, as the discussion hereinafter would disclose, the opinion of this
Court is that the appellant would require, instead, to be indicted under
clause (b) of either Section. This, necessarily, would also entail
interference with the sentence awarded, to the appellant, by the
learned ASJ.
44. Section 32B of the NDPS Act reads thus:
―32B. Factors to be taken into account for imposing
higher than the minimum punishment. - Where a
minimum term of imprisonment or amount of fine is
prescribed for any offence committed under this Act, the
court may, in addition to such factors as it may deem fit,
take into account the following factors for imposing a
punishment higher than the minimum term of
imprisonment or amount of fine, namely:-
(a) the use or threat of use of violence or arms
by the offender;
(b) the fact that the offender holds a public
office and that he has taken advantage of that
office in committing the offence;
(c) the fact that the minors are affected by the
offence or the minors are used for the commission
of an offence;
(d) the fact that the offence is committed in an
educational institution or social service facility or
in the immediate vicinity of such institution or
faculty or in other place to which school children
and students resort for educational, sports and
social activities.;
(e) the fact that the offender belongs to
organised international or any other criminal group
which is involved in the commission of the
offences; and
(f) the fact that the offender is involved in other
illegal activities facilitated by commission of the
offence.‖
45. In its recent decision in Rafiq Qureshi v. Narcotic Control
Bureau Eastern Zonal Unit, 2019 SCC Online SC 666, the Supreme
Court observes that Section 32B is a provision which was enacted in
order to rationalize the sentencing structure under the NDPS Act. In
view of the use of the words ―as it deems fit‖, found in Section 32B
(supra), the Supreme Court has held that the court, sentencing the
accused under the NDPS Act, is ordinarily required to limit the term
of imprisonment to the minimum as prescribed under the relevant
provision of the said Act, but possesses, nevertheless the latitude to
incarcerate the accused for longer periods, for reasons to be recorded.
These reasons may include one, or more, of the exigencies
contemplated in clauses (a) to (f) of Section 32B but are not limited
thereto. By way of an example, of a situation in which a court could
award more than the minimum sentence prescribed under the NDPS
Act, the Supreme Court cited the quantity of the drug involved as a
relevant consideration, though it does not figure any of the six clauses
(a) to (f) in Section 32B.
46. In the absence, however, of any justification, to award, to an
unsuccessful accused, under the NDPS Act, more than the minimum
sentence prescribed for the offence committed by her/him, the court is
bound to award only the minimum prescribed sentence.
47. No doubt, Section 32B of the NDPS Act may not, stricto sensu,
applying the present case, as no minimum period of incarceration the
stipulated, either in clause (b) of Section 21, or in clause (b) of Section
23 of the said Act. Even so, if the offence committed by the appellant
is to be relatable to clause (b) of these Sections, applying the raison d'
etre guiding the judgment of the Supreme Court in Rafiq Qureshi
(supra), the Court would, ordinarily, not impose, on the accused, the
maximum punishment impossible under the said clauses, unless and
until there are compelling circumstances justifying such imposition.
48. It still remains to be examined, however, whether the
invocation, by the learned ASJ, of clause (c), of Section 21 and
Section 23 of the NDPS Act read with Section 28 thereof, was, or was
not, justified.
49. Before examining this issue, however, it would be appropriate
to briefly allude to Sections 21, 23 and 28 of the NDPS Act.
50. Section 21 deals with manufacturing, possessing, selling,
purchasing, transporting, importing inter-state, exporting inter-state
and using of any manufactured drug or any preparation containing any
manufactured drug. Heroin is, undoubtedly, a manufactured drug.
51. The expression ―to export inter-state‖ and to ―import inter-
state‖ are defined, in clauses (xxvii) and (xxiv) of Section 2 of the
NDPS Act, in the following terms:
―(xxvii) ―to export inter-State‖ means to take out of a
State or Union territory in India to another State or Union
territory in India;
xxxxx
(xxiv) ―to import inter-State‖ means to bring into a State
or Union territory in India from another State or Union
territory in India;‖
52. Section 21 could, therefore, be invoked against the appellant, to
the extent it deals with ―possessing‖ and ―exporting inter-state‖ of
heroin, as the charge against the appellant included the allegation of
his having booked the consignment at Ludhiana, for onward
transportation to Delhi, which would involve ―export inter-state‖
within the meaning of clause (xxvii) and (xxiv) of Section 2 of the
NDPS Act.
53. Section 23 deals with ―import into India‖, ―export from India‖
and ―transshipment‖ of narcotic drugs or psychotropic substance.
Obviously, the facts of the present case do not involve either import
into India or transshipment, of any narcotic drugs or psychotropic
substance, by the appellant.
54. The expression ―export from India‖, however, stands defined, in
clause (xxvii) of Section 2 of the NDPS Act, thus:
―(xxvii) ―to export inter-State‖ means to take out of a
State or Union territory in India to another State or Union
territory in India;‖
55. The allegation against the appellant - which has been found, by
me, to be substantiated by the material on record - is not that the
appellant exported heroin from India, but that he had attempted to
export heroin, as the heroin was intercepted and seized before it could
leave India.
56. The appellant could not, therefore, directly be convicted under
Section 23 of the NDPS Act. The act of attempting to export a narcotic
drug from India would, however, be punishable under Section 23 read
with Section 28 of the NDPS Act, inasmuch as Section 28 covers
punishment for attempts to commit offences, and reads as under:
―28. Punishment for attempts to commit offences.-
Whoever attempts to commit any offence punishable
under this Chapter or to cause such offence to be
committed and in such attempt does any act towards the
commission of the offence shall be punishable with the
punishment provided for the offence.‖
57. I have concurred, with the learned Single Judge insofar as the
impugned judgment holds that the appellant had, in fact, booked the
heroin, at AOL, Ludhiana, for export to Spain, from the office of
Aramex, New Delhi, and as the consignment was intercepted and
seized before it could be exported, the appellant, undoubtedly, would
be guilty of having committed the offences committed by Section 21,
and Section 23 read with Section 28 of the NDPS Act.
58. That brings the discussion to the point of determining whether
the learned ASJ has correctly invoked clause (c) of Section 21 and
Section 23 of the NDPS Act.
59. Sentences, under the NDPS Act, have been made dependent on
the quantity of narcotics drug/psychotropic substance, with which the
accused has been found to be dealing. Separate sentences have been
prescribed for dealing with ―small quantity‖ as compared with
―commercial quantity‖ of the narcotics drug/psychotropic substance in
question, or with any quantity in between - generally referred to as
―intermediate‖ quantity.
60. The learned ASJ has, in the present case, awarded the appellant
the sentence of 10 years' RI, which is the minimum sentence
prescribed for dealing with contraband heroin, of commercial quantity,
as per Section 21 (c) of the NDPS Act. He has proceeded on the
premise that the appellant was found involved in illegal export of 450
grams heroin.
61. This, however, is an incorrect finding, as the heroin, on testing
by the CRCL, was found to be of only 1.4 %, purity w/w. 1.4 % of
460 grams works out approximately to 6.44 gm., which is less than the
commercial quantity of heroin, as prescribed vide notification No.
S.O.4527 (E) dated 16th September, 1996, which is 250 grams.
62. Assuming the charge against him to be sustainable, the
appellant would have been guilty of attempting to export heroin which
was, therefore, greater than ―small‖ but less than ―commercial‖
quantity. This would, therefore, expose him to punishment not under
clause (c) but under clause (b) of Section 21 of the NDPS Act, for
which, though a maximum period of 10 years' incarceration is
stipulated, there is no minimum period of incarceration. The present
case would not, in the opinion of this Court, justify awarding, to the
accused, the maximum punishment of 10 years' RI, imposable for the
offence committed by him.
Basis for the above findings - How the quantity of heroin is to be
worked out
63. There is a litany of authorities to the effect that, while punishing
a person under the NDPS Act for dealing in heroin, the actual quantity
of heroin contained in the goods found with the person/ with which he
is dealing.
E.Micheal Raj v. Intelligence Officer, NCB, (2008) 5 SCC 161.
64. One of the most oft-cited decisions, on this aspect, is E.
Micheal Raj v. Intelligence Officer, NCB, (2008) 5 SCC 161.
65. In the said case, two persons - one of whom happened to be E.
Micheal Raj - were arrested on the ground that they were carrying
4.07 kg of heroin. Two samples, of 5 grams each, were retrieved from
the said quantity and subjected to test. The purities of heroin in the
said two samples were found to be 1.4 and 1.6 %.
66. E. Micheal Raj was charged with, and convicted, for having
committed the offence contemplated by Section 8(c) read with
Sections 21 and 29 of the NDPS Act. Having failed in appeal before
the High Court of Kerala, E. Micheal Raj moved the Supreme Court.
67. The only contention advanced, on behalf of E. Micheal Raj
before the Supreme Court, was that the courts below had erred in
treating the quantity of heroin, being carried by him, as 4.07 kg.
Drawing a mention to the fact that the purity of the two samples of
heroin drawn out of the drug found in his possession was only 1.4 %
and 1.6 %, E. Micheal Raj contended that the total quantity worked
out to only 60 grams, which was less than the stipulated commercial
quantity of 250 grams.
68. The issue arising before it for consideration was delineated, in
para 8 of its judgment, by the Supreme Court, thus:
―8. The provisions of the NDPS Act were amended by
the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2-10-
2001), which rationalised the punishment structure under
the NDPS Act by providing graded sentences linked to
the quantity of narcotic drugs or psychotropic substances
carried. Thus, by the aending Act, the sentence structure
changed drastically. ―Small quantity‖ and ―commercial
quantity‖ were defined under Section 2(xxiii-a) and
Section 2(vii-a) respectively. New Section 21 also
provides for proportionate sentence for possessing small,
intermediate and commercial quantities of offending
material. As per Entry 56 of the Notification dated 19-10-
2001 issued by the Central Government which deals with
heroin, small quantity has been mentioned as 5 gm and
commercial quantity has been mentioned as 250 gm. So,
the basic question for decision is whether the
contravention involved in this case is small, intermediate
or commercial quantity under Section 21 of the NDPS
Act, and whether the total weight of the substance is
relevant or percentage of heroin content translated into
weight is relevant for ascertaining the quantity recovered
from the accused.‖
(Emphasis supplied)
69. Paras 15 and 20 of the judgment in E. Micheal Raj (supra) sets
out the law enunciated therein, and read thus:
―15. It appears from the Statement of Objects and
Reasons of the amending Act of 2001 that the intention of
the legislature was to rationalise the sentence structure so
as to ensure that while drug traffickers who traffic in
significant quantities of drugs are punished with deterrent
sentence, the addicts and those who commit less serious
offences are sentenced to less severe punishment. Under
the rationalised sentence structure, the punishment would
vary depending upon the quantity of offending material.
Thus, we find it difficult to accept the argument advanced
on behalf of the respondent that the rate of purity is
irrelevant since any preparation which is more than the
commercial quantity of 250 gm and contains 0.2% of
heroin or more would be punishable under Section 21(c)
of the NDPS Act, because the intention of the legislature
as it appears to us is to levy punishment based on the
content of the offending drug in the mixture and not on
the weight of the mixture as such. This may be tested on
the following rationale. Supposing 4 gm of heroin is
recovered from an accused, it would amount to a small
quantity, but when the same 4 gm is mixed with 50 kg of
powdered sugar, it would be quantified as a commercial
quantity. In the mixture of a narcotic drug or a
psychotropic substance with one or more neutral
substance(s), the quantity of the neutral substance(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.
xxxxx
20. In the present case, the narcotic drug which was
found in possession of the appellant as per the analyst's
report is 60 gm which is more than 5 gm i.e. small
quantity, but less than 250 gm i.e. commercial quantity.
The quantity of 60 gm is lesser than the commercial
quantity, but greater than the small quantity and, thus, the
appellant would be punishable under Section 21(b) of the
NDPS Act. Further, it is evident that the appellant is
merely a carrier and is not a kingpin.‖
Ansar Ahmed v. State, 2005 SCC OnLine Del 919
70. In this case, as in the present, 500 grams of heroin was
recovered from the appellant, and test of two samples, of 5 grams each
therefrom, confirmed the presence of powder. However, the
percentage of diacetylmorphine (heroin) was reported as 0.2 percent.
71. Following earlier decisions, the single Bench of this Court,
comprising Badar Durrez Ahmed, J. (as his lordship then was),
observed thus:
―12. It is, therefore, Entry 56 which shall apply. The
quantities of heroin (diacetylmorphine) specified therein
are by weight. Keeping in mind that the object of
introducing this classification was to rationalise the
sentencing 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‖, it does appear to me that what
has to be seen is the content of heroin by weight in the
mixture and not the weight of the mixture as such.
Otherwise, anomalous consequences would follow.
While a recovery of 4 grams of heroin would amount to a
small quantity, the same 4 grams mixed up with say 250
grams of powdered sugar would be quantified as a
―commercial quantity‖! And, where would this absurdity
stop? Suppose one were to throw a pinch of heroin (say
0.5 gram) into a polythene bag containing small steel ball
bearings having a total weight of 1kg: would the steel ball
bearings be also weighed in and it be declared that a
commercial quantity (1000.5 grams) of heroin was
recovered! Surely, it is only the content of heroin (0.5
gram) in the ―mixture‖ of heroin and steel ball bearings
that is relevant? Clearly, then, it would qualify as a small
quantity. Therefore, in a mixture of a 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 in considering whether a
small quantity or a commercial quantity of the narcotic
drug or psychotropic substance is recovered. Only the
actual content by weight of the narcotic drug or the
psychotropic substance (as the case may be) is relevant
for determining whether it would constitute a "small
quantity" or a "commercial quantity"."
(Emphasis supplied)
72. Having observed, and after referring to various other decisions
on the point, this Court held, in para 20 of the report, as under:
―....I reiterate that in a mixture of a 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 is recovered. Only the
actual content by weight of the narcotic drug or the
psychotropic substance (as the case may be) is relevant
for determining whether it would constitute a "small
quantity" or a "commercial quantity‖.‖
(Emphasis supplied)
Ravinder Kumar v. NCT of Delhi, 2010 SCC Online Del 2290
73. In Ravinder Kumar (supra), the following question arose, for
consideration and determination by this Court:
―Whether the percentage of morphine in a sample of
opium can by itself be determinative of the purity of the
sample and whether such test is relevant or necessary for
the purpose of considering the grant of bail or of
awarding of sentence in terms of Section 18 read with
Section 37 of the NDPS?‖
74. In this case, 5 kg of opium was recovered from the appellant,
which was found to contain 0.24% morphine. The appellant
contended that, determined on the basis of the morphine contained
thereof, the weight of the opium recovered from him would be only 12
grams, which was a ―small quantity‖.
75. The matter reached the Division Bench of this Court consequent
on a reference made by a learned Single Bench, wherein it was noticed
that, on the question of relevance of the percentage of morphine, in
opium recovered under the NDPS Act, divergent views had been
expressed, by two single Benches of this Court, in Mohd. Irfan v.
State (Crl.A. 460/2005) and Rajender Kumar v. State (Crl.A.
436/2007).
76. The learned Single Judge also noticed the judgment of the
Supreme Court in E. Micheal Raj (supra) as well as of this Court in
Ansar Ahmed (supra), and observed that these decisions would not be
applicable to the case before him, as he was dealing with opium,
whereas the allegedly contraband narcotic, recovered in E.Micheal
Raj (supra) and Ansar Ahmed (supra), was heroin.
77. The Division Bench, adjudicating the said reference in
Ravinder Kumar (supra), observed that this distinction, as drawn by
the learned Single Judge, between the situation which obtained in
E.Micheal Raj (supra) and Ansar Ahmed (supra), vis-à-vis that
which obtained in Ravinder Kumar (supra) was apt. Having so
noticed, the Division Bench proceeded to decide the matter, observing
that the contraband seized, in the case before it, was not morphine, but
opium. The ―small‖ and ―commercial‖ quantities which found place in
the table annexed to the relevant notification, it was observed, were in
the context of opium and not morphine. As such, the Division Bench
held, in Ravinder Kumar (supra), that the percentage of morphine
found in the sample seized from the appellant Ravinder Kumar, and
subjected to testing, was irrelevant.
78. The ultimate decision in Ravinder Kumar (supra) is not of
significance, so far as the present case is concerned; however, the
distinction drawn, between the situation that obtained in E.Micheal
Raj (supra) and Ansar Ahmed (supra), vis-à-vis that which obtained
in Ravinder Kumar (supra), is undoubtedly significant, as well as
relevant, for the present controversy.
Abdul Mateen v. UOI 201, SCC OnLine Del 5662 and Hira Singh v.
UOI, (2017) 8 SCC 162
79. The judgment in Abdul Mateen (supra), which was also
rendered by a Division Bench of this Court, sought quashing of
notification dated 18th November, 2009, issued by the Department of
Revenue, specifically with respect to the amendment, effected by the
said notification, to the earlier notification dated 19 th October, 2001,
by insertion of Note (IV) after the Table in the later notification. Prior
to the said amendment, there were, below the Table in the notification
dated 19th October, 2001, the following three Notes:
―Note. - 1. The small quantity and the commercial
quantity given against the respective drugs listed above
apply to isomers, within specific chemical designation,
the esters, ethers and salts of these drugs, including salts
of esters, ethers and isomers; whenever existence of such
substance is possible.
2. The quantities shown against the respective drugs
listed above also apply to the preparations of the drug and
the preparations of substances of note 1 above.
3. ―Small quantity‖ and ―Commercial Quantity‖ with
respect to cultivation of opium poppy is not specified
separately as the offence in this regard is covered under
clause (c) of section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.‖
80. The notification dated 18th November, 2009, which Abdul
Mateen sought to challenge, added, below Note 3 (supra), the
following note:
―In the Table at the end after Note 3, the following Note
shall be inserted, namely:-
(4) The quantities shown in column 5 and
column 6 of the Table relating to the respective
drugs shown in column 2 shall apply to the entire
mixture or any solution or any one or more
narcotic drugs or psychotropic substances of that
particular drug in dosage form or isomers, esters,
ethers and salts of these drugs, including salts of
esters, ethers and isomers, wherever existence of
such substances is possible and not just its pure
drug content.‖
81. The Division Bench of this Court, speaking through Badar
Durrez Ahmed, J. (as his lordship then was) noted, at the outset, that
the judgment of the Supreme Court in E. Micheal Raj (supra) had
settled the legal possession prior to the issuance of the notification
dated 18th November, 2009 (supra), by holding that when any narcotic
drug or psychotropic substance was found mixed with one or more
neutral substance(s), then, for imposition of punishment, it was only
the content of the narcotic drug or psychotropic substance which had
to be taken into consideration. The impugned note IV, below the table
in notification dated 18th November, 2009 (supra), it was observed,
sought to alter this position by treating the quantity of the entire
mixture as the quantity of the drug, or of one drug, or psychotropic
substance, covered by serial no. 239 of the notification dated 19th
October, 2001(supra). Cases where the drug was mixed with a neutral
substance were dealt with, for the first time, in the judgment of the
Supreme Court in E. Micheal Raj (supra). It was further observed that
such cases came within the purview of Note 4, as introduced below
the table in the notification dated 19th October, 2001(supra).
82. The Division Bench held that the Central Government acted,
within the power, conferred on it, by Section 21 of the NDPS Act, in
inserting Note 4 below Note 3 in notification dated 19 th October, 2001
(supra) was, therefore, upheld.
83. The judgment of the Supreme Court in Hira Singh (supra) was
in an appeal against the judgment of this Court in Abdul Mateen
(supra). The Supreme Court noticed the law, as enunciated in E.
Micheal Raj (supra) in the following words:
―8. The principle stated in this decision is that the rate
of purity of the drug is decisive for determining the
quantum of sentence--for ―small‖, ―intermediary‖ or
―commercial‖ quantity. The punishment must be based
on the volume or content of the offending drug in the
mixture and not on the aggregate weight of the mixture as
such. In other words, the quantity of the neutral substance
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 purpose of determining the quantity with reference
to the quantum of punishment.
9. The judgment, however, after quoting the
Notification dated 19-10-2001 took note of the purpose
for which Amendment Act of 2001 was brought into
force and then proceeded to hold that to achieve the said
purpose of rationalisation of the sentence structure, the
purity of the narcotic drug from the recovery or seizure
made from the offender would be a decisive factor. In
other words, the actual content or weight of the narcotic
drug or psychotropic substance alone should be
reckoned.‖
84. Though the case was referred to a larger Bench, for
authoritative determination, the two-Judge Bench, adjudicating Hira
Singh (supra), held that the judgment in E. Micheal Raj (supra) had
interpreted Section 21 of the NDPS Act and that, therefore, the said
interpretation would bind the Supreme Court. No decision of the
Larger Bench, consequent to the reference made, thereto, in Hira
Singh (supra), it may be noted, has been rendered as yet. The
reference continues to pend.
85. Once the Supreme Court, in Hira Singh (supra), held that the
interpretation, placed on Section 21 of the NDPS, by its earlier
decision in E. Micheal Raj (supra) would bind it, it is obvious that the
said decision would also bind this Court, adjudicating the present case.
86. The position that obtains, in view of Hira Singh (supra), is
therefore, that it is the actual quantity of heroin, in which the accused
under the NDPS Act is found to be involved, which would be relevant,
for the purposes of determining the punishment which would be
awarded to her, or him, under the said Act, and not the total quantity
of powder seized from the accused.
Prahlad Meena v. State, 2016 VII AD (Del) 183
87. The appellant Prahlad Meena, in this appeal, was convicted
under Section 21 (C) of the NDPS Act, on the ground of being found
to be in unlawful possession of 1.7 kg of heroin, which was found to
contain 3.2% of diacetylmorphine and 1.2% phenobarbital.
88. It was observed, by this Court, that the incident pertained to 16th
June, 2009, prior to the promulgation of Notification, dated 18th
November, 2009, whereby the entire weight of the substance, in
question, recovered from the accused, was required to be taken into
account in determining whether the quantity was small or commercial,
and not merely the pure drug contained therein. This Notification, it
was noticed, effectively neutralized the law enunciated in E. Micheal
Raj (supra) and Ansar Ahmed (supra). Observing that, being in the
nature of a legislation, the notification dated 18th November, 2009,
could not apply to the case of the appellant, which related to 16th June,
2009 this Court held, following E. Micheal Raj (supra), that the
learned trial court had erroneously treated the quantity recovered from
the appellant Prahlad Meena as ―commercial‖ whereas it was actually
―intermediate‖, i.e., between ―small‖ and ―commercial‖.
89. The sentence of ten years incarceration awarded to the appellant
in that case was, therefore, reduced to five years.
Rafiq Qureshi v. NCB, 2018 SCC Online Cal 1057 and Rafiq
Qureshi v. NCB, 2019 SCC OnLine SC 666
90. Six packets, containing heroin, were, in this case, recovered
from Rafiq Qureshi, the convicted petitioner before the High Court.
The gross weight of the powder was found to be 8.175 kgs. Two
samples, 5 grams each, from each of the said six bags, of which one
sample from each bag was tested. The six samples thus tested
disclosed presence of heroin, with percentage purities of 6.1%, 5.4%,
5.8%, 4.9%, 10.4 % and 26.8%. The learned trial court convicted the
appellant Rafiq Qureshi under Section 21(c) of the NDPS Act and
sentenced him to 18 years' RI apart from fine of ₹ 2 lakh with 12
months SI stipulated as the default sentence.
91. Before the High Court in appeal, one of the contentions
advanced by Rafiq Qureshi was that the total quantity of heroin
carried by/recovered from him, was 609.6 grams and not 8.175 kg, as
wrongly held by the court below.
92. Holding that the quantity of heroin contained in the powder
seized from the accused Rafiq Qureshi was far in excess of the
maximum stipulated commercial quantity of 250 grams, the Division
Bench of the High Court of Calcutta held that E. Micheal Raj (supra)
could not come to the rescue of the petitioner, and that his case has
rightly been brought under Section 21 (c) of the NDPS Act. Following
therefrom, the High Court opined that the penalty of 18 years' RI
alongwith fine of ₹ 2 lakhs, awarded to the petitioner by the learned
trial court was excessive and, reduced the said sentence, accordingly,
to 16 years' RI with fine of ₹ 2 lakhs and default SI of six months.
93. The above judgment of the High Court of Calcutta was carried
in appeal to the Supreme Court.
94. The Supreme Court, vide its judgment in Rafiq Qureshi
(supra), concurring with the view of the High Court, held, in the
concluding para 24 of its judgment, thus:
"In the present case, the High Court held that although
gross quantity of 8.175 Kg. of Heroin was alleged to have
been recovered from the appellant but actual quantity of
Heroin which was found to be in possession was only
609.6 gm. The High Court held that since the appellant
was found in possession of Narcotic Drugs as per the
analysis report to 609.6 gm. which is much higher than
the commercial quantity, punishment higher than the
minimum is justified. The High Court reduced the
punishment from 18 years to 16 years. We, thus, uphold
the judgment of the trial court and the High Court
awarding the punishment higher than the minimum,
however, looking to all the facts and circumstances of the
present case including the fact that it was found by the
High Court that the appellant was only a carrier, we find
that the ends of justice will be sub-served in reducing the
sentence from 16 years to 12 years. Thus, while
maintaining the conviction of the appellant the appellant
is sentenced to undergo 12 years rigorous imprisonment
with fine of Rs. 2 lakh and in default of payment of such
fine the appellant shall further undergo for a simple
imprisonment for six months. The appeal is partly
allowed to the extent as indicated above."
95. Applying, to the facts of the present case, the ratio that emerges
from the reading of the above decisions, the substance in question
being heroin, the law as enunciated in E. Micheal Raj (supra), as
concretized in the recent decision of the Supreme Court in Hira Singh
(supra), would stand attracted. Applying the said law, the quantity of
heroin recovered from the appellant, in the present case, would be 1.4
% of 460 grams i.e. 6.44 grams and not 460 grams as the learned ASJ
has held. This is only marginally in excess of 5 grams, which has been
notified as the quantity which would be liable to be treated as ―small‖,
for the purpose of applicability of, inter alia, Sections 21 and 23 of the
NDPS Act, vide Notification S. O. 1055 (E) dated 19th October, 2001,
issued by the Department of Revenue, Ministry of Finance.
96. The finding of the learned ASJ, on this aspect, is, therefore,
necessarily liable to be faulted both factually as well as legally. The
corollary emerging from this factual position, applying the extant law
in respect thereof, would be that the appellant would be liable only to
the minimum sentence which could be awarded to a person dealing
with heroin which was more than the ―small‖ but less than
―commercial‖ quantity, as stipulated in the Notification dated 19th
October, 2001.
97. Dealing in heroin of small quantity attracts a maximum
punishment of 1 year (at the relevant time) RI, whereas dealing with
heroin of commercial quantity, or more, attracts a minimum of 10
years' RI. Intermediate quantity, i.e., between the stipulated ―small‖
and ―commercial‖ quantities, would, therefore, attract punishment
between one year and ten years, but could not be pegged at ten years,
unless there was wealth of adequate reasons supporting the said
decision. The judgment in Rafiq Qureshi (supra) observes that the
quantity of the offending drug, with which the accused was found to
be dealing, is a valid factor, to be taken into consideration while
determining the quantum of sentence to be awarded. Tested on this
touchstone, the present case clearly does not warrant awarding, to the
appellant, of the maximum punishment of 10 years' RI, which would
be impossible, under clause (b), whether of Section 21, or of Section
23 read with Section 28, of the NDPS Act.
98. As per the Nominal Roll provided by the jail authorities, the
appellant has already suffered incarceration of seven years and eight
months.
99. In the opinion of this Court, the punishment suffered by the
appellant is, therefore, more than adequate, for the offence with which
he had been charged and of which he had been convicted.
100. In the above circumstances, the impugned judgment, dated 3rd
August, 2015, and the order on sentence, dated 4th August, 2015, stand
modified by upholding the conviction of the appellant, but under (i)
clause (b) of Section 21 and (ii) clause (b) of Section 23 read with
Section 28 of the NDPS Act, rather than clause (c) of the said
Sections, whereunder the learned ASJ has convicted the appellant. The
sentence awarded to the appellant shall stand reduced to the period of
incarceration already undergone by him.
101. The appeal is allowed to the above extent. The appellant would
be entitled to be released forthwith, unless his incarceration is required
for any other reason.
102. Trial Court record be returned forthwith.
C. HARI SHANKAR, J
JULY 08, 2019
dsn
