Punjab-Haryana High Court
Lal Chand vs State Of Haryana on 22 July, 2011
Author: A.N. Jindal
Bench: Satish Kumar Mittal, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 682-DB of 2004
Date of decision: July 22, 2011
Lal Chand
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice Satish Kumar Mittal
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Amit Aggarwal, Advocate for the appellant.
Mr. S.S. Randhawa, Addl. A.G. Haryana for the respondent.
***
A.N. Jindal, J Vide judgment dated 18.5.2004 passed by Special Judge, Sonepat, Lal Chand acused- appellant (herein referred as,'the accused') was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred as, 'the Act') for having in his possession 13 kgs of Opium. Consequently, he was sentenced to undergo rigorous imprisonment for 14 years and to pay fine of `1.00 lakh, in default to undergo rigorous imprisonment for 14 months.
On 8.3.2003, SI/SHO Shiv Kumar, GRP Sonepat along with other police officers was present in front of the Railway Yard, Goods Godown, Sonepat for checking in connection with operation 'Alert'. At about 12.09 noon, the accused alighted from the "Delux Express" bearing No.2925 at platform No.2, Sonepat with a grey coloured bag in his right hand. On seeing the police party, the accused retraced his steps. On suspicion he was apprehended. Upon giving option of search vide notice Ex.PE, the accused opted to get himself searched before Gazetted Officer. Incidentally, Ravi Azad, SP GRP, Ambala Cantt. had also visited Sonepat in connection with the aforesaid operation 'Alert', therefore, Investigating Officer called him at the spot who after verifying the facts directed the Investigating Officer to effect the search. Upon search, the accused was found in possession of 4 packets of black raxian. On further search, those Criminal Appeal No. 682-DB of 2004 -2- *** four packets were found to be containing opium. On weighment, the said opium was found to be 13 kgs. Out of all the four packets, two samples weighing 20 grams each were taken out from each packet and thereafter all the sample parcels as well as the bulk opium were sealed with the seal bearing impression "SK". These parcels were also counter sealed by the DSP Ravi Azad with his seal bearing impression "RA". Consequently, all the nine parcels along with seal impression so prepared separately were taken into possession vide recovery memo Ex.PD which was signed by Mohan Lal and SI Sahab Singh (Mohan Lal an independent witness resiled later on) and was attested by Ravi Azad Superintendent of Police Railway. Investigating Officer SI/SHO Shiv Kumar sent ruqa Ex.PA to the Police Station, GRP Sonepat, on the basis of which FIR Ex.PA/1 was recorded by ASI Maha Singh. Investigating Officer deposited the case property along with the accused in the police station. On receipt of the report of the Forensic Science Laboratory Ex.PL and on completion of the investigation, charge report was submitted.
The accused was charged under Section 18 of the Act to which he pleaded not guilty and claimed trial.
The prosecution in order to substantiate the charges, examined ASI Maha Singh (PW1), Inder Pal (PW2), C. Rampal (PW3), Mohan Lal (PW4), ASI Sahab Singh (PW5), SI Shiv Kumar (PW6), HC Yudhvir Singh (PW7), Joginder Singh (PW8) and Ravi Azad (PW9).
In his statement under Section 313 Cr.P.C. the accused denied all the allegations and pleaded his false implication in the case. However, no evidence was led in defence.
The trial resulted into conviction.
Arguments heard. Record perused.
The prime contention raised by the learned counsel for the appellant is that Mohan Lal, sole independent witness associated by the Investigating Officer, has not supported the prosecution case, therefore, no reliance could be placed on the testimonies of the police officials who are said to be highly interested in success of their case.
Having pondered over the contention, it cannot be disputed that the Investigating Officer had associated Mohan Lal an independent witness Criminal Appeal No. 682-DB of 2004 -3- *** to attest the recovery memos. He attested recovery memo Ex.PD while signing in Hindi; notice under Section 50 of the Act Ex.PE; memo regarding arrest of the accused Ex.PF and personal search Ex.PG. Though he has not supported the prosecution case, yet, he has not denied having signed the aforesaid recovery memos. He also appears to have concealed a material fact that though he signed in Hindi, yet, he says that he is illiterate. He has nowhere stated if he was under the pressure of the police, but only says that the police had obtained his signatures without reading over the contents thereof to him. Though Mohan Lal in all his discretion, could side track his initial statement, yet, the fate of the case cannot be left at the hands of this witness particularly when three official witnesses examined by the prosecution, namely ASI Sahab Singh (PW5), SI Shiv Kumar (PW6) and Ravi Azad SP (PW9) have consistently stated about the time, place and the manner in which the recovery of thirteen kgs of opium was effected from the accused. All these three witnesses are not alleged to be having animus, enmity or animosity against the accused for implicating him in a false case. Such a huge recovery could not be foisted by them by procuring the contraband from their own sources. Two seals bearing impression "SK" and "RA" affixed by the Investigating Officer on the sample parcels as well as the four packets and the samples when sent to the Forensic Science Laboratory, Madhuban, Karnal, the seals on the samples tallied with the specimen seal impression prepared at the spot and were found to be in tact. It is often seen that the independent witnesses in this part of the country have little or no fear to the perjury which they do while resiling from the evidence of the fact and make blatant reply that they have not even attested the recovery memos, resultantly, the documents which are prepared by the police officials in the ordinary course of their official duties are rendered useless. Had Mohan Lal stated that the signatures were obtained by the police by building pressure upon him, then the court could concentrate over the same, but he has not explained it at all if the signatures on the memos Ex.PD to Ex.PG were the result of coercion or pressure. Mohan Lal, though admits his signatures on the documetns, does not explain as to when and where the police had obtained his signatures, therefore, inference would be drawn that Mohan Lal had signed the documents at the time of recovery. It Criminal Appeal No. 682-DB of 2004 -4- *** would also be significant to note that all the three witnesses examined by the prosecution cannot be biased against the accused in any manner particularly when Ravi Azad is an officer of the status of Superintendent of Police.
The presence of Ravi Azad DSP, also cannot be doubted as the prosecution has duly explained that he was present at Railway Station Sonepat, in connection with the operation 'Alert'. When questioned further, he has stated that he had come at Sonepat at 9.00 a.m. and returned at 4.00 p.m. He is very categorical about the time of his calling by SI Shiv Kumar, when he states that he had reached at about 12.20 noon. SI Shiv Kumar (PW6) has particularly stated that the accused was arrested at 12.09 noon, thereafter, notice under Section 50 of the Act was served upon him. At this, on his request to be searched by Gazetted Officer, he called upon Ravi Azad, therefore, the time of arrival of Ravi Azad Superintendent of Police synchronizes with the time of apprehension of the accused. Further corroboration to the arrival of the accused at the platform No.2 has been made by Inder Pal Khosla (PW2) Station Master Railway Station Sonepat who has stated that the train bearing No.2925-up Pachin Express had arrived at Platform No.2 on 8.3.2003 at about12.09 noon. He has proved the document Ex.PB in this regard. In view of the consistent and un- challenged testimonies of the aforesaid three witnesses, and also in the absence of any explanation as to how he was present at Platform No.2 Railway Station Sonepat and why he was implicated in this case, the presumption with regard to his conscious possession of 13 kgs opium would be drawn against him and the mere fact that the independent witness has resiled from his previous statement would not effect the prosecution version at all.
We also do not countenance the contention raised by the learned counsel for the appellant that there is no compliance of Section 50/52/55/57 of the Act.
As regards the compliance of Section 50 of the Act, it would be suffice to say that it is not a case of personal search, but of a search of grey coloured bag carried by the accused. The law is now well settled that the provisions of Section 50 of the Act are not applicable to the search of Criminal Appeal No. 682-DB of 2004 -5- *** the house, bag, conveyance or any other dwelling unit, but are applicable to the personal search of the accused.
As regards the contention that full report regarding search and seizure was not sent to the Station House Officer, Police Station GRP, Sonepat, it may be observed that Station House Officer along with superior officer, namely Ravi Azad was present at the time of recovery, therefore, no information to the further superior officer was required.
As regards the full report of the search and seizure, SI Shiv Kumar has sent ruqa to the police station which was reduced into writing in the shape of FIR and the said FIR was sent to all the officers superior which would amount to sufficient compliance. However, the provisions of Section 55 are not mandatory in nature and are directory. It has also been observed by the Full Bench of this Court in case State of Punjab vs. Kulwant Singh 1994 (1) R.C.R. (Criminal) 303 that mere violation of Section 55 of the Act would not ipso facto vitiate the trial unless prejudice is shown to have been caused to the accused by such non compliance. Similar, view was taken by the Apex Court in the judgment delivered in case Gurbax Singh v. State of Haryana, 2001 (1) RCR (Criminal) 702 the provisions of Section 52 and 57 are also merely directory and their non compliance does not vitiate the trial.
Still, the another question to be decided in the instant case, raised by the learned counsel for the appellant is that whether there is delay in sending the sample and if so whether it prejudices the rights of the accused.
Having concentrated over the contention,we do not countenance the same as the case property was seized on 8.3.2003, forwarding memo was prepared on 11.3.2003 and the samples were dispatched vide R.C. No.33 dated 14.3.2003, therefore, the time appears to have been consumed in completing the formalities. Even otherwise, there is no such allegations of tampering with the case property, therefore, such minor delay does not come at the rescue of the accused so as to provide him protective umbrella. The accused appears to have not been prejudiced in any manner by sending the samples within six days of the recovery.
Criminal Appeal No. 682-DB of 2004 -6-*** The last contention raised by the learned counsel for the appellant is that when any narcotic drug and psychotropic substance is found mixed with one or more neutral substance, then only morphine contents is to be weighed to find out the actual quantity of opium recovered from the accused. If examined in that light, then the morphine contents of the whole mass would be less than the commercial quantity as provided under the rules and it may not invite maximum sentence which can be awarded to the accused.
Having given our thoughtful consideration, it appears that his arguments, much less are based upon the judgment of the Apex Court delivered in case E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161. The said case pertains to the recovery of heroin. In that situation, the court held that when any narcotic drug or psychotropic substance is found mixed with one more neutral substance for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. Therefore, it will depend upon the morphine content and if this is less than the commercial quantity of morphine, the maximum sentence cannot be awarded.
The Division Bench of this Court in a case of recovery of opium, while distinguishing E. Micheal Raj's case (supra), in case Gurmail Singh alias Gela vs. The State of Punjab, Criminal Appeal No.512-DB of 2006, decided on September 25, 2009 observed as under :-
"Section 2 (xv) of the Act says that opium would mean the coagulated juice of the opium poppy, and any mixture, with or without any neutral material of the coagulated juice of the opium poppy but does not include any preparation containing less (sic) than 0.2 per cent of morphine. A plain reading of the definition makes it very clear that opium is coagulated juice of opium poppy and any other mixture containing contents of juice of opium poppy where morphine content is not more than 0.2%. Section 2 (xx) defines "Preparation" in relation to a narcotic drug or psychotropic substance in a dosage form or Criminal Appeal No. 682-DB of 2004 -7- *** any solution or mixture, in whatever physical state containing one or more such drugs or substances. It means that any preparation which contains more than 0.2% of the morphine can safely be put and described as "opium".
In view of the facts, mentioned above, it is not possible to calculate actual weight of opium by taking note of purity of morphine content in it. If we do that, then the last portion of sub clause (xv) of Section 2 of the Act, which reads thus: "but does not include any preparation containing not more than 0.2 per cent of morphine" shall become redundant. Even in raw opium, morphine content on average will not be more than 8 to 14%. In some cases, depending upon climate, variety of plaint etc. may go down up to 3%. The parameters, which are applicable in the case of heroin, which is an opium derivative, cannot be made applicable to the opium to calculate actual weight. Any contraband, in which morphine content is found more than 0.2% will be opium and charge-sheet may be framed and punishment can be awarded accordingly."
Thus, the Division Bench of this Court, in Gurmail Singh alias Gela's case (supra) was of the view that the weight of the opium could be considered after taking contents of whole mass into consideration but the only condition for considering the whole mass to be opium is that morphine should not be less than 0.2% in the said mass.
This question again arose before the Delhi High Court in case Ravinder Kumar vs. State (NCT of Delhi) 2010 (4) R.C.R. (Criminal) 664 wherein it was observed as under :-
"23. Summarising the discussion above, we hold that :-
1) For a substance to be regarded as opium, it must fall under either of the two categories mentioned in Section 2 (xv) of the NDPS Act.
2) In case the substance in question falls under the first category mentioned in Section 2 (xv), that is, Criminal Appeal No. 682-DB of 2004 -8- *** it is the coagulated juice of opium poppy, then it would not be necessary to examine as to whether it contains more than 0.2% of morphine or not.
That test is only in relation to the second category of opium, when it is in the form of a mixture, with or without any neutral material comprising of the coagulated juice of opium poppy;
3) Once it is determined that the seized substance is opium, then the weight of the entire substance would have to be considered for the purposes of determining whether it is a small quantity or a commercial quantity. The percentage content of morphine would have no role to play in such a determination.
4) Merely because a substance contains more than 0.2% morphine, does not mean that the substance is opium. It would be opium only if it falls within the definition of opium as given in Section 2 (xv) of the NDPS Act."
Now in a recent judgment delivered by the Apex Court in case Harjit Singh vs. State of Punjab (2011) 4 SCC 441 also took the similar view and observed as under :-
"21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18
(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2 (xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated Criminal Appeal No. 682-DB of 2004 -9- *** juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice.
For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry No.92 becomes totally redundant. Thus, as the case falls under clause (a) of Section 2 (xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2 (xv), determination of the quantity of morphine is not required. Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity."
The Apex Court in Harjit Singh's case (supra) further observed as under :
"25. Thus, the aforesaid judgment in E. Micheal Raj (supra) has no application in the instant case as it does not relate to a mixture of narcotic drugs or psychotropic substances with one or more substances. The material so recovered from the appellant is opium in terms of Section 2 (xv) of the NDPS Act. In such a fact-situation, determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. The entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92. Undoubtedly, the FSL Report provided for potency of the opium giving particulars of morphine contents. It goes without saying that opium would contain some morphine which should be not less than the prescribed quantity, however, the percentage of morphine is not a decisive factor Criminal Appeal No. 682-DB of 2004 -10- *** for determination of quantum of punishment, as the opium is to be dealt with under a distinct and separate entry from that of morphine."
Thus, in view of the catena of judgments interpreting the definition of opium, we are one on the issue that mass so recovered from the accused was opium weighing 13 kgs attracting definition of commercial quantity provided under the Act.
No other argument has been raised.
For the foregoing reasons, we see no reason to upset the findings of guilt as recorded by the trial court convicting the accused for the offence under Section 18 of the Act.
As a last resort, learned counsel for the appellant has urged that some leniency on the quantum of sentence be shown.
Having taken into consideration the contention and the entire facts and circumstances of the case , we need to observe that some leniency on the quantum of sentence could be shown to the accused.
As such, finding no merit in the appeal, the same is dismissed with the modification in the sentence which is reduced to 12 years without any alteration in the sentence of fine.
Before parting with the judgment, in view of the shabby conduct of Mohan Lal (PW4), we would like to send a copy of the judgment to the trial court with a direction to hold a probe against him under Section 340 Cr.P.C. for making a false statement in the Court and if so found then to proceed in accordance with law.
(Satish Kumar Mittal) (A.N. Jindal)
Judge Judge
July 22, 2011
deepak