Allahabad High Court
Vinod Kumar Gupta vs State Of U.P. on 10 May, 2016
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 25 Case :- CRIMINAL APPEAL No. - 153 of 1994 Appellant :- Vinod Kumar Gupta Respondent :- State Of U.P. Counsel for Appellant :- Arun Sinha, Abhishek Ranjan Counsel for Respondent :- Govt. Advocate ***** Hon'ble Aditya Nath Mittal,J.
The challenge in this appeal is the judgment and order dated 31.03.1994, passed by the IVth Additional District Sessions Judge, Barabanki, in Criminal Trial No.104 of 1991 connected with Criminal Trial No.100 of 1991, by which, the appellant has been convicted and sentenced to ten years rigorous imprisonment alongwith a fine of Rs.1.00 lac for the offence punishable under Section 8/21 of Narcotic Drug and Psychotropic Substances Act (here-in-after referred to as 'N.D.P.S. Act').
The brief facts of the case are that on 23.04.1991 the complainant alongwith his companion Kamlesh Kumar Mishra were on the school duty, at about 10:30 a.m. when they were returning back, they found the appellant, who tried to hide himself and upon suspicion they were intercepted and search was conducted, in which, about 5.00 gm Morphine was recovered from the possession of the appellant, regarding which, the recovery memo was prepared on the spot and the case was registered against him alongwith co-accused Vinod Kumar Singh. The appeal of Vinod Kumar Singh is separate and this judgment shall not apply to him.
After investigation, the charge-sheet was filed. The appellant denied the charge and claimed trial. The prosecution has examined Mukhram Yadav as PW-1 and constable Kamlesh Kumar Mishra as PW-2, who have proved the recovery from the appellant and have also proved the formal papers of the prosecution. In the statement under Section 313 Cr.P.C., the appellant denied the evidence and stated that he has been falsely implicated in this case.
After appreciating the evidence on record, the appellant was found guilty for the offence punishable under Section 8/21 N.D.P.S. Act and was sentenced to ten years rigorous imprisonment along with a fine of Rs.1.00 lac.
Learned counsel for the appellant has submitted that it is the first case of his life and there was no criminal history prior to this incident or after this incident. It has also been submitted that very small quantity of 5.00 gm Heroin was recovered from possession of the appellant and a false recovery has been shown. It has also been submitted that the prosecution has not produced the sample seal in the trial and it has been brought by the complainant PW-1 at the time of statement in the Court. Therefore, the alleged recovery becomes doubtful. It has also been submitted that there was no compliance of provisions of Section 50 of N.D.P.S. Act and preparation of joint consent memo was against the law. Any signature or thumb impression was not found on the alleged sample, therefore, there was violation of provisions of Section 50 and 55 of N.D.P.S.Act. It has further been submitted that the appellant was not put specific questions regarding the evidence while recording the statement under Section 313 Cr.P.C., therefore, the trial has vitiated. In the last, learned counsel for the appellant has submitted that now the N.D.P.S. Act, 1986 has been amended in the year 2001, where for small quantity, the maximum sentence is six months and in case the appellant is found guilty, the benefit of amended Act of 2001 may be extended to him. It has also been submitted that the appellant has remained in Jail for about eleven months.
It has also been submitted that copy of recovery memo was not provided to the appellant on the spot and in the recovery memo the recovered article has been described as Morphine, while in the chemical examination, it has been found to be Heroin . It has also been submitted that PW-1 Mukhram Yadav has admitted in his cross-examination that he identifies the Morphine very well. It has also been submitted that it is not clear from the evidence that how small quantity of 5.00 gm was weighed because such quantity cannot be weighed by normal weighing scale and can only be possible by weighing scale available with Jewellers.
In relation to non-production of sample seal, learned counsel for the appellant has relied upon the case Ram Sagar Verma vs. State, reported in 2002 0 Supreme (All) 149, in which, it has been held as under :-
".......non-production of the sample of seal have created serious doubts about the story of prosecution and about the recovery. In similar circumstances the Apex Court in the case of State of Rajasthan v. Gopal, (1998) 8 SCC 449, found that in a case where seal of the sample sent to the Analyst was not produced in the Court for verification, then the case was found one of acquittal and the Apex Court held in the circumstances of that case that order of acquittal called for no interference by the Supreme Court. In the present case also the two reports are contradictory to each other. The sample of seal has not been proved to have been sent to the Chemical Examiner or the Opium Inspector. One sample was taken but two reports were obtained. The alleged sample of seal has not been produced before the Court for verification. This all creates serious doubt about the guilt of the accused. Under these circumstances, the trial court should have clearly acquitted the accused and should not have convicted and sentenced him. In the present case, the prosecution failed to prove the charge framed against the accused under Section 21 of the Act and he is not found guilty of the same and is entitled for acquittal. The appeal shall be allowed accordingly."
With respect to joint signed memo and non-compliance of provisions of Section 50 of N.D.P.S. Act is concerned, learned counsel for the appellant has relied upon the case Ramesh Chandra vs. State of U.P. reported in 2014 7 ADJ 184, in which, it has been held as under:-
"13. Learned Counsel for the appellants has contended that it is the right of the accused person to be informed that they can be searched before a Gazetted Officer or a Magistrate and in this case the appellant was not informed about his right by the arresting officials and this violated the mandatory provision of Section 50 of the NDPS Act.
14. To secure a conviction under the N.D.P.S. Act, the possession of the illicit article is a sine qua non. Such contraband must be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act were complied with or not, would be a matter to be determined on the basis of the evidence produced by the prosecution.
15. In the case of State of Punjab Vs. Balbir Singh, 1994 (3) SCC 299, it has been held by Hon'ble Apex Court while considering the provisions of Section 50 of the NDPS Act that it is imperative and mandatory on the part of authorised officer to inform the accused about the right of person to be searched in presence of Magistrate/Gazetted Officer.
16. The aforesaid case of Balbir Singh was followed by the Apex Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and others Vs. State of Gujrat, (1995) 3 SCC 610, wherein this legal position was again reiterated and it was held that the requirement on the part of the officer conducting the search to inform the accused of his right to choose to be searched in the presence of a Gazetted Officer or a Magistrate is mandatory and the prosecution must prove that the accused was made aware of this right but he did not choose to be searched before a Gazetted Officer or a Magistrate. If no evidence to this effect is given, court must assume that the accused was not informed of his right and the possession of the illicit articles was not established.
17. The Constitution Bench of the Hon'ble Apex Court again considered this point in the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and held that it is not enough that the accused be informed or intimated that he could be searched in presence of a Gazetted Officer or a Magistrate but he should be informed of his "right" to be searched in presence of a Gazetted Officer or a Magistrate and if there is any violation in this regard it will be violation of Section 50 of the NDPS Act.
18. Recently in the case of Vijay Singh Chandubha Jadeja Vs State of Gujrat, reported in (2011) 1 SCC 609, it has been held by the Constitution Bench of Hon'ble Apex Court that any conviction, based on the recovery of an illicit item in a search conducted without informing the accused of his right would stand vitiated. The short question decided by the Constitution Bench in this case was as to whether Section 50 of the NDPS Act casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section. The issue so framed by the Constitution Bench was answered in para 29 in the following terms:
"29. In view of the foregoing discussions, we are of the firm opinion that the object with which the right under section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
19. In Union of India v. Shah Alam, (2009) 16 SCC 644, heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip (Dilip & Anr. v. State of Madhya Pradesh, (2007) 1 SCC 450), it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground.
20. In view of the aforesaid decisions, the question required to be considered in this case is as to whether mandatory provisions of Section 50 of the NDPS Act have been followed at the time of arrest of appellant. In the instant case, perusal of the fard recovery (Ex-Ka-1) shows that arresting officers had jointly asked the accused persons whether they desire to be searched before a Magistrate or a Gazetted Officer and then both of them consented to be searched by arresting officials. This shows that a mere offer was made to the appellant that in case if he so desires, his search could be conducted in presence of a Gazetted Officer or a Magistrate. Thus, from the decisions quoted above, it is clear that a mere proforma offer would not satisfy the mandatory ingredients of section 50 of the NDPS Act. The court below has opined that since the recovery was made from a bag carried by the appellant, therefore, Section 50 would not apply. However, the Apex Court in the recent case of State of Rajasthan Vs Parmanand reported in LAWS (SC) 2014 271 has held that Section 50 of NDPS Act would be applicable even in these cases if personal search had also been conducted. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer/witness. In the instant case, what was actually said was that he (accused) had an option to get him searched in presence of a Gazetted Officer or a Magistrate. The intimation given to the accused could not be treated as communication to him that he had a right under law to be searched before the aforesaid authorities. As it is, there was no independent witness to the recovery. It is evident that there was no compliance of Section 50 of the NDPS Act and the findings recorded by the learned Trial Court in this regard are not tenable."
Regarding the signature or thumb impression and non-compliance of Sections 55 and 57 of N.D.P.S. Act, learned counsel for the appellant has relied upon the case Jitendra Singh Rathore vs. State of U.P. reported in 2002 2 ADJ 424, in which, in paras-22, 27 & 30 held as under:-
"22. It was then argued that no sample was taken on the spot nor any signature or thumb impression was taken on the sample recovered which also creates doubt about the recovery of contraband article from the appellant as from the F.I.R. itself as well as from evidence on record it is not clear whether any sample was taken on the spot. In support of his submission, he has placed reliance on the judgment of the Apex Court in the case of Kuldeep Singh vs. State of Punjab reported in AIR 2011 SC (Supp.) 787 in which it has been held by the Apex Court that non collection of samples at the initial stage of seizure was a defect, which could not have been cured in the manner in which it was done by opening the bags which had been sealed by the I.O. and mixing the contents thereof. In support of his submission he has also placed reliance on the judgment of this Court in the case of Mathura Prasad vs. State of U.P. reported in [2005 (51) ACC 904] and another judgment of this Court in the case of Beni Prasad vs. State of U.P. reported in [2003 (46) ACC 701] wherein it was stated that the samples of charas, alleged to have been recovered/seized from the possession of the appellant, is alleged to have taken and sealed on the place of occurrence but surprisingly enough the sealed packets does not bear the signature of the accused appellant which casts doubt about the alleged recovery.
27. The contention of learned counsel for the appellant that no sample of the contraband article was taken at the spot nor any signature or thumb impression has taken on the same also appears to be correct as it is apparent from the record that P.W.1 had recovered the article and the arrested the appellant without taking out the sample of contraband article on the spot and had deposited the same in the Malkhana of the concerned police station and entrusted the same to the P.W.4, therefore, it is not proved in what manner the sample was drawn by the police party. From the record it is further evident that the alleged sample did not bear any signature or thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and the safeguard in the enactment requires strict compliance. Failure, in the evidence by the prosecution witnesses, to show that when the sample were taken from the same contraband article creates doubt on the authenticity of the prosecution case. In this connection the absence of signature of the accused on the sealed bag raises doubt about the recovery of contraband article from the possession of the appellant.
30. Thus, from the aforesaid discussions and evidence on record, it is apparent that the recovery of the contraband article from the possession of the appellant appears to be doubtful and the prosecution has not proved its case beyond reasonable doubt against the appellant proving the recovery against him in strict compliance of the provisions of N.D.P.S. Act, hence his conviction and sentence by the trial court is not sustainable in the eyes of law. Thus, the impugned judgment and order passed by the trial court convicting and sentencing the appellant is hereby set aside. The appeal stands allowed."
Regarding non-compliance of provisions of Section 55 of N.D.P.S. Act, learned counsel for the appellant has further relied upon the case Jamil vs. State of U.P. reported in 2005 3 ACR 3047, in which, it has been held as under:-
"........ The whole stock in this case when was ot sent for chemical analysis, it was incumbent upon the prosecution to lead evidence of the fact as to who and when took the contraband to the Court of District Judge, Allahabad for preparation of sample. It was further necessary for the prosecution to lead evidence to the effect as to who and when took this sample from the District Judges Court to the laboratory at Lucknow for chemical analysis, but to my great surprise there is no such evidence made available on record by the prosecution. In absence of these link evidence, it cannot be safely held that after the recovery of the alleged contraband drug it was properly preserved and kept in safe custody till it was taken for preparation of sample to the District Judge Court and also therefrom to the Laboratory of Chemical Analysist at Lucknow. It is not certain from the evidence as to which article was received for analysis in the Laboratory at Lucknow. The absence of such evidence is something very serious lapse on the part of prosecution, rather it fatally damages its case and it is not believable that the same article which was seized from the appellant-accused was chemically analysed for the analysist report."
Regarding the statement of Section 313 Cr.P.C., learned counsel for the appellant has relied upon the case Ajay Singh vs. State of Maharashtra reported in 2007 (5) Supreme 1, in which, it has been held as under:-
"10. The purpose of Section 313 of the Code is set out in its opening words- 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.' In Hate Singh Bhagat Singh vs. State of Madhya Pradesh (AIR 1953 SC 468) it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.
11. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
12. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
13. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand."
Regarding the extension of benefit of amended Act of 2001, learned counsel for the appellant has relied upon the judgment rendered in Criminal Appeal No.436 of 2007; Rajender Kumar vs. State, in which, it has been held as under:-
"9. The Statement of Objects and Reasons concerning the Amending Act of 2001 is as follows: Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offeences invite uniform punishment of minimum ten years rigorous imprisonment which may extend upto twenty years. While the Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentences to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences.
10. The entry of the Notification under which the substance found in possession of the appellant falls is Entry 56 or Entry 239. The relevant portion of the Notification dated 19.10.2001 issued by the Central Government reads as under: S.O. 1055(E), dated 19.10.2001.- In exercise of the powers conferred by Clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O.527(E) dated 16th July, 1996, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies the quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug and psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the purposes of the said clauses of that section, 1, 2, 3, 4, 5,6 Sl. Name of Narcotic Other non-Chemical Small Commercial No. Drug and Psychotropic proprietary Name quantity Quantity Substance name (in gm). In (gm./kg.) [International non-proprietary name (INN)]56. Heroin Diacetylmorphine 5 5.0 gm. 239. Any mixture or preparation that of with or without a neutral material, of any of the above drugs. Lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. Lesser of the commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.
14. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize 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."
Regarding the quantum of punishment of amended Act, learned counsel for the appellant has relied upon the case Anwar vs. State reported in 112 (2004) DLT 594, in which, it has been held as under:-
"3. In appeal learned counsel for the appellant Mr. Sumeet Verma, Advocate, has not challenged the conviction of the appellant. He has pleaded for leniency in the matter of sentence in view of amended provision of Section 21 of NDPS Act. This amendment which came into force on 2nd October, 2001, reads as under:
21. Punishment for contravention in relation to manufactured drugs and preparations. Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted there under, manufacturers, possesses, sells, purchases, transport, Imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable.
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both:
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees:
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
4. The quantity of smack i.e. 30 gram does not fall in the category of small quantity but is less than the commercial quantity so in view of the amended Section 21 (b) of NDPS Act punishment may extend up to 10 years and fine which may extend to Rs. 1 lakh. In the amended Act, the minimum sentence of 10 years RI and fine of Rs. 1 lakh is prescribed is only for offenders who are found in possession of commercial quantity of smack which is 250 gram. Learned counsel for the appellant vehemently pressed for reduction of sentence in view of lesser punishment prescribed by amending Act, 2001. In the case of Gian Singh v. State of Punjab, 1999 SCC (Cri.) 1512, Hon'ble Apex Court took into consideration the provisions of TADA Act, 1985 which diluted the sentence for offence under Section 3(2) of TADA Act, 1985 from extreme penalty of death sentence to life imprisonment. While commenting on the desirability of extending the benefit of subsequent legislation which down grades the harshness of punishment, the Apex Court in para 32 observed as under:-
32. What is the jurisprudential philosophy involved in the second limb of Clause (1) of Article 20 of the Constitution? No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.
It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same office, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence.
5. Learned counsel for the appellant has brought to my notice other decisions of this court namely Ginni Devi v. State, Criminal Appeal No. 713/2000 decided on 5th March 2002; Hari Om v. State, 2002 VI AD (Delhi) 921 and Tahseen v. State, Cri. Appeal No. 234/1998 wherein different benches of this Court have taken a consistent view that the benefit of amending provisions of NDPS Act should be extended to the people who have been awarded harsher punishment as offence was committed when the old Act was in force."
Further learned counsel for the appellant has relied upon the judgment rendered in Criminal Appeal No.876 of 2001, Pawan Kumar Sharma vs. State of U.P., regarding quantum of punishment for the offence committed prior to amendment of the Act 2001. In this case, it has been held as under:-
"Concededly the quantity in question is even below one gram. Apparently, it appears that this point could not strike either to the learned counsel for defence who was appearing before the trial court or to the learned Public Prosecutor or to the learned trial court. Consequently, the appellant was convicted with the aforesaid severe sentence of 10 years' R.I. and a fine of Rs.1,00,000/-. The learned A.G.A. points out that at the time of the judgment in question, rendered on 31.08.2001, i.e. prior to the amendment of the NDPS Act, 1985, old NDPS Act was applicable. Concededly, the aforesaid material fall under the category of small quantity for which the maximum punishment provided under the old NDPS Act was also one year's R.I. Or a fine or with both. It is also submitted that unfortunately the appellant has also undergone a period of imprisonment for about 8 years. However, now this sentence has to be modified in view of the aforesaid facts and circumstances.
In view of the above, the conviction and sentence is modified in the following manner.
The appellant is convicted under Section 8/22 of NDPS Act, 1985 and sentenced to undergo R.I. for a maximum period of one year, which he has already undergone, and to pay a fine of Rs.5,000/-, failing which he shall have to undergo additional imprisonment of three weeks."
On the other hand, learned Additional Government Advocate has defended the impugned judgment and has submitted that the prosecution has succeeded in proving the guilt of the appellant and has submitted that the judgment of E. Micheal Raj vs. Narcotic Control Bureau, (2008) 5 SCC 161 is no more applicable in this case in view of the law laid down in Harjit Singh vs. State of Punjab reported in (2011) 4 Supreme Court Cases 441, in which, it has been held as under:-
"Thus, the aforesaid judgment in E. Micheal Raj 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 not be less than the prescribed quantity, however, the percentage of morphine is not a decisive factor for determination of the quantum of punishment, as the opium is to be dealt with under a distinct and separate entry from that of morphine."
I have considered the rival submissions of learned counsel for the appellant as well as learned Additional Government Advocate. I have also perused the lower court record and the findings recorded by the learned trial Judge.
In the recovery memo Ext. Ka-1, which has been proved by Mukhram Yadav PW-1, it has been mentioned that the appellant was asked that whether he wants his search before any Magistrate or Gazetted Officer, upon which the appellant said that he wants to be searched by Sub-Inspector. It has also been mentioned in the recovery memo Ext. Ka-1 that the sample of seal was prepared on the spot and 5.00 gm Morphine was recovered from the appellant. It is not disputed that the said sample of seal Ext. Ka-2 has been produced by the witness Mukhram Yadav PW-1 during the course of examination-in-chief in the court, which has been proved as Ext. Ka-2 and Ext. Ka-3. It has also been proved that it contains the signature and seal of the Chief Judicial Magistrate, Barabanki. As far as law relied upon by learned counsel for the appellant is concerned, in that case the sample of seal was not produced during the trial. Therefore, the aforesaid law relied upon by learned counsel for the appellant is not applicable to the present case because in the present case the sample of seal has been prepared on the spot, which has been proved as Ext. Ka-2, which also contains the signature of the Chief Judicial Magistrate, Barabanki. The trial has taken place before the Additional Sessions Judge, Barabanki, therefore, production of sample of seal before the court at the time of trial does not create any doubt. It is also not disputed that on the same date, place and time, alongwith appellant, another appellant Vinod Kumar Singh was also searched and 10.00 gm Morphine was found with him, regarding which a joint consent memo Ext. Ka-4 has been proved. Regarding the validity of a joint consent, learned counsel for the appellant has relied upon a case of Ramesh Chandra (supra), in the aforesaid case the accused was told that he had an option to get searched in presence of a Gazetted Officer or a Magistrate. Learned Single Judge of this Court has treated it as intimation to an accused and it could not be treated as communication to him that he had right under law to be searched before the aforesaid authorities. Therefore, learned Single Judge came to the conclusion that there was no compliance of provisions of Section 50 of N.D.P.S. Act because the sample of seal was also not produced before the trial court while in the present case the sample of seal has been produced before the trial court. Section 50 (1) of N.D.P.S. Act provides as under:-
"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate."
From perusal of the aforesaid provisions, it is clear that the person, who is being searched, shall be brought to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate only when such person so requires.
In the present case, the consent memo Ext. Ka-4 has been prepared which contains the signature of the appellant also and in that consent memo, it has been specifically mentioned whether they wanted their search before any Magistrate or Gazetted Officer, upon which, the appellant replied in negative and when the appellant was put a question as to whether he wants to be searched by the arresting Sub-Inspector, upon which, he gave his consent. Nothing adverse has come in the cross-examination of Mukhram Yadav PW-1 or Kamlesh Kumar Mishra PW-2 that the said consent letter was got signed under some pressure or threat. Therefore, there was sufficient compliance of provisions of Section 50 of N.D.P.S. Act. In this case, the prosecution has been able to prove that the accused was made aware of this right but he did not choose to be searched before a Gazetted Officer or a Magistrate. In this regard, the evidence of Mukhram Yadav PW-1 as well as of Kamlesh Kumar Misra PW-2 is sufficient to this effect and it cannot be assumed that the appellant was not informed about his right to choose his search before a Gazetted Officer or a Magistrate. I also do not find any illegality in preparation of the joint consent memo because both the accused persons have been arrested and searched at the same time. In the present case, because the consent memo Ext. Ka-4 has been proved and in the statement of the prosecution witnesses it has come that the appellant was duly informed about his right, therefore, it cannot be said to be a mere proforma of consent.
Learned counsel for the appellant has submitted that the alleged sample does not contain any signature or thumb impression, therefore, there is no compliance of Sections 55 and 57 of N.D.P.S. Act.
As far as the signature or thumb impression on the alleged recovered articles is concerned, it has come in the statement of Mukhram Yadav PW1 that sample of recovered goods contains his signature, but does not contain the signature of witnesses. He has further stated that the signatures of accused were also obtained but because there are so many seals of the court, therefore, the signatures of the accused are not visible. This witness has further stated that he recognized the signature on the packet, which is of Sri Bankey Lal Mishra the then Chief Judicial Magistrate, but that signature does not contain any date. As stated above, the trial has been conducted in the court of Sessions where all the documents and the recovered articles were produced. When the packet of recovered article contains the signature of the Chief Judicial Magistrate, there is no possibility that the said sample got changed just to falsely implicate the appellant.
As far as violation of provisions of Sections 55 and 57 of the N.D.P.S. Act is concerned, Section 55 provides as under:-
55. Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed within a seal of the officer-in-charge of the police station.
From perusal of the aforesaid provision, it is clear that the said recovered articles are required to be signed by the officer, who may accompany such article to the police station. Section 55 of the N.D.P.S. Act does not provide that the said sample should also be signed by the accused.
Section 57 of N.D.P.S.Act provides as under:-
57. Report of arrest and seizure. Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
Perusal of the aforesaid provision provides that whenever any such arrest is made, such arrest shall be reported to immediate officials superior within forty eight hours of the arrest. The endorsement on the Chik F.I.R. reveals that the Circle Officer, Line, has been apprised of the First Information Report, who by his endorsement dated 24.04.1991 has directed the matter to lay before the Court. In this regard, there is compliance of provisions of Section 57 of N.D.P.S. Act by informing the superior officers within forty eight hours. In this case, the recovery has been made by the in-chage Kotwali, Haidergarh on 23.04.1991 and the case has also been registered on the same date. Therefore, it does not appear that there has been non-compliance of Section 57 of N.D.P.S. Act and the case law relied upon by learned counsel for the appellant in Jitendra Singh Rathaur (supra) is not applicable to the present set of facts.
Learned counsel for the appellant has relied upon the law in Jitendra Singh Rathaur (supra) regarding non-compliance of Section 55 of N.D.P.S. Act is concerned, certainly in that case it was not proved that who and when took the contraband to the court of District Judge, Allahabad for preparation of sample and there was also no evidence to the effect as to who took the sample from the District Judge Court to the Laboratory at Lucknow for chemical analysis and when, therefore, there was absence of link evidence.
In the present case, the genuineness of other documents of the prosecution has been admitted and on the record there is letter of the Chief Judicial Magistrate, Barabanki to the Director Forensic Sciences Laboratory, Lucknow and the said sample has been sent through the Head Constable Mewa Ram,which has been received in the office of Director, Forensic Sciences Laboratory at serial no.3622 on 15.07.1991. Because the said document has been admitted by the appellant during the course of trial, therefore, there was no requirement to lead the link evidence in this regard and the law as cited in Jamil vs. State of U.P. (supra) is not applicable in the present set of facts. Moreover, the report of Forensic Sciences Laboratory is on record, which shows that the sealed packed, which was in accordance with sample seal, has been received on 15.07.1991 and upon scientific investigation, it has been found to be Heroin.
Next point raised by learned counsel for the appellant is that the statement under Section 313 Cr.P.C. was defective because specific questions were not asked from the accused. The perusal of the original record reveals that prior to framing the charge, the statement of the appellant was recorded on 25.03.1992, in which, it was specifically stated that it is alleged against you that on 23.04.1991 at about 30:30 a.m. when you were searched, Morphine weighing about 5.00 gm was recovered from your possession. As far as statement under Section 313 Cr.P.C. is concerned, again on 30.03.1994 the specific question relating to whole case was framed in such a way so as to enable the accused to know what he is to be questioned and what are the circumstances which are against him and for which an explanation is needed. The question framed is specific that it is the prosecution evidence that on 23.04.1991, at about 10:30 a.m. within the boundary of village Chandauli near Pulia, which is under the police station-Jaitpur, District-Barabanki, you were intercepted by Sub-Inspector Mukhram Yadav and on search 5.00 gm. Heroin was recovered from you. Further the question has been framed that the statements of the witnesses have been read over to them and why the witnesses are deposing against them. It was also asked that why the prosecution has been launched against him and whether he wants to say anything and further whether he wants to adduce any evidence in defence. In my opinion, it is complete and effective compliance of Section 313 Cr.P.C. and the statement under Section 313 Cr.P.C. cannot be said to be defective.
Learned trial court has appreciated the evidence in proper way and merely because there is no independent witness, the statement of the police personnel cannot be disbelieved and has no substance. The appellant has been arrested at Barabanki while he is resident of Gorakhpur. No enmity or ill-will with the appellant have been shown with the arresting police officials. As far as the fact that in the recovery memo it has been mentioned that 5.00 gm Morphine was recovered, but that item has been found to be Heroin, makes no major difference because Heroin is the refined form of Morphine and the police officials cannot be said to be experts in this field. The appellant was arrested upon suspicion and the recovered article was sent for chemical examination and in the chemical examination, the recovered article has been found to be Heroin and only then the appellant has been challaned and the charge-sheet has been submitted. Therefore, it makes no difference that the arresting officer wrongly identified the recovered article as Morphine in place of Heroin.
The statements of both the witnesses of fact are corroborated with each other and there is no material contradiction in their statements. There is no enmity or personal ill-will with the appellant so as to believe that he has been falsely implicated. There is sufficient evidence on record and in my opinion, the prosecution has succeeded in proving the guilt of appellant beyond reasonable doubt, therefore, the conviction of the appellant is upheld.
Now next question arises that as to how much sentence should be awarded to the appellant. Undisputedly at the time of incident, the Act 1985 was applicable and subsequent amendment has taken place in the year 2001. Under the old act, there was no discretion between the small quantity and the commercial quantity. I find substance in the submission of learned Additional Government Advocate that now the law as declared in E. Micheal Raj (supra) is no more applicable in view of the law laid down in Harjit Singh vs. State of Punjab (supra), therefore, whole of the quantity is to be taken into consideration.
The appellant has been awarded ten years rigorous imprisonment alongwith a fine of Rs.1,00,000/- (one lac), which was not minimum sentence at the relevant time. The N.D.P.S. Act has been amended in the year 2001 and for the sake of repetition, the statement of object and reasons concerning the amendment Act of 2001 is reproduced as under:-
"The Statement of Objects and Reasons concerning the Amending Act of 2001 is as follows: Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years rigorous imprisonment which may extend upto twenty years. While the Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentences to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences."
Under the law as it was enforced at that time, the uniform punishment of minimum ten years rigorous imprisonment which could extend upto twenty years was provided and the minimum fine was rupees one lac which could exceed upto two lacs or more. The amendment of 2001 proposed the sentence structure so as to ensure heavy punishment for drug traffickers while less severe punishment has been provided to the person who has committed less serious offence.
Under the rationalized sentence structure, the punishment would vary depending upon the quantity of offending material and accordingly necessary amendments have been made in the said Act. Under the definition of new Act, 5.00 gm Heroin has been defined as small quantity and now the punishment under new Act is six months or with a fine of Rs.10,000/- or with both. The Delhi High Court in Anwar vs. State (supra) relying upon the other decisions of Delhi High Court in Ginni Devi vs. State, Hari Om Vs. State and Tahseen vs. State the view has been taken that benefit of amending provisions of N.D.P.S. Act should be extended to the people who have been awarded harsher punishment as offence was committed when the old Act was in force.
As per the notification of Central Government, the Heroin has been mentioned at item no.56 and the small quantity has been mentioned as 5.00 gm while the commercial quantity has been mentioned as 250 gm. It is evident that the subsequent legislation has downgraded the harshness of the sentence for the same offence, therefore, complying with the salutary principle for administration of criminal justice, I am also of the view that the said legislative benevolence can be extended to the appellant. The appellant at present is about 65 years of age and is not previously convicted nor there is any subsequent criminal history.
In view of the above, the benefit of amended Act of 2001 is extended to the appellant and now amended Act provides six months imprisonment or fine or both for contraband involving small quantity. In the present case, undoubtedly, 5.00 gm has been defined as small quantity under the aforesaid definition of Central Government notification, therefore, the appellant is sentenced to six months rigorous imprisonment alongwith a fine of Rs.1000/-. The period already undergone shall be set off. In default of payment of fine, he shall further undergo an imprisonment of one month.
The appellant is directed to appear before the Sessions Judge, Barabanki on 30.05.2016 alongwith certificate of detention, which he may obtain from the concerned Jail Authority and may deposit the fine as awarded above. If in the detention certificate it is found that he has already undergone the sentence of six months, then he will be required to deposit fine only. In case, he has not undergone the sentence of six months, then he shall be taken into custody to serve out the remaining sentence.
In case, the appellant does not appear before the Sessions Judge, the Sessions Judge shall be at liberty to take coercive steps against the appellant.
With the above modifications, the appeal is party allowed.
Office is directed to send the certified copy of this judgment to the court concerned alongwith trial court record, at an early date for compliance.
Order Date :- May 10th , 2016 Suresh/