Delhi District Court
State vs . Abdul Shahzad Judgement Dt. 9.4.2018 on 9 April, 2018
State Vs. Abdul Shahzad Judgement dt. 9.4.2018
IN THE SPECIAL COURT, NDPS ACT (CENTRAL)
TIS HAZARI COURTS, DELHI
CNR No. DLCT010001872015
SC No. 36/2015 & 27238/2016
FIR No. 86/2015
PS Jama Masjid
U/s 21/61/85 NDPS Act
State Vs. Abdul Shahzad
S/o Abdul Sattar
R/o H. No. 1334, Gali Madarse Wali,
Kalan Mahal, Jama Masjid, Delhi.
Date of institution : 20.6.2015
Date of conclusion of final arguments : 2.4.2018
Date of judgement : 9.4.2018
JUDGEMENT
1. As per prosecution, on 9.5.2015 HC Rakesh along with Ct. Sanser Pal were on patrolling duty in Division No.6 in the area of PS Jama Masjid. At about 3:20 pm, they reached near De'Romana Hotel near Kuda Khata, Jama Masjid and found that accused Abdul Shahzad was coming towards Jagat Booth. As he saw the police party, he turned back and tried to escape from the place. But he was apprehended by the patrolling party. In the mean time, accused Abdul Shahzad tried to throw one black polythene which was taken out by him from the right side pocket of his pant. However, HC Rakesh Kumar quickly caught hold of the said polythene SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 1 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 from the right hand of accused. The said polythene was checked and it was found to contain another transparent polythene bag. In this transparent polythene bag, brown colour powder was lying, which appeared to be Smack. HC Rakesh Kumar informed the police station through wireless set about this incident. The said call was marked to SI Deshpal for necessary action. SI Deshpal rushed to the spot. HC Rakesh Kumar handed over the case property to SI Deshapla along with the custody of accused. The smack recovered from the possession of accused Abdul Shahzad was found to be 15 grams. Out of 15 grams recovered smack two samples, each containing two grams smack were taken. The remaining smack weighing 11 grams was kept in recovered polythene. The samples and remaining smack were converted into Pullandas. All the three pullandas were sealed with the seal of JMII and were taken into police possession through seizure memo after completing all formalities. During the course of investigation, accused Abdul Shahzad was arrested. One sample pulanda along with FSL form in the case were sent to FSL, Rohini for analysis through RC No.30/21/15. Charge sheet was filed after investigation on 29.6.2015. However, the FSL report was filed on 28.9.2015. As per FSL report (Ex.PW8/G), the sample was found to contain "6Monoacetylmorphine" & "Codeine". It is pertinent to note that codeine has been mentioned at serial no.28 of the NOTIFICATION SPECIFYING SMALL QUANTITY AND COMMERCIAL SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 2 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 QUANTITY and a quantity from 10 grams to 1 kg fall in the category of intermediate quantity.
Charge
2. After hearing arguments, a charge under Section 21(b) of NDPS Act 1985 was framed, to which accused pleaded not guilty and claimed trial. Prosecution Evidence
3. In order to prove its case prosecution examined following witnesses :
PW1 SI Surender Singh proved FIR Ex.PW1/A. PW2 HC Rakesh Kumar testified as under :
"04.01.2016 PW2 HC Rakesh Kumar, No.2535/C, PS Kamla Market, Delhi.
On SA On 09.05.2015, I was posted at PS Jama Masjid.
On that day, I was on patrolling duty with Ct. Sehnsar Pal and we were patrolling in the area of Division No.6. At about 3.20 p.m., when we reached near hotel De'Romana situated near Kuda Khatta, Jama Masjid we saw that the BC of our area namely Abdul Shehjad came from the side of Jagat Booth towards Kuda Khatta and on seeing us he immediately turned back. He started going back briskly. On suspicion, we apprehended him after running behind him for about 2530 steps in front of Jagat police booth. He tried to escape and he took out one black colour polythene from the right side pocket of his pant with his right hand and attempted to throw out the same. I immediately caught hold of the said black colour polythene from the right hand of Abdul Shehjad. I checked the said black colour polythene which was SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 3 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 found containing a transparent polythene bag having brown colour powder. From the appearance and smell of thesaid powder, it was appearing to be Smack. I informed the Duty Officer from wireless set message about the incident.
SI Desh Pal came to the spot. We handed over the case property to SI Desh Pal alongwith the custody of the accused. SI Desh Pal checked the contents of the polythene bag from field testing kit and found it to be Smack. He recorded my statement which is Ex.PW2/A bearing my signatures at point A. SI Desh Pal asked 67 passerby to join the proceedings disclosing the fact of recovery of smack from the accused but none of the public person agreed on pretext of their personal difficulty. They all left the spot without telling their names and addresses.
Accused Abdul Shahjad was informed about his legal right to get himself further searched in presence of Gazetted Officer or a Magistrate who could be arranged at the spot. He was also informed that prior to his search he can take the personal search of all the members of the police party. The accused refused to get himself searched in presence of any Gazetted Officer or Magistrate. He also refused to take search of the police party. One notice U/s 50 of NDPS Act was prepared by SI Desh Pal and was served upon the accused. The accused gave his written reply in his own handwriting on the copy of said notice. The carbon copy of notice U/s 50 of NDPS Act is Ex.PW2/B bearing my signatures at point A and the reply of accused overleaf is Ex.PW2/C bearing my signatures at point A and signatures of accused at point X. During the search of accused no further recovery was affected.
SI Desh Pal started the proceeding regarding the recovered smack from the accused. On weighing the transparent polythene bag containing the smack, it was found 15.9 gms. The transparent polythene bag was SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 4 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 emptied and was weighed. It was found 0.9 milligrams. The recovered smack was weighed and was found 15 gms. Two samples of 2 gms each were separated from the recovered smack and were kept in separate transparent polythene bag. Both the samples were converted into cloth pullanda whereas the remaining 11 gms smack was kept in the transparent polythene bag from which it was recovered and was kept inside the same black colour polythene from which it was recovered. This black colour polythene bag was also converted into cloth pullanda and was given Sr. no.1 whereas the sample pullandas were given Sr.no.2 & 3 respectively. All the three pullandas were duly sealed with the seal of JMII. The FSL form was filled up and seal impression of JMII was affixed on it. Seal after use was given by SI Desh Pal to Ct. Sehnsar Pal. The case property was seized vide seizure memo Ex.PW2/D bearing my signatures at point A. Accused had signed the same at point X. SI Desh Pal prepared a tehrir and gave it to me for getting the case registered at PS. He also handed over the said three pullandas which were containing the samples and the remaining smack alongwith FSL form and copy of the seizure memo with a direction to handover the same to SHO Inspector Pardeep Kumar Paliwal at PS for necessary action.
I went to PS and handed over the tehrir to the Duty Officer for registration of FIR. I gave the sealed pullandas alongwith copy of seizure memo and FSL form to the SHO at the PS. The SHO put his seal on the said three pullandas. He wrote the number of FIR on the pullandas as well as the documents after making enquiry about the same from the duty officer. I obtained the copy of FIR from the Duty Officer and returned to the spot.
I handed over the copy of FIR to SI Desh Pal for investigation. He made enquiry from the accused and SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 5 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 arrested him vide memo Ex.PW2/E bearing my signatures at point A and took his personal search vide memo Ex.PW2/F bearing my signatures at point A. From the personal search of the accused, a cash amount of Rs.800/ and the original notice U/s 50 of NDPS Act was recovered. Both the memos bear the signatures of accused at point X respectively.
During interrogation, Abdul Shehjad made a disclosure statement which was recorded by the IO vide memo Ex.PW2/G bearing my signatures at point A duly signed by the accused at point X. The accused was got medically examined and was taken to the PS. The accused was sent to lock up.
I can identify accused Abdul Shehjad as well as the case property. The identity of accused is not disputed and his presence has been exempted for today in the court.
At this stage, MHC(M) has produced the case property as well as the articles of personal search of the accused. The personal search articles include one original notice U/s 50 of NDPS Act which is taken on record. The notice is Ex.PX. It bears my signatures at point A and signatures of accused at point X. The other personal search articles of the accused is Rs.800/ (one currency note of Rs.500/ and three currency notes of Rs.100/).
The case property produced by the MHC(M) comprised of one sealed envelope bearing Sr.no.2, the case particulars of this case and FSL no.2015/C3306 and duly sealed with the seal of SKP FSL DELHI and two cloth pullandas of Sr.no.1 & 3 bearing the case particulars of this case duly signed by the SHO dated 09.05.2015 and duly sealed with the seal of JMI & JM II. The envelope is opened by breaking the seal. One cut cloth pullanda bearing the seals of JMI & JMII and bearing the case particulars of this case duly signed by the SHO dated 09.05.2015, is taken out. It contains SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 6 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 white colour polythene bag having brown colour powder in it. Witness has identified the smack being one of the sample taken out in his presence from the smack recovered from accused as Ex.P1.
At this stage, the cloth pullanda with Sr.no.1 is opened by breaking the seals from one side. One black colour polythene bag is taken out. This bag is containing a transparent polythene bag having brown colour powder in it. Witness has identified the brown colour powder as the remaining smack recovered from the accused as Ex.P2.The black colour polythene and the transparent polythene are also identified by the witness as the same in which the same smack was recovered from the accused.
XXXXX by Sh. Himanshu Sharma, proxy Counsel for accused.
Deferred.
05.01.2016 PW2 HC Rakesh Kumar,(recalled for cross examination in continuation of statement recorded on 04.01.2016).
On SA XXXXX by Sh. Vikram Singh Saini, Ld. Counsel for accused.
We had started for patrolling at about 11.30 a.m. I had made departure entry at the time of leaving the place for patrolling vide DD no.16A. The distance between spot and PS is about 1 km. We were patrolling on foot. I had got the medical examination of accused conducted. As per my memory, the left leg of accused was plastered at the hospital.
The MLC of accused was given by me to the IO of this case. The injury was old injury as conveyed by the accused. The mobile no.9868278422 and 8882978072 belong to me. I was carrying dual sim mobile phone having the said SIM numbers, with me on the day of SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 7 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 incident. The accused was declared BC prior to my joing the PS Jama Masjid. As per my knowledge, he is still declared BC of the area.
Ct. Izaz was already posted at PS Jama Masjid on the date of incident. I do not remember as when I had telephonic conversation from my abovesaid mobile numbers with the accused but occasionally, during BC checking, I used to call him. I have mobile number of accused with me. I can tell the number on seeing the contact list of my mobile. At this stage, the witness is asked to give the number of accused from his mobile and the witness has provided the number 9910772571. It is correct that one HC Ram Roop was posted at PS Jama Masjid on the date of incident. It is wrong to suggest that on the day of incident, I had called the accused Parda Bagh, Daryaganj at 11.00 a.m. and in the presence of HC Ram Roop, Ct. Izaz and SI Dharamvir, he was falsely implicated in the present case. It is wrong to suggest that the accused was given the message to come at Parda Bagh at 11.00 a.m. through one Nisar, local resident of area of Jama Masjid one day prior to the date of incident. It is wrong to suggest that the accused was conveyed through Nisar that he has to give Rs.10,000/ to me or he will be falsely implicated in some criminal case.
The area of Parda Bagh and Meena Bazar Police Post do not fall under the area of patrolling on which I was on duty on the date of incident. The area of Parda Bagh was not visited by me on the date of incident. It is wrong to suggest that accused was illegally detained in PP Meena Bazar from 11.00 a.m. to 5.00 p.m. by me and he was shifted to PS Jama Masjid thereafter. It is wrong to suggest that the accused has been wrongly arrested in this case. The Meena Bazar police post falls on the way from PS to Division No.6 where I was on patrolling duty. I returned to PS Jama Masjid from the spot at about 7.15 p.m. Before 7.15 p.m. I had not come back to PS Jama SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 8 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 Masjid on the said date.
I do not remember if accused was carrying his mobile phone with him on the date of incident. I had not taken the personal search of the accused. My mobile phone was not switched off by me throughout the day. I had not participated in any case of recovery of narcotic substance prior to the present case except one case U/s 27 NDPS Act.
I had given the wireless message at 3.30 p.m. and IO came to the spot at about 4.00 p.m. It is correct that till IO reached the smack recovered from the accused remained under my custody.
The nearest police booth to the spot is Jagat Booth which is situated at a distance of about 3 paces from the spot. There was no police official present at Jagat Booth at the time when the accused was apprehended.
It is correct that there are small hotels situated near the spot. It is correct that CCTV cameras are installed at the gates of the said hotels as well as near Jagat police booth. (Vol., at the Jagat police booth, there are government CCTV cameras installed on a pole but I do not know if the CCTV cameras installed at the hotels and the police booth were in working condition on the date of incident).
It is correct that the spot of recovery is situated in a thickly populated area. It is correct that the residents and shopkeepers of the area were not called by the IO for joining the proceedings of this case. We remained at the spot for about two hours after IO reached there.
(Further crossexamination of the witness is deferred on the request of Ld. Defence counsel).
18.05.2017 PW2 ASI Rakesh Kumar, No.2535/C, PS Kamla Market, Delhi. (Called for crossexamination U/s 311 Cr.P.C. vider oder dated 23.02.2017).
SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 9 of 35State Vs. Abdul Shahzad Judgement dt. 9.4.2018 On SA XXXXX by Sh. S.S. Tomar, Ld. counsel for accused.
No photography/vediography was done at the time of recovery. It is correct that no notice was served to those public persons who refused to join the proceedings. IO made efforts to call the public persons from the nearby hotels and shops but no one came forward to join the investigation. It is wrong to suggest that IO did not make any efforts to join the public persons at any point of time. It is wrong to suggest that I had not joined the investigation of the present case at any point of time. It is wrong to suggest that nothing has been recovered from the possession or at the instance of accused. It is wrong to suggest that no disclosure statement was ever made by the accused. It is wrong to suggest that all the documents were manipulated to falsely implicate the accused in the present case while sitting in the PS. I do not remember if accused was having plaster in his leg. Vol., accused was having injury in his leg. It is wrong to suggest that I did not hand over any parcel and document to the SHO. It is wrong to suggest that I have wrongly identified the case property and the accused before the court. It is wrong to suggest that I am deposing falsely."
PW3 HC Sansar Pal is witness to the recovery and his testimony is same as that of PW2.
PW4 Inspector Pradeep Kumar Paliwal, SHO PS Jama Masjid testified that HC Rakesh handed over to him three cloth pullandas duly sealed with the seal of JMII bearing serial no.1, 2 & 3, one FSL form having sample seal of JMII and one carbon copy of seizure memo. After making SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 10 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 inquiry about the number of FIR, he wrote the same on three pullandas, FSL form as well as on carbon copy of the seizure memo. He took an official seal of JMI from MHC(M) and put the same on all the three pullandas as well as FSL form. Thereafter deposited the case property in Malkhana. He also signed at relevant entry in register no.19.
PW5 HC Ram Roop is MHC(M). I reproduced his entire testimony as under :
"22.8.2016 "PW5 Statement of HC Ram Roop no. 660/NE, PS Welcome, Delhi.
On SA.
I was posted as MHCM at PS jama kasjid from 2014 to September 2015. On 09.05.2015, Inspector Pradeep Kumar Paliwal, SHO of PS Jama Masjid had called me in his office and handed over to me carbon copy of seizure memo, three sealed pullandas sealed with the seals of JMI and JMII and FSL form bearing the same seals. I made entry in register no. 19 at serial no. 1056/15 and deposited them in the malkhana. I have brought the register no. 19 and copy of the entry no.1056 is Ex.PW5/A. Inspector Pradeep Kumar Paliwal had signed the entry at point 'A' (OSR) (running into 4 pages).
On the same day, the personal search articles of accused Abdul shahzad were deposited with me by SI Deshpal. I made entry in this regard in entry no. 1056/15 intself which is at portion 'X' on the fourth page (OSR).
On 19.05.2015, one sample pullanda of the Ex.
was sent to FSL Rohini with the FSL form through Ct. Prahlad vide RC No.30/21/15. Ct. Prahlad on his return had deposited with me the received RC and FSL SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 11 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 acknowledgment. I made entry in this regard in the entry at serial no.1056/15 at portion 'Y' which bears my signatures at point 'A1' (OSR).
I have brought the register no.21 containing he RC no. 30/21/15 and original FSL acknowledgement copy of which are Ex. PW5/B bearing my signatures at point 'A' and Ex.PW5/C respectively (OSR).
I do not remember the date but the result and Ex. Pertaining to the case were received from FSL, Rohini through Ct. Vijay by me and I gave the result to IO SI Deshpal vide my endorsement at portion of 'Z' of Ex.PW 5/A bearing my signature at point 'A2'. During the period, the case property remained in my possession. All the seals had remained intact.
XXXX by Sh. S. S. Tomar, Ld. Counsel for the accused.
It is wrong to suggest that the case property was tempered in the malkhana and entries in register no.19 are manipulate."
PW6 Ct. Prahlad took the pullandas along with FSL form from Malkhana on 19.5.2015 vide RC No. 30/21/15 and deposited the same in FSL. After returning from FSL Rohini, he deposited the RC Ex.PW5/B and FSL acknowledgement Ex.PW5/C. PW7 HC Surat Ram testified that he was posted as Reader in the office of ACP, Darya Ganj. On 15.6.2015 one information under Section 56 of NDPS Act of SI Deshpal Singh regarding seizure of 15 grams smack and arrest of accused Abdul Shahzad was sent by the office of SHO PS Jama Masjid. PW7 testified that he made an entry vide diary no. 3285, which he SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 12 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 placed before ACP Sh. Manoj Kumar Meena. He proved the said report/information as Ex.PW7/A bearing signature of ACP at point A. He also proved the relevant diary register (Ex.PW7/B).
PW8 SI Deshpal Singh is the Investigating Officer. I reproduce his entire testimony as under :
"20.07.2017 PW8 SI Desh Pal, No.3013/D, PS Jama Masjid, Delhi.
On SA On 09.05.2015, I was posted at PS Jama Masjid as SI. On that day, DO SI Mumtaj Bano assigned DD no.19A Ex.PW8/A to me. Thereafter, I alongwith IO kit including seal of JMII, reached at the spot i.e. Jagat Police Booth, near Kuda Khatta, where HC Rakesh and Ct. Sansar Pal produced accused Abdul Shahzad, present today in the court (correctly identified), alongwith one black colour polythene containing brown colour powder in a transparent white polythene to me and told that the said powder like smack has been recovered from the possession of accused. I tested the said recovered brown colour powder with the help of testing tube and found the same to be smack. I requested 67 passersby to join the proceedings but none agreed. Due to shortage of time, I could not serve any notice to the abovesaid passersby who refused to join the proceedings. Thereafter, I prepared notice U/s 50 of NDPS Act already Ex.PX bearing my signatures at point C and served the same upon accused. Accused put his signature on the same at point X. I also orally told the accused that if he wish, any Magistrate or Gazetted Officer may be called at the spot for his search but he refused to call any Magistrate or Gazetted Officer at the spot. The accused gave his reply on the back of carbon copy of notice U/s SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 13 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 50 NDPS Act already Ex.PW2/B bearing my signature at Point C and the reply of accused is already Ex.PW2/C bearing his signature at point X and the signature of HC Rakesh & Ct. Sansar Pal at points A & B respectively. Thereafter, I offered my personal search as well as the personal search of the abovesaid police officials to the accused but he refused to take our personal search. Thereafter, I conducted personal search of the accused but no more smack was recovered from his possession. Thereafter, I weighed the abovesaid recovered contraband alongwith its polythene with the help of electronic weighing machine and found total weight of the same 15.9 gms. Thereafter, I weighed the abovesaid contraband and its transparent polythene separately and found the weight of contraband 15 gms and weight of polythene .9 gms. Thereafter, I took out two samples of 2 gms each from the said contraband and prepared separate pullanda of the same. I also prepared a pullanda of remaining contraband and gave Sr.no.1 to the same pullanda and Sr.no.2 & 3 were given to the sample pullandas. I sealed all the abovesaid three pullandas with the seal of JMII. The abovesaid black colour polythene was in the above said pullanda n o.1 as the remaining contraband which was in the transparent polythene was kept in the black colour polythene and thereafter, its pullanda was prepared. Both the above said samples of contraband were kept in separate transparent polythene pouch and thereafter, the pullandas of the same were prepared. I filled FSL form and put seal impression of the abovesaid seal and thereafter, seal was handed over to Ct. Sansar Pal. I seized the abovesaid sealed pullandas and FSL form vide seizure memo already Ex.PW2/D bearing my signature at point C. I also obtained the signatures of accused at point X and the signatures of other police officials at points A & B. Thereafter, I recorded the statement of HC Rakesh already Ex.PW2/A and obtained his signature at SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 14 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 point A and I attested his signatures vide my attestation and signatures at point B. Thereafter, I made my endorsement Ex.PW8/B bearing my signature at point Y and prepared rukka. Thereafter, I handed over the abovesaid case property, FSL form, original rukka and carbon copy of seizure memo to HC Rakesh with the direction to hand over the abovesaid case property, FSL form and carbon copy of seizure memo to the SHO and the rukka was to be given to Duty Officer for the registration of FIR. HC Rakesh left the spot for PS alongwith aforesaid case property, rukka etc. After getting the FIR recorded, HC Rakesh came back at the spot and handed over to me computerized copy of FIR already Ex.PW1/A, certificate U/s 65B Indian Evidence Act Ex.PW1/C and the abovesaid with endorsement on the same to me. Thereafter, I prepared site plan Ex.PW8/C bearing my signature at point A and the signature of HC Rakesh at point B, at the instance of HC Rakesh. I interrogated the accused and arrested him vide his memo Ex.PW2/E & Ex.PW2/F respectively. Rs. 800/ and the abovesaid notice U/s 50 NDPS Act Ex.PX was recovered from the personal search of the accused. I recorded disclosure statement already Ex.PW2/G bearing my signature at point C. Thereafter, I got the accused medically examined at LNJP Hospital. Thereafter, we returned back to the PS alongwith accused. I deposited the personal search of accused at the malkhana and recorded the statement of HC Rakesh and Ct. Sansar Pal. On the very next day, I produced the accused in the concerned court.
On 10.05.2015, I sent the information U/s 57 of NDPS Act Ex.PW8/D to ACP concerned, which bears my signature at point A. I recorded the statement of SHO Inspector Pardeep Kumar Paliwal.
On 19.05.2015, I got deposited the abovesaid sealed pullanda no.2 and the FSL form, in the FSL office to Ct. Prahlad for examination. During interrogation of SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 15 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 the accused, he disclosed the name of Shahzad Jaat by disclosing that he used to purshase said smack/contraband from Shahzad Jaat. Thereafter, I collected DD no.16A Ex.PW8/E and DD no. 23A Ex.PW8/F and concluded the investigation, prepared the chargesheet and filed the same before the court concerned.
After filing chargesheet, I interrogated Shahzad Jaat but no incriminating evidence was found against him. Thereafter, I filed supplementary chargesheet. On 27.08.2015, I filed the FSL examination report Ex.PW8/G after collecting the same from FSL in the court vide my application Ex.PW8/H. The abovesaid exhibits/case property remained intact as long as same remained in my custody and the same was not tampered.
I can identify the case property, if shown to me. At this stage, MHC(M) has produced the case property i.e. one sealed envelope Sr.no.2 bearing particulars of the present case and FSL No.2015/ 3306 duly sealed with the seal of the court. Seals are intact. Envelope is opened and found containing one cut cloth pullanda bearing particulars of the present case and seal of JMI and JMII, also bearing signature of the witness at point A and the signature of SHO at point B and the same contains white colour polythene pouch having brown colour powder in it and the same is shown to the witness, who correctly identifies the same being one of the sample taken out by him from the smack recovered from accused and the same is already Ex.P1.
At this stage, MHC(M) has produced pullanda Sr.no.1 sealed with the seal of the court. The seals are intact. PUllanda is opened and found containing one black colour polythene which contains a transparent polythene pouch having brown colour powder in it and the same is shown to the witness, who correctly identifies the same being remaining smack recovered from the accused and the same is already Ex.P2. The SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 16 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 witness also identifies the abovesaid black colour polythene and transparent polythene which are now Ex.P3 & Ex.P4.
At this stage, MHC(M) has produced cloth pullanda bearing Sr.no.3 bearing particulars of the present case and the signature of the witness at point A which is sealed with the seal of JMI and JMII. Seals are intact. PUllanda is opened and found containing one transparent polythene pouch containing brown colour powder in it and the same is shown to the witness, who correctly identifies the same being the second sample taken out by him from the smack recovered from accused and the same is Ex.P5.
XXXXX By Accused.
Nil. (Opportunity given).
11.01.2018 PW8 Retd. SI Desh Pal, S/o Sh. Pritam Singh, R/o Village Dungar, PS Fughan, District Muzzaffarnagar, U.P. (Called for crossexamination on application U/s 311 Cr.P.C.).
On SA XXXXX By Sh. S.S. Tomar, Advocate for accused.
I was posted in PS Jama Masjid since 2012. I had joined the duty on 09.05.2015 in PS at about 8.00 a.m. DD no.19A was handed over to me at about 3.45 p.m. on that day. I left the PS after about 510 minutes after receiving the DD no.19A. I reached the spot alone near Jagat Police Booth, near kuda Khatta, Jama Masjid on foot. I reached at the spot in 810 minutes. The distance between spot and the PS is less than about 1 km. After leaving the PS, I directly reached the spot and in between I did not stop anywhere. I do not remember whether I made any entry regarding taking of IO kit and testing kit. I recorded statement of HC Rakesh after about 45 minutes on reaching the spot. I recorded statement of HC Rakesh in my handwriting in police SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 17 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 booth at Urdu Bazar. There is no residential area near to the police booth, however, there is a Kasturba Gandhi Hospital, shops in front of the police booth and there is a park at the backside of the police booth. I took personal search of accused after giving him notice U/s 50 NDPS Act. Notice was in the handwriting of accused Abdul Shahzad and accused had signed the same in police booth. It took abut 20 minutes in preparation of the notice U/s 50 NDPS Act. I recorded statement of Ct. Sansar Pal after returning in PS on the same day and the statement was in my own handwriting. I prepared rukka at about 7.00 p.m. It took about 4045 minutes in preparation of only rukka. I prepared rukka before preparation of FSL form and same was inmy handwriting. All the writing work was in my handwriting and I completed all the proceedings in police booth. I sent the rukka through HC Rakesh at about 7.00 p.m. HC Rakesh went to PS on foot. HC Rakesh returned on the spot at about 8.15 p.m. I got conducted medical examination of accused. I arrested the accused at about 8.30 p.m. I do not remember by which vehicle I took the accused for medical examination. My staff was accompanying me at the time of taking the accused for medical examination. I prepared site plan at the instance of HC Rakesh. I sent the case property to PS when I sent the rukka. I cannot say who deposited the case property in malkhana as I had sent the case property to SHO. Ct. Prahlad took the sample to deposit the same in FSL.
It is wrong to suggest that I did not investigate the case as per law. It is wrong to suggest that the accused has been falsely implicated in the present case. It is wrong to suggest that I am deposing falsely."SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 18 of 35
State Vs. Abdul Shahzad Judgement dt. 9.4.2018 Statement under Section 313 CrPC
4. Accused denied all the allegations and stated that he is bad character of the area and he had gone to Parda Bagh in Darya Ganj to meet his friend namely Mohd. Nisar. On 9.5.2015 at about 11:15/11:30 am, SI Dharamvir, ASI Rakesh Kumar, Ct. Aizaz and Ct. Anuj suddenly pounced upon him and took him to Chowki Meena Bazar, where he was kept till 7:00 pm. Thereafter, they took him to police station. He further stated that since he was the BC of the area, he was keeping himself away from the jurisdiction of PS Jama Masjid. He further submitted that he is the only bread winner of his family, therefore he had come to his house for some work. However, his entry into the area was not liked by police and therefore, he was falsely implicated in this case. Defence Evidence
5. Accused examined two witness namely Nisar Ahmad (DW1) and Mohd. Asad (DW2) in his defence. Both the witnesses testified that accused had come to the mechanic shop (of DW2 Mohd. Asad) by rickshaw. After sometime, a few police officials came on motorcycle and took away the accused. Both the defence witnesses had testified that DW1 followed the police officials. DW1 testified that police officials kept the accused at Meena Bazar chowki. DW1 made inquiries from the police officials about the reasons of apprehending the accused but they told him that senior police SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 19 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 officer would make inquiry from accused and thereafter, he would be free. DW1 further testified that police officials kept the accused in police post Meena Bazar till 7:00 pm. Thereafter, accused was taken to PS Jama Masjid, whereas he (i.e. DW1) remained at police post Meena Bazar. At around 8:30 pm, he was told by the police that accused was arrested in a case. DW1 further testified that he informed this fact to brother of accused. DW1 further testified that when police apprehended the accused, Rs.3000/ or Rs.4000/ and one mobile phone was found in possession of accused. Accused wanted to give this mobile phone to him (i.e. to DW1) but police refused to permit the accused to do so.
Final Arguments
6. Ld. Defence Counsel has strongly assailed the prosecution case submitting that accused is a BC of PS Jama Masjid and police did not want him to enter their jurisdiction. Ld. Defence Counsel submits that accused is sole bread winner for his family and therefore, he had to come from time to time to look after his family. This was not liked by the police of Jama Masjid in whose jurisdiction the accused resides. Therefore, they falsely implicated him in the present case. Ld. Defence Counsel has drawn my attention to the statements of defence witnesses namely DW1 Nisar Ahmad and DW2 Mohd. Asad, who have testified that accused was picked up by the police from Darya Ganj. Ld. Defence Counsel submits that the testimony of DW1 and SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 20 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 DW2 is reliable and their evidence has discredited the prosecution case.
7. I have carefully considered the submissions of Ld. Defence Counsel. The cross examination of PW2 HC Rakesh and PW3 Ct. Sahansar Pal, who are the recovery witnesses, shows that the defence has no where put its case to these witnesses that accused was picked up from Darya Ganj. It was no where put to them that at the time of this incident, DW1 and DW2 were also present. It is pertinent to note that PW8 SI Deshpal is the Investigating Officer. He testified that he had reached at the spot, where HC Rakesh and Ct. Sahansar Pal had produced the accused with the contraband. The accused also did not put his case about his apprehension from Darya Ganj. DW1 has testified that first police took accused at Meena Bazar Chowki and he made inquiries from them about the reason for apprehending the accused. Therefore, accused was taken to PS Jama Masjid. But all this story is missing from the cross examination of recovery witnesses, IO and the SHO. Therefore, it is clear that defence of accused, which he made in his statement under Section 313 CrPC and tried to prove through DW1 and DW2, is only afterthought. Therefore, the evidence of DW1 and DW2 is required to be rejected in entirety.
8. Ld. Defence counsel argues that no public person or independent witness was joined at the time of taking search of accused. Ld. Defence Counsel has drawn my attention to cross examination of PW2 dated SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 21 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 5.1.2016 in which it is admitted by him that the spot of recovery is situated in a thickly populated area. He also admitted that the residence and shop keepers of the area were not called by the Investigating Officer for joining the proceedings of the case. He also admitted that they remained there for about 2 hours. It is argued that for want of joining any public person, the prosecution case about recovery of contraband from accused becomes doubtful.
9. Ld. Additional Public Prosecutor, on the other hand, argues that admittedly the accused is bad character of the area and in such situation it will be highly unpractical for a public person of the locality to join the investigation. Ld. Additional Public Prosecutor has drawn my attention to the cross examination of PW8 SI Desh Pal, who has testified that there is no residential area near the police booth. However, there is a Kasturba Gandhi Hospital and shops.
10. I have considered the submissions. It is true that hardly any public person agrees to become a public witness against the criminals. In the present case,the testimony of PW2 and PW3 shows that accused came from the side of Jagat booth towards Kuda Khatta and on seeing them he immediately turned back and started going back briskly. On suspicion, they apprehended him after running behind him. Accused tried to escape and took out the black colour polythene from right side pocket of his pant with SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 22 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 his right hand and tried to throw out the same. PW2 testified that he immediately caught the said black colour polythene from the right hand of Abdul Shahzad. All this event had taken place quickly and police official had no time to ask any public person to join the search of accused. In fact, the search and further proceedings were only legal formalities, whereas the recovery had already been effected by the police officials. Moreover, I agree with Ld. Additional Public Prosecution that hardly any public person cooperates with Investigating officer in any proceedings against criminals of the area. In such a situation, non joining of a public witness is no illegality.
11. Ld. Defence Counsel has drawn my attention to the testimony of PW8 SI Desh Pal, who has testified that he had got the accused medically examined in LNJP Hospital. Ld. Defence Counsel has drawn my attention to the testimony of PW2 ASI Rakesh Kumar, who stated in cross examination that as per his memory, the left leg of accused was plastered at hospital. PW2 testified that MLC of accused was given by him to the Investigating Officer. It is submitted by Ld. Defence Counsel that Investigating officer has not placed on record the MLC of accused and has deliberately withheld a material piece of evidence. It is submitted that had the MLC been placed on record, the prosecution case that accused turned back and tried to escape briskly would have been belied.
SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 23 of 35State Vs. Abdul Shahzad Judgement dt. 9.4.2018
12. I have considered the submissions. Although, in cross examination it has come that left leg of accused was plastered at hospital but it is nowhere suggested that when accused was seen coming by the police official, his leg was already plastered and his leg was having a fracture. It is true that MLC of accused is not on judicial record but during the whole trial, accused never insisted upon for production of said MLC, nor in his defence, he moved an application to direct the Investigating officer to produce the MLC. I may clarify here that although in initial cross examination, PW2 has testified that as per his memory his left leg was plastered at hospital but in cross examination dated 18.5.2015, PW2 testified that he did not remember if accused was having plaster in his leg. He only stated that accused was having injury in his leg. I would like to mention here that charge sheet was filed in this court on 20.6.2015 and copies of the same were supplied to him on that very day. Thereafter, he has duly assisted by a competent counsel but not even on one date accused insisted for production of his MLC. In such a situation, it is not possible to draw a conclusion that leg of accused was fractured and he was unable to walk on the date of incident.
13. Ld. Defence Counsel has further drawn my attention to the fact that the case property was deposited in Malkhana on 9.5.2015 but the sample was sent to FSL on 19.5.2015 i.e. after a delay of about 10 days. It is SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 24 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 argued by Ld. Counsel for accused that in the intervening period, case property and sample were in the custody of police and there is every possibility of case property and samples being tempered with. I disagree with this submission. PW5 HC Ram Roop is the MHC(M) and there is nothing in his cross examination from which it can be presumed that in his custody, case property and samples could have been tempered.
14. Ld. Defence Counsel argues that before recovery, the police officials did not comply with the requirement under Section 50 of NDPS Act and therefore, on this very ground the evidence of PW2 and PW3 should be rejected. I disagree with this submission of Ld. Defence Counsel. PW2 HC Rakesh Kumar and PW3 Ct. Sahansar Pal have testified that on 5.3.2015 at about 3:30 pm, they saw the accused coming from the side of Jagat Booth towards Kuda Khatta and on seeing them, accused immediately turned back. On suspicion, PW2 and PW3 apprehended him after running behind him for about 2530 steps. Accused tried to escape and in this process he took out one black colour polythene from the side pocket of his pant with his right hand and attempted to throw out the same. However, PW2 HC Rakesh Kumar immediately caught hold of the said black colour polythene containing the contraband from the right hand of Abdul Shahzad. I am of the opinion that had PW2 Rakesh Kumar been not so quick, accused could have been successful in throwing the polythene bag. The polythene bag SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 25 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 containing contraband was therefore recovered from the hand of the accused. Therefore, it cannot be said that the contraband was recovered from the personal search of the accused. Hence, Section 50 of NDPS Act is not applicable in the present case. I refer to State of Rajasthan Vs. Tara Singh (2011) 11 SCC 559, Jarnail Singh Vs. State of Punjab AIR 2011 SC 964 and Ajmer Singh Vs. State of Haryana (2010) SCC 746.
15. Ld. Defence Counsel has drawn my attention to the FSL report Ex.PW8/G, which shows that the sample contained "6monoacetylmorphin and codeine". Ld. Defene Counsel submits that as per the Notification Specifying Small and Commercial Quantity, "codeine" is mentioned at serial no.28 and if quantity is 10 gram or more upto 1 kg, the contraband will fall in the category of intermediate category. Ld. Defence Counsel has drawn my attention to testimony of PW8 SI Deshpal, who testified that total weight of contraband is 15 grams. Ld. Defence Counsel submits that no evidence has been led as to what is the percentage of codeine in the whole mixture. Ld. Defence Counsel has drawn my attention to a single starred note immediately under item no.239 (in respect of any mixture or preparation that of with or without a natural material or any of the above drugs) the said schedule, which reads that "Lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture".
SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 26 of 35State Vs. Abdul Shahzad Judgement dt. 9.4.2018 Ld. Defence Counsel submits that in view of the above single starred note below item no.239, it was the duty of the FSL to determine the percentage of codeine in the whole mixture. It is not in dispute that the other substance namely '6 monoacetylmorphine' does not find mention in the said schedule/Notification. Ld. Defence Counsel submits that in case of a mixture, the substance lesser in quantity is to be considered by the court. Therefore, it is argued that it should be presumed that quantity of codeine in the whole mixture is less than 10 grams and therefore, the contraband should fall in the category of "small quantity" and consequently, the case should fall under Section 21(a) of NDPS Act and not under Section 21(b) of NDPS Act.
16. I disagree with the submissions of Ld. Defence Counsel. The starred note is in respect of the mixture of the drugs mentioned in the said Notification. It means that when there is a mixture of two or more drugs, which are mentioned in the schedule, the smaller quantity as mentioned in the table of the two or more drugs would be the determining factor for the purpose of charging an offender regarding small, intermediate and commercial quantity.
17. This provision aims at clarifying a situation in which mixture is prepared by two or more drugs and the small/intermediate/commercial quantities in the aforesaid Notification of the substances are different. In SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 27 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 such a situation, the substance, which will have lower quantity (for the purpose of ascertaining small quantity etc.) as per the Notification, will be determining factor to decide as to whether mixture will be considered as small quantity, intermediate quantity and commercial quantity.
18. I would like to give an example. Suppose a substance weighing 8 grams is a mixture of cocaine and codeine mentioned at serial no.27 and 28 of the Notification. This table shows that 2 grams or more is intermediate quantity for cocaine, whereas 10 grams or more is intermediate quantity in case of codeine. However, when the mixture of two is created, the mixture will fall in the category of intermediate quantity and not in small quantity because 2 grams or more of cocaine fall in intermediate quantity. Therefore, the whole mixture of 8 grams will fall in intermediate category, even though the intermediate quantity in respect of the other ingredients i.e. codeine is 10 grams or more.
19. Ld. Defence Counsel argues that the substance allegedly recovered from the accused was sent for forensic analysis and as per the FSL report dated 31.07.2015 the sample sent was found to contain "6 - Monoacetylmorphine" & "Codeine". It is submitted that in view of the FSL report it transpires that the substance in question was "preparation" as per the definition contained in Section 2(xx) of the Act and therefore, it can be said that whatever was recovered from the possession of the accused was a SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 28 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 preparation containing a manufactured drug i.e. "Codeine" and some neutral material i.e. "6 - Monoacetylmorphine".
20. Ld. Defence Counsel has submitted that as far as "codeine" is concerned, the same is "MANUFACTURED DRUG" as per Section 2(xi)(a) of the NDPS Act as it is an "OPIUM DERIVATIVE" [section 2(xvi)(c) of NDPS Act].
21. Ld. Defence Counsel has drawn my attention to S.O. 1181(E), dated 05.05.2015 published in the Gazetted of India, Extraordinary Past II sec.3Sub Section (ii), No.923, which came into force w.e.f. 05.05.2015. As per this Notification, "codeine" has been placed in the category of "essential narcotic drugs". It is submitted by Ld. Defence Counsel that as per the said standing order, possession of methyl morphine (commonly known as codeine) and its all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 10 mg of drug per dosage unit and with concentration of not more than 2.5% in undivided preparation and which have been established in therapeutic practice, is punishable under the NDPS Act. It is further submitted by Ld. Defence Counsel that from the plain reading of the said standing order it transpires that only the possession of that codeine which contains more than 100 mg of drug per dosage unit and with concentration of more than 2.5% in undivided preparations punishable under the NDPS SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 29 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 Act since 05.05.2015.
22. Ld. Defence Counsel argues that in common parlance opium derivative is understood be any substance or thing derived from opium and thus anything to be termed as an opium derivative under the NDPS Act will have to first qualify to be opium as defined under Section 2(xv). It is submitted that reference in this regard is being made to Section 2(xv) of NDPS Act wherein term 'opium' has been defined as (a) the coagulated juice of the opium poppy and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2% of morphine [see Section 2 (xvi)(e)]. Therefore, it is argues by Ld. Defence Counsel that from the plain reading of word 'opium' as defined under the NDPS Act, it is amply clear that only that opium which contains more than 0.2% of morphine is punishable.
23. Ld. Defence Counsel argues that in view of the legal submissions made, in the present case, there is no evidence available on record to the effect that the codeine, which was allegedly recovered was containing (1) more than 0.2% of morphine and (2) the said codeine contained more than 100 mg of drug per dosage unit and with concentration of more than 2.5% in undivided preparation. It is further submitted that in the absence of such a piece of evidence the codeine as recovered from the possession of the SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 30 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 accused cannot be said to be the one which contravenes the provisions of the NDPS Act and hence, it is argued, on that note alone the entire case of the prosecution stands demolished and the accused is entitled to acquittal.
24. I have carefully considered the submissions of Ld. Defence Counsel. First I would like to reproduce the relevant portion of the Notification as under :
"NOTIFICATION In exercise of the powers conferred by clause (viiia) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government hereby notifies for medical and scientific use, the following narcotic drugs to be essential narcotic drugs, namely: (1) Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 25% in undivided preparations and which have been established in therapeutic practice;
(2) .............
(3) .............
(4) .............
(5) .............
SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 31 of 35
State Vs. Abdul Shahzad Judgement dt. 9.4.2018
(6) .............
[Vide S.O. 1181(E), dated 5th May, 2015, published in the Gazette of India, Extra., Pt. II Sec. 3(ii), No. 923, dated 5 th May, 2015.]"
25. I have considered the submissions of Ld. Defence Counsel. This Notification should be read in conjunction with clause (viiia) of Section 2 of NDPS Act 1985 where it is clearly written in this notification dated 5.5.2015 that the such drug is notified for medical and scientific use and which has been established in therapeutic practice. Neither it is a case of accused that it is a medicine nor he has any prescription slip of a doctor. Accused has not even shown any bill/receipt of purchase of medicine from any medical shop. It may be possible that he might not have taken any bill from the medical shop but it was his duty to tell the Investigating Officer as to from which medical shop he had purchased the substance. If the Investigating Officer did not record this plea, he should have taken this plea in the court during trial. Therefore, it is clear that accused was neither having it in his possession for any medical or scientific use. Hence, the case of applicant would not fall within the confines of the aforesaid notification.
26. It is necessary to mention here that for the purpose of determining quantity, whole mixture has to be considered in view of the following notification :
SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 32 of 35State Vs. Abdul Shahzad Judgement dt. 9.4.2018 MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 18th November, 2009 S. O. 2941(E). In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S. O. 1055(e), dated 19th October, 2001, namely : 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 substance is possible and not just its pure drug content."
[F.No.662/33208NCI] VIMLA BAKSHI, Under Secy.
SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 33 of 35State Vs. Abdul Shahzad Judgement dt. 9.4.2018
27. Ld. Defence Counsel has very strongly relied upon Section 2(xvi), which defines "opium derivatives" as under :
(a) .............
(b) .............
(c) phenanthrene alkaloids, namely, morphine, codeine,
thebaine and their salts;
(d) .............
(e) all preparations containing more than 0.2 per cent of
morphine or containing any diacetylmorphine.
28. Ld. Defence Counsel argues that unless the percentage of morphine is 0.2 percent in the preparation, it will not fall in the definition of opinion derivative. Submission of Ld. Defence Counsel is correct but it is not applicable to the present case because the substance was found containing codeine mentioned in Section 2(xvi)(c).
29. Ld. Defence Counsel has referred to Hira Singh & Anr. Vs Union of India and argued that it has not set aside to verdict of Hon'ble Supreme Court of India in E. Michael Raj and that the entire issue was referred to a three judges bench, which has not yet been constituted. Therefore, it is argued that this court is bound by the ratio of the judgement in E. Michael Raj, which held that the percentage of the contraband in a mixture will determine the culpability. I am of the opinion that the SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 34 of 35 State Vs. Abdul Shahzad Judgement dt. 9.4.2018 Notification dated 18.11.2009 still stands and has not been set aside by Hon'ble Supreme Court of India. Therefore, the quantity shown in the table shall apply to the entire mixture.
30. Therefore, even if percentage of codeine has not been mentioned in the FSL report, the Notification dated 18.11.2009 has made it unnecessary. The cumulative effect of both the Notifications is that if there is codeine in any mixture, which is not meant for medical or scientific use, the such mixture/substance will come within the mischief of Section 21 of NDPS Act. I have already mentioned that quantity in question is 15.9 grams, which is intermediate quantity as per the table/Notification (see item no.28). Accordingly, I convict the accused under Section 21(b) of NDPS Act 1985.
Announced in the open court on 9.4.2018. VINOD KUMAR Digitally signed by VINOD KUMAR Date: 2018.04.09 15:43:56 +0530 (Vinod Kumar) Special Court, NDPS Act (Central) Tis Hazari Courts Delhi SC No.36/2015 & 27238/2016, FIR No.86/2015 Page 35 of 35