Madras High Court
Shivakumar @ Siva vs / on 26 March, 2019
Author: G.Jayachandran
Bench: G. Jayachandran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:26.03.2019
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
Criminal Appeal No.129 of 2014
Shivakumar @ Siva .. Appellant
/versus/
State rep.by
The Intelligence Officer,
NCB, Chennai.
(NCB File No.48/1/13/2005/NCB/MDS) .. Respondent
Criminal Appeal filed under Section 374 of the Criminal
Procedure Code praying to set aside the judgment passed in
C.C.No.202 of 2005, dated 14.02.2014 on the file of the Additional
Sessions Judge/Special Court for Essential Commodities Act Cases,
Coimbatore.
For Appellant :Mr.T.Muruganantham
For Respondent :Mr.N.P.Kumar,
Special Public Prosecutor
for NCB Cases
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JUDGMENT
This appeal is directed against the judgment of the Special Court for NDPS Act Cases, Coimbatore convicting the appellant for the offences under Sections 8(c) r/w 29, 8(c) r/w 28 and 8(c)r/w http://www.judis.nic.in 2 21(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985(in short “NDPS Act”).
2. The brief facts of this case is that the appellant herein along with the other accused were found in possession of 5 kg of Heroin, which was recovered from them based on specific information received on 06.06.2005. The investigation disclosed the fact that one Salim of Rajastan involved in drug trafficking, conspired with Pennitto Ramesh of Rameshwaram and Sivakumar of Sri Lanka through one Iqbal of Gujarat to transport Heroin from Rajastan to Sri Lanka through Tamil Nadu. Pursuant to the conspiracy, the said Iqbal along with two others came to Ooty and delivered 5 kg of Heroin. Pennitto Ramesh of Rameshwaram and Sivakumar of Sri Lanka were engaged to take delivery of the narcotic drugs. Pennitto Ramesh of Rameshwaram is the first accused. Sivakumar of Sri Lanka, who is the second accused is the appellant herein.
3. According to the prosecution, pursuant to the conspiracy, heroin which was delivered at Ooty by Iqbal to Pennitto Ramesh and Sivakumar. It was recovered by intercepting them near Botanical Garden, Ooty on 07.06.2005. A Qualis Car, which was used to http://www.judis.nic.in 3 transport the heroin was seized. Samples were drawn from the bulk of 5 kg. The Field Test indicates the contraband contains Diacetyl Morphine (Heroin). On the reasonable belief, the accused persons were arrested and remanded to the Judicial Custody. Later, based on their statements, the other two accused Bikha Bhai and Zahir Hussain were arrested.
4. During the course of trial, the prosecution has examined 11 witnesses as PW-1 to PW-11 and 72 exhibits were marked as Exs.P1 to P72 and 16 Material Objects were marked as M.O.1 to M.O.16.
5. Pending trial, on application the second set of sample was sent for chemical analysis. The second set of sample drawn from the bulk, on analysis, revealed that it contains the following substances:(1)Acetylcodeine, (2)Alprazolam, (3)Caffeine, (4)Codeine, (5) Monoacetylmorphine, (6)Morphine, (7)Papaverine and (8) Paracetamol. PW-11 [Dr.Deepak Middha]Chemical Examiner attached to Central Forensic Science Laboratory has given the report Ex.P70. The trial Court, after considering all the points raised by the prosecution as well as the defence, taking note of the fact that the prosecution has not placed the qualitative test report of http://www.judis.nic.in 4 the contraband seized and the second sample sent for analysis does not disclose the presence of diacetylemorphine, however discloses the presence of other substances, which are prohibited under the NDPS Act and relying upon the judgment of E.Michael Raj v. The Intelligence Officer, NCB reported in 2005 Crl.L.J.1817, held that the accused persons cannot be convicted for possessing commercial quantity for want of purity test. It so held that they are liable to be punished only for possessing small quantity. For arriving at the said conclusion, the trial Court has also relied upon the judgment of the Kerala High Court reported in M.Veludurai v. The Superintendent of Customs, Special Narcotic Cell, Nagercoil reported in 2012(1) L.W. Crl.70.
6. The trial Court having held the accused persons guilty of offence under Sections 8(c) r/w 29, 8(c) r/w 28 and 8(c)r/w 21(a) of NDPS Act sentenced them to undergo 6 months Rigorous Imprisonment each and to pay a fine of R.10,000/- each in default to undergo 6 weeks each for the offence under Section 8(c) r/w 29, to undergo 6 months Rigorous Imprisonment each and to pay a fine of R.10,000/- each in default to undergo 6 weeks each for the offence under Section 8(c) r/w 28 and to undergo 6 months Rigorous Imprisonment each and to pay a fine of R.10,000/- each in http://www.judis.nic.in 5 default to undergo 6 weeks each for the offence under Section 8(c) r/w 21(a) of NDPS Act. The substantive sentences were ordered to run concurrently.
7. While the other accused have not preferred appeal, this appellant, who was arrayed as A2 has preferred this appeal. By the time the judgment passed the period of sentence both substantive sentence and the default sentence has already been undergone by the appellant as under trial prisoner.
8. The short point raised in this appeal is that when the second test does not disclose the presence of diacetylmorphine, whether the trial Court ought to have acquitted the accused, instead of convicting him for possessing heroin. Apart from this ground, the learned counsel appearing for the appellant would point out that there were several mandatory violations in this case, which have not been properly appreciated by the Court below.
9. Learned Special Public Prosecutor for NCB would submit that based on specific information in a public place, the contraband was seized. It was transported in a luxury car which was marked as M.O.12.The statements of the accused persons reveal their http://www.judis.nic.in 6 involvement and conspiracy to transport heroin from Rajastan to Sri Lanka. The conspiracy scheme has come to light through their information which was within their specific knowledge. The second test did not disclose the presence of heroin but the presence of codeine and morphine and the other prohibited substances were found in it. The Chemical Analyst was examined as PW-11 has categorically stated in his evidence that the first test was conducted in the year 2005 immediately after seizure of the contraband. Whereas the second test was conducted in the year 2013 after eight years. Due to efflux of time and due to improper preservation of the sample, there is a possibility of disorientation. Therefore, the report of the 2nd analysis could not be fully relied upon to discredit the case of the prosecution in entirety.
10. Heard the learned counsel appearing for the appellant and the learned Special Public Prosecutor appearing for NCB Cases and perused the records.
11. The contention of the learned counsel appearing for the appellant that the second test does not disclose the presence of diacetylmorphine. Hence, the Court ought to have acquitted the accused. The presence of heroin not found in the 2 nd analysis, but http://www.judis.nic.in 7 morphine is found in the second test also. Morphine gets converted into diacetylmorphine on treated with acitic un-hydrate. The field test and first analyst report test positive to diacetyl morphine immediately when the contraband was seized. As pointed out by the Chemical Analyst, PW-11 due to efflux of time and due to improper preservation, the chemical reaction with the other substances found in the sample, morphine could have been detected, besides the presence of alprazolam, acetylcodeine, codeine , Monoacetylmorphine, which are some of the prohibited drugs. The combination of these manufactured drugs also attracts the provisions of NDPS Act. Such mixture or preparation is covered under Serial No.239 of the Table, which is as under:
TABLE [See sub-clause(viia) and (xxiiia) of Section 2 of the Act] Sl.N Name of Narcotic Other non- Chemical Small Quantity Commercial o. Drugs and Psychotropic propriety Name (in gm.) Quantity Substance name (International non- (in gm./kg.) proprietory name (INN)) 239 Any mixture or preparation Lesser of the small Lesser of the that of with or without a quantity between the Commercial neutral material, of any of quantities given quantity between the above drugs. against the respective the quantities given narcotic drugs or against the psychotropic respective narcotic substances mentioned drugs or above forming part of psychotropic the mixture. substances mentioned above forming part of the mixture.
http://www.judis.nic.in 8 Note: (1) The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific chemical designation, the esters, eithers and salts of these drugs, including salts of esters, ethers and isomers; whenever existence of such substance is possible.
(2)The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparation of substances of note 1 above.
(3)”Small Quantity”and “Commercial Quantity” with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of Section 18 of the Narcotic Drugs and Psychotropic Substances Act,1985.
(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 pshychotropic 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.]
12.In such circumstances, this Court finds that the trial Court has taken a very liberal view by taking note of the absence of purity test, imposed a sentence of six months, which the appellant has already undergone. Therefore, this Court finds no reason to interfere with the finding of the trial Court. Hence, this Criminal Appeal is liable to be dismissed.
http://www.judis.nic.in 9
13. In the result, the Criminal Appeal is dismissed. The judgment of the trial Court in C.C.No.202 of 2005 dated 14.02.2014 is hereby confirmed.
26.03.2019 Index:yes Internet:yes/no ari To
1.The Additional Sessions Judge/Special Court for Essential Commodities Act Cases, Coimbatore.
2.The Intelligence Officer, NCB, Chennai.
3.The Public Prosecutor, High Court, Madras. http://www.judis.nic.in 10 Dr.G.Jayachandran,J.
ari Crl.A.No.129 of 2014 26.03.2019 http://www.judis.nic.in