Delhi District Court
State vs (1) Guljaman on 18 February, 2008
: 1 :
IN THE COURT OF MS. R. KIRAN NATH
ASJ: SPL.JUDGE (NDPS): NEW DELHI
S.C. No. 209/1
FIR No. : 74/04
Police Station : Narcotic Branch
U/Sec. 21/29/61/85 NDPS Act
State versus (1) Guljaman
(2) Rama Shankar
: Order on Bail :
This order shall dispose of an application for bail moved by accused
Guljaman.
The facts material for consideration of this application are that
the applicant/accused Guljaman is charged with and is facing trial for
having been found in possession of 4.8 kgs of heroine, which he was
carrying in a briefcase while present with the other coaccused Rama
Shankar on 23.09.2004 at about 10.45 am at Rajpur Road Authority, Delhi.
Two samples of five grams each were drawn from the
contraband at the spot and were seized and sealed as per the procedure and
were given mark A and B. The remaining case property was also seized.
State vs. Guljaman etc
: 2 :
Sample marked A was sent to FSL and as per report of the FSL dated
30.11.2004 which was Ex. PW 3/X, the same had tested positive for
Diacetylmorphine and it was found to contain 16.66% of Diacetylmorphine.
While the trial was going on, HC Harcharan Singh was
examined as PW 8. During his crossexamination on 31.10.2006, the
second sample packet MarkB (which had been sealed at the spot) was
opened in the court and was found to contain some brittle dark brown/
black coloured substance. The witness admitted that there was a lot of
difference in colour of the substance taken out from the remnant
contraband Ex. P4 and of the substance taken out from the sample parcel
MarkB.
It may be seen that the case property (remnant contraband
sealed at the spot) was opened for the first time in the court during the
examination of Ct. Kheta Ram, who was examined as PW 6 on 17.7.2006
and it was noted that the contraband which was in a polythene tied with a
rubber band and kept in a VIP briefcase with clothes, it was observed that
the contraband was brown coloured and some of the contraband was in
solid shape while the remaining was in powder form. It was observed that
the solid pieces could be broken into powder by hand.
State vs. Guljaman etc
: 3 :
It is seen that during the crossexamination of PW 8 also, it
had come on record that the pouch of sample parcel MarkB (second
sample) had some holes in it. Due to this fact, accused Guljaman had
moved an application for sending the second sample of the case property to
FSL after drawing the sample from the case property. The said application
was allowed vide order dated 04.12.2006.
Accordingly, on 20.1.2007, sample of five gram was drawn
from the contraband kept in the polythene in the briefcase (Ex. P4) in the
presence of the court and the counsel. The same was sealed with the court
seal and sent to FSL, Rohini for testing. Thereafter, the report dated
6.3.2007 Ex. CW1/A was received from the FSL, Rohini, which is as
follows:
"On TLC, GC and MS examination:
(i)Exhibit 'JS1' was found to contain Monoacetyl
morphine, Acetyl codeine and Diacetylmorphine.
(ii)However, on Gas Chromatography examination,
Exhibit 'JS1' was found to contain Diacetylmorphine
1.2 percent".
On receipt of this report, Chemical examiner Dr. Madhulika Sharma, Assistant Director (Chemistry), FSL was summoned and examined State vs. Guljaman etc : 4 : as CW1, who deposed after seeing both the reports that due to passage of time, physical and chemical changes can take place in heroine/smack (Diacetylmorphine). It was submitted by her that Diacetylmorphine was a synthesized product of morphine and due to passage of time it converts back into monoacetylmorphine and morphine. She further submitted that physical changes can also take place like the change of colour and change of powder to lump form.
Subsequently, accused/applicant moved another application for sending the second sample MarkB to CFSL, Chandigarh for retesting. It was submitted by him the CFSL examiner had given these explanations at the instance of the police to support the prosecution's case. It was pointed out by him that the chemical examiner CW1 had stated that the percentage of Diacetylmorphine can reduce over the period of time. However, counsel for accused had obtained the CFSL report in another case FIR No.76/04 dated 30.09.2004 in respect of seizure of heroine, wherein CFSL result on the first report contained the percentage of Diacetylmorphine as 16.8% and 7.2% in the two samples sent. However, samples from contraband were sent for retesting. The second report dated 13.3.2007 showed the percentage of Diacetylmorphine as enhanced to 30.4% and 9.0% respectively. The said report was also submitted by the same Chemical State vs. Guljaman etc : 5 : Examiner Dr. Madhulika Sharma, Asstt. Director (Chemistry). It was submitted by the counsel for accused/applicant that the time period for sending the first and second sample in both the cases were almost the same and the percentage had reduced in one case and enhanced in another case with the passage of time. Hence, it was in the fitness of things and in the interest of justice that the sample MarkB (i.e. the second sample drawn at the spot) lying with the police be sent to CFSL to get the report and to resolve the controversies and the opinion be sought whether with the passage of time, the percentage of Diacetylmorphine in heroine can reduce or increase and upto what level. Secondly, whether the Diacetylmorphine convert into monoacetylmorphine, morphine etc and codeine convert into morphine.
On this application, due to contradictory reports, it was considered in the fitness of the things that second sample MarkB, allegedly drawn from the contraband, be sent to CFSL for testing. Accordingly, vide order dated 31.7.2007, it was held that since the accused had taken a stand that in fact, the samples were not drawn from the alleged recovery and the sample taken out from the contraband had tested differently, the second sample be also put to test. The application was, thus, allowed and the sample mark B was ordered to be sent to CFSL, Chandigarh. The samples State vs. Guljaman etc : 6 : were sealed with the court seal and sent to CFSL, Chandigarh vide order dated 10.08.2007. However, the CFSL Chandigarh refused to accept the same as they did not have necessary facilities to test the sample and thereafter, the second sample was sent to CFSL, Hyderabad for testing vide order dated 30.08.2007.
Subsequently, report dated 16.11.2007 was received from Sh. S.N. Rasol, Junior Scientific Officer (Chemistry), FSL Hyderabad, who had reported that the sample had given positive test for the presence of Monoacetylmorphine.
Now, the counsel for accused has moved an application for bail on behalf of accused Guljaman stating that now, as per the report the sample allegedly drawn from the contraband had tested positive for presence of Monoacetylmorphine only, which was not a prohibited chemical and hence the accused be granted bail.
I have heard the Ld. Addl. PP for state and counsel for accused at length and have gone through the relevant FSL reports discussed above on record.
State vs. Guljaman etc : 7 : It is seen that the accused was allegedly found in possession of 4.8 kgs of heroine on 23.09.2004 which is a commercial quantity. Even, as per the first FSL report dated 30.11.2004, it contained 16.66% of diacetylmorphine, which comes to 799.68 grams of Diacetylmorphine, which was also a commercial quantity.
In the present case, it is seen that there are three reports received from the FSL on the three samples sent to the FSL at different times. Two of the samples were the samples allegedly drawn from the case property at the spot and one sample was drawn from the case property in the court. In the first FSL report, the sample had tested positive for presence of Diacetylmorphine with a purity percentage of 16.66 percent i.e. 799.68 grams of Diacetylmorphine in the 4.8 kgs of substance recovered from the accused. It would still be a commercial quantity. The said report was dated 30.11.2004. In the second FSL report, the sample had tested positive for Monoacetylmorphine, Acetyl codeine and Diacetylmorphine with purity percentage of Diacetylmorphine 1.2%. The said report was dated 6.3.2007. According to this, the quantity of Diacetylmorphine in the powder recovered from accused is 57.60 grams which is less than commercial quantity. The third FSL report was dated 16.11.2007 and it has tested positive only for the presence of Monoacetylmorphine, which State vs. Guljaman etc : 8 : according to counsel for accused was not a narcotic substance prohibited under the NDPS Act.
It may be noted that the third report has been submitted by the Junior Scientific Officer, CFSL Hyderabad while the first two reports are signed by Dr. Madhulika Sharma, Assistant Director (Chemistry), CFSL, Delhi. She has also been examined as court witness on 10.4.2007 after receiving the first two reports and it has been deposed by her that over a period of time Diacetylmorphine, which is a synthesized product, converts back into Monoacetylmorphine, morphine etc. and the purity percentage can also reduce over a period of time from 16.66% to 1.2%. Counsel for accused had crossexamined the Chemical Examiner and she had stated in her crossexamination that possibility of the two samples being of the same contraband could not be ruled out.
Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 provides as under : "37 Offences to be cognizable and nonbailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be cognizable.
State vs. Guljaman etc : 9 :
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless
(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of subsection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
Besides the other grounds for consideration at the time of granting bail, Section 37 of NDPS Act also prohibits the granting of bail when the accused is found in possession of a commercial quantity unless the court is satisfied that there was a reasonable ground for believing that he was not guilty of such offence.
In my opinion, there is the evidence of Assistant Director, CFSL to show that over a passage of time, there can be physical and chemical State vs. Guljaman etc : 10 : changes in Diacetylmorphine, which is a synthesized product. It converts back into Monoacetylmorphine, morphine etc and also the purity percentage can go down. While the first report shows that purity percentage was 16.66%, the second report shows that the purity percentage of Diacetylmorphine was only 1.2% and the third report shows that the sample could only test for presence of Monoacetylmorphine.
In view of the statement of the Chemical Examiner CW1 already recorded on record, there is a plausible explanation for the Diacetylmorphine to convert back into Monoacetylmorphine with a passage of time and thus, these three different reports itself cannot show that accused was not guilty of having committed such an offence. The embargo contained in Section 37 NDPS Act cannot be overcome by the counsel for accused simply because of these three reports as they are explained by Assistant Director, CFSL examined as CW1. Things would be different if these three reports were of the tests conducted on three different samples by different examiners at the same time.
It may also not be out of place to note that Monoacetylmorphine, though, not specifically mentioned in the notification No. S.O. 1055(E) dated 19.10.2001 u/Sec/ 2 of the NDPS Act listing the State vs. Guljaman etc : 11 : Narcotic Drugs & Psychotropic Substance, the same would be covered under Item 93 of the said list notifying the small quantity and commercial quantity under the NDPS Act i.e. Monoacetylmorphine being a derivative of the opium (like Diacetyl morphine) and not being listed specifically, under the Act would be covered under the Item 93 of the table and hence it cannot be said at this stage, while the evidence was still going on, that the accused was not guilty of having committed an offence under the NDPS Act. The bail application moved by accused Guljaman is, thus, rejected. Announced on 18.02.2008 (R. KIRAN NATH) ASJ/Spl. Judge (NDPS) Delhi.
State vs. Guljaman etc