Punjab-Haryana High Court
Gurmail Singh Alias Gela vs The State Of Punjab on 25 September, 2009
Author: Jasbir Singh
Bench: Jasbir Singh
CRIMINAL APPEAL NO. 512-DB OF 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: September 25th , 2009
Parties Name
Gurmail Singh alias Gela
...APPELLANT.
VERSUS
The State of Punjab
...RESPONDENT
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE JORA SINGH
PRESENT: Mr. Amarpreet Singh Deol, Sr. Advocate, with
Mr. Devinder Singh,
Advocate, for the appellant.
Mr. L.S.Sidhu, Advocate, for
the appellant in Cr.A. No.979-SB of 2009
Mr. D.S. Brar, D.A.G., Punjab;
JASBIR SINGH, J.
JUDGMENT
'Drug menace in Punjab' This is heading of an article, which appeared in a newspaper 'The Tribune, Chandigarh' on June 14, 2009, in which its writer, namely, Gobind Thukral has given the extent of drug abuse in the State of Punjab. He has referred to a portion of the report, prepared by the Department of CRIMINAL APPEAL NO. 512-DB OF 2006 -2- Social Security ,Women and Child Development, regarding danger posed by the use of drugs, in this part of the country. It has also been stated therein that about 66% of School going children in the State of Punjab are consuming Gutkhas or Tobacco, every 3rd male and every 10th female student have taken drugs on one pretext or the other. It has further been stated that 7 out of 10 College going students use one or the other drug. The contributor of the Aritcle has then posed a question in the following manner:
"Is it the land of the opium eaters, consumers of poppy husk or synthetic drugs or pills of all sorts?"
In the above said article, by making reference to an affidavit filed in this Court, in some other case by the Secretary of the Department, named above, it was mentioned as under:
"There are more candid admissions by the Punjab government when it says, "the vibrancy of Punjab is virtually a myth...many sell their blood to procure their daily dose of deadly drugs, even beg on the streets for money to continue their addiction....The entire Punjab is in the grip of drug hurricane which weakens the morale, physique and character of the youth. We are in the danger of losing the young generation. The vibrant Punjab that had ushered in the Green Revolution is today living in a dazed stupor as 67 per cent of its rural household has at least one drug addict." Only 33 per cent of the households have escaped this menace of drug addiction. How long can they escape."
As per report prepared by the State of Punjab, following is the extent of some of the contrabands recovered during the period from 2006 to 2008: CRIMINAL APPEAL NO. 512-DB OF 2006 -3-
"Year Heroin Smack Poppy-Husk Opum Charas
(In Kg) (In Kg) (in Quintal) (In Kg) ( In Kg)
2006 53 32 891 502 98
2007 111 32 887 492 96
2008 269 55 588 500 110"
From above said chart, we can easily presume that a large quantity of the drugs, may have escaped detection.
The Courts cannot be a silent spectator to the grave situation as has been depicted in that article. Future of the young generation is in danger. In such like situation, the drug traffickers are supposed to be dealt with heavy hands, obviously of course within the parameters laid down in Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
This judgment will dispose of Criminal Appeal No. 512-DB of 2006 (Gurmail Singh alias Gela v. The State of Punjab) and Criminal Appeal No. 979-SB of 2009 (Raj Singh alias Raji v. State of Punjab) as both these appeals have arisen from common occurrence. To dictate judgment, facts are being mentioned from Criminal Appeal No. 512-DB of 2006.
It was allegation against Gurmail Singh alias Gela that he along with his co-accused Raj Singh alias Raji was found in possession of opium weighing 10 kilograms, on January 7, 2005 at 11.35 PM, in the area of village Dalelwala, Police Station Boha, district Mansa. Case of the prosecution, as noticed by the trial Court in para No. 2 of the impugned judgment, reads thus:
CRIMINAL APPEAL NO. 512-DB OF 2006 -4-
"That SI Gurmail Singh of CIA Staff Mansa along with a few other police officials and SI Harpal Singh, Station House Officer, Police Station Boha, along with his police party were present in the revenue limits of village Dalelwala on 07.01.2005. PW Shamsher Singh was also associated with the exercise. At about 5.30 p.m., a Qualis car bearing registration No. T PB 10AW 7403 came there from the side of village Dalelwala. Besides the driver, the present accused was also riding in the Qualis car. On being so signalled the car stopped. On sight of the police posse both the occupants of the car got perplexed and after abandoning the car tried to run away. While accused Gurmail Singh was apprehended along with a black coloured bag, other occupant of the car who was identified by Pws ASI Nachhatar Singh and Shamsher Singh as Raj Singh alias Raji son of Sukhdev Singh resident of Giana, P.S. Raman was able to make good his escape. SI Gurmail Singh told accused Gurmail Singh that he suspected him to carry some narcotic in the bag which was required to be searched and that he had a right to have search of the bag on the spot in the presence of a Gazetted officer or a Magistrate or if so wished by him could be taken before any of them. Accused Gurmail Singh opted to have search of the bag on the spot in the presence of a Gazetted Officer. Investigating Officer recorded a memo and sent a wireless message to Police Station Boha to send some Gazetted Officer to the spot. After a while DSP Balbir Singh Khaira (PW) came there. Investigating CRIMINAL APPEAL NO. 512-DB OF 2006 -5- Officer apprised said DSP Balbir Singh Khaira of the facts and circumstances of the case. Thereafter, DSP Balbir Singh Khaira revealed his identity before the accused as a Deputy Superintendent of Police and a Gazetted Officer and told him that the bag in his possession was suspected to have some intoxicating material and was required to be searched. He also asked accused Gurmail Singh if he wanted search in his presence or in the presence of any other Gazetted Officer or a Magistrate. Accused Gurmail Singh exhibited faith in said DSP Balbir Singh Khaira and preferred to have search of the bag in his presence. A memo was accordingly prepared. On the directions of DSP Balbir Singh Khaira, Investigating Officer searched the bag as per laid down procedure and found it to contain opium wrapped in a polythene paper. From the contraband so recovered Investigating Officer separated two samples of 10 grams each. Remainder weighed 9.980 Kgs. Investigating Officer made the samples and remainder into separate parcels, affixed his seal bearing impression 'GS' on the parcels so prepared, prepared sample seal separately., handed over the seal after use to PW Shamsher Singh, took the parcels of case property, the bag and Qualis car, in police possession by recording a memo to this effect, searched person of accused. On failure of accused Gurmail Singh to produce any permit or licence to keep the contraband in his possession, along with his co-accused, Investigating Officer wrote a note and sent it to the Police Station through HC Raj Kumar where a formal First CRIMINAL APPEAL NO. 512-DB OF 2006 -6- Information Report came to be recorded by ASI Avtar Singh."
Thereafter the Investigating Officer arrested the accused, got prepared rough site plan of the place of recovery, with correct marginal notes. He also recorded statements of the witnesses under Section 161 Cr.P.C. The appellant - accused and the case property were produced before SI./ SHO Harpal Singh(PW3) in the Police Station. Shri Harpal Singh questioned the accused, verified the investigation and affixed his seal bearing impression 'HS' on parcels of the case property and took the case property in his possession. He also prepared sample of his seal and sent a special report, as is required under Section 57 of the Act. On January 8, 2005, SHO concerned produced the accused and the case property before the Ilaqa Magistrate along with an application and inventory. The Magistrate concerned passed necessary orders for safe custody of the case property. There was no space in the Judicial Malkhana , so the property was brought back to the Police Station and kept in safe custody. Sample parcel was sent to the Forensic Science Laboratory, Punjab, Chandigarh, for examination, on January 17, 2005, through Constable Sukhdev Singh, who deposited the same in that Laboratory, against a receipt. SI Harpal Singh recorded statement of Gurmail Singh and on receipt of report of Forensic Science Laboratory, which confirmed the contents of the sample parcel to be opium, he prepared a final report and submitted it in Court for trial.
It is necessary to mention here that in the meantime, co-accused of the appellant, namely, Raj Singh alias Raji (appellant in Criminal Appeal No. 979-SB of 2009) was declared a proclaimed offender.
The appellant - accused was charge-sheeted to which he CRIMINAL APPEAL NO. 512-DB OF 2006 -7- pleaded not guilty and claimed trial. The prosecution produced four witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He further stated that the case has falsely been registered against him, at the instance of Lakhwinder Singh, Superintendent of Police (Detective), for extraneous reasons. He further stated that before the institution of the case, he was called by the above said officer in his office, at Mansa through a special messenger. He was questioned for about half an hour. An offer was given to him to start sale and purchase of opium and poppy husk. The appellant refused the said offer, on account of which false case has been planted upon him. It was also stated by the appellant - accused that he had filed a writ petition, in this Court, against Assistant Sub Inspector and Superintendent of Police, Mansa, for release of detenus, namely, Albel Singh and Baljinder Singh. Both the above named persons were got released with the intervention of a Warrant Officer, appointed by this Court. Enquiry regarding that incident was still pending. It was case of the appellant that in view of above said fact, the police officials have falsely implicated him in this case. Appellant - accused further stated that at the time of alleged arrest on January 7, 2005, he was present at a different place, in a function organised by Gram Panchayat of village Burj Dhilwan. Thereafter he had gone to Truck Union, Mour, at about 6/6.30 PM, where he was arrested by the police in the presence of Gurbachan Singh son of Kartar Singh, Member of the Truck Union, and Jagroop Singh son of Dalel Singh, Munshi of Truck Union at Mour Mandi and others. It was also CRIMINAL APPEAL NO. 512-DB OF 2006 -8- stated by the appellant that Raj Singh alias Raji was a witness, when detenus Albel Singh and Baljinder Singh were got released from illegal custody as stated above. On account of that, Raj Singh was also falsely involved in this case. The appellant also led evidence in defence.
The Court below after analysing evidence as led by the parties, came to a conclusion that the prosecution was successful in proving its case. The appellant was accordingly convicted for commission of an offence punishable under Section 18 of the Act and sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs. 2,00,000/- with a default clause. Hence this appeal.
Shri Amarpreet Singh Deol, Senior Advocate, counsel for the appellant assailed the impugned judgment and order, passed by the trial Court, by making reference to some discrepancies here and there in the statements made by the prosecution witnesses. He further argued that the presence of DSP Balbir Singh Khaira (PW2), at the spot, was doubtful. Counsel has further argued that the recovery was alleged to have been effected on January 7, 2005. Sample of opium was sent for chemical examination on January 17, 2005. No explanation for delay has been given, benefit of which must go to the appellant - accused. In the alternative, counsel for the appellant has vehemently contended that the Court below has wrongly held the appellant - accused in possession of 10 kilograms of opium. By making reference to the report of Forensic Science Laboratory (Ex. PQ), he contended that in the sample sent for examination, contents of morphine were only 5.1 % , In view of that, he argued that the Court should have calculated quantity of the contraband by applying above said ratio to CRIMINAL APPEAL NO. 512-DB OF 2006 -9- the alleged bulk recovery from the appellant. If the weight had been calculated by taking note of morphine contents in the sample, quantity of opium would come to about 500 grams only and it would be less than the commercial quantity and as such sentence awarded to the appellant could not have been awarded. To support his contention, he has placed reliance upon a judgment of the Hon'ble Supreme Court in E.Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 2 Supreme Court Cases (Criminal) 558. He prayed that the appeal be allowed and the judgment and order under challenge be set aside.
Prayer made has vehemently been opposed by the State counsel. He, by making reference to the statements, made by the prosecution witnesses, argued that all of them have stood test of the cross- examination. The circumstances, under which contraband was recovered, were vividly narrated by SI Gurmail Singh (PW1). He further stated that the recovery was effected after making necessary compliance with the statutory requirements under the Act. Minor discrepancies, as to how message was received by DSP Balbir Singh Khaira, time of recovery etc. do not go to the root of the case, being routine mistakes, having been committed due to lapse of time, in between when the witnesses deposed in the Court. He further argued that the case property was produced before the Magistrate on January 8, 2005. It was verified and requisite order was passed to keep it in safe custody. Space was not available in the Judicial Malkhana, due to which the case property was kept in safe custody in the Police Station. Sample was sent for chemical examination on January 17, 2005 through Constable Sukhdev Singh. Seals on the sample remained intact till it reached the Forensic Science Laboratory at Chandigarh. To say so, CRIMINAL APPEAL NO. 512-DB OF 2006 -10- reference has been made to the contents of the report of the Forensic Science Laboratory (Ex. PQ). State counsel further argued that the total bulk of contraband recovered was rightly taken into consideration while awarding punishment to the appellant - accused. In the case of opium, besides morphine and other alkaloids, even purest form of the opium is bound to have neutral material in it. The said material being part of the opium cannot be segregated and the weighment cannot be made by taking contents of morphine alone in sample of the opium. He argued that ratio of the judgment in E. Micheal Raj's case (supra) is not applicable to the facts of the present case because that judgment was passed in a case in which heroin was recovered, which is a derivative of opium. He prayed that the appeal having no substance be dismissed.
Perusal of record indicates that on January 7, 2005, at about 5.30 PM, a Qualis car was stopped by the police party, near the canal distributory in village Dalelwala. The said car was being driven by the appellant -accused and one more person was sitting in the car. When signaled to stop, both the occupants tried to run away after abandoning the car. The appellant accused was arrested at the spot along with a black coloured bag in his hand. His co-accused escaped from the spot. However, he was also identified by ASI Nachhattar Singh and PW Shamsher Singh as Raj Singh alias Raji son of Sukhdev Singh, resident of village Giana. On suspicion, SI Gurmail Singh (PW1) gave an option to the appellant to get his search conducted, in the presence of a Magistrate or a gazetted officer. The appellant opted for a gazetted officer. Balbir Singh Khaira, DSP, was called to the spot. He, after disclosing his identity, conducted search of the bag, recovered from the appellant, out of which 10 kilograms of opium was CRIMINAL APPEAL NO. 512-DB OF 2006 -11- recovered. Two samples of 10 grams each were separated from the bulk and sealed with the seal bearing impression 'GS'. Sample of the seal Ex. P1 was also prepared. The car bearing No. TPB 10AW 7403 was taken into possession. Seal after use was handed over to PW Shamsher Singh. It has also come on record that thereafter the accused and the case property were produced before SI Harpal Singh (PW3), who verified the case property, put his seal bearing impression 'HS' on it. Sample of the seal was also prepared. The appellant - accused and the case property were produced before the Ilaqa Magistrate on January 8, 2005, who verified the same and ordered that the case property be kept in safe custody. The sample was sent for examination on January 17, 2005. As per report of the Forensic Science Laboratory, Punjab, Chandigarh, (Ex. PQ), morphine and other alkaloids of opium were found present in the sample. Percentage of morphine was assessed at 5.1%. Despite lengthy cross-examination, the prosecution has failed to shatter testimony of the prosecution witnesses. The prosecution story was further authenticated by DSP Balbir Singh Khaira(PW2), SI Harpal Singh (PW3) and constable Sukhdev Singh (PW4). Shamsher Singh, an independent witness, was not examined by the prosecution, as having been won over by the accused. It is not in dispute that Qualis car, in question, was in the ownership of the appellant - accused. This fact stands proved when we peruse documents - Ex. P7( Certificate of Temporary Registration) and Ex. P8 (sale certificate). The case of the prosecution is further strengthened when we analyse deposition made by DSP Balbir Singh Khaira (PW2) and SI Harpal Singh (PW3). Both have deposed as to how recovery was effected and case property was verified, seals were put on it and accused and the case property were produced before the concerned CRIMINAL APPEAL NO. 512-DB OF 2006 -12- Magistrate.
As per facts of this case, though there was no need to comply with the provisions of Section 50 of the Act, yet, the prosecution has successfully proved that it complied with the above said statutory requirement by effecting recovery in the presence of a gazetted officer. Constable Sukhdev Singh (PW4) by filing his affidavit Ex. PR, has deposed as to how he deposited sample of the case property with the Forensic Science Laboratory, Punjab, at Chandigarh. The trial Court, after critically analysing evidence of the prosecution, has rightly come to the conclusion that the contraband in question was recovered from the appellant - accused on January 7, 2005.
To show that at the time of alleged recovery, the appellant was available at a different place, his evidence in defence has been rightly negatived by the trial Court. It was case of the appellant that at the time of alleged recovery, he was available in village Dhilwan in connection with a Prize Distribution function. He produced Sher Singh as DW1, however, that witness failed to produce any record to show that any sports event was organized by the Gram Panchayat on that date. Testimony of Sarabjit Singh (DW2) was also discarded by taking note of the documents on record. Statements of Jaspal Singh (DW3) and Gurbachan Singh (DW4) were also rejected, as those were not inspiring confidence. The trial Court has also noticed that minor discrepancies indicated by the defence in the statements made by the prosecution witnesses are not material and do not go to the root of the case. Regarding keeping the case property in Police Malkhana, the prosecution has successfully proved that in Judicial Malkhana, sufficient space was not available. Otherwise also, above said fact does not enhance CRIMINAL APPEAL NO. 512-DB OF 2006 -13- case of the appellant accused because before the Magistrate and also when sample was delivered at the Forensic Science Laboratory, seals were found intact and tallied with the sample seal.
In view of above, we can safely say that the prosecution has proved that on January 7, 2005, opium was recovered from the appellant - accused.
Admittedly, there is delay of about 10 days in depositing sample of the contraband with the Forensic Science Laboratory, however, keeping in view facts of this case, we hold that no benefit can be given to the appellant - accused on account of that fact. It is not disputed before us that the appellant - accused was produced before the concerned Magistrate, along with the case property on January 8, 2005. The Magistrate passed the following order:
"The case property consisting of one Dabba plastic contained 9 kilos 980 grams opium along with two sealed parcels , each containing 10 grams of opium duly sealed with the seals bearing impressions 'GS' and 'HS' along with inventory produced before the undersigned. All the seals are found to be intact. Now the case property be deposited with Judicial Malkhana."
On January 17, 2005, sample was deposited with the Forensic Science Laboratory, Punjab, at Chandigarh. In report Ex. PQ, following noting was given by the Deputy Director(Toxicology):
"Seals on the parcel were intact and tallied with the specimen seal"CRIMINAL APPEAL NO. 512-DB OF 2006 -14-
Once it has come on record that the seals remained intact and were not tampered with so far as the sample is concerned, the delay of 10 days in sending the parcel will not make any difference. Under similar circumstances, their lordships of the Supreme Court in Hardeep Singh v. State of Punjab, (2008) 8 Supreme Court Cases 557, has observed as under:
"16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the appellant, which fact is also corroborated by a higher officer, namely, S.S. Mann, DSP who was also examined at length during the trial. The said recovery was effected in the presence of the said S.S. Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium.
17.The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1 was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of the Chemical Examiner, Amritsar on 30-9-1997 through ASI Surinder Singh (PW 3). CRIMINAL APPEAL NO. 512-DB OF 2006 -15- It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant. The aforesaid contention, therefore, also stands rejected."
In view of ratio of the judgment of the Hon'ble Supreme Court, argument of counsel for the appellant regarding delay in depositing sample with the Forensic Science Laboratory, Punjab, at Chandigarh is liable to be rejected.
Shri Amarpreet Singh Deol, Senior Advocate, counsel for the appellant by placing reliance upon the judgment of the Hon'ble Supreme Court in E. Micheal Raj's case (supra) tried to convince us that total weight of the opium recovered (10 Kgs.) is not material, liability of the appellant, if any, is required to be fixed by taking note of 'purity percentage content' (5.1% morphine) of the opium, translated into weight, that is relevant. He has argued before us that in the sample of opium, morphine content was found to be 5.1%. If after taking above said percentage of purity, weight is calculated, it would come to around 500 grams, which is less than the commercial quantity and in that event the Court was supposed to award CRIMINAL APPEAL NO. 512-DB OF 2006 -16- lesser punishment to the appellant- accused.
For the reasons, mentioned hereinafter, we are not inclined to accept above said contention, raised by counsel for the appellant. In E.Micheal Raj's case (supra), contraband recovered was heroin. Taking note of purity content of the heroin (diacetyl- morphine) in the sample, their Lordships of the Supreme Court observed that weight of the contraband recovered be calculated on the basis of purity content of heroin found in the recovered material. Heroin is an opium derivative. To attain its form, it has to pass through various processes which involve use of hot water, heat and adding of various chemicals.
To the contrary, opium is a natural substance. The opium is the dried milky juice (latex obtained from the unripe seed pods of plant known as Papaver Somnifer -UM-L).
For further discussion, it is necessary to note down definitions of "manufactured narcotic drug", "opium", opium derivative, "preparation" and psychotropic substance. Relevant provisions read thus:
"Section 2 xxx xxx xxx
(xiv)"narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods;
(xv)"opium" means-
(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 per cent of morphine:(Emphasis supplied) CRIMINAL APPEAL NO. 512-DB OF 2006 -17- (xvi)"opium derivative" means-
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
© phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d)diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine;(emphasis supplied) (xx)"preparation", in relation to a narcotic drug or psychotroipic substance, means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances;
(xxiii)"psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic CRIMINAL APPEAL NO. 512-DB OF 2006 -18- substances specified in the Schedule."
Punishment to possess opium, without permit or licence is provided in Section 18 of the Act, whereas to possess manufactured drug illegally, punishment is provided in Section 21 of the Act.
As per scheme of the Act different quantum of punishment is provided for contravention, which involves possessing small quantity, quantity lesser than commercial quantity (intermediate quantity) and commercial quantity.
By notification dated July 16, 1996 issued in compliance with the provisions of sub clause (vii)(a) and (xxiii)(a) of Section 2 of the Act, for heroin, morphine and opium, following provision has been made:
"Sr.Name of Narcotic Other Chemical Small Commercial No. Drug and Psychotropic non- Name Quantity Quantity Substance Proprietary (in gm.) ( ingm/kg) (International Name non-priprietary name (INN) xxx xxx
56. Heroin Diacetylmorphine 5 250gm
77. Morphine Morphine 5 250gm
92. Opium And any preparation 25 2.5Kg"
containing opium As has been noticed earlier, opium is a dried milky juice (latex obtained from unripe seed pods of plant papaver somnifer -um- L).
Noting gravity of the drug abuse, the United Nations have established its office on Narcotic Drugs and Crime (UNODC). It has also established commission on Narcotic Drugs (CND). Various schemes have been launched to put an end to the drug menace. Under the United Nations CRIMINAL APPEAL NO. 512-DB OF 2006 -19- International Drug Control Programme, in the year 1995, parameters were laid down to detect contents of morphine in opium, contents of Diacetylmorphine in heroin etc. In biological specimen, it was mentioned as under:
"Opium is a natural product, obtained by incision of the unripe poppy capsules. The milky latex which oozes from the incisions is scraped by hand and air dried to produce the opium gum. Raw opium is a complex mixture containing sugars, proteins, lipids, other gummy substances and water such that the active alkaloid fraction makes up only 10-20 % of the total weight. About 40 alkaloids have been reported . Four or five of these can be considered as the main constituents, falling into two general categories, the phenanthrene alkaloids, represented by morphine, codeine and thebaine, and the isoquinoline alkaloids represented by papaverine and narcotic (nonscapine). The relative amounts of the different alkaloids can vary greatly depending on such factors as the climate, the altitude, the fertility of the soil, the amount of available moisture, the age of the plant, the time of lancing and the variety of Papaver somniferum.
Morphine is the principal alkaloid of opium, ranging in concentration from 4-21%, the usual range being 8-14%. Licitly produced raw opium, known as Indian Opium, contains not less than 9.5% morphine, calculated as anhydrous morphine.
Narcotine is the second most abundant alkaloid, usually present CRIMINAL APPEAL NO. 512-DB OF 2006 -20- in 2-8%. It is non-narcotic and sometimes is present in crude morphine as an impurity.
Codeine is found in raw opium in concentrations ranging from 0.7-3 %. Its presence, as an impurity in crude morphine used for the preparation of heroin, results in the formation of acetylcodeine.
Thebaine is a minor alkaloid in Papaver somniferum, present at the 0.2- 1% level.
Papaverine is usually present at the 0.5 - 1.3 % level. Another characteristic substance for opium is meconic acid, present in amounts up to 15%. Depending upon the extraction technique, this influences the purity of the crude morphine isolated from opium."
Above said narration indicates that in opium, 'morphine' content, which is the principal alkaloid of opium will vary from 4 to 21%. Presence of other four principal alkaloids, namely, narcotine, codeine, thebaine, papaverine will also be available though in small quantities. Meconic acid will also be present in opium (source www.unodc.org.) Above said fact indicates that in opium, besides morphine, other four principal alkaloids, sugar, protein, lipids, gummy substance and water will be available. It will also contain 35 other alkaloids though in a very small quantity. This fact clearly depicts that percentage of availability of morphine content in opium cannot be made sole basis to determine total weight of the substance. Opium is a natural material, directly coming from a plant. In case of recovery of opium, entire weight shall have to be taken CRIMINAL APPEAL NO. 512-DB OF 2006 -21- into consideration.
In a Bulletin on Narcotics, Volume LVII, Nos and 2, 2005, issued by the United Nations, under the heading "Science in drug control", the roll of laboratory and scientific expertise have been analysed. In that bulletin, complete detail as to how from opium (basic substance) heroin is prepared has been given. After showing various stages, through which product has to pass, the following chart has been given:
"Figure II. Observed process for manufacture of heroin hydrochloride, stating the quantities of the raw opium, the intermediate morphine base and the final product Raw opium: 70 kg" (8.5% morphine content) ↓ ↓ Morphine base 7.8 kg" (53% purity; equivalent to a ↓ calculated weight of 4.1 kg of pure ↓ ↓ morphine base) ↓ Brown heroin base: ↓ ↓ ↓ White heroin base ↓ ↓ ↓ White heroin hydrochloride 3.9 kg" (74% purity; equivalent to a calculated weight of 2.9 kg of pure heroin HC1) "The weight given for the opium used is that of the raw material at the place of manufacture The weight given for the morphine base is that of the air-dried substance weighed on site.
The weight of the white heroin hydrochloride is that of the substance dried on the water bath."
Above said chart shows that in purest form of the heroin, content of 'diacetyl morphine' may go up to 74%. It will be much less in CRIMINAL APPEAL NO. 512-DB OF 2006 -22- brown heroin base. Purity also depends, how and under what circumstances the product has been prepared. It is also an admitted scientific fact that if at the time of preparation, heroin is not dried completely and proper process is not used, and the same is open to natural wear and tear, the diacetyl morphine content will decrease, whereas content of morphine and other alkaloids is bound to increase. In that event, to calculate weight of the contraband recovered,to rely only upon purity of diacetyl Morphine detected in a sample will probably be not a suitable method, unless content of morphine etc., in that very sample is known.
How weight of the contraband is to be measured? This question came up for consideration before a Division Bench of this Court in Criminal Appeal No. 537-DB of 2006 (Anup Gupta v. State of Punjab), decided on May 7, 2008. This Court considered judgments in Ansar Ahmad v. State, 2005(4) Recent Criminal Reports (Criminal) 393(Delhi High Court), in Shaji v. Kerala State , 2004(4) R.C.R. (Criminal) 643 (Kerala High Court) and in T. Paul Kuki @ Pabul Youthband v. State of West Bengal , Crimes XI - 1993(3) page 660(Calcutta High Court). In the judgments of Delhi High Court and Kerala High Court, it was mandated that out of the total bulk recovered, to calculate the weight purity content of the drug (narcotic substance), detected in a sample shall be relevant, whereas to the contrary, in judgment passed by the Calcutta High Court, it was opined that if the minimum percentage of drug/ psychotropic substance is recovered, the entire bulk will be taken into consideration for inflicting the punishment. The Division Bench also took note of a judgment passed by the Hon'ble Supreme Court in Amar Singh Ramjibhai Barot v. State of Gujarat (2005) 5 Supreme Court Cases 550. Thereafter, it was observed as CRIMINAL APPEAL NO. 512-DB OF 2006 -23- under:
"25. Having given our thoughtful consideration to the issue in hand, we are of the view, that it is extremely essential to refer to certain drugs/psychotropic substances reflected in the notification referred to above. For the purpose in hand, we are satisfied that a reference to narcotic drugs/ psychotropic substances indicated at serial Nos. 56, 92, 93 and 239 of the notification will suffice for recording our conclusions. Accordingly, an extract from the notification, pertaining to the aforesaid serial numbers, is being reproduced hereunder:
Sr. No. Name of Other Chemical Small Commercial narocotic drug non Name quantity Quantity and psychotropic propriet (in gm.) (in gm./kg.) substance ary (international name non-proprietary name (INN) 56 Heroin Diacetylmorp 5 250 gm.
hine 92 Opium And any 25 2.5 kg preparation containing opium 93 Opium Other than 5 250 gm.
Derivatives diacetyl
morphine
(heroin),
morphine and
those listed
herein
CRIMINAL APPEAL NO. 512-DB OF 2006 -24-
Sr. No. Name of Other Chemical Small Commercial
narocotic drug non Name quantity Quantity
and psychotropic propriet (in gm.) (in gm./kg.)
substance ary
(international name
non-proprietary
name (INN)
239 Any mixture or Lesser of the Lesser of the
preparation that of small commercial
with or without a quantity quantity
natural material, between the between the
of any of the quantities quantities
above drugs given against given against
the respective the respective
narcotic narcotic
drugs or drugs or
psychotropic psychotropic
substances substances
mentioned mentioned
above above
forming part forming part
of the of the
mixture. mixture.
26.i)In the case in hand the drug recovered from the accused / appellant Anup Gupta was eventually found to be diacetylmorphine. In respect of the aforesaid drug, reference must be made to serial No. 56 which depicts less than 5 grams of diacetyl morphine as "small quantity", and more than 250 grams as "commercial quantity". It would be pertinent to mention that the general name of the drug under reference at serial No. 56 is "heroin". Reference may also be made to serial No. 92 of the notification, wherein, as against the generic name of "opium", (without describing any chemical name thereof) the notification in column 4 clarifies that the drug/ substance at serial No. 92 would include "any preparation containing opium". A preparation containing opium would necessarily imply that it is a CRIMINAL APPEAL NO. 512-DB OF 2006 -25- mixture with opium as one of the components. Serial No. 92, therefore, mentions a narcotic drug/ psychotropic substance wherein the content of the drug/ substance may be only a percentage of the whole. It is also apparent that for the entry at serial No. 92, the substance, in which heroin is mixed has to be a neutral substance, and not some other narcotic drug/ psychotropic substance, because for the latter, the notification has prescribed the required parameters ( for determining "small quantity" and "commercial quantity") at serial No. 239. For serial No. 92, the notification mandates the "whole" of the mixture recovered is treated as a narcotic drug/ psychotropic substance. Therefore, the total weight of the mixture has to be taken into consideration to find out whether the material recovered answers the description of "small quantity" or "commercial quantity". From Serial No. 92, it is inevitable also to notice that where the notification issuing authority desired to take into consideration a narcotic drug/ psychotropic substance mixed with some neutral substance, it took cudgels to specify the same. This leads us to record our first conclusion, namely, the notification refers to specific narcotic drug(s)/ psychotropic substance (s) where the intention is to take into consideration the weight of the drug/ substance in its pure form, and expressly described the narcotic drug/ psychotropic substance, in the form of a mixture where it was the intention to take the total weight of the mixture (to CRIMINAL APPEAL NO. 512-DB OF 2006 -26- determine whether the possession constituted "small quantity" or "commercial quantity")."
In the judgment, mentioned above, it was further said that what is applicable to entry at Sr. No. 92, will not be applicable to entry at Sr. No. 93, mentioned above. That was a case in which heroin was recovered. After dealing with various provisions of the Act, it was said that in the case of drugs, mentioned by commercial name, where the recovery is in the form of mixture, weight of neutral substance calculated in the mixture will have to be excluded to determine small quantity or commercial quantity. By applying ratio of the judgment in E.Micheal Raj's case (supra), the Division Bench, after taking note of purity content diacetyl morphine in the recovered contraband gave benefit to the appellant - accused in that case.
Section 2(xv) of the Act says that opium would mean the coagulated juice of the opium poppy, and any mixture, with or without any neutral material of the coagulated juice of the opium poppy but does not include any preparation containing more than 0.2 per cent of morphine. A plain reading of the definition makes it very clear that opium is coagulated juice of opium poppy and any other mixture containing contents of juice of opium poppy where morphine content is not more than 0.2 %. Section 2 (xx) defines"Preparation" in relation to a narcotic drug or psychotropic substance in a dosage form or any solution or mixture, in whatever physical state containing one or more such drugs or substances. It means that any preparation which contains more than 0.2 % of the morphine can safely be put and described as opium.
In view of facts, mentioned above, it is not possible to calculate CRIMINAL APPEAL NO. 512-DB OF 2006 -27- actual weight of opium by taking note of purity of morphine content in it. If we do that, then the last portion of sub clause (xv) of Section 2 of the Act, which reads thus:"but does not include any preparation containing not more than 0.2 per cent of morphine" shall become redundant. Even in raw opium, morphine content on average will not be more than 8 to 14%. In some cases, depending upon climate, variety of plant etc. may go down upto 3%. The parameters, which are applicable in the case of heroin, which is an opium derivative, cannot be made applicable to the opium to calculate actual weight. Any contraband, in which morphine content is found more than 0.2 % will be opium and charge-sheet may be framed and punishment can be awarded accordingly.
In this case, report of the Forensic Science Laboratory Ex. PQ, column No. 8 reads thus:
"Morphine and other alkaloids cocaine of opium found present. Percentage of morphine: 5.1%"
In conclusion, it is further said in the report that on the basis of analysis, contents of the sample have been identified as opium.
Not only this, when an accused (criminal) sells opium to an innocent person, on that drug no label is put to show its purity. Notorious criminals add neutral material in the opium/heroin with a view to increase profit, the criminals do not mention purity of morphine/heroin content and other chemicals in the contraband. If by adding neutral material, criminals, in order to satisfy their greed, can increase the bulk to get profit , then why they should not be punished by treating the neutral material as part of the contraband recovered. In view of danger posed to the society, a criminal CRIMINAL APPEAL NO. 512-DB OF 2006 -28- shall not be entitled to get such like technical benefit from the Courts.
Now we will deal with submissions made by the appellant - accused in Cr. Appeal No. 979-SB of 2009.
As per case of the prosecution, on January 7, 2005, appellant - accused was travelling with his co-accused, namely, Gurmail alias Gela in a Qualis car bearing No. T PB 10 AW 7403. On suspicion, they were stopped. Gurmail Singh was arrested at the spot along with 10 kilograms of opium, whereas the present appellant ran away from the spot. He was declared a proclaimed offender. Gurmail Singh, his co-accused, was tried separately and was convicted and sentenced vide judgment and order dated July 7, 2006. The appellant - accused was arrested thereafter and he was put to trial separately and convicted for commission of an offence under Section 18 of the Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- on February 28, 2009. This appeal was also put up for hearing along with criminal appeal filed by his co-accused Gurmail Singh bearing No. 512-DB of 2006. We have already noted necessary facts regarding case of the prosecution in earlier part of this judgment. Those need not be repeated.
It has come on record that the appellant - accused was not arrested at the spot. His name was mentioned in the ruqqa/FIR at the instance of ASI Nachhattar Singh (PW5). Perusal of statement made by above named witness indicates that both were not known to each other earlier. Nachhattar Singh has only stated that the appellant - accused Raj Singh was known to him being a Kabaddi player. Nachhatar Singh further stated that he was also a Kabaddi player and he had seen the appellant - accused playing Kabaddi at Melas. Recovery was effected on January 7, CRIMINAL APPEAL NO. 512-DB OF 2006 -29- 2005. In his cross-examination, this witness deposed as under:
"For the first time I saw accused Raj Singh in a Kabadi match at Bhopal Mela in the year 2001 and at that time I was posted in Police Station Boha. I was not on duty on Bhopal Mela where I saw accused Raj Singh for the first time. However, I had gone there to see the Mela i.e. Fair. In village Bhopal two Melas are held, one in the month of Chet and second in the month of Bhado. The said Mela is known as Baba Jogi Peer Mela. I do not remember if I saw accused Raj Singh in Mela held in Chet or Bhado. Thereafter, I saw accused Raj Singh in a Kabadi match at Talwandi Sabo but do not remember the years, perhaps it was in the year 2003. I was on Mela duty when I went to Talwandi Sabo in connection with Baisakhi. At that time, I was either posted in P.S. Joga or CIA Mansa. There I did not see accused Raj Singh. I did not also see him prior to the year 2001. I had seen accused Raj Singh twice, as stated above. I do not know about the brothers and sisters of accused Raj Singh. I have never gone to his house. Village of accused Raj Singh falls in Police Station Raman. Accused Raj Singh did not meet me at Raman. It is incorrect to suggest that accused Raj Singh never played any Kabadi match in Mela of Jogi Peer or at Talwandi Sabo. I have stated about the clothes worne by accused Raj Singh in my statement to I.O. He was wearing Kurta Payjama. I have not stated about the description of accused Raj Singh to I.O. but had told him that I already knew him. Confronted with his statement Mark A wherein there is no CRIMINAL APPEAL NO. 512-DB OF 2006 -30- mention regarding the clothes worn by accused Raj Singh. Accused Raj Singh was wearing rubber shoes."
This witness has admitted that he stopped playing Kabaddi in the year 1988. A perusal of his statement shows that the witness has seen the appellant - accused only at two occasions. The presence of this witness at the time of sports events appears to be doubtful. This official was not on duty. He had stopped playing Kabaddi in the year 1988 and he was about 55 years of age at the relevant time. Nothing has been brought on record that on those dates, when sports events were organised, he had taken leave from the department. As has been noticed earlier, car in which the accused were travelling, is the ownership of Gurmail Singh accused. Bag of opium was also recovered from him. DW1 and DW2 have specifically stated that they have not seen Raj Singh, appellant, playing Kabaddi in sports events in Mela of Jogi Peer. DW2 has specifically stated that one leg of the appellant was fractured in the year 1991. Thereafter he stopped playing Kabaddi. In his statement recorded under Section 313 Cr.P.C., it was stated as under by the appellant - accused:
"I am innocent. I have falsely been implicated in the present case because brother of Gurmail Singh was illegally detained by the police of Police Post Bheniwal about one month prior to the alleged recovery and Gurmail Singh brought Warrant Officer from the Hon'ble High Court who recovered brother Gurmail Singh, namely, Albel Singh in my presence and due to this reason, I have falsely been implicated in the present case." CRIMINAL APPEAL NO. 512-DB OF 2006 -31-
Similar ground was taken by Gurmail Singh when he was examined in his separate trial.
We feel that the prosecution has failed to prove identity of the appellant - accused Raj Singh in this case. It appears that he was arrayed only being a friend of his co-accused, namely, Gurmail Singh. As per case of the prosecution, both the accused were travelling together in a car. The car was stopped by the police officials, who were more in number. We are not convinced that the appellant - accused Raj Singh, if available, would be able to run away from the spot as has been alleged in the present case.
At the time of arguments, it was brought to our notice by the State counsel that Forensic Science Laboratories in the States of Punjab, Haryana and UT Chandigarh are ill-equipped. They lack in infrastructure, men power and requisite chemicals to properly analyse the contraband recovered. We are living in computer age. Unless laboratories are run by individuals , who are Expert in their field,and proper infrastructure is available, it will not be possible to eradicate this menace of drug abuse. Data profile of the drugs, further scientific research to contain evil of synthetic drug, which are coming in the market, is also necessary. The United Nations Office on Drugs and Crime and Commission on Narcotic Drugs have issued elaborate guidelines in that regard. The States are supposed to look into those guidelines and try to implement these within their limited financial resources. If proper data profile of a contraband is available with the Courts, it will be possible for the Courts to grant adequate punishment to an accused. To streamline functioning of the laboratories in the States of Punjab and Haryana and UT Chandigarh, we issue directions to the Home Secretaries of all the three States that they, in CRIMINAL APPEAL NO. 512-DB OF 2006 -32- consultation with the Directors of the Forensic Science Laboratories, prepare a status report indicating deficiencies, in terms of man power and infrastructure with the Laboratories including chemicals etc., which are necessary for sample analysis. The status report be put to the authorities concerned within a period of two months from the date of receipt of copy of this order and thereafter every effort shall be made to provide man power and material to the laboratories to make them effective tool for analysis of drug samples.
In view of above, Criminal Appeal No. 512-DB of 2006, titled as Gurmail Singh alias Gela v. State of Punjab, is partly allowed , it is dismissed qua conviction of Gurmail Singh alias Gela. However, taking note of a fact that the appellant is a first offender and in view of ratio of the judgment of the Hon'ble Supreme Court in Balwinder Singh v. Assistant Commissioner, Customs and Central Excise, 2005 Supreme Court Cases (Criminal) 1092, we reduce his sentence from twenty years to fifteen years. Sentence of fine is confirmed.
We, as per facts mentioned above, allow Criminal Appeal No. 979-SB of 2009 titled as Raj Singh alias Raji v. State of Punjab, judgment of conviction and order of sentence of Raj Singh alias Raji dated 28.2.2009 are set aside.
Copy of this judgment be circulated to all the Special Judges in the States of Punjab, Haryana and UT Chandigarh.
(JASBIR SINGH) JUDGE (JORA SINGH) JUDGE September 25th , 2009.
DKC