Bombay High Court
Ahamad Usman Bhattiwala vs State Of Maharashtra on 15 December, 1992
Equivalent citations: 1993CRILJ3264, 1993(1)MHLJ713
JUDGMENT Saldanha, J.
1. An interesting and somewhat significant angle concerning Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") has been canvassed in this appeal. It is submitted that the onus of proving that the small quantity of contraband found with the appellant-accused No. 1 can as well be discharged in law by establishing to the satisfaction of the Court from the record that it was intended for personal consumption. In other words, the argument proceeds on the footing that it is neither feasible nor is it always necessary to go through the exercise of formal proof for purposes of invoking the lesser sentence provided for under section 27 of the N.D.P.S. Act. The situation arises in the following circumstances.
2. The appellant, an old man and a resident of Ratnagiri, was alleged to have been sitting on a wall at about 9.15 p.m. on the night of 20-11-1990. The Police had received information relating to drug-trafficking and the raiding party, along with the Panchas, apprehended the appellant-accused. He is alleged to have declined the offer to be searched in the presence of a Magistrate or a Gazetted Officer, and the Police found 20 small pills of Charas in his shirt-pocket. A goldsmith was called and the weight of the contraband was found to be 5.100 gms. The contraband was separated, four of the pills being set apart for being sent to the Chemical Analyser and the remaining 16 pills were sealed under a Panchanama. The Chemical Analyser's Report indicates that Charas was detected in the sample. The appellant-accused was put on trial before the learned Sessions Judge, Ratnagiri. In his defence, the appellant-accused had merely denied possession of the drug. The learned Sessions Judge accepted the prosecution evidence and rejected the defence submission that Section 27 of the N.D.P.S. Act would apply to the facts of this case. What is of importance is the fact that the learned Sessions Judge held that only four pills weighing in all 1 gm., which were sent to the Chemical Analyser, can be proved to be Charas in so far as there was no guarantee that the remaining pills were also of the same material. Strangely enough, therefore, in respect of a conviction for 1 gm. of Charas, the appellant-accused was awarded a sentence of ten years' rigorous imprisonment and a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for a period of one year. The learned Sessions Judge has observed that since Section 27 of the N.D.P.S. Act does not apply to this case, the conviction would have to be under section 20(b)(ii) of the N.D.P.S. Act and in these circumstances the minimum sentence prescribed was awarded. The appellant-accused has been in custody and this appeal has been filed through jail. Shri Mundargi, learned Counsel appointed on behalf of the appellant-accused, has argued the matter on his behalf.
3. Shri Mundargi did start by advancing the submission that the procedure prescribed under the N.D.P.S. Act has not been followed in this case. We have gone through the record and we are not inclined to set aside the conviction on this ground for the reason that there was virtually no challenge presented before the trial Court. If it is to be contended at the appellate stage that there has been a wholesale disregard and breach in the prescribed procedure of law, then it will have to be established before the trial Court by taking up this defence and specifically putting it to the respective witnesses. We do not find any special attempt having been made before the trial Court where the only defence pleaded was that, in fact, nothing has been recovered from appellant-accused, that he has been framed and that the Panch is a habitual Police witness. The learned trial Judge was right in rejecting this defence because it is virtually of no consequence. The learned A.P.P. has submitted that the material before the Court conclusively establishes the recovery of the 20 pills from the appellant-accused and that the conviction is, therefore, fully justified.
4. Shri Mundargi has submitted thereafter that the conviction proceeds on the footing that the appellant-accused was found in possession of only 1 gm. of Charas. As regards the remaining part of the material, even though it was seized under a Panchanama, it was not sent for chemical analysis and, therefore, the learned trial Judge has refused to hold that this was also Charas. It is Shri Mundargi's submission that where the quantity is extremely small that the rule of caution would require that the whole of it should be sent for analysis to avoid a situation of this type. In our considered view, this argument is totally fallacious, because all that the law requires is that a small representative sample be sent for analysis. If a larger quantity or the whole of it is sent, which is totally unnecessary, in the first instance, but, more importantly, it would create a serious problem for the prosecution in so far as the laboratory invariably uses up the samples and there is the possibility of serious disputes being raised when the material is required to be produced before the trial Court if nothing is available. In the present case, a representative sample was sent and the Police Constable who carried the sample has been examined. The learned trial Judge was certainly in error in having recorded the finding that there was no guarantee that the remaining material confirmed to the sample which had been sent for analysis. There was no warrant for this inference in so far as it was nobody's case that the material sent for analysis was distinguishable or different from the rest of the material that was seized under a Panchanama. The finding that the appellant-accused was found in possession of only 1 gm. of contraband is, therefore, erroneous and it will have to be held that the appellant-accused was in possession of the entire quantity of Charas that was recovered from him. In this regard, however, Shri Mundargi submitted that the Court must make a reasonable allowance in respect of the quantity, such as in the present case where the appellant-accused would be entitled to the benefit of Section 27 of the N.D.P.S. Act, if the marginal excess quantity of 100 mgs. were to be ignored. It is not that we are inclined to ignore the marginal quantity, but that the 100 mgs. being so small a quantity and making allowance for normal errors in weighing, etc., it would be reasonable to hold that the amount of Charas found from the appellant-accused could be rounded off to 5 gms. Under the Notification issued under section 27 of the N.D.P.S. Act, 5 gms. would come within a small quantity and would, therefore, qualify for the lesser sentence provided for by this Section.
5. Section 27 of the N.D.P.S. Act reads as follows :
"27. Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance. - Whoever, in contravention of any provision of this Act, or any rule or order made or permit issued thereunder, possession in a small quantity, any narcotic drug or psychotropic substance, which is provided to have intended for his personal consumption and not for sale, or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable, -
(a) where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, discetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notification in the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both, and
(b) where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under Clause (a) with imprisonment for a term which may extend to six months or with fine or with both.
Explanation - (1) For, the purpose of this section "small quantity" means such quantity as may be specified by the Central Government by notification in the Official Gazette;
(2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person."
6. The more important aspect of the matter is the submission canvassed by the learned A.P.P. that when the Legislature has prescribed that an accused must also prove that the drug found from him was for personal consumption that this burden must necessarily be discharged. He has submitted that there are numerous ways of discharging this burden within the framework of law and that in the absence a specific plea and in the absence of proof adduced by the accused, the benefit of Section 27 of the N.D.P.S. Act would not be available in cases of small quantities.
7. As against this, Shri Mundargi has submitted that these are not cases where it is always possible to produce medical certificates, or bills, or documents or, for that matter, oral evidence for purposes of establishing that the drug was for personal consumption. He contended that it is also unnecessary for an accused to step into the witness-box and establish on oath that the drug was for personal consumption. According to him, onus can be discharged by proving to the satisfaction of the Court from the material on record that the drug was for personal consumption.
8. On an analysis of the provisions of Section 27 of the N.D.P.S. Act, it needs to be noted that the onus of establishing that the contraband in question was obtained by the appellant-accused for personal consumption necessarily rules out the possibility of the same being possessed for purposes of sale or distribution. The aspect of establishing that the material was not to be used for certain purposes necessarily has the negative implication and it, therefore, follows that it would have to be on a total appraisal of the material placed before the Court that a conclusion would have to be drawn as to whether the possession can be said to have been for personal consumption and not for sale or distribution. The learned A.P.P. has pointed out to us that Section 27 of the N.D.P.S. Act rules out that class of persons, such as drug-peddlers, who may be found in possession of the material in very small quantity and who may be willing to take the risk of getting caught while selling the drug or distributing it knowing fully well that they would get the benefit of the provisions of Section 27 of the N.D.P.S. Act. What is, in fact, submitted by the learned A.P.P. is that Section 20 of the N.D.P.S. Act has, for very good reasons, imposed extremely high and rigorous punishment in relation to drug offences and that these provisions should not be diluted, watered down or evaded by a class of persons who may take the precaution of seeing to it that the possession is of very small quantity. He, therefore, submitted that unless there is specific and conclusive evidence before the Court to establish that the material so obtained was for purposes of personal consumption that the Court should not invoke the provisions of Section 27 of the N.D.P.S. Act in any other cases particularly where such a defence was not specifically pleaded. As regards the latter aspect, we need to observe that it is always open to a party to advance a defence that emergence out of a submission on a point of law at the appellate stage, if that defence is available from the record of the trial Court. We do need to clarify that the submission canvassed by the learned A.P.P. which proceeds from a full sense of responsibility, deserves to be upheld in so far as Section 27 of the N.D.P.S. Act is not to be a canopy or an umbrella for drug-peddlers, even if they are found with the material in a very small quantity.
9. As indicated earlier, it is essentially on the basis of the facts of each particular case that a decision will have to be arrived at. In the first instance, the background of the appellant-accused would be of some consequences, such as the question as to whether he has been involved in the same or similar offences on an earlier occasion, and if so, it would, undoubtedly, be difficult for such an accused to convince the Court that the material, even if in a small quantity, was intended for personal consumption. On the other hand, having regard to the fact that drug addiction is a problem with which the society is trying to come to grips and that there are unfortunate instances of persons who are addicts to these drugs and if such evidence is forthcoming, it would, perhaps, be a factor which a Court would take into consideration in deciding this issue. In cases where the evidence indicates that the accused was caught selling or distributing the drug, there would certainly be no question of the invocation of Section 27 of the N.D.P.S. Act. Similar would be the case where the circumstances indicate that this was the purpose for which it was possessed, such as the evidence to indicate that the accused was found in a situation whereby it may certainly be assumed that the purpose was to sell or distribute a narcotic drug.
10. On the facts of the present case, Shri Mundargi has pointed out to us certain significant facts, the first of them being that the appellant-accused is an old man, that he was almost physically crippled and that he was found at 9.15 in the night at a lonely spot sitting on a heap of rubble. In these circumstances, it would be least probable that the Charas found in his possession was intended for sale to other persons or for distribution. Apart from what has been pointed out by Shri Mundargi, we have carefully scrutinized the record as a heavy responsibility lies on the Court in cases of this class. We find from the material placed before us that there is nothing to suggest that the appellant-accused was either a drug-peddler or a distributor. What is of further importance is the fact that no money was found on his person and this would, to some extent, establish that he could not have made any sales even earlier to being apprehended. The complaint lodged by the Police Officer also indicates that it was the case of the prosecution itself that he had "obtained" from Accused No. 2 the 20 pills of Charas. It is a totality of these factors that have contributed to Shri Mundargi advancing the submission that even if the defence under section 27 of the N.D.P.S. Act was not specifically pleaded before the trial Court that if the law could bring the case within the ambit of Section 27 of the N.D.P.S. Act that this Court must permit such a course of action. On the special facts of this case, we are inclined to hold that the Charas in question, which was, undoubtedly, found in the possession of the appellant-accused, was obviously for personal consumption and not for sale or distribution.
11. Dealing with this last aspect of the matter, the learned A.P.P. contended that the Court would have to guard against a situation whereby drug-peddlers or distributors are apprehended at a point of time prior to their commencing the objectionable activity in which case they would still, because of the absence of customers or, perhaps, money on their person, contended that the drug was for personal consumption. We have already indicated that it is on a total consideration of all the factor and not merely the absence of customers or money alone that the Court would have to arrive at a decision and to our mind those are only two of the test which may safely be applied.
12. Having regard to the aforesaid position, the conviction of the appellant-accused under section 20(b)(ii) of the N.D.P.S. Act will have to be set aside and accordingly the sentence of rigorous imprisonment for ten years and fine of Rs. 1,00,000/-, in default, rigorous imprisonment for period of one year is set aside. The appellant-accused is, however, convicted of the offence punishable under Section 27 of the N.D.P.S. Act and it is directed that he undergoes rigorous imprisonment for a period of one year. Shri Mundargi points out to us that the appellant-accused has been in custody for a longer period than one year. If this is so, we direct that the appellant-accused be set at liberty forthwith, if not required in connection with any other case. The appeal is thus partly allowed.
13. Appeal partly allowed.