Punjab-Haryana High Court
Bhupinder Singh @ Bhinda vs State Of Punjab on 19 May, 2017
Author: Surya Kant
Bench: Surya Kant
CRM-M-21034-2016 along with 4 cases 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
(1) CRM-M-21034-2016
Date of Decision:- May 19, 2017
Bhupinder Singh @ Bhinda
...Petitioner
VERSUS
State of Punjab
....Respondent
(2) CRM-26250-2016 In
CRA-S-825-SB-2016
Satish Kumar @ Ghika
...Applicant-Appellant
VERSUS
State of Punjab & Another
....Respondents
(3) CRM-25370-2016 In
CRA-S-2198-SB-2015
Avtar Singh @ Tarri
...Applicant-Appellant
VERSUS
State of Punjab & Another
....Respondents
(4) CRM-29108-2016 In
CRA-S-2656-SB-2016
Randhir Singh @ Dheera
...Applicant-Appellant
VERSUS
State of Punjab
....Respondent
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CRM-M-21034-2016 along with 4 cases 2
(5) CRM-26243-2016 In
CRA-S-1420-SB-2016
Vicky Singh
...Applicant-Appellant
VERSUS
State of Punjab
....Respondent
CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SUDIP AHLUWALIA
Present:- Mr. Ashish Aggarwal Advocate for the petitioner
(In CRM-M-21034-2016).
Mr. Arnav Sood, Advocate for the applicant-appellant
(In CRM-26250-2016).
Mr. D.S.Pheruman, Advocate for the applicant-appellants
(In CRMs-25370 & 29108-2016).
Mr. Jashandeep Singh Sandhu, Advocate for the applicant-
appellant (In CRM-26243-2016).
Ms. Reeta Kohli, Addl. AG Punjab for the State.
SUDIP AHLUWALIA, J.
These matters were referred to this Bench in pursuance of an Order passed by the Ld. Single Judge in CRM-M-21034-2016 on 10.11.2016. In the other cases, the Applicants were convicted and sentenced for the offences under Section 22 of the NDPS Act by different judgments passed by the concerned Special Courts in the State of Punjab. They consequently filed their separate Appeals against the convictions alongwith applications for suspension of their sentences. The reference order(s) have been mostly passed while hearing the applications for suspension of sentence.
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2) The relevant extracts from the above-mentioned Order passed by the Ld. Single Judge are set out below -
"......Today, counsel for the respondent prays for more time to conclude the exercise. She has also pointed out that now as per the mandate of the Supreme Court, a special Division Bench of this Court is looking into various aspects of the NDPS Act and has suggested that the issues raised in this petition may also be referred to the Division Bench. As per her, connected matters are fixed for 7.12.2016.
I find that the NDPS Act has a seriously skewed design for treating different narcotic drugs and psychotropic substances for the purpose of declaration of commercial quantity. Prior to the enactment of the present Act, the only Act on the subject was the Opium Act, 1878 and under that Act the maximum imprisonment was 3/2 years with or without fine. When the present Act was enacted it was specified that the commercial quantity of opium would be 2.5 kilograms. Looked at from the stand point of dose for an addict, 2.5 kilograms could translate into about 10000 doses. As regards Rexcof, from the stand point of an addict one dose could be 100 milliliters and the commercial quantity starts at 1000 milliliters i.e 10 doses. Likewise for Bupre Norphine the commercial quantity would not be more than 40 doses.
It may be argued that the fixation of commercial quantity cannot be made dependent only on the parameter of dosage and there are other relevant considerations for the exercise of this essentially legislative function. For instance, the cost of production of synthetic drugs is very little as compared to the cost of production of natural opiates. However, even after considering these facts the element of dosage cannot be completely ignored for fixing the commercial quantity. The intention of the Parliament while passing the Narcotic Drugs and Psychotropic Substances Act, 1985 was to classify offenders in three categories; small users, larger users/small suppliers and traffickers and the highest punishment was reserved for traffickers. The issue in the present cases is whether in commercial terms the recoveries alleged to have been
3 of 10 ::: Downloaded on - 06-06-2017 22:14:08 ::: CRM-M-21034-2016 along with 4 cases 4 made are such which could be called commercial and whether the Central Government has acted arbitrarily in fixing the commercial quantity of different narcotic drugs/psychotropic substances? It cannot be lost sight of that while exercising delegated legislative functions the delegate cannot pervert the classification made by the Legislature. Consequently, whether classifying the quantity of certain narcotic drugs/psychotropic substances as commercial quantity, the Central Government can completely ignore the commercial angle? In these circumstances, I deem it appropriate that this matter be placed before the Division Bench. Consequently, Registry is directed to place this matter before the Division Bench, after obtaining orders from Hon'ble the Chief Justice. (Emphasis added by us) As regards the prayer for bail, counsel for the petitioner has argued that in this case recovery is of 60 grams diphenoxylate, whereas as per the FSL report the component of diphenoxylate is 2.20%. The petitioner has been in custody for 9 months, and in view of the fact that the issue involved in this matter has been referred to the Division Bench, the petitioner should be granted bail.
Counsel for the respondent has, however, stated that once the whole issue has been referred to the Division Bench, it would be appropriate if the issue regarding bail is also left to their Lordships.
I find some weight in both the arguments and consequently direct the petitioner to be released on interim bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate, Tarn Taran, subject to any order passed by the Division Bench."
3) We may observe at the outset that the Ld. AAG appears to have been under some misconception regarding the matters being entertained by us while submitting before the Ld. Single Judge, "that now as per the mandate of the Supreme Court, a special Division Bench of this Court is looking into various aspects of the NDPS Act", after which, all the above appeals have been sent up before us. We may clarify that this Division Bench was 4 of 10 ::: Downloaded on - 06-06-2017 22:14:08 ::: CRM-M-21034-2016 along with 4 cases 5 actually assigned with a twofold determination, firstly to entertain Writ Petitions seeking or challenging investigations in NDPS cases, as well as bail matters at the stage of investigation or before conclusion of trials in the pending cases, and secondly, Public Interest Litigations arising out of the larger social malady afflicting the territories within this Court's jurisdiction, of on account of widespread availability and consumption of Drugs etc with a view to identifying and enforcing remedial measures, including de- addiction and Rehabilitation of the drug addicts. Consequently, final disposal of Criminal Appeals on merits is not exactly within the special determination assigned to this Division Bench, and which therefore appropriately ought to be disposed off by the concerned Benches in accordance with the assigned Roster.
4) Nevertheless, we directed the Appellants to place their submissions in the light of the legal complexity noted and highlighted by us in the Order passed by the Ld. Single Judge. Written Submissions on behalf of the various Appellants have since been filed. It is however seen that by and large the emphasis therein is on challenging their convictions by going into the merits concerning factual matrix in the individual cases. There is only a limited controversy on contentious points of Law vis-a-vis the question raised by the Ld. Single Judge in those Written Submissions, which are all on record. We shall therefore advert to only those submissions which in our opinion relate to any tangible question of Law/procedure warranting any expression of opinion by this Special Division Bench, considering the specific legal complexity mentioned by the Ld. Single Judge in referring these matters.
5) In the submissions placed on behalf of Applicant-Appellant Satish Kumar @ Ghika, the emphasis is partially on the aspect that the seizure of the Drugs in question being marginally above the commercial quantity, puts an addict to face the maximum rigors of the Act, even though the commercial quantity of Drugs like Codeine and Diphenoxylate, if seized from him make it just above five days of dosage, even if he is an Addict, and not necessarily 5 of 10 ::: Downloaded on - 06-06-2017 22:14:08 ::: CRM-M-21034-2016 along with 4 cases 6 a Smuggler/Trafficker. The other aspect emphasized in the submissions of Applicant-Appellant Satish Kumar is that in view of various earlier decisions, many of which have been referred to by the Supreme Court in 'State Versus Mustaq Ahmed and others' 2016 (1) SCC 315, only the actual content of Narcotic Drug is held to be relevant for the purpose of determining whether it would constitute 'small' or 'commercial' quantity, and that the quantity of salts/neutral substances, in which the Drug in question is found to have been mixed, is not to be taken into consideration for this purpose. Similar are the submissions raised on behalf of Applicant- Appellant Randhir Singh @ Dheera, Bhupinder Singh @ Bhinda and Ajay @ Sonu.
6) The contentious points referred to by the Ld. Single Judge have however, been raised most cogently in the Synopsis filed on behalf of Applicant- Appellant Vicky Singh, in which issues for consideration have been mentioned as follows -
1. "That the issue in the present case before this Hon'ble Court is that whether in commercial terms the recoveries alleged to have been made in the present case are such, which could be called commercial and whether the Central Government has acted arbitrarily in fixing the commercial quantity of different Narcotic Drugs/Psychotropic Substances.
2. That the other issue for consideration before this Hon'ble Court is that whether while classifying the quantity of certain Narcotic Drugs/Psychotropic Substances as commercial quantity, the Central Government can completely ignore the commercial angle ?
3. That the other issue before this Hon'ble Court for consideration is that whether at the time of effecting the recovery, the IO/Arresting Officer is duty bound to take into consideration the fact whether the alleged accused is an addict or trafficker?
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4. That the other issue before this Hon'ble Court for consideration is that whether any relaxation can be shown to an addict in deciding the case against him?
7) It may be observed at this juncture that where challenge is laid to the vires of any particular provision(s) of the NDPS Act, the same in all propriety ought to be raised in the course of regular Writ Petitions or Public Interest Litigations, as the case might be. We do not deem it proper to consider such challenge at the instance of those convicts in the Appellate proceedings, who have already participated in the finally concluded full-fledged Trials. In any case, it is also seen from the Note in the Written Submissions on behalf of Appellant Vicky Singh that the relevant 'Notification of 2009, whereby the quantity and inclusion of various Drugs have been made, has been challenged before the Hon'ble Supreme Court vide SLP (Crl.) No. 6092 of 2014 and the same is pending adjudication.' In this view of the matter, we do not deem it appropriate to express any opinion on Questions (1) and (2) raised in his submissions, as admittedly according to him, an SLP involving the same controversy is already pending determination before the Supreme Court. Till such question is decided by the Apex Court, undoubtedly the Trial as Well as Appellate Courts are obliged to go by the existing Statutory provisions as well as the case law, as in force now.
8) We therefore confine ourselves only to expressing our views on the last two important questions of procedure raised on behalf of the Appellant/Applicant 'Vicky Singh', which though not seeking any challenge to the vires of any provision of the NDPS Act, could nevertheless have substantial bearing on the fate of convicts, where a determination might be required as to whether or not the addicts apprehended with contraband marginally in excess of the prescribed commercial limits, ought to be treated on the same footing as the actual Traffickers or Smugglers/suppliers?
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9) Regarding these two points which incidentally have also been raised on behalf of Appellant Satish Kumar @ Ghika, we are of the opinion that unlike in ordinary Criminal Jurisprudence, there is no automatic presumption of the accused being innocent unless proven guilty beyond the shadow of reasonable doubt. In fact, the underlying spirit of the NDPS Act is that onus is upon the accused from whose possession the prohibited Drugs or Psychotropic Substance(s) are seized, to account for the same. In this view of the matter, clearly there would be no automatic duty cast upon the IO/Arresting Officer to consider whether the alleged accused is an Addict or Trafficker. We say so for the simple reason that as soon as a person with prohibited Drugs or Psychotropic Substances is arrested, the normal investigation would stand to be derailed or otherwise seriously prejudiced because the Arresting Officer/IO would be obliged to proceed into a direction of having the arrestee to be medically examined while in custody for determining whether or not he is actually an addict, thereby getting forced to divert himself from the other urgent aspects of investigation such as seeking to uncover the source of the seized contraband, and identification of other persons involved in its supply/Trafficking etc. Suffice it to say, if the accused in question claims any special concession on the plea that he is an 'Addict' and not a 'Trafficker', the onus to establish this claim automatically shifts upon him even in accordance with the ordinary principles of evidence U/S. 105 of the Indian Evidence Act, 1872. Such burden of proof being cast upon the accused can by no means be treated as harsh and stringent considering that when he is found to be in possession of prohibited Drugs or Psychotropic Substances especially in a ready/manufactured condition, in such case, he can reasonably be presumed to be possessed of sufficient means to get himself medically proven as an 'Addict'. For this reason, we conclude that there is no duty cast upon the IO/Arresting Officer to take into consideration whether the alleged accused is an Addict or Trafficker.
10) Of course, our decision on the last point does not mean that an Addict automatically stands to face the same intensity of rigors, as those applicable 8 of 10 ::: Downloaded on - 06-06-2017 22:14:08 ::: CRM-M-21034-2016 along with 4 cases 9 to a 'Trafficker'. He is undoubtedly liable for punishment u/s 22(b) in the given circumstances, and may not be liable to suffer punishment u/s 22(c), where the quantity of the Drugs/Psychotropic Substances seized is just marginally above the commercial quantity, so long as it convinces the conscience of the Court to conclude that the same was actually meant for his own personal consumption. What should be the Bench Mark for this purpose would however, depend from case to case, considering the nature and quantity of the particular Drug or Substance seized, as also on such other factors like the own profile/medical history of the addict.
11) Regarding the argument against inclusion of the entire quantity of the seized substance from an accused as against the actual content of the Drugs or Psychotropic Substance mixed therein, we may observe that the Ld. Single Judge has not referred to any ambiguity about the legal position in this regard. At any rate, Note 4 to the Table appended to the NDPS Act lays down the legal requirement as in operation at present, and the definitions contained in Sections 2(x), (xiv), (xv). and (xx) of the Act also go against the accused persons apart from the decision of the Apex Court in 'Harjit Singh Vs. State of Punjab' 2011(4) SCC 441. We therefore do not need to express any opinion in this regard, since the reference of the Ld. Single Judge was specifically in relation to the propriety of fixation of 'commercial quantity' vis-a-vis seizure from a drug addict, who might be found to be in possession of any particular number of dosages for his own personal consumption, which otherwise happens to be in excess of commercial quantity as prescribed, and which question in reference we have already answered in the last paragraph.
12) As already noted earlier, other submissions and points raised in the Written Synopsis filed on behalf of the Appellants essentially relate to matters touching upon the merits of each individual Appeal itself. We therefore, need not go into such minute intricacies of the questions of facts being raised in the various appeals under the garb of 'legal deficiency in the Act/Statute', or application of law to the individual facts in the various 9 of 10 ::: Downloaded on - 06-06-2017 22:14:08 ::: CRM-M-21034-2016 along with 4 cases 10 pending Appeals. These matters are therefore, directed to be placed back before the concerned Bench as per Roster for disposal of the Criminal Appeals on merits, after obtaining Orders from Hon'ble The Chief Justice.
(Surya Kant) (Sudip Ahluwalia)
Judge Judge
May 19, 2017
AS
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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