Delhi High Court
Mohd. Tarique Khan vs State Of Nct Of Delhi on 11 December, 2008
Author: Aruna Suresh
Bench: Aruna Suresh
"Reportable"
* HIGH COURT OF DELHI AT NEW DELHI
+ CRL. APPL. No. 984/2001 & Crl. M. (B)
No. 1328/2008
Date of decision : 11.12.2008
# MOHD. TARIQUE KHAN ..... Appellant
! Through : Mr. Anish Dhingra, Adv.
Mr. Puskal Gogoi, Adv.
Versus
$ STATE OF N.C.T. OF DELHI
.... Respondent
^ Through : Mr. Lovkesh Sawhney, APP
SI Vivek Pathak
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. In the present appeal, appellant has impugned the Crl.A. No. 984/2001 Page 1 of 8 judgment of the trial court dated 4.10.2001 and the order on sentence dated 8.10.2001 whereby he was convicted for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act) and was sentenced to suffer rigorous imprisonment for 10 years and fine of Rs. 1 lac and in default of payment of fine to undergo further simple imprisonment for 3 years.
2. In brief the prosecution case is that Inspector Chandra Prabha, SHO, Police Station Narcotics Branch, Kamla Market received a secret information from SI Attar Singh about the accused having smack in his possession who would come to Lokesh Cinema via T Point while coming from Peeragarhi side. A raiding party was organised and accused was apprehended. Necessary notice was given to the appellant about information with the police and SHO also offered his search and search of his raiding members before conducting the search of the appellant to which the appellant is stated to have refused. On search of the appellant, Crl.A. No. 984/2001 Page 2 of 8 a transparent polythene was recovered from right side pocket of his wearing pant which was found to contain smack weighing about 300 grams. The Investigating Officer took samples of 5 grams each and sealed the recovered smack and the samples separately. After completing necessary formalities the accused was arrested and FIR was registered. Samples were sent to FSL for chemical examination and as per the FSL report the recovered substance was found to be smack. Chargesheet was accordingly filed. Prosecution had examined as many as eight witnesses who supported the case being police officials. The recovered substance and the polythene containing the smack and other exhibits were proved in evidence. Statement of the accused under Section 313 Cr.P.C. was also recorded wherein appellant stated that he was falsely implicated in this case.
3. After considering the prosecution evidence in detail, the learned trial court was pleased to conclude that the prosecution had successfully proved its case that the entire procedure Crl.A. No. 984/2001 Page 3 of 8 prescribed under NDPS Act was duly followed and also proved the recovery of 300 grams smack in presence of the witnesses from the accused beyond any reasonable doubt. Accordingly the appellant was convicted for offence under Section 21 of the NDPS Act.
4. During the pendency of the appeal, appellant moved an application for getting the quantitative test of the contraband material seized from the appellant to verify the actual quantity of diacetyl- morphine present in the contraband goods. Vide order dated 25.1.2008, the application of the appellant was allowed and learned APP for the State also conceded for carrying out the necessary test within a period of two months. The FSL report after quantitative test of the smack was received by this Court on 9.7.2008.
5. After receipt of the FSL report of quantitative test appellant moved Crl. M. (B.) No. 1328/2008 for waiver of fine of Rs. 1 lac and remit in default sentence of simple imprisonment of three years and release of the appellant on the sentence already Crl.A. No. 984/2001 Page 4 of 8 undergone. In view of this report, the appeal has not been pressed on merits.
6. Learned counsel for the appellant while relying on Ansar Ahmed v. State (Govt. of NCT of Delhi) - 2005 (3) JCC (Narcotics) 193, State through CBI v. Gyan Singh - 1999 SCC (Crl.) 1512, Gulrej Mian v. State - Crl. A. No. 657/2004, Mohd. Yunus v. CBI and Chander Shekhar v. State has argued that in a mixture of narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken while considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance was recovered. The Court is only to consider the actual content by weight of the narcotic drug or the psychotropic substance for determining whether it would constitute a small quantity or commercial quantity. Appellant is a first offender. He should not be subjected to a penalty greater than which might have been inflicted under the law in force at the time of Crl.A. No. 984/2001 Page 5 of 8 commission of offence.
7. It is further submitted that since appellant has already undergone more than eight years of imprisonment, his sentence should be reduced to the undergone period and the fine imposed upon him be waived in view of the circumstances of this case and also keeping in mind that the wife of the appellant has delivered a child very recently and needs medical attendance.
8. Since appeal is not being challenged on merits, conviction of the appellant is maintained and order of the trial court is affirmed.
9. Now it is to be seen if the contraband (smack) recovered from the appellant could be considered as small quantity for the purposes of reduction of the period of sentence inflicted upon the appellant by the trial court.
10. As per the FSL report dated 25.4.2008 on examination of the sample, Dr. Madhulika Sharma, Assistant Director (Chemistry) gave result of the examination/opinion as follows:
"(i) On Chemical, Thin Layer Chromatography, G.C. & GC-MS Crl.A. No. 984/2001 Page 6 of 8 examination, exhibit „X‟ was found to contain Paracetamol, Caffeine, Acetylcodeine, Monoacetylmorphine, Codeine, Morphine, & Diacetylmorphine.
(ii) However, on Gas Chromatography examination, exhibit „X‟ was found to contain Diacetylmorphine, Morphine & Codeine 0.3%, 6.9% & 0.6% respectively."
11. The quantity of diacetylmorphine is found to be of small quantity. Same is about Codeine and the quantity of morphine found is of intermediate quantity. Therefore, the total quantity which comes to 23 grams is a small quantity. The appellant was inflicted sentence of rigorous imprisonment of ten years and fine of Rs. 1 lac keeping in mind the quantity of drugs found in the recovered substance as of commercial quantity. In view of this FSL report, it cannot be said that the recovery of contraband from the person of the appellant was of commercial quantity. It was rather of small quantity. The appellant, therefore, under the circumstances cannot be sentenced for commercial quantity of the narcotic drugs. Crl.A. No. 984/2001 Page 7 of 8
12. Since as per the nominal roll, petitioner has undergone sentence for eight years, three months and sixteen days, the order on sentence dated 8.10.2001 is hereby modified and the appellant is ordered to suffer rigorous imprisonment for the period already undergone by him and to pay a fine of Rs. 25,000/- in default of payment of fine to suffer simple imprisonment for six months.
13. Appeal stands disposed of accordingly.
14. Attested copy of the order be sent to the trial court as well as to the State.
( ARUNA SURESH ) JUDGE December 11, 2008 jk Crl.A. No. 984/2001 Page 8 of 8