Delhi High Court
Kumar Pal vs State on 12 August, 2015
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.1628/2011
Reserved on: 06.08.2015
% Date of Decision: 12.08.2015
KUMAR PAL ..... Appellant
Through Mr.Ashwin Vaish and
Mr.Vinod Pandey, Advocates.
versus
STATE ..... Respondent
Through Mr. Yogesh Verma, APP. CORAM: HON'BLE MR. JUSTICE ASHUTOSH KUMAR ASHUTOSH KUMAR, J:
1. Kumar Pal, the appellant impugns the judgment and order of conviction dated 31.03.2011 and 05.04.2011 passed by the Additional Sessions Judge/Special Judge, NDPS (North Delhi) in S.C case No.24/09 (arising out of FIR No.59/03, P.S.Crime Branch) whereby he has been convicted under Section 20 of the NDPS Act and has been sentenced to undergo rigorous imprisonment for 10 years, fine of Rs.1 lakh and in default of payment of fine a further simple imprisonment for one year.
2. The appellant was found in possession of 1 kg of charas.
3. The appellant has questioned the impugned judgment on the ground that independent persons did not join the police party while the arrest was effected; there was no proper notice as required under Section 50 of the NDPS Act; no independent person was examined Crl.A No.1628/2011 Page 1 of 14 during trial to support the prosecution version; there was delay in sending the sample for analysis, and the analysis report regarding the percentage of THC rendered the recovery to be of small quantity or intermediate quantity but definitely not commercial quantity.
4. The further ground of challenge in the appeal is that the very arrest of the appellant was doubtful in as much as the secret informer, only named the appellant but did not give any other details namely the physical features or the area from where the appellant was coming from or that who was to receive the narcotic substance from the appellant.
5. The appellant has challenged the assumption of the authorities regarding the seized substance to be charas and submitted that from the colour itself it could be very well be deciphered that the recovered substance was not charas and, therefore, the conviction under Section 20 was unwarranted.
6. In order to appreciate the contention of the appellant, it would be necessary for this Court to examine the deposition of Paramjeet Singh, the then ASI (PW.9) who lodged the first information report. He has deposed that on 16.4.2009 while he was posted as ASI in the Narcotic Cell of the Crime Branch, Delhi, an informer told him that the appellant who is a resident of Loni (U.P) would visit Singhara Chowk between 4.30 to 5 P.M for supplying charas to some prospective purchaser. Being satisfied about the genuineness of such information, he took the secret informer to M.L.Sharma, Narcotic Cell Inspector (PW.3) who in turn conveyed such information on telephone Crl.A No.1628/2011 Page 2 of 14 to the superior police authorities and whereafter a direction was issued for conducting raid.
7. He has further deposed that a raiding team comprising him; HC Mahesh Kumar (PW.4) and Constable Sanjeev Kumar (PW.8) reached the spot along with field testing kit and electronic weighing scale on an official vehicle. The appellant was identified by the secret informer whereupon PW.9 along with the raiding team challenged the appellant and asked him to disclose his name. The information which was with the raiding team was communicated to the appellant and he was apprised of his legal rights to be searched in the presence of a Gazetted officer or a Magistrate. The appellant was also given the option of personally searching the raiding team as well as the official vehicle. A written notice under Section 50 of the NDPS Act was delivered to him. The notice was, read over and explained in detail. Since the appellant was illiterate, PW.9 recorded his reply at his request which was signed by the appellant.
8. From the possession of the appellant, black substance in the form of bars and balls were recovered, which on being tested with the field testing kit was found to be charas. The quantity recovered was weighed on the electronic weighing scale and was found to be weighing 1 Kg.
9. Two samples were drawn from the recovered substance which were marked as A and B. The remaining substance was packed in a pulanda which was marked as C.
10. PW.9 has stated that he got the FSL form filled through Head Constable Sanjeev Kumar (PW.8). All the pulandas and form FSL Crl.A No.1628/2011 Page 3 of 14 were sealed and the seal was handed over to HC Mahesh Kumar (PW.4) (Seizure Memo Exh.PW.4/3). Thereafter rukka was prepared.
11. PW.9 has admitted in his cross-examination that Singhara Chowk from where the appellant was arrested is a thickly populated area and despite his efforts, no public witness became ready to join the police team. The suggestion given to PW.9 that the appellant was picked up from near ISBT Anand Vihar and then implicated in the present case has been vehemently denied.
12. Head Constable Mahesh Kumar (PW.4) formed part of the raiding team and he has supported the prosecution version. He has stated that the appellant was served with the notice under Section 50 of the NDPS Act but the appellant did not desire to have himself examined or searched before either a Gazetted officer or a Magistrate. Public witnesses who were requested by PW.9 to join further proceedings refused to do so. He has stated that Constable Sanjeev Kumar (PW.8) was handed over the sealed pulandas and the FSL form. SI Bhagwan Singh (PW.10), the second IO, reached the spot and he was handed over the documents and custody of the appellant. Thereafter a site plan was prepared. PW.4 has stated that he did not know the accused/appellant prior to the lodging of this case.
13. HC Sanjeev Kumar (PW.8), the then Constable has supported the prosecution version of the notice under Section 50 to have been given to the appellant and request by PW.9 to the public persons to join the raid. He has further deposed that on the directions of PW.9, he filled the FSL form. PW.9 affixed his seal of PS on all the three pulandas (A, B and C) and the FSL form. Tehrir which was prepared Crl.A No.1628/2011 Page 4 of 14 thereafter was handed over by PW.8 to the duty officer HC Jaipal Singh (PW.6). PW.8 though in his cross examination has stated that Narcotic Cell is located in a residential area but the IO did not ask anybody to join the raid, but, has denied the suggestion that PW.9 deliberately did not ask anybody to join the raid. The suggestion that the appellant was illegally picked up from the market and money was demanded from him and only on his refusal to pay he was falsely implicated, was denied by him.
14. The notice under Section 50 of the NDPS Act which was served upon the appellant (Ex.PW.4/2) clearly discloses that the raiding team was informed about the appellant carrying narcotic substance and that he had a right to get himself searched either before a Gazetted Officer or a Magistrate. However, even when apprised of such right, the appellant submitted himself to the raiding team for search whereafter the contraband was recovered from his possession.
15. Thus, from the deposition of PWs.9, 4 and 8 who were part of the raiding team and Ex.PW.4/2 which is the written notice under Section 50 of the NDPS Act, it is clearly established that the appellant was searched and arrested after full compliance of the provisions of Section 50 of the NDPS Act. The testimonies of the aforesaid witnesses further prove the fact that the sampling of the substance so recovered was properly done, sealed and FSL form filled at the place where the recovery was made.
16. The submission on behalf of the appellant that there was no compliance of Section 50 of the NDPS Act, therefore, is without substance and cannot be accepted.
Crl.A No.1628/2011 Page 5 of 1417. The averment about the notice under Section 50 of the NDPS Act is also specifically mentioned in the first information report. It is, therefore, difficult to doubt that the appellant was not apprised, advised and informed of his right to get himself searched only in the presence of either a Gazetted officer or a Magistrate. The appellant was also given the option to search the raiding team and the police vehicle on which the raiding team had arrived but the same was refused by the appellant.
18. PWs.8 & 9 as has been stated earlier have deposed that despite the request made by PW.9, no private person joined the raiding team to witness the process of search. The Trial Court has rightly held that non joining of independent witnesses would not always be fatal to the prosecution case particularly when efforts were made by the investigating party to join public witnesses. PW.4 though did not support this aspect of the prosecution version but specifically denied the suggestion that it was deliberate on the part of the raiding team not to ask private persons to join the search proceedings. The testimonies of the aforesaid witnesses, therefore, do not permit of raising any doubt with regard to the arrest and seizure of narcotic drug from the possession of the appellant after full compliance of Section 50 of the NDPS Act.
19. HC Chand Ram (PW.1) has testified that on 16.4.2009, he was called by the SHO of the Narcotic Cell at 9.45 PM along with register No.19 and was handed over the three parcels which were marked as A, B and C along with FSL Form and a copy of the seizure memo to be deposited in the malkhana. The parcels and form FSL bore the seals of Crl.A No.1628/2011 Page 6 of 14 PS and AK. Entry No.218 in register No.19 was made by PW.1 and in his presence DD No.8 was recorded regarding deposit of the parcels referred to above in the malkhana.
20. PW.1 has further stated that on 22.4.2009 Constable Joginder Singh was sent to the FSL, Rohini with sample parcel marked A and FSL form. However, the same could not be deposited on that date and, therefore, they were returned to malkhana on the same day, about which entry was made in register No.19 at the same serial number by PW.1.
21. The said sample and FSL form was again sent to the Laboratory at Rohini on the next day i.e. 23.4.2009. Receipt of such deposit was delivered to PW.1 by HC Jagdish (PW.2). Such receipt was also entered in register No.19 at the same serial number. The FSL result was received on 3.7.2009 along with the remnant sample C which was deposited in the malkhana. PW.1 has further testified to the fact that on 14.9.2009, under the directions of the Trial Court, fresh samples were drawn from the remnant parcel mark C in the Court which was sent to the Central Revenues Control Laboratory, New Delhi. The aforesaid fresh sample was marked as X in the Court and was sealed with the seal of the Court. This was also entered at the same serial in register No.19. On 15.10.2009, the sample along with Central Revenues Control Laboratory result was received by PW.1 and was handed over to SI Bhagwan Singh (PW.10). The remnant contraband, after being entered in register No.19 was deposited in the malkhana.
Crl.A No.1628/2011 Page 7 of 1422. HC Jagdish (PW.2) has testified to the fact that sample parcel A and the form FSL which bore the seal of PS and AK was deposited in the FSL, Rohini and the receipt was handed over to PW.1.
23. The report of FSL Rohini (Ex.PW.1/E) describes Exhibit A which is the description of articles contained in parcel A as Dark Greenish brown coloured, sticky, semi solid material. The aforesaid sample was examined by microscopic, chemical tests, chromatography and instrumental methods. On examination the sample gave characteristic odour of cannabis. Microscopy revealed the presence of characteristic cystolithic hair, glandular hair and resin glands of cannabis plant. The solvent extract showed resin. Chemical tests and chromatographic analysis gave positive results for cannabinoids including Tetrahydrocannabinol. On the basis of the aforesaid examination, the substance was confirmed to be charas.
24. From the record of the case it further appears that on 14.9.2009 the Trial Court directed for drawing up a fresh sample of 50 grams, to be marked, sealed with the seal of the Court and be sent to Central Revenues Control Laboratory for giving a detailed report with regard to the nature of contraband and specific percentage of THC in the contraband.
25. Pursuant to such an order, the sample was drawn and sealed and sent to Central Revenues Control Laboratory. The report of the Central Revenues Control Laboratory which is admissible under Section 293 of the Code of Criminal Procedure, 1973 revealed that the THC content in the sample was 2.2%. However, a note was appended to the report stating that the THC content found in the sample gets Crl.A No.1628/2011 Page 8 of 14 metabolically decomposed after certain time. Hence the percentage of THC content at the time of analysis may differ from the percentage of THC in a different/fresh stock of charas.
26. From the testimonies of PWs.1 & 2 it stands proved that after the recovery of the narcotic substance from the possession of the appellant on 16.4.2009, the sample was first sent to FSL, Rohini on 22.4.2009 but since it could not be deposited on the same day, it was deposited on 23.4.2009. It was only by way of abundant precaution and for getting the THC percentage of the seized narcotic, the Trial Court directed for drawing a fresh sample and the same was sent to Central Revenues Control Laboratory for confirmation of the nature of contraband as well as the specified percentage of THC. The THC content was found to be 2.2% in the sample of 50 grams which was sent to the Central Revenues Control Laboratory.
27. Thus it cannot be believed that the sampling was not proper or that it was tampered with at the malkhana. There was no delay in sending the samples for analysis.
28. With reference to the THC percentage (2.2%) in the 50 grams sample as analyzed by Central Revenues Control Laboratory, Delhi, learned counsel for the appellant submitted that such percentage rendered the seized contraband as of small quantity or intermediate quantity but definitely not commercial quantity. It was submitted that the percentage of THC in the seized contraband would be determinative of the weight of the contraband for the purposes of testing whether the seized contraband is of small quantity or commercial quantity.
Crl.A No.1628/2011 Page 9 of 1429. Section 2 (iii) defines cannabis as follows:-
(iii) "(cannabis (hemp)" means-
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b)ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;
and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom."
Sections 2 (viia) and 2 (xxiiia) define „commercial quantity‟ and „small quantity‟ in the following manner:-
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
Sections 2(xiv) and 2 (xxiii) define „narcotic drug‟ and „psychotropic substance‟ as under:-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods."
(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 substances specified in the Schedule."Crl.A No.1628/2011 Page 10 of 14
30. Cannabis is a narcotic drug under Section 2(xiv). THC i.e Tetrahydrocannabinol is a psychotropic substance and it is entered at serial number 13 in the list given in the Schedule to the NDPS Act, 1985. Even though THC forms an important constituent of cannabis, THC by itself is a psychotropic substance which is treated separately under the NDPS Act. The nature of the offence and the punishment prescribed for the offences under the Act would depend upon whether a substance is a narcotic drug or a psychotropic substance. The punishment for contravention in relation to cannabis plant is specifically dealt with in Section 20 of the NDPS Act. Section 22 of the NDPS Act deals with punishment for contravention in relation to the Psychotropic Substances.
31. Research in this field discloses that the quality of cannabis is determined by the THC content which is the most important indicia for testing the purity, strength and concentration. It could be used for calculating the quantity of cannabis or cannabis resin used in liquid cannabis i.e hashish oil. Further research has led to the finding that the concentration of THC in liquid cannabis differs in cannabis of different origins, e.g. cannabis of Nepalese origin is stated to be a contraband with maximum percent of THC.
32. However, such concentration or the percentage of THC in a sample does not ipso facto determine the quantity of the contraband seized or recovered. As stated earlier, THC is itself a psychotropic substance and punishment is provided for violation of any provision with regard to such psychotropic substance.
Crl.A No.1628/2011 Page 11 of 1433. Learned counsel for the appellant further suggested that since there are colour tests for differentiation between bhang, charas and ganja, the colour of the sample described by the FSL viz. dark greenish brown would render the analysis doubtful. It has been argued that if a cannabis is extracted in ethanol and is made to react with chromogenic reagent, three different colours are produced. Bhang gives green colour, ganja gives blue colour while charas gives violet colour. The greenish brown colour, it has been argued, is reflective of the recovered substance being Bhang.
34. Learned counsel for the appellant has drawn the attention of this Court to the report of the FSL, Rohini wherein the description of the sample has been given as dark greenish brown colour. Such a colour was reported without it being put to any chemical reagent. The sample was put to microscopic test and the same was not put to colour test. The argument of the learned counsel for the appellant that the description of the colour of the sample of seized contraband (dark greenish brown) made the analysis doubtful is unfounded. The description of the colour was before putting the sample to any test.
35. The appellant has examined one defence witness namely Salim Ali. Salim Ali (DW-1) has deposed that the appellant was working with one Suleman and thereafter he started working with him for the last 1½ years. He has testified to the fact that according to his personal knowledge, the appellant has not been involved in any other criminal activity. It has been deposed that on 16.4.2009 the appellant had attended to his work with him namely making of threads which is used in operations. However, in his cross examination he has stated that he Crl.A No.1628/2011 Page 12 of 14 was not with the appellant on the date and time of the alleged recovery.
36. The defence of the appellant is highly contradictory. Suggestion has been given to HC Sanjeev Kumar (PW.8) that the appellant was picked up from the market and money was demanded from him. SI Paramjeet Singh (PW.9) was suggested that the appellant was arrested while he was coming along with his friends after attending a marriage ceremony. No suggestion of demand of money was given to PW.9. However, in the statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has stated that PW.9 demanded Rs.1 lakh from him at the instance of one Suleman who had business rivalry with him.
37. The Trial Court has rightly disbelieved the defence witness as admittedly he was not present at the time of the alleged search and recovery of the contraband from the possession of the appellant. The differing stand/defence of the appellant further raises doubt about his being innocent.
38. Lastly it was argued on behalf of the appellant that the safeguards as indicated in D.K.Basu vs.State of West Bengal, 1997 SC Page 610 were not followed by the authorities while the appellant was apprehended. The learned counsel for the appellant has not been able to show the basis of such an argument.
39. On the aforementioned discussion, this Court does not find any reason to differ from the findings/verdict of guilt of the appellant.
Crl.A No.1628/2011 Page 13 of 1440. As a result, this appeal fails and is dismissed.
41. Trial court records to be returned.
AUGUST 12, 2015 ASHUTOSH KUMAR, J
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Crl.A No.1628/2011 Page 14 of 14