Bombay High Court
Ashok Asumal Bajaj vs State Of Maharashtra on 8 February, 1993
Equivalent citations: 1994(1)BOMCR665, 1993CRILJ2818, 1993(2)MHLJ1151
JUDGMENT Saldanha, J.
1. Certain features of some importances relating to the procedure to be followed in Narcotics cases where seizures of very small quantities of contraband is made, as also the manner in which a Court would approach S. 27 of the Act for ascertaining as to whether the accused found in possession of the contraband can be said to have obtained it for personal consumption, fall for determination in this case. The appeal has been preferred by the appellant who has been convicted under S. 22 of the Narcotic Drugs and Psychotropic Substances Act and awarded a sentence of 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- in default to suffer rigorous imprisonment for two years. It is alleged that on 16-6-1990 at about 10-35 a.m. the accused was apprehended by the Police authorities near Zulelal Mandir which is located adjacent to the Pimpri market. On his being searched in the presence of panchas, 8 pudis were found in his trouser packet and it was detected that they contained Gard Powder. The Police weighed the packets which collectively recorded a weight of 1 gram 950 mlg. The contraband was sent to the Chemical Analyser and the Analysis report is to the effect that Heroin is detected in all the eight samples along with other opium alkaloids. The accused came to be prosecuted and the learned Trial Judge accepted the prosecution evidence, convicted him and awarded a sentence as indicated above. The only feature of some relevance which needs to be mentioned is that the accused in his statement under S. 313, Cr.P.C. mentioned that he is addicted to consumption of this particular material. The accused who is in custody has through this appeal assailed the correctness of the conviction recorded against him.
2. Kum. Dandekar, learned counsel appearing on behalf of the appellant has assailed the evidence on record which consists of the deposition of the pancha who has supported the prosecution case, as also the P.S.I. Divane who carried out the raid. She contends that the police have falsely implicated the accused and that he was picked up on suspicion and the material which the Police do not have difficulty in laying their hands on was planted on him. We have scrutinised the depositions of these two witnesses as also the panchanama and in our considered view, there is nothing that has been brought on record that would justify our rejection of this evidence. That the accused was apprehended on the morning of 16-6-1990 and that the 8 pudis were found on his person has been established and the finding of the Trial Court to this effect cannot be disturbed.
3. The second submission advanced by the learned defence counsel is that the investigating authorities have committed a serious error in having weighed the paper packets along with the drug and in having recorded the aggregate weight of 1.950 grams. Ku. Dandekar submits that S. 27 of the Act specifically prescribes a lesser punishment for possession of small quantities and she contends that has this error not been committed, that there is enough material on record to indicate that this case would come within the ambit of S. 27 of the Act. The learned A.P.P. on instructions from the Investigating Officer has pointed out to us that in the present case, the amount of powder in each of the packets was so very small that the only option available to the Officer was to seize the packets in the condition in which they were. The learned A.P.P. conceded that it is the weight of the contraband which is material and particularly in cases where the quantity is small, it is more important of the investigating authorities to follow a procedure whereby the Court can definitely ascertain as to what exactly the small quantity was. In the present case, we do concede that there are practical difficulties in the way of the authorities in the matter of transferring the powder separately and thereafter ascertaining the exact weight of the powder. In the absence of the paper in which it is wrapped. To our mind, it is not impossible. All that the Officer is required to do is to ascertain the total weight, thereafter ascertain the weight of the wrappers and if these two are accurately recorded, the difference between them would certainly indicate the exact quantity and weight of the powder that was contained in the wrappers. It is not only desirable but essential that such a procedure be adhered to as otherwise a Court would find it difficult as in the present case to hold that the quantity involved is not within the ambit prescribed by S. 27.
4. Kumari Dandekar has made a grievance of the fact that the C.A. report again does not indicate the quantity by weight of the material that was sent for analysis. In the present case, as with several similar ones, the C.A. has stated in the report that the whole quantity of the powder in all the eight cases has been fully used in the course of the analysis. We are aware of the fact that for purposes of carrying out a laboratory analysis that a certain minimum quantity of the sample is required. Undoubtedly, where the seizure is of a sufficiently large quantity, a representative sample can be drawn and forwarded to the Chemical Analyser. Even in cases where the quantities are reasonably small, it is advisable to follow this procedure as otherwise, difficulties do arise in cases where the accused may challenge the nature of the material that has been seized. In those of the cases such as the present one, where the quantity is extremely small, and where all of it is sent for chemical analysis, to our mind, it would be very necessary of the Chemical Analyser to specifically indicate the quantity of the material sent to him so that the Court can be satisfied even in the face of a challenge that it being extremely small there was valid justification for none of it being produced before the Court.
5. The next submission advanced by Ku. Dandekar, was that even if the possession of the contraband is established, that on the material placed before the Court in this case, the accused must be entitled to the benefit of Section 27. Section 27 of the Act reads as follows :-
"Sec. 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 issue thereunder, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been 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, diacetyl-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."
It is submitted that for a variety of reasons including the fact that the accused has stated in his statement under section 313 of the Cr.P.C. the Court is obliged to take into consideration, that he was addicted to the consumption of this drug. Coupled with this fact, the learned Counsel argues that where the contraband was found in very small quantities on his person and there was no money or for that matter no customers or evidence of the fact that he was selling it, that the Court must accept the position that the contraband that was with him was intended for personal consumption. The learned A.P.P. has countered these arguments by submitting that mere possession of small quantities or a statement under Section 313 of the Cr.P.C. would be hopelessly inadequate for the purposes of applying Section 27 because he has relied on the latter part of the section which prescribes that the onus of proving that it was for personal consumption shifts to the accused. In our considered view, once it has been pleaded that the small quantity that was found in possession of the accused is for personal consumption, it is open to the defence to contend that the burden of proof can be adequately discharged also from the facts, circumstances and material on record. In the present case, we do find that the quantity in each of the Pudis was undoubtedly extremely small, it was also measured out into eight small packets and there was no money found on the person of the accused which could possibly have been construed as being evidence of sale or distribution. The investigation did not indicate that the accused either himself or as agent of some other person was drug peddler. In the absence of such material, and the fact that the drug was found in extremely small measured quantities would be sufficient for the purposes of indicating that it was for the personal consumption of the accused. If it was the prosecution case that the accused was involved in the activity of selling the drug, then it would have been essential that the investigation should have demonstrated some such activity on his part. The evidence of a person who has purchased the drug from him or to whom he had promised that he would procure the drug or for that matter, the inter-connection between him and any of the dealers are all material which the prosecution ought to have brought on record in support of the charge that the accused was involved in the act of sale. In the absence of any such material, it would be impossible to hold that the prosecution has discharged this burden and, therefore, the defence contention that it was intended for personal consumption is rendered plausible.
6. It is in these circumstances that we have upheld the plea canvassed on behalf of the appellant that the provisions of Section 27 of the Act would be applicable to the present case. We accordingly set aside the conviction recorded by the Trial Court under section 22 of the Act as also the sentence of 10 years rigorous imprisonment and fine of Rs. 1 lakh, in default rigorous imprisonment for two years. The accused stands convicted of the offence punishable under section 27 of the N.D.P.S. Act and he is sentenced to undergo rigorous imprisonment for one year.
7. We are informed that the accused has been in custody and that he has also served a sentence of more than one year rigorous imprisonment, consequently we direct that the accused be set at liberty forthwith if not required in connection with any other case.
Appeal partially allowed accordingly.
8. Appeal partly allowed.