TMI Blog2017 (10) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, NDPS for convicting the appellant under Section 20 (b)(ii)(C) and Section 28 read with Section 23(c) of NDPS Act for ten years rigorous imprisonment together with a fine of Rs. two lakhs (cumulatively) cannot be interfered with. I find no merit in the appeal and the same is dismissed. - CRL.A. 997/2011 - - - Dated:- 9-10-2017 - Sangita Dhingra Sehgal, J. For the Appellant : Mr. Pramod Kumar Dubey with Ms. Namita Wali, Advocates For the Respondent : Mr. Amish Aggarwala with Mr. Satish Aggarwala, Advocates ORDER Sangita Dhingra Sehgal, J. 1. The present appeal has been instituted under Section 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 374(2) of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. ) against the judgment and order dated 26.02.11 and 11.03.11 by which the appellant has been convicted for the offence under Section 20 (b)(ii)(C) Section 28 read with Section 23(c) of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as NDPS ). The present appellant has been sentenced to undergo rigorous imprisonment for a period of ten years with fine of ₹ 2,00,000 /-(C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfessed that on earlier occasions he had delivered baggages containing drugs six times on the offer given by Mr Nima. 3. On the basis of the material placed on record, the charges u/s 20(b)(ii)(c) and u/s 28 read with 23(c) of NDPS Act were framed against the appellant. The prosecution examined 8 witnesses, in all. Statement of the appellant was recorded under Section 313 of Cr.P.C. wherein he denied all the allegations and even said that his suitcase was not opened in his presence and that he had not made any statement under Section 67 NDPS Act. He further stated that his signatures were taken on many blank slips by the custom officers. 4. On acknowledgement of the evidences and considering the contentions of the parties, the learned Special Judge found that the recovery and possession of 7090 grams of Charas from the appellant was fully established and that he was attempting to illegally export the same outside India, the learned Special Judge held the appellant guilty for offences under Section 20 (b)(ii)(C) and 28 read with Section 23(c) NDPS Act and convicted him to rigorous imprisonment for 10 years with fine of ₹ 2,00,000/- cumulatively. Feeling aggrieved the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edible as the witness admitted that he did not weigh the substance of both the packets; that he did not mention in his testimony about fiber sheets. 7. Mr. Amish Aggarwala, learned counsel for the Respondent, submits that the appellant was intercepted on the ground of suspicion at IGI Airport carrying 7.090 kgs of Charas; that three representative samples of 30 grams each which were sent to the CRCL, clearly shows that the substance was charas; that all prosecution witnesses have consistently proved the recovery of charas from the appellant; that the testimony of witnesses cannot merely be discarded on the ground that they have not corroborated with regard to the colour of the substance recovered; that all the articles which were sealed and seized at the spot bearing paper slips with the signatures of accused and the others. Ld. Counsel further contended that the issue of purity percentage is squarely covered by the Judgment of Mushtaq Ahmad (supra) and as per the Judgment, the entire quantity of the contraband irrespective of purity percentage will be considered. 8. I have heard learned counsel for the parties and have also perused the material available on record. 9. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as signed by me, another witness, Mr. Anil Kumar and the accused. After completion of recovery proceedings on 04.03.2008 panchnama Ex. PW 1/C was prepared before 6am as all the proceedings had concluded by 6am. The panchnama is bearing my signatures at point A. 11. PW8 Sh Anil Kumar Inspt. ICD Tughlakabad testified as under: On the intervening night of 03/04.03.2008 I was posted at IGI Airport as ACO. At about 1:30 am I was present in the departure hall when one passenger whose name lateron I came to know as Irwin Bin Hassim crossed the custom area. He was stopped by me as his movements were appearing to be suspicious. On enquiry from him I came to know that his income was too meagre to be a frequent flier. I served notice U/s. 102 of the Customs Act upon him. He was informed that his search was to be conducted and if he desired that the same could be conducted in the presence of a Magistrate or a Gazetted Officer. At this, he told that I could conduct his personal search as well as the search of his baggage. This was written by that passenger on the notice U/s 102 itself. The notice u/s 102 Customs Act is already exhibited as Ex PW 1/B bearing my signature at point D and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12. PW3 Sh Ranjeet Kumar Gupta Inspt. Central Excise testified as under: On 04.03.2008 I was posted as ACO Customs at IGI Airport, New Delhi and was on day shift. I was handed over by the Sh Bishan Chand ACS on sealed packet of sample Mark A-1, the following letter already Ex PW 2/B which bears my signature at point B and test memos in duplicate and I was directed to deposit the sample to CRCL. I deposited the sample alongwith forwarding letter and test memos at CRCL and obtained a receipt with respect to the same. The said receipt is Ex. PW 3/A. I do not remember the time at which I had deposited the sample in CRCL. Thereafter I handed over the receipt Ex PW 3/A of CRCL to Sh Bishan Chand ACS. 13. PW2 Sh Bishan Chand Superintendent testified as under: on 04.03.2008 I was posted as ACS (Preventive) IGI Airport, New Delhi. I had signed the test memos in tripclate on the said date on being produced before me by the IO of the case Sh Anil Kumar ACO, as one the test memos was to be sent to CRCL for examining the sample. The test memo is Ex PW 2/A bearing my signature at point A, again said, test memo in duplicate was sent to CRCL. On the same day I had also issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hari Singh and Ors. Reported in AIR 2009 SC 1996, the Apex Court observed as under: 11. Section 15 makes possession of contraband articles an offence. Section 15 appears in chapter IV of the act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. Section 15 deals with punishment for contravention in relation to poppy straw. 12. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 15 is not attracted. 13. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent Remembrancer of Legal Affairs, West CRL.A. 254/2011 Page 14 of 18 Bengal v. Anil Kumar Bhunja and Ors.: 1979CriLJ1390 , to work out a completely logical and precise definition of possession uniformly applicable to all situations in the context of all statutes. 14. The word 'con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch and recovery from a bag, briefcase, container etc., does not come within the ambit of Sec.50 of the Act- Contraband recovered from a bag carried by appellant on his shoulder-Search does not amount to a personal search so as to attract Sec.50 of the Act. 18. Further, on perusal of the statement of the witnesses who recovered and deposited the sample to the CRCL, it is clear that out of the recovered charas, three samples of 30 grams each were taken and placed in small polythene wrapped with tape and kept in three brown colour paper envelopes marked as A-1 , A-2 and A-3 . The remaining substance was kept in a transparent polythene bag and then packed in a tin box which was converted into cloth pulanda and sealed with custom seal No.6. The sealed material including the suitcase were seized under NDPS Act, the documents of the appellant were also seized and his statement was recorded under Section 67 NDPS Act. 19. As far as the contention of the learned counsel for appellant, regarding quantity of THC being taken into account to determine the quantity of charas as commercial or semi commercial is concerned. It is relevant to peruse the CRCL report which is recapitulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n into consideration. 17. In the present case, the narcotic drug which was found in possession of the appellant as per the Analysts report is 60 gms. which is more than 5 gms., i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant is merely a carrier and is not a kingpin. 21. The dicta laid down by the Apex Court in E. Micheal Raj (supra) case has also been dealt in Harjit Singh vs State of Punjab (2011) 4 SCC 441. The apex court distinguished the case of E. Michael Raj (supra) and observed as under: 23. The judgment in E. Micheal Raj (Supra) has dealt with heroin i.e., Diacetylmorphine which is an Opium Derivative within the meaning of the term as defined in Section 2(xvi) of the NDPS Act and therefore, a `manufactured drug' within the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case. 25. The Notification applicable herein specifies sma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstance, the entire weight of the contraband would have to be considered for determining whether the recovery was of a small quantity, intermediate quantity or a commercial quantity. 21. therefore, our answer to the question is that the percentage of THC in a sample of charas by itself cannot be determinative of the purity of the sample. Furthermore, a test resulting in the quantification of the percentage content of THC is neither relevant nor necessary for the purpose of considering the grant of bail or of awarding sentence under the NDPS Act . The Divison Bench of this Court in the aforementioned case observed that cannabis contains over 400 chemicals, of which more than 60 are chemically unique and are collectively referred to as cannabinoids, therefore, the percentage of THC cannot only be taken into account to determine the quantity and purity of charas as commercial or semi-commercial. It is stated in the bulletin on Narcotics, 2006 that THC degrades over time, so the age of the sample and the conditions under which it was stored are highly relevant. 24. The last contention raised by the learned counsel for the appellant pertaining to the keys of the suitcas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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