TMI Blog2011 (6) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... andi, area of Jammu city. The information prompted Intelligence Officer NCB, Jammu to tele-phonically inform Zonal Director, NCB, stationed at Chandigarh, seek instructions, constitute a Naka trap team associating officers/officials of the Customs Department, Jammu and two independent witnesses and lay Naka at Rajinder Bazar, Kanak Mandi. The Naka party at about 8.30 PM spotted the Appellants one holding Card Board Carton (Box) and another a bag in his hand, proceeding from Residency Road to Rajinder Bazar and intercepted them at Cholay Bhathuray Wali Gali, Chowk Kanak Mandi, Jammu. The Appellants when questioned by the Intelligence Officer NCB, disclosed their identity. The Intelligence Officer, NCB ( complainant for short) served notice under Section 50 NDPS on the Appellants, explained contents of the notices and gave them an option to get their person and the Card Board Carton and bag searched in presence of a Gazetted Officer or a Magistrate. The Appellants opted for their search in presence of a Gazetted Officer. The complainant, accordingly requested Shri S. L. Jarangal, Superintendent Customs to come on spot, so that the Appellants were searched in his presence. The Superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere formally charged of the offence alleged in the complaint. The prosecution after the Appellants denied the charge, examined listed witnesses including the complainant, Superintendent Customs and other witnesses of the Naka team, in whose presence the substance later found to be Charas, was recovered. The Appellants when confronted with the incriminatory circumstances appearing in the prosecution evidence and given an opportunity to offer their explanation denied the occurrence. The Appellants in their statements Under Section 342 Code of Criminal Procedure also denied to have made any confessional statements under Section 67 NDPS Act and insisted that they were falsely implicated by NCB, Jammu. The Appellants examined two witnesses in their defence. 4. Learned Trial court on going through the prosecution evidence - oral and documentary, held the prosecution to have proved beyond doubt that on 5.4.2004, the complainant accompanied by other witnesses at about 8.30 PM, intercepted the Appellants at Cholay Bhaturay Wali Gali, Chowk Kanak Mandi and recovered from the Appellants 6.200 kg and 4.00 kg brown coloured stick shaped material wrapped in Corn Cob Covers, found to be Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case set up by the prosecution and the evidence brought on the file held the Appellants guilty of the offence of which they were charged and proceeded to award the sentence of imprisonment and fine stated above. 6. The trial court judgment and order are assailed on the grounds that the judgment and order are outcome of mis-appreciation of facts and mis-appreciation of law; that the complainant and other officials of NCB while making the alleged recovery and investigating the matter committed gross violation of Section 42 and Sections 52 to 67 of the NDPS Act; that the prosecution witnesses namely Sushil Kumar and Balwinder Raj associated with alleged recovery of Charas from the Appellants and projected by the prosecution as independent witnesses were on their cross examination found to be employees of the officials of NCB and residents of Punjab though maliciously and mischievously shown in the complaint to be residents of Jammu. The Appellants also find fault with the mode and manner in which their statements under Section 342 Code of Criminal Procedure were recorded and later selectively appreciated by the Trial Court. The Appellant ? Gulzar Ahmad has further questioned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e persuaded the Trial Court to dismiss the prosecution case. 9. Learned Counsel for the Appellants to question the impugned judgment advance following arguments: (I) That the complainant failed to follow the mandate of Sections 41 and 42 of the Act at the time of alleged recovery. The complainant as an officer of NCB though empowered to detain and search a person whom he has reason to believe to have committed any of offences punishable under Act, it is insisted, can exercise such power between sunrise and sunset. A warrant is to be obtained from Metropolitan Magistrate or Magistrate First Class or an authorisation from officer of the gazetted rank of the Narcotic Department in the event search and seizure is made between sunset and sunrise. It is pointed out that in the present case as search, seizure and arrest was made after the sunset, a warrant under Section 41(1) or an authorization under Section 41(2) was required to be obtained before such search seizure and arrest were effected. The search and seizure, it is argued has been made without warrant or authorisation. (II) That to impart credibility to the search and seizure, the complainant was required to associate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence made recovery doubtful and dealt a body blow to the prosecution case. 10. Let us deal with the grounds urged by learned Counsel for the Appellants' ad seriatim. 11. From a conjoint reading of Sections 41 and 42, it emerges that following officers may make search, seizure and arrest of any person whom they have reasons to believe to be in possession of contraband or to have committed any offence punishable under the Act. (i) An officer of any of the departments/organizations mentioned, to whom a warrant under Section 41(2) of the Act is addressed, (ii) An officer of gazetted rank of any of the departments/organizations mentioned, empowered by any general or special order of the state government to make such search, seizure and arrest in terms of Section 41(2) of the Act. (iii) An officer, superior in rank to a peon, sepoy or constable of any of the departments/organizations mentioned, subordinate to the gazetted officer empowered under Section 41(2) of the Act, duly authorised by such empowered gazetted officer to make such search seizure and arrest in terms of Section 41(2) of the Act. (iv) An officer of any of the departments/organizations mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rregularity does not impinge upon the evidence recovered. 15. There is no principle of universal application or an inviolable rule that search and recovery of contraband must invariably be made in presence of an independent witness and that failure to associate an independence witness would always cast a doubt on credibility of search and recovery. Furthermore, the witnesses to search and recovery are not to be disbelieved only because they belong to the Narcotic Control Bureau or any other department associated with the campaign against Drug menace. If, the surrounding facts and circumstances inspire confidence in search and recovery of the contraband, absence of an independent witness or failure on the part of the prosecution to examine independent witness associated with search and recovery may not be fatal to the prosecution case. 16. In the present case, the complainant associated S/Shri Sushil Kumar and Balvinder Raj with the search operation. Mere fact, that the two witnesses projected by the prosecution as independent witnesses, originally belonged to District Gurdaspur Punjab and were, nonetheless shown to be residents of Jammu or that one of the witness Balvinder Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed, the Magistrate is to examine the complainant and the witness present, unless the complaint is presented by a public servant, as in present case, acting or purporting to Act in discharge of his official duties, in which case statement of the complainant or witnessed is not required to be recorded. In case the Magistrate is satisfied that there is sufficient ground for proceeding, process is to be issued against the accused in terms of Section 204 CrPC. When the accused appears or is brought before the Magistrate, pursuant to the process issued, and it appears that the offence, cognizance whereof has been taken, is exclusively triable by Court of Session, the case is to be committed by the Magistrate in terms of Section 205 Code of Criminal Procedure to the Court of Session. The Court of Session, is thereafter to proceed with the trial in accordance with Chapter XXII Criminal Procedure Code. 20. In the present case, the complainant did not present the complaint before the Magistrate but straightaway filed the complaint in the Court of Session at Jammu. It is contended by learned Counsel for the Appellants and emphatically by the panel lawyer, that the Session Court by direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 204 CrPC, is made oblivious to Section 36A(d) of the Act. It is pertinent to point out that in terms of Section 36A of the Act, offence under the Act punishable with imprisonment for a term of more than three years are triable only by the Special Court. Section 36A(d) of the Act relevant to the present controversy reads as under: A. Offences triable by Special Courts.- (1) (a) ... (b) ... (c) ... (d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Govt., or a State Govt., authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial Section 36C of the Act, lays down that the provisions of the Code of Criminal Procedure, except otherwise provided in the Act, shall apply to the proceedings before the Special Court. It follows that the procedure laid down under Ss 190, 200 to 204 and S 205 D CrPC is excluded by Section 36A(d) read with Section 36C of the Act in case of a complaint made by an officer of the Central Government or a State Government authorised to file the complaint. In terms of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At this stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Section 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play . Thirdly, there was nothing on the record to suggest that the confessional statements were involuntary or outcome of threat, coercion, force, promise or inducement. The Appellants as pointed out by the Trial Court did not find it necessary to approach the Court before or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od the cross examination and came out un-scathed and unimpeached. Furthermore, the Trial court had before it testimony of Shri Rakesh Goel, Zonal Director, NCB who did not only admit to have authorised search and seizure but also to have received Charas recovered from the Appellants and two parts of the sample (duplicate), made entries in the Malkhana register and deposited it in the Malkhana. In the said background, though the Trial Court while taking note of the plea as regards failure of the prosecution to produce physical evidence overlooked the argument, yet it is to pale into insignificance in presence of well-knit and trustworthy prosecution evidence. 25. There is substance in the argument advanced by learned Counsel for the Appellants that samples taken from the recovered substance did not have representative character. It may be recalled that as per the prosecution case, seven brownish stick shaped packs wrapped in Corn Cob covers tied with thread and put in separate polythene bags from the Card Board Carton carried by the Appellant ? Gulzar Ahmad and five sticks shaped packs wrapped in Corn Cob covers tied with thread and put in white coloured PVC Bag printed with Ama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... samples by the Chemical Analyst. 28. It needs to be pointed out that the Chemical Examiner as per the prosecution case did not only analyse the samples to find out whether it comprised of or contained any Narcotic Drug but went a step further to find out percentage by weight of the Narcotic Drug in the sample. The Chemical Examiner as per his reports dated 25.5.2004 certified that the sample taken from one of the seven brownish stick shaped substance tested positive for Charas and that Tetra hydrocannabinol (THC) content in the sample was 5.1 per cent. In case of sample lifted from one of the five sticks recovered from the Appellant ? Mushtaq Ahmad Tetra hydrocannabinol (THC) content in the sample was found to be 4.9 per cent. In the circumstances, if the samples lifted from the substance recovered from the Appellants is taken to represents the single brown shaped stick, the content of Narcotic Drug recovered from the Appellants would be 45 gms and 39 gms respectively taking each stick to have an average weight of 890 (6.2 Kg - 7) and 800 (4.0 Kg - 5) gms respectively. However, if, working on the assumption made by learned Trial Court that in view of confessional statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to a small quantity, but when the same 4 gm is mixed with 50 Kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one of more neutral substance (s), the quantity of the neutral substance(s), is not to be taken into consideration while, determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less server punishment and those who commit grave crimes, such as trafficking in significant quantities, with more server punishment. 31. The Court referred to the following observations made in Ouseph alias Thankachan v. State of Kerala 2004 (4) SCC 446: 8. The question to be considered by us is whether the psychotropic substance was in small quantity and if so, whether it was intended for personal consumption. The words 'small quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in default of payment of fine rigorous imprisonment for one more year, to six years rigorous imprisonment with fine of ₹ 20,000/- and in default of payment of fine, rigorous imprisonment for six months. 34. In Samiullah v. Superintendent Narcotic Control Bureau MANU/SC/4761/2008 : AIR 2009 SC 1357, the samples of alleged contraband recovered weighing 2 Kg was found to have 2.6% of heroin. The contraband in 2 Kg seized substance was thus 52 gm. The Apex Court held that the quantity alleged to have recovered in view of the chemical analysis report could be said to be intermediate quantity and rigor of Section 37 of the Act relating to the grant of bail was not justified. 35. From the above discussion it emerges that in view of different layers of punishment prescribed under the Act, it is of utmost importance for the trial Court after holding the accused guilty of contravention of any of the provisions of the Act or any of the Rules, Orders made thereunder i.e., possession of Narcotic Drugs or Psychotropic substance, to determine the quantity of such drug or substance involved in the contravention proved against the accused and impose sentence accordingly. 36. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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