Om Parkash Bakshi Vs. State - Court Judgment

Excerpt:
narcotics - offence--prosecution--challan for offence under section 21 for possession of morphine against petitioner and co-accused--framing of charge by trial court against both for offence under sections 22 and 29--charge of conspiracy based on statement of co-accused--illegal--statement of co-accused not substantive piece of evidence--words and phrases--morphine is manufactured drug--possession of morphine offence under section 21--challaning proper--section 22 pertains to psychotropic substances--morphine not a psychotropic substance--charge as framed liable to be quashed and charge to be framed under section 21--narcotic drugs and psychotropic substances act (61 of 1985), sections 2(xi), (xxiii), 21, 22, 29, 54. - - 2(xi) means, besides other things opium derivative as well.p.k. bahri, j. (1) this criminal revision is directed against order of an additional sessions judge by which he had directed for framing of charges against the petitioner and his co-accused for offences punishable u/s 22 & 29 of the narcotic drugs and psychotropic substances act ('ndps act') read with section 120-b ipc. (2) the facts, in brief, are that asi partap singh accompanied by other constables was stated to be patrolling the area on july 8, 1987. and had reached at about 7 p.m. near the corner of martial tito marg, close to raj kumari amrit kaur nursing college, and he found the petitioner and his co-accused amarjit singh quarrelling and were snatching one book from each other and under the process the cover of the book had been torn into two pieces and each piece was found to contain a packet each. the assistant commissioner of police and the s.h.o. had been called to the spot before taking search and those packets were found to contain morphine powder weighing 110 gms and after taking sample of 5 gms, the sample and the remaining morphine and the said book and the torn covers were sealed in three separate sealed parcels. before effecting recovery amarjit singh had been enquired as to what the matter was and he had made a statement that in 1979 he had paid rs. 5,000.00 to om parkash and the said morphine was concealed in the said book for sending the same to canada but the same could not be sent to canada and om parkash was refusing to return the money and on telephone he was called back with the book and before giving him money the book was demanded back but as he wanted the money to be shown, which was not shown, so the book was being snatched. (3) the learned counsel for the petitioner has vehemently argued that a statement of co-accused could not have been made the basis of framing a charge of conspiracy as no other evidence had been collected by the prosecution to prove the charge of conspiracy. the charge framed by the lower court in that respect should be quashed. the challan had been filed by the prosecution only for an offence punishable u/s 21 of the ndps act. it appears that the learned trial court has framed the charge of conspiracy on the basis of the statement made by the co-accused. it is settled law that the statement of a co-accused is not substantive piece of evidence. so, obviously the charge could not have been framed on the basis of such a statement of co-accused. (4) the learned counsel for the petitioner has also argued that no charge could be framed either u/s 21 or 22 of the ndps act inasmuch as there is no evidence that the petitioner was in conscious possession of the drug in question. he has made reference to century spinning & . vs . state : 1972crilj329 , wherein it has been laid down that it cannot be said that the court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. it was held that the order framing the charges does substantially affect the person's liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in s. 173 consider it proper to institute the case. the responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. in the present case the facts do show that the books contained the morphine and the said book was being handled by the petitioner and his co-accused as they were trying to snatch the same from each other. so they were both, prima facie, in possession of the said book, s. 54 of the ndps act lays down that in a trial under the act it has to be presumed that unless and until contrary is proved, that the accused has committed the offence in case he fails to account satisfactorily for the possession of any quantity of drug or psychotropic substance etc. so, it is clear that the onus is placed on the accused to explain satisfactorily as to the possession of the drug which is recovered from him. so, mere possession of the drug by itself is an offence under the ndps act. (5) it is not for this court to give any final decision at this stage on the point whether the petitioner was actually in conscious possession of the drug in question. after all the facts as have come out in the challan do show that both the accused were in possession of the book containing the morphine and both were non-plussed when confronted by the police. so, from this circumstance a prima facie view can be taken that both the co-accused were having the knowledge that the book contained the morphine. the charge has to be thus framed against the petitioner and the co-accused for the offence punishable u/s 21 of the ndps act and not u/s 22 of the said act as framed by the learned trial court because s. 21 makes the possession of any manufactured drug as an offence and the manufactured drug' as defined in s. 2(xi) means, besides other things opium derivative as well. the word 'morphine' has been defined in webster's third new international dictionary to mean 'as the principal alkaloid of opium occurring in amounts up to 15 per cent'. 'opium' as defined in black's medical, dictionary lays down that 'the action of opium depends upon alkaloids it contains, of which no fewer than 18 are available from different kinds. of these, the chief are morphine, confine etc.' so, morphine is the main and. principal alkaloid of opium and if morphine is found in the product above 0.2% the product has to be treated as ''opiume'' thus, it is clear that morphine is the derivative of opium and is covered by the definition of ' 'manufactured drug'. s. 22 of the ndps act pertains to possession of 'psychotropic substance' which has been defined in s. 2(xxiii) to mean 'any substance natural or synthetic etc. specified in the schedule'. the schedule does not refer to 'morphine'. so, the prosecution has rightly challaned the petitioner and the co-accused for an offence punishable u/s 21 of the ndps act. i, hence, partly allow the criminal revision petition and quash the charges already framed and direct that the charge against the petitioner and co-accused be framed for the offence punishable u/s 21 of the ndps act only.