Pappu Vs. State of Punjab - Court Judgment

Kanwaljit Singh Ahluwalia, J.

1. Pappu son of Noordeen, in the present appeal, has challenged the judgment dated 25.9.2001, pronounced by the Court of Special Judge, Gurdaspur, who held the appellant guilty of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as '1985 Act'), and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-, in default whereof to further undergo rigorous imprisonment for a period of six months.

2. The conviction of the appellant was recorded because as per prosecution case, on 29.12.1999 at about 9.30 P.M. in the area of Dhira, near Nalwa bridge, he was found in possession of 1 kg. 300 grams of charas.

3. The brief facts of the case can be gathered from ruqa Ex. PF on the basis of which formal FIR Ex. PB bearing No. 240 dated 29.12.1999 was registered at Police Station City Pathankot under Section 20 of the 1985 Act. Ruqa Ex. PF stated that PW.5 Surinder Singh, Inspector, along with his companion police officials was on patrol duty for checking of anti social elements and was present at Nalwa bridge near link road Dhira. At that time, one person, carrying a bag in his right hand, was spotted coming on foot from the side of village Bharoli Kalan, who, on seeing the police party, became nervous and retraced his steps. He was apprehended and on asking, he disclosed his name as Pappu son of Noordeen, caste Gujjar, resident of village Palaiur, Police Station Chamba, at present resident of village Sultanpur, Police Station Sadar, Pathankot. PW.5 Surinder Singh, Inspector, told him that he had suspicion that the accused was carrying some contraband article and an offer was extended to get himself searched from the Inspector or some Gazetted Officer. The accused exercised his option of getting himself searched from a Gazetted Officer and a memo to this effect was prepared on which the accused appended his left thumb impression. A wireless message was flashed to Mohinder Singh, Superintendent of Police, Pathankot, with a request to arrive at the spot. After some time, he reached at the spot, and was acquainted with the facts of this case. Mohinder Singh, Superintendent of Police, Pathankot, disclosed to the accused that he was a gazetted officer and gave an option that if the accused wanted, he could get himself searched from him or a Magistrate. The accused expressed his satisfaction and gave a consent to get himself searched from the Superintendent of Police. A memo to this effect was prepared. Under the directions of the Superintendent of Police, personal search of accused was carried. From the bag, which the accused was carrying, 1 kg. 300 grams of charas was recovered, out of which two samples of 20 grams each were drawn and were sealed in two plastic parcels. The remaining charas was weighed as 1 kg. 260 grams, which was also sealed in the parcel. As per the procedure prescribed, on the two parcels and the remaining recovered charas, the Investigating Officer had affixed his seal SS, whereas the Superintendent of Police had affixed his seal MS. The Inspector had handed over the seal, after use, to PW.6 Tarsem Lal, Assistant Sub Inspector, whereas the Superintendent of Police had retained the seal with him. For possessing the charas without any licence, since the accused had committed the offence under Section 20 of the 1985 Act, therefore, a ruqa Ex.PF was sent through Shanti Sarup, Constable to Police Station Division No. 1, Pathankot, for registration of the case.

4. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted in the Court of Special Judge, Gurdaspur.

5. On 7.4.2000, the Court of Special Judge, Gurdaspur, had formulated the charge against the accused, to which he pleaded not guilty and claimed trial.

6. PW.1 Tulsi Dass, Constable, and PW.3 Swinder Kumar, Head Constable, had tendered their affidavits Ex.PA and Ex.PB to prove link evidence.

7. PW.2 Dharam Pal, Constable, stated that on 29.12.1999, he was posted in Police Station Division No. 1, Pathankot, and on that day, Sat Pal, Sub Inspector, had handed over special report to him for delivering the same to the Illaqa Magistrate and superior police officers. The special report Ex.PB was received by Illaqa Magistrate on the same day at 11.45 P.M.

8. Surinder Singh, Inspector (Retired), appeared as PW.5, who stated that he along with Tarsem Lal, Assistant Sub Inspector, and other companion police officials, was present at Nalwa bridge link road, Dhira, in connection with patrol duty and general checking. Meanwhile, the accused had arrived, who was carrying a bag in his right hand. On sighting the police party, he made an attempt to return back and was apprehended. He was given an offer to get himself searched from the Investigating Officer or a Gazetted Officer. The accused reposed trust in the gazetted Officer. PW.4 Mohinder Singh, Superintendent of Police, Pathankot, was requested to arrive at the spot. The search was carried and the accused was found in possession of 1 kg. 300 grams of charas, out of which two samples of 20 grams each were separated and taken in the plastic dabbies. On the case property and the samples, seals of MS and SS were affixed. He handed over his seal SS to PW.6 Tarsem Lal, Assistant Sub Inspector, whereas the Superintendent of Police had retained his seal with him. All the three parcels and the sample were taken into possession vide recovery memo Ex. PE, which was attested by PW.4 Mohinder Singh, Superintendent of Police and PW.6 Tarsem Lal, Assistant Sub Inspector. Thereafter, he had prepared the rough site plan Ex.PE with correct marginal notes. The arrest of the accused was effected vide memo Ex. PH. The case property along with the sample seals and the docket was deposited with PW.3 Swinder Kumar, Moharrir Head Constable. The case property along with the accused was produced before the Illaqa Magistrate. The case property and the samples remained in double lock. After the receipt of report of the Chemical Examiner Ex. PJ, the accused was challaned by Sohan Singh, Sub Inspector/Station House Officer. In cross-examination, he stated that he had left the Police Station on 29.12.1999 at about 4.30 P.M. and they reached at the spot at about 4.45 P.M. The accused had made no attempt to run away from the spot. At about 5.00 P.M, the wireless message was sent to the Superintendent of Police, Pathankot and the proceedings were completed at about 5.30 P.M., then the ruqa Ex.PH was despatched to the Police Station. He further stated that the place of recovery is an open public place and some persons passed on the way. The witness was not able to disclose the names of persons to whom the request was made to join as an independent witness as they refused to come forward. The Superintendent of Police remained at the spot for about one and a half hour. The accused along with the case property was produced before the Magistrate at Pathankot on the same day. The entry was made in Police Station Division No. 1, Pathankot, by Swaran Singh, Sub Inspector/Station House Officer.

9. PW.6 Tarsem Lal, Assistant Sub Inspector, had corroborated the testimony of PW.5 Surinder Singh, Inspector. He deposed regarding the apprehension of the accused on suspicion, an offer given by PW.5 Swaran Singh, Inspector, arrival of PW.4 Mohinder Singh, Superintendent of Police, on the spot, search carried and recovery effected. In cross-examination, this witness stated that he remained at the spot for about seven hours. None was checked on that day for the long seven hours, when they remained at the spot. The accused was apprehended at about 5.00 P.M. The place of recovery was a thorough fare and the people were passing on that way. However, this witness was also unable to disclose the names of persons to whom a request to join as an independent witness was made.

10. PW.4 Mohinder Singh, Superintendent of Police, stated that on the receipt of the wireless message, he reached at the spot and disclosed his identity to the accused. An offer was made to him to get himself searched from the Gazetted Officer or the Magistrate. The accused had reposed confidence in him and thereafter, on his instructions, search was carried. From the search, 1 kg. 300 grams of charas was found from the possession of accused. Two samples of 20 grams each of charas were prepared. He further stated that the seals SS and MS were affixed on the samples and the case property. The samples and the case property were taken into possession vide recovery memo Ex. PE. In cross-examination, he stated that he had received the wireless message at about 4.45 P.M. and he reached at the spot at about 5.00 P.M. The Investigating Officer was the then Station House Officer of Police Station Division No. 2, Pathankot, and was also the Incharge of CIA Staff. The accused was not searched prior to his arrival. Ruqa Ex. PH was despatched from the spot at about 5.35 P.M. An attempt was made to join an independent witness but nobody came forward. The samples were sealed within 10-15 minutes.

11. After tendering into evidence the report of Chemical Examiner Ex. PJ the prosecution closed its evidence.

12. A perusal of affidavit Ex.PB submitted by PW.3 Swinder Kumar, Head Constable, reveals that on 29.12.1999, Surinder Singh, Inspector, had deposited two samples of 20 grams each and the case property. The seals of SS and MS were affixed thereon. On 3.1.2000, the samples were taken out from the malkhana by PW.1 Tulsi Dass, Constable, and on 4.1.2000 he deposited the samples in the laboratory of Chemical Examiner at Jalandhar. As per the report of Chemical Examiner Ex.PJ, 21% of resin was present.

13. Thereafter, the statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to him. He denied the same and pleaded false implication.

14. In defence, Thuru Ram, Head Constable, was examined as DW.1, who stated that according to entry No. 251 made in Register No. 19, the case property and two samples with three seals each of SS and MS were deposited with him but the sample seal was not deposited with him. He produced the original entry and photostat copy thereof as Ex.DA. He further stated that vide entry No. 46 dated 29.12.1999, the accused was put in police lock-up. On the same day, as per entry No. 39, the accused was produced along with the case property in Police Station Division No. 2, Pathankot. The photostat copies were proved as Ex. DB and Ex. DC. As per the road certificate Ex.DD, the case property was kept in double lock-up on 31.12.1999.

15. Mr. D.S. Pheruman, Advocate, appearing for the appellant, having raised the ancillary argument that there was a delay in reaching of the samples to the laboratory of Chemical Examiner, urged that the samples were taken on 29.12.1999 but the same reached there on 4.1.2000 and contended that there was a delay of four days in sending the samples. According to the counsel, as per the standing instruction No. 1/88 dated 15.3.1988 issued by the Narcotic Control Bureau, New Delhi, a sample of contraband article should be sent to the Chemical Examiner within 72 hours of its seizure to avoid any legal objection. Learned Counsel for the appellant has further submitted that in the present case no independent witness was joined. Thus, the same was fatal to the prosecution as the witnesses have admitted that the place where the recovery was effected was thorough fare and was frequented by many persons. Learned Counsel further submitted that a bald excuse has been made by the witness to state that an offer was made to a number of persons to join as an independent witness, but they refused to do so. Learned Counsel further submitted that this is a lame excuse which can be advanced in any case. It has been submitted that to corroborate this excuse, neither any document is coming forward naming the persons who had refused to join as an independent witness nor noticed in the case diary or any paper. Furthermore, no notice was given to any such witness to join under Section 160 Cr.P.C. No action was initiated against such person who refused to join as an independent witness. However, primary and thrust argument of the counsel is that the ratio of law laid down by the Hon'ble Apex Court in a judgment rendered in E. Micheal Raj v. Intelligence Officer Narcotic Control Bureau 2008 (2) R CriR 597 is to be applied in the present case and stated that the total recovery of 1 kg. 300 grams of charas has become non-commercial quantity. In the aforesaid case, recovery of 4 kgs. of heroin was effected. It was urged in that case that the purity of heroin was 1.4% and 1.6%, respectively, from two samples. Thus, the quantity of heroin from the possession of accused was determined as 60 grams and the same was less than 250 grams, below the commercial quantity. Their Lordships considered the definition of 'Opium Derivative' as given under Section 2(xiv) of the 1985 Act and held that the same falls under the category of manufactured drugs. Holding that the recovery was an offending substance being an opium derivative and hence the manufactured drug, the Hon'ble Apex Court observed as under:

16. On going through Amarsingh case (supra), we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s. In fact that was not the issue before the Court. The black-coloured liquid substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as 'opium derivative' which requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance/s. Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned Counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.

17. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst's 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.

16. From the judgment rendered in E. Micheal Raj's case (supra), it is evident that opium derivative is a manufactured drug and, therefore, heroin containing diacetylmorphine being a manufactured drug, the quantity was determined as per the guidelines laid down in the said case. Therefore, this Court will have to determine as to whether the charas is a manufactured drug or not. Section 20 of the 1985 Act, reads as under:

20. Punishment for contravention in relation to cannabis plant and cannabis.

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,

(a) Cultivates any cannabis plant; or

(b) Produces, manufactures, possesses, sells, purchases, transports, imports interState, exports interstate or uses cannabis, shall be punishable:

(i) Where such contravention relates to Clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) Where such contravention relates to Sub-clause (b),

(A) And involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(B) And involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(C) And involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees

17. Section 2(iii) of the 1985 defines cannabis, charas and the same reads as under:

(iii) 'Cannabis (hemp)'

(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.

18. In the present case, the charas contained 21% of resin. The Act nowhere defines any percentage of resin qua the charas. In the common parlance, Charas is the name given to hand made 'Hashish'. It is made from the extract of cannabis plants. A resin is a hydrocarbon secretion of many plants. The resin produced by most plants is a viscous liquid. Section 2(iii)(c) of the 1985 Act specifically states that any mixture with or without any neutral material of any of the above forms of cannabis is to be considered as a contraband article. No concentration or percentage qua charas has been defined by the Act. Therefore, if a contraband article is a charas and contains resins of cannabis plant in whatever quantity is to be considered as a charas punishable under Section 20 of the 1985 Act.

19. In my humble opinion, the ratio of E.Micheal Raj's case (supra), on which a lot of emphasis has been laid is not attracted in case of charas which is a cannabis plant containing resins. I am afraid that the argument advanced vehemently by the learned Counsel is not tenable. The argument advanced has many adverse consequences. For the sake of arguments, if it is accepted then poppy husk, poppy straw, and all narcotic substances which have their origin from plantation will be determined on the basis of percentage and not from weight. It is not in consonance with the scheme of the 1985 Act. Thus, this argument is to be rejected.

20. Since the testimonies of PW.4 Mohinder Singh, Superintendent of Police, PW.5 Surinder Singh, Inspector and PW.6 Tarsem Lal, Assistant Sub Inspector, aspire confidence and is free from any blemish, this Court affirms the findings of conviction given by the Court below. Hence, the present appeal is dismissed being devoid of any merit.