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2006 Supreme(Bom) 1799
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJIBENCH)
N. A. BRITTO, J.
Javed A. Bhat - Appellant
Versus
Union of India - Respondent
Criminal AppealNo.11 of 2005
Decided on : 9th November, 2006.
Mr. J. P. D'SOUZA, Advocate for the Appellant.
Mr. J. V AZ, Special Public Prosecutor, for the Respondent.
Headnote:Criminal Procedure Code, 1973 - Section 374 - Appeal against conviction and sentence - Offence under Sections 20(b)(ii)(A), (B), 21(b) and 22(b) of N.D.P.S. Act - Accused found in possession of certain drugs/psychotropic substances - Accused in detention during course at trial over two years - Charas/Hashish found in form of cigars and flats substances in transparent polythene bags - Sample sent for analysis - Substance contained charas/hashish weighing only 50 gms. and not entire quantity of 380 gms. - Accused cannot be convicted and sentenced 20(b)(ii)(B ) of NDPS Act - To be convicted and sentenced under Section 20(b)(ii)(A) of Act - Accused already undergone detention for a period more than maximum which can be imposed - Appeal partly allowed - Conviction and sentence imposed reduced from Section 20(b)(ii)(B) to Section 20(b)(ii)(A) of Act - Conviction and sentences imposed under other sections remain unaffected. - In the case at hand, the prosecution did not send all the pieces either in the form of cigars or flats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 gms. and therefore applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 gms of charas/hashish and not the entire quantity of 380 gms as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused.
Once that conclusion is arrived at, it follows therefrom that the accused could not be convicted and sentenced under Section 20(b)(ii)(B) of the Act but had to be convicted and sentenced under Section 20(b)(ii)(A) of the Act for which punishment provided is six months and fine not exceeding Rs. 10,000/-. As already stated, the accused has already undergone detention in the course of the trial for over two years. It is submitted on behalf of the accused that in case all the fines are not paid, they would be paid within a period of fifteen days. As far as the fine under Section 20(b)(ii)(A) is concerned the same could not be more than Rs. 10,000/- and in case the accused has paid Rs. 50,000/- as awarded by the special Judge, the accused would be entitled for refund of the balance. The accused has already undergone detention for a period which is more than the maximum which could be imposed on him.
Consequently, the appeal is partly allowed and the conviction and sentence imposed upon the accused by the special Judge is reduced from Section 20(b)(ii)(B) to Section 20(b)(ii)( A) as aforesaid. The other convictions and sentences imposed under other sections shall remain unaffected.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(B), 42 and 50 - Search and seizure - Contraband recovered from possession of accused - Sent for chemical analysis - Entire quantity of seized contraband cannot be sent for analysis - Sufficient quantity by way of samples to be sent for chemical examination - Under regular panchanama as per provisions of law. - The Supreme Court also noted that in order to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized and it is not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of the packets recovered should be sent for chemical examination under the regular panchnam a as per the provision of law.
Heard Mr. J. P. D'Souza, the learned Counsel on behalf of the accused and the learned Special Public Prosecutor Mr. J. Vaz on behalf of the respondent.
2. The accused was charged and tried with the allegation that on 14-1-2003 at about 11.00 hours he was found in possession of certain drugs/psychotropic substances. He was charged under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act, for short) with the allegation that he was found in possession of 380 gms. of hashish/charas; under Section 20(b)(ii)(A) with the allegation that he was found in possession of 85 gms. of ganja; under Section 21(b) with the allegation that he was found in possession of 37 gms. of brown sugar/heroin; under Section 22 (b) with the allegation that he was found in possession of 8.4 gms. of ecstasy tablets and again under Section 21(b) with the allegation that he was found in possession of 6 gms. of cocaine.
3. After the trial was concluded the accused was convicted and sentenced as follows:
"Under Section 20(b)(ii)(B) (for possession of charas) to undergo R.I. for three years and fine of Rs.50,000/-, in default to undergo RI. for six months."
4. The learned trial Court found that the quantities of heroin, cocaine and ecstasy were small quantities and convicted and sentenced the accused under Sections 21 (b) and 22(b) of the Act to undergo three months RI. and fine of Rs.1,000/- and Rs.10,000/ - each.
The learned trial Court also found that' the quantity of ganja found was small quality and convicted and sentenced the accused under Section 20(b)(ii)(A) to undergo R.I. for three months and to pay a fine of Rs.10,000/,; in default one month RI. The learned trial Court also ordered the sentences to run concurrently.
5. There is no dispute that the accused was in detention during the course of the trial over two years i.e. from 14-1-2003 to 20-3-2005.
6. Although the appeal was filed against the conviction and sentences imposed upon the accused by1the learned Special Judge, N.D.P.S. Court, Mapusa dated 30-3-2005, the learned Counsel on behalf of the appellant/ accused has restricted his arguments on the point of sentence i.e. to say in relation to Section 20(b)(ii)(B) of the Act.
7. As per the case of the prosecution, the said charas/hashish were found in the form of cigars and flats, presumably meaning thereby they were in the form of cigarettes and flat substances. The panchanama nor the evidence shows as to how many such substances in the shape of cigarettes or flat substances were found in the transparent polythene bag which when weighed was found to be 380 gms. As per the prosecution, two representative samples of 50 gms. each were taken from the said polythene bag and put to two separate polythene bags and heat sealed and one of such sample was sent for analysis The evidence of Mahesh Kaissare/PW-1 who had tested one of the said representative sample shows that on 6-2-2003 he found in the polythene bag sent to him a dark brown substance in the form of cylindrical sticks and flat squarish pieces and the total weight of the substance along with the polythene bag was found to be 50 gms. The evidence further shows that Kaissare/PW-1 took about 5 gms. of the said substance as representative sample and after analysis came to the conclusion that the substance analyzed by him contained charas There is no dispute that 100 gms. have been declared to be small quantity for while punishment provided is for a term which man extend to six months or with fine which man extend to Rs.10,000/or with both.
8. Relying on the decision of the Apex Court in Mr. Gaunter Edwin Kircher Vs. State of Goa (1993(1) Crimes 1183) the learned Counsel contends that since only of gms. was sent for analysis, the accused could, not have been convicted for possession variable quantity under Section 29(b)(ii)(B) of the Act. The learned Counsel further submit that if the prosecution wished to prosecute the accused for possession of variable quantity i
