DELHI HIGH COURT
Sangita Dhingra Sehgal, J.
Irwin Bin Hassim —Appellant
versus
Anil Kumar, Air Customs Officer, IGI Airport —Respondent
Crl.A.997 of 2011
Decided on 9.10.2017

IMPORTANT POINT
Once the contraband has been determined to indicate cannabis, whether in the form of charas or in the form of ganja or as a mixture containing either of the two, with or without other neutral substance, 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.” 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.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20(b)(ii)(c) and 28 r/w 23(c)—Accused holding Singapore Passport traveling to Rotterdam when proceeding for security check was found suspicious about his movements and his baggage was examined—Checked in baggage of accused was examined and two packets containing “Hashish” were found in a suitcase and contraband weighed 7.090 kgs—Appeal against conviction—Defence plea that suit case did not belong to appellant and could have in probabilities been switched by baggage handless—Possession has to be conscious possession but than if initial burden of proof of possession was discharged by prosecution, burden would shift on accused—Court could presume that accused had necessary culpable mental state—Disclosure/confession statement of accused showed that he was aware of substance contained in the bag—Section 50 of the Act had no application when search of person of accused was not required—Findings reached by trial court that contraband was found in possession of accused was not to be interfered with.

       Held: On perusal of the aforesaid testimonies, it is apparent on record that PW-8 intercepted the appellant as his movements were suspicious. On examining the passport of the appellant PW-8 decided to search the appellant in accordance with the procedure envisaged under the Customs Act and NDPS Act. The notice under Section 102 Customs Act (Ex. PW-1/13) and notice u/s 50 NDPS Act (Ex. Pw-1/A) was served on the Appellant. Procedure of search was conducted in presence of panch witnesses (PW-1) and Deepak (not examined). On search of the appellant two polythene bags were recovered from top and bottom of the suitcase and the substance on being tested from Field Drug Test Kit was found positive with Hashish. Samples were taken and sealed. The statement of PW-1, PW-2 and PW-3 corroborates the version of PW-8 and proved the documents, Ex. PW-2/A (Test memo), PW-2/B ( sealed packet of sample mark A-1), and Ex. PW 1/C (Panchnama).

       Ld. Counsel for the appellant argued that trial Court erred in not taking into consideration the fact that the suitcase did not belong to the appellant and the suitcase could not have, in all probabilities been switched by baggage handlers.

       It is trite law that to bring the appellant within the ambit of Section 20 of the Act, the possession has to be conscious possession. However, the initial burden of proof of possession lies on the prosecution and once the same has been discharged, the burden would shift on the accused. Once possession is established by the prosecution, the Court can presume that the accused had the necessary culpable mental state and has committed the offence.

       It has emerged from perusal of Ex-PW 8/C which is a disclosure/confession statement that he was aware of substance contained in the bag and had earlier delivered the drugs six times. Moreover the testimonies of PW-8, PW-1 and PW-2 are consistent to the fact that the recovery of contraband articles was made from the appellant.

       It was contended by the counsel for the appellant that the notice under Section 50 of the NDPS Act was not served upon the accused but as per the testimony of PW8, it is clear that the appellant was appraised of his right to be searched in the presence of a Magistrate or a Gazetted Officer but he refused to exercise his right. In the present case, the recovery was effected from the checked in baggage and not from his person, this issue has been already dealt with by the Hon”ble Supreme Court in the case of Ajmer Singh Vs State of Haryana reported in 2010(1) LRC 278 (SC). (Paras 14 to 17)

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20—Recovery of 7.090 kgs of Hashish from possession of accused—Appeal against conviction—Plea that quashing of THC was to be taken into account for determining whether quantity of charas was commercial or semi commercial—CRCL report showed that sample was found charas and THC with plastic was 9.3%—Percentage of THC could not alone be taken into account to determines the quantity and purity of charas as commercial or semi commercial—THC degrades over the time and thus age of the sample and the conditions under which it was stored were also relevant—Conviction and sentence of 10 years imprisonment with fine of Rs. 2 Lakh were not to be interfered with.

       Held: 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 as under:-

        “The sample is in the form of dark brown coloured sticky mass. On the basis of chemical and chromatographic examinations, it is concluded that the samples under reference is CHARAS. Gross weight of the remnant sample, returned herewith are as under:

        LAB No content pouch CLD-44(N) 23 gm Marked as Gross wt A-2 THC with plastic 9.3%”

       The issue of whether the quantity of drug shall be treated as “commercial” or “semi-commercial” has been dealt in the case of E. Micheal Raj vs Intelligence Officer, Narcotic Control Bureau, 2008 5 SCC161.

       The similar issue has also been dealt in the case of Dilip vs State reported in 2011 CriLJ 334 , where it has been held by the Divison Bench of this court that:

        “once the contraband has been determined to indicate cannabis, whether in the form of charas or in the form of ganja or as a mixture containing either of the two, with or without other neutral substance, 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.” 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 Division 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. (Paras 19, 20 and 23)

       Result: Appeal dismissed.