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2016 Supreme(Del) 4476
IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P. GARG, J.
Bheru Lal - Appellant
Versus
State - Respondent
Crl. A. Nos. 572 & 565 of 2014
Decided On : 21-12-2016
For the Appellant : Mr. Sanjeev Bhatnagar, Ms. Rupi Sagar
For the Respondent: Ms. Meenakshi Dahiya
The sufficiency of evidence, fair appreciation of evidence, and compliance with mandatory provisions are crucial in upholding convictions under the NDPS Act.
Headnote:
NDPS Act - Conviction under Section 18(b) and 18(c) - [Narcotic Drugs & Psychotropic Substances Act, 1985] - [Section 18(b), Section 18(c)] - The judgment discusses the recovery of opium from the appellants' possession, compliance with mandatory provisions of the NDPS Act, and the applicability of relevant legal provisions. The court analyzed the chemical examination report, the definition of opium under the NDPS Act, and the implications of the Notification dated 18.11.2009. The court also considered the significance of public witnesses in the prosecution's case and the applicability of Section 50 of the NDPS Act to the search and recovery process. The judgment emphasizes the sufficiency of evidence and the fair appreciation of evidence in upholding the conviction under Sections 18(b) and 18(c] of the NDPS Act.
Fact of the Case:
The appellants were convicted for possessing opium, and their appeal challenged the recovery of opium from their possession, compliance with mandatory provisions, and the sufficiency of evidence.
Finding of the Court:
The court found that the contraband recovered from the appellants' possession was opium, and the prosecution provided ample evidence to prove the recovery. The court upheld the conviction under Sections 18(b) and 18(c) of the NDPS Act based on fair appreciation of the evidence.
Issues: The issues included the nature of the recovered substance, compliance with mandatory provisions of the NDPS Act, the significance of public witnesses, and the applicability of Section 50 of the NDPS Act to the search and recovery process.
Ratio Decidendi: The court emphasized the sufficiency of evidence, the fair appreciation of evidence, and the compliance with mandatory provisions in upholding the conviction under Sections 18(b) and 18(c) of the NDPS Act.
Final Decision: The appeals were disposed of, and the Sentence Order was modified for both appellants based on mitigating circumstances.
S.P. Garg, J.
1. Aggrieved by a judgment dated 26.02.2014 of learned Special Judge (NDPS)/Addl. Sessions Judge in Sessions Case No. 66/12 arising out of FIR No. 214/12 PS Crime Branch by which the appellants – Bheru Lal (A-1) and Narayan (A-2) were convicted for committing offences punishable under Section 18(b) and 18(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short 'NDPS Act'); they have preferred the instant appeals. By an order dated 28.02.2014, A-1 was sentenced to undergo RI for fifteen years with fine Rs.1.5 lac; default sentence being SI for one year. A-2 was sentenced to undergo RI for four years with fine Rs.1 lac; default sentence being SI for one year.
2. Briefly stated, the prosecution case, in nutshell, as set up in the charge-sheet was that on 26.08.2012 at around 05.40 P.M. at Service Road, Ring Road in front of Water Treatment Plant, Industrial Area Lawrence Road, MCD Shamshan Ghat, Shakur Pur, Delhi, the appellants were found in possession of 3.470 kg and 1.30 kg of opium respectively in the bags carried out by them on their shoulders.
3. Prosecution case is that on 26.08.2012 at around 12.40 a.m. PW-12 (HC Veerpal) received a secret information at the office of Narcotics Cell that two persons namely Bheru Lal (A-1) and Narayan (A-2), resident of Udaipur, Rajasthan would arrive at near Water Treatment Plant, Lawrence Road, near Cremation Ground at about 05.30 p.m. to supply opium to someone. The secret informer was produced before PW-7 (SI Anil Malik) who verified the information and telephonically informed Insp. Jitender. Insp. Jitender, in turn, intimated about the secret information to Addl. DCP/SIT Joy Tirkey. Directions were given to conduct the raid. SI Sunil Kumar recorded DD No. 6 (Ex. PW-2/A) at 04:15 P.M. A raiding team consisting of SI Anil Malik and other police staff was constituted and they all reached the spot at about 05.15 P.M in two private vehicles. Certain public persons were requested to join the proceedings at various stages but none of them agreed. At 5:40 P.M, both the appellants were noticed coming from the side of Wazirpur towards Indian Oil Petrol Pump on service road on foot. On the pointing out of the secret informer, the appellants were apprehended and were apprised of their legal right to get themselves searched either before a Gazetted Officer or a Magistrate. Notices (Ex.PW-5/A1 and Ex.PW-5/B1) under Section 50 NDPS Act were served upon the appellants. The bags in their possession were searched. It led to recovery of 3.470 kg of opium from A-1’s bag and 1.30 kg of opium from A-2’s bag. Two samples of 50 grams each were taken; FSL form prepared and the contraband was seized. Rukka (Ex.PW-7/A) was prepared and FIR was lodged. Subsequent investigation was taken over by PW-9 (ASI Jagdish Prasad). Both the appellants were arrested. Statements of the witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. Upon completion of investigation, a charge-sheet was filed against both the appellants in the Court. In order to establish its case, the prosecution examined twelve witnesses in all. In 313 Cr.P.C. statements, the appellants denied their involvement in the crime and pleaded false implication. The trial resulted in conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeals have been preferred.
4. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellants urged that the contraband allegedly recovered from the appellants’ possession cannot be taken as ‘opium’. The pure ‘opium’ must contain active ingredients i.e. Morphine, Codeine, Thebaine, Papaverine & Noscapine. In the instant case, only ‘morphine’ has been found in the recovered substance in the chemical examination report. The 90% material is adulterated mixture of unknown composition. He further urged that adulterated mixture would attrac
