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2017 Supreme(Del) 2832
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANGITA DHINGRA SEHGAL, J.
RATNESH – Appellant
Versus
STATE – Respondent
CRL.A. 570 OF 2012
Decided On : 11-08-2017
For the Appellant :Ms. Sunita Arora, Advocate.
For the Respondent: Ms. Aashaa Tiwari, with Inspector Rajesh Kumar Bush and ASI Surender Kumar.
The main legal point established in the judgment is the interpretation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, particularly regarding the possession of ganja, and the influence of discrepancies in the weight of samples and the inclusion of seeds on the court's decision.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Possession of Ganja - Section 20(b)(C) - Summary of Acts and Sections: The court discussed the provisions of Section 20(b)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which deals with the punishment for possession of commercial quantity of cannabis. The court analyzed the testimonies of prosecution witnesses and the FSL report to determine the weight and nature of the contraband. The court also considered the definition of 'ganja' under Section 2(iii)(b) of the NDPS Act, which excludes seeds and leaves when not accompanied by the tops. The discrepancies in the weight of the samples and the inclusion of seeds influenced the court's decision to modify the appellant's conviction and sentence.
Fact of the Case:
The appellant was convicted for possession of 22 kgs of Ganja at a railway station. The appellant denied the possession and claimed to be falsely implicated. The defense argued discrepancies in the weight of the samples, exclusion of seeds, and lack of independent witnesses.
Finding of the Court:
The court found that the testimonies of police witnesses and the FSL report established the possession of Ganja by the appellant. The court also noted discrepancies in the weight of the samples and the inclusion of seeds, leading to a modification of the appellant's conviction and sentence.
Issues: The issues included the appellant's denial of possession, discrepancies in the weight of the samples, exclusion of seeds, lack of independent witnesses, and delay in sending samples to FSL.
Ratio Decidendi: The court's decision was influenced by the testimonies of police witnesses, the FSL report, and the definition of 'ganja' under the NDPS Act. The discrepancies in the weight of the samples and the inclusion of seeds led to the modification of the appellant's conviction and sentence.
Final Decision: The appellant's conviction was modified to possession of mid-quantity of ganja under Section 20(b)(ii)(B) of NDPS Act, with a modified sentence of seven years and six months and a fine of Rs.50,000/- in default thereof, to undergo imprisonment of three months.
SANGITA DHINGRA SEHGAL, J.
1. The present appeal has been instituted under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 08.08.2011 and order on sentence dated 10.08.2011 by which the appellant has been convicted for the offence under Section 20(b)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘PS Act’. The appellant has been sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.1 lakh, in default thereof to further undergo imprisonment for six months.
2. Before the rival submissions of the parties are considered, it is appropriate to mention the facts of the prosecution, as has been noticed by the learned Trial Court:
“On 12/09/2009 SI Anuj Nautiyal was patrolling in the area and who reached at Central bridge , NDRS at 12.05 pm where he met HC Davis, HC Jagdish and Ct. Gyanender also patrolling in the area. They all started patrolling together and reached at platform no. 1 toward nizzamuddin side where they saw accused coming with 2 trolley bags. On seeing the police party, accused is alleged to have turned back and walked at fast pace. Thus on suspicion he was apprehended by SI Anuj Nautiyal with accompanying staff at about 12.30 pm.
It is alleged that 2 trolley bags in possession of the accused were found containing Ganja and information to this effect was given by SI Anuj Nautiyal to the SHO. Total Ganja in the 2 bags was founded to be 22 kg. Separate sample was drawn from Ganja in each bag, they were marked and sealed in separate pullandas. Remaining ganja was kept as it is in the respective trolly bags and were also sealed in the pullandas and pullandas were formally seized.
FIR was registered on the basis of rukka prepared by SI Anuj Nautiyal and investigation was assigned to ASI Ashok Kumar who reached at the spot and completed the proceedings including formal arrest of the accused. Samples were sent to FSL for opinion during investigation and after completion of investigation charge-sheet was filed in the court.”
3. The prosecution has examined 11 witnesses, in all. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure wherein the appellant stated that on 12.09.2009 he was returning from Bhubaneshwar by Rajdhani train and did not carry any trolley bags with him. He denied recovery of any Ganja from his possession. The appellant claimed he was innocent and had been falsely implicated in the present case.
4. Ms. Sunita Arora, learned counsel for the appellant has contended that the order of the Special Judge, NDPS, is bad in law as the Special Judge failed to appreciate the substantial difference in the weight of the samples sent by the prosecution to FSL and the weight mentioned in the FSL report; that as per the definition of ganja the seeds and leaves of the same are to be excluded and thus from the discrepancies in the weight of samples as also the exclusion of seeds, it is clear that the prosecution has not established its case beyond reasonable doubt; that there are contradictions in the statement of prosecution witnesses PW2, PW7, PW9, PW10 pertaining to search, seizure and arrest of the appellant; that no DD entry was made regarding the weight, scale and sealing material; that no independent witness had joined the proceedings even though the spot was over crowded during the day; that there was a delay of 12 days in sending the sample to FSL; that the prosecution has not conducted any investigation to ascertain the origin of contraband; that as the prosecution has not proved its case beyond reasonable doubt, the appellant deserves to be acquitted.
5. To substantiate her arguments, learned counsel for the appellant relied upon the judgments titled Suresh Kumar Vs. State (Govt. of NCT of Delhi) (Crl Appeal No. 767/2011) decided by this Court on 25.02.2016, Upender Singh Vs State (Crl Appeal No. 267 of 2012) decided by this Court on 29.07.2015 to show that the d
