Back
2011 Supreme(J&K) 292
JAMMU & KASHMIR HIGH COURT
F.M.Ibrahim Kalifulla;CJ, Hasnain Massodi, JJ.
Mushtaq Ahmad & Anr. -Appellant
Versus
State & Ors. -Resopndent
Cr. Appeal No. 35/2009 c/w Cr. Appeal No. 36/2009
Decided On : 03-06-2011
Mr.P.N.Raina, Adv.Mr.Mudasir Yousuf, penal lawyer for Appellant., Mr.Gagan Basotra, AAG.Mr.Ajay Sharma, Adv.Mrs.N.Goswami, Dy.AG.for Respondent.
The quantity of the recovered substance and its purity level are crucial factors in determining the offence and sentencing under the NDPS Act.
Headnote:
Narcotic Control Bureau - Offence under section 20 (b) (ii) (c) of Narcotics Drugs and Psychotropic Substances Act, 1985 - Summary of Acts and Sections: Sections 20 (b) (ii) (c), 50, 67, 173, 190, 204, 205 D of NDPS Act, 1985 - The court discussed the legality of the search and seizure, the requirement of independent witnesses, the procedure followed during the trial, admissibility of confessional statements, and the significance of representative samples. The court also considered the quantity of the recovered substance and its impact on the sentencing of the appellants.
Fact of the Case:
The Narcotic Control Bureau received information about a transaction of Charas and intercepted the appellants carrying the substance. The appellants admitted to carrying Charas, which was confirmed by testing. The prosecution proved the recovery and the appellants' guilt beyond doubt.
Finding of the Court:
The Trial Court found the appellants guilty of the charged offence based on the prosecution's evidence and awarded the prescribed sentence.
Issues: The issues included the legality of search and seizure, the requirement of independent witnesses, the procedure followed during the trial, admissibility of confessional statements, and the significance of representative samples.
Ratio Decidendi: The court held that the confessional statements were admissible as they were made before the appellants were formally arrested and were not involuntary. The court also determined the quantity of the recovered substance and its impact on the sentencing of the appellants.
Final Decision: The court altered the conviction of the appellants to a different section of the NDPS Act and sentenced them to the imprisonment already undergone and a fine. The appeals were disposed of accordingly.
1. Challenge in these two Criminal Appeals is to the judgment recorded by Learned Third Additional Sessions Judge, Jammu on 6th May, 2009 in case titled Narcotic Control Bureau v. Gulzar Ahmad and another (File No. 13/Challan), convicting the appellants of offence punishable under section 20 (b) (ii) (c) of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter "the Act") and sentencing them to 12 years rigorous imprisonment, a fine of Rs.2.00 lacs and default sentence of one year rigorous imprisonment. Before, a closer look at grounds of attack set out in the memoranda of appeals, it would be appropriate to have an overview of background facts, discernible from the record.
2. The Narcotic Control Bureau (NCB for short), Zonal Unit, Rehari, Jammu on 5th April, 2004 received information from reliable sources that a transaction of Charas was to take place on the said date in Rajinder Bazar, Kanak Mandi, area of Jammu city. The information prompted Intelligence Officer NCB, Jammu to tele-phonically inform Zonal Director, NCB, stationed at Chandigarh, seek instructions, constitute a Naka trap team associating officers/officials of the Customs Department, Jammu and two independent witnesses and lay Naka at Rajinder Bazar, Kanak Mandi. The Naka party at about 8.30 PM spotted the appellants one holding Card Board Carton (Box) and another a bag in his hand, proceeding from Residency Road to Rajinder Bazar and intercepted them at Cholay Bhathuray Wali Gali, Chowk Kanak Mandi, Jammu. The appellants when questioned by the Intelligence Officer NCB, disclosed their identity. The Intelligence Officer, NCB ("complainant" for short) served notice under Section 50 NDPS on the appellants, explained contents of the notices and gave them an option to get their person and the Card Board Carton and bag searched in presence of a Gazetted Officer or a Magistrate. The appellants opted for their search in presence of a Gazetted Officer. The complainant, accordingly requested Shri S. L. Jarangal, Superintendent Customs to come on spot, so that the appellants were searched in his presence.
The Superintendent of Custom after introducing himself to the appellants, made the appellants aware of their right to get searched in presence of any other Gazetted Officer or a Magistrate. The appellants expressed their faith in Superintendent of Customs and their willingness to have their search taken in his presence. The complainant thereafter signified his intention to take search of the appellants, gave the appellant an option to search the complainant before their search was taken. On search of the Card Board Carton carried by the appellant - Gulzar Ahmad, seven Polythene bags, each having in it a brown coloured stick shaped material wrapped in Com Cob cover with the thread tied around it were recovered. The white coloured bag carried by the appellant - Mushtaq Ahmad was found to have in it five packets, each packet having brown coloured stick shaped material wrapped in Corn Cob cover and tied with thread around it. The appellants admitted that the material recovered was Charas and was being carried from Anantnag, Kashmir for delivery at Jammu. The recovered substance tested with the help of Drug Testing Kit on spot, tested positive for Charas. The material recovered from the appellant was found to weigh 6.200 kg and 4.00 kg respectively and marked as Lot-A and Lot-B. The NCB after recovery memos were prepared, took two 25 gm samples from each of the lots in presence of the witnesses and marked samples as A-1, A-2 and B-1 and B-2 respectively.
The samples were sealed with hot seal and a paper slip duly signed by the appellants and the witnesses. The remaining quantity of recovered substance of both the lots was also sealed and deposited with the NCB Malkhana under proper receipt. The complainant served notices under section 67 of NDPS Act on the appellants individually and recorded their statement. The appellants were thereafter arrest
