Back
2003 Supreme(All) 2104
HIGH COURT OF ALLAHABAD
UMESHWAR PANDEY
Virendra Seth
Versus
State of U.P.
Crl.A. 45 of 1998
Decided On : 25 September 2003
Crl. A. 45 Of 1998
Amicus Curiae, K.S.RATHORE, S.R.Rathor, Syed Rashid Jalil,
The main legal point established in the judgment is that the possession of a small quantity of contraband for personal consumption, as defined by the Act, is crucial in determining the appropriate section for conviction and punishment.
Headnote:
N. D. P. S. Act - Illegal Possession of Heroin - Section 21 - [Section 21] - The court discussed the provisions of Section 27 of the Act, which deals with punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance. The court emphasized that the small quantity of Heroin as notified by the Central Government is 250 gms, and the appellant-accused was found in possession of 1.25 Gms, which cannot be termed as possession of a small quantity of Heroin. The court also rejected the appellant's contention that the conviction and punishment should have been awarded only under Section 27 of the Act, as it was not supported by the evidence available on the record. The court confirmed the judgment and order of conviction and sentence passed by the Court below under Section 21 of the Act.
Fact of the Case:
The appellant was found in possession of contraband Heroin and was charged under Section 21 of the N. D. P. S. Act. He admitted the possession but disputed the weight of the recovered contraband Heroin.
Finding of the Court:
The court found the offence punishable under Section 21 of the Act fully established against the appellant-accused beyond a reasonable doubt and accordingly passed the order of conviction and sentenced him.
Issues: The main issue was whether the appellant's possession of Heroin constituted illegal possession under Section 21 of the Act or fell under the provisions of Section 27 for possession in small quantity for personal consumption.
Ratio Decidendi: The court emphasized that the small quantity of Heroin as notified by the Central Government is 250 gms, and the appellant-accused was found in possession of 1.25 Gms, which cannot be termed as possession of a small quantity of Heroin. Therefore, the provisions of Section 27 of the Act were not applicable, and the conviction and punishment under Section 21 were warranted.
Final Decision: The appeal was dismissed, and the judgment and order of conviction and sentence passed by the Court below were confirmed. The appellant-accused was to serve out the sentence awarded against him.
( 2 ) THE short facts of the case are that on 18-1-1997, while the Sub Inspector of Police, Nag Narayan Singh (P. W. 1) of P. S. Mardah, District Ghazipur was patrolling in his area along with police team consisting of constable Shri Niwas Dubey {p. W. 2), constable Rakesh Kumar (P. W. 3), and others, he found the accused sitting at the shop of shankar chae Wala. He, after having seen the police party, tried to run away giving rise to suspicion in the mind of (P. W. 1 ). He was chased and apprehended. He when asked about the reason of his sudden attempt to flee away from the shop at the sight of police, he replied that he was having five small packs (Puria) of contraband Heroin and getting frightened with the presence of police he tried to run away. S. I. Nag Narayan Singh (P. W. 1), after having known that the appellant was in possession of the contraband drug, he asked the accused if he wanted his search to be taken in presence of some gazetted Officer/magistrate. The appellant did not respond positively and told that the search and seizure of the contraband article lying in his possession may be taken by the police themselves. On search being taken, five Purias of Heroin weighing about 1. 25 Gms was recovered from the possession of the appellant. Virendra Seth. After legal formalities, the contraband was got sealed and its recovery memo was prepared on the spot. The accused along with the recovered article was brought to the Police station and F. I. R. was lodged the same day (18-1-1997 ).
( 3 ) THE Incharge of the Police Station, shishir Trivedi (P. W. 4), investigated the case, sent the recovered article for chemical examination to the serologist and after completing the investigation submitted chargesheet.
( 4 ) THE appellant was charged for the offence punishable under Section 21 of the act for illegal possession of the Heroin being 1. 25 Gms to which he pleaded not guilty.
( 5 ) THE prosecution examined as many as four witnesses, namely, S. I. Nag Narayan singh, constable Shri Niwas Dubey, constable Rakesh Kumar and the Investigating officer Trivedi (P. W. 1 to P. W. 4 ).
( 6 ) THE accused-appellant, did not examine any witness in defence and in his statement under Section 313, Cr. P. C. he admitted the fact of the recovery of Heroin on the relevant date, time and place. He, however, disputed the weight of the recovered contraband heroin and stated that he was in possession of only 0. 50 Gm of Heroin which he had kept for his personal consumption.
( 7 ) THE learned Sessions Judge, upon hearing the learned counsel for the parties and after considering the entire material available on the record, found that the offence punishable under Section 21 of the act was fully established against the appellant-accused beyond reasonable shadow of doubt and he accordingly passed the order of conviction and sentenced him as aforesaid.
( 8 ) AGGRIEVED with the aforesaid Judgment and order of conviction and sentence passed by the learned trial Court, the present appeal has been preferred.
( 9 ) I have heard learned counsel for the parties at length. The counsel appearing for the appellant has contended that since the recovery of the alleged contraband is admitted to the accused and he has specifically stated under Section 313 of the Code of criminal Procedure that he was in possession of only 0. 50 Gm. of Heroin for his per sonal use, the conviction and punishment awarded under Section 21 of the Act was not warranted. To the maximum the conviction and sentence for the of
