1 CRA-264-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL REVISION APPLICATION NO. 264 OF 2008 The Union of India ) (Through Narcotics Control Bureau ) .. Applicant (Orig.Complainant) Vs. 1. Fardeen Feroz Khan ) ..Respondent No.1 Age: 35 years, R/o. F.K. House, ) (Orig.Accused No.2) Jussawala Wadi, Juhu Tara Road, ) Juhu, Mumbai. ) 2. The State of Maharashtra ) Ms. P.H.Kantharia, APP, for the applicant. Mr. Mahesh Jethmalani i/b. Mr. Ayaz Khan and Nilofar Saiyed, Advocates, for the respondent No.1. Ms. A.T.Javeri, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 4th August, 2010. JUDGMENT : 1. The prosecution has challenged the order dated 24th January, 2008 passed by the Special Judge, NDPS, City Civil & Sessions Court, Greater Mumbai, allowing Misc. Application No.419 of 2007 filed by the original accused No.2 to discharge him from Section 21(c) read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short 2 CRA-264-08.sxw "NDPS Act"). 2. Prosecution case, in brief, is that on 5.5.2001, the Intelligence Officer of the Narcotics Control Bureau of Mumbai Zonal Unit got information that one Nasir was going to deliver cocaine of unspecified quantity to one person near HSBC ATM Centre, Saroj Building, Kapol Society, V.L. Mehta Road, Juhu, Mumbai. Accordingly, after completing necessary formalities, the officers of NCB kept a surveillance around the ATM Centre of HSBC Bank. At around 1.20 hrs. accused No.1 Nasir alighted from a taxi and waited for a while on the footpath opposite the ATM Centre. At about 1.40 hrs, a silver grey Opel Astra Car bearing No. MH-02-N-4043 came and stopped near the ATM Centre. Accused No.1 Nasir went to that car and sat beside the driver's seat, while the driver, who is accused No.2, was noticed having inserted an ATM Card into the designated slot of the ATM to withdraw money. One lady officer of NCB went inside the Guard Room while another officer approached the car. On enquiry, accused No.1 Nasir handed over the the Intelligence Officer the goods which contained 11 vials containing cocaine. The weight of cocaine was found to be 9 grams. Accused No. 1 Nasir informed the Intelligence Officer that he was to sell one gram cocaine to accused No.2. As the card of accused No.2 was stuck in the ATM Card, he could not withdraw the money. When he came out, he was also caught and he also 3 CRA-264-08.sxw admitted that he was to purchase one gram of cocaine from accused No.1. After completing all the formalities as per law, vials containing cocaine were seized and sealed under a panchnama. The statements of accused Nos.1 and 2 were recorded under Section 67 of the NDPS Act. Accused No.1 revealed that he had purchased 15 grams cocaine from accused No.3 and out of that he had sold or disposed of 6 grams and he was in possession of 9 grams of cocaine, when he was caught by the Intelligence Officer. After completing investigation, the Intelligence Officer filed complaint on 2.8.2001 under Section 29 read with Section 8(c) and Section 21 of the NDPS Act against all the three accused persons. 3. NDPS Act, 1985 was substantially amended by the NDPS Amendment Act,2001, the purpose of which was mainly to speed up the trial and to rationalize the provisions pertaining bail and sentences Before the amendment, Sec. 21 provided for punishment which would be not less than ten years imprisonment, but which could extend to 20 years and maximum fine of Rs. 1 lakh. However, by the after amendment, the Legislature made three categories of persons who manufactures, possesses, sells, purchases, transports, any manufactured drug etc. in (i) small quantity, (ii) commercial quantity and (iii) quantity which is less than commercial quantity, but more than small quantity 4 CRA-264-08.sxw and different sentences were provided for the same. Section 41 of the Amendment Act provided that the amended provisions shall be applicable to all the cases which were under investigation or which were at the stage of trial, but the amended provisions would not be applicable to the cases, where the trial was concluded and appeals were pending. 4. The alleged offence in the present case was committed on 5.5.2001 when unamended Sec. 21 was in force. The complaint was also filed on 2.8.2001 i.e. before the Amendment Act had come into force. Admittedly, when the Amendment Act came into force on 2.10.2001, the case was pending before the trial Court and even the charges were not framed nor the trial could commence. As such, in view of the provisions of Sec. 41 of the Amendment act, the amended provisions of the Act would be applicable. As per the notification dated 19.10.2001, the small quantity and commercial quantity of different narcotic drugs or psychotropic substances have been prescribed in a table. Entry No.27 pertains to cocaine. As per column 5 against entry No.27, small quantity means 2 grams and commercial quantity means 100 grams. If the quantity is more than 2 grams, but less than 100 grams, it would fall in a third category. In view of this table and the provisions of Section 21 as amended in 2001, Sec. 21(a) would be applicable to cases where the quantity is small; Section 21(b) would be 5 CRA-264-08.sxw applicable to cases where the quantity is more than small, but less than commercial quantity and Section 21(c) would be applicable to cases involving commercial quantity. 5. It was the contention of the accused No.2 that according to the prosecution case, he was to purchase 1 gram of cocaine which is a small quantity and therefore, the case against him would fall under Sec. 21(a) read with Sec. 28, because it was only an attempt to purchase even according to the prosecution. With these contentions, the accused No.2 made an application before the trial Court to discharge him from Sec. 21(c) and to frame charge against him only under Sec. 21(a) read with sec. 28. The learned trial Cort, after hearing the parties, passed the impugned order holding that accused No.2 is liable to be prosecuted and tried for the offence punishable under Sec. 29, 21(a) read with Sec. 28 of the NDPS Act. The learned Judge also noted that the accused Nos.1 and 3 need to be tried for the charges under Sec. 21(c) and Sec. 29 of the NDPS Act for their conspiracy to acquire, possess and transport for sale 9 grams of cocaine. 6. It is the contention of prosecution that the complaint was filed under Sec. 21 and the trial Court committed error in holding that the charge could be 6 CRA-264-08.sxw framed under Sec. 21(a) read with Sec. 28 against the accused No.2. It is contended that he would also be liable to be charged under Section 21(c) read with sec. 28. 7. In view of the facts noted above, it is clear that maximum 15 grams of cocaine was allegedly purchased by accused no.1 from accused No.3 which is less than commercial quantity and which is more than small quantity. Therefore, the case against accused Nos. 1 and 3 could be only under Sec. 21(b). As far as accused no.2 is concerned, before Amendment, he would also be equally guilty under Sec. 21 read with Sec.28, but after the Amendment, if he was to purchase a small quantity, his case wold fall under Sec. 21(a) read with Sec. 28. 8. The learned A.P.P. contended that because 9 grams of cocaine was found in possession of accused No.1, who was sitting in the car of accused No.2 at the relevant time, it should be presumed that he was to sell 9 grams of cocaine to accused No.2 and, therefore, the case against accused No.2 would not fall under sec. 21(a). On the other hand, the learned Senior Counsel for the accused No. 2/respondent No.1 pointed out from the documents relied upon by the prosecution that it was the case of prosecution that accused No.2 was to purchase one gram of cocaine and that attempt failed because they were nabbed in time. 7 CRA-264-08.sxw 9. Admittedly, no cocaine was found in possession of accused No.2. He was in the ATM Centre to with draw money, when accused no.1 was caught by the Intelligence Officer with 9 grams of cocaine. It was the statement of accused No.1 that the accused No.2 was to purchase one gram of cocaine from him. Similarly, accused No.2 had allegedly admitted that he was to purchase one gram cocaine. The statements were recorded under Sec. 67. The prosecution, relying upon the statement of accused No.1 under sec. 67 implicated accused No.3, otherwise there would be no case against him. Therefore, the prosecution cannot disown the statements recorded under Sec. 67 of the NDPS Act. In the complaint, the statements of accused Nos. 1 and 2 are also referred and there is a mention of the statements of accused Nos. 1 and 2 about the intention of accused No.2 to purchase one gram of cocaine. Admittedly, no cash was recovered from accused No.2 at the time of incident. According o the prosecution, he had been to the ATM Centre to withdraw money to purchase cocaine. It is the prosecution case that the retail price of cocaine in the market was Rs.3,500/- per gram. The prosecution had collected the statement of account No. 013 - 263979 - 006 of the accused No.2 from HSBC Bank. That statement shows the entries about withdrawals of money from his account from 31.3.2001 to 5.5.2001. It appears that maximum amount withdrawn from ATM was Rs.10,000/- on different dates. 8 CRA-264-08.sxw It indicates that accused No.2 could withdraw amount of Rs.10,000/- from the ATM on his card. We are not aware if on the card he could withdraw amount of more than Rs.10,000/-. 10. With this background, two entries of 5.5.2001 in his account are relevant. First entry at the ATM was recorded at 01:40:35 hrs. It indicates that he had withdrawn Rs.4,000/- and the balance was Rs.29,937/-. There is another entry at 01:41:29 hrs. indicating reverse entry of Rs.4,000/- and the balance was restored to Rs.33,937.35 which was prior to the first entry. It is the prosecution case that accused No.2 had tried to withdraw amount of Rs.4,000/- from ATM but somehow inspite of attempt of withdrawal, the amount did not come out. therefore, there was immediate reverse entry. As such, the accused No.2 could not get money from the ATM. From these two entries, it is clear that accused No.2 had tried to withdraw amount of Rs.4,000/-. As the market rate of cocaine was Rs.3500/- per gram, even if he would have withdrawn the amount of Rs.4,000/- from ATM, he could not purchase more than one gram of cocaine. 11. It is also material to note that accused had filed an application for bail after his arrest on 8.5.2001. Reply to that application was submitted by the Intelligence Officer, NCB i.e. the original complainant. In that reply, the 9 CRA-264-08.sxw Intelligence officer specifically stated that the applicant/accused No.2 was arrested by the Bureau while he was in the process of taking delivery of one gram of cocaine, out of the total 9 grams, from accused No.1 Nasir. From this, it is clear that consistently the prosecution case against accused No.2 was that he was in the process of purchasing and taking delivery of one gram, which is small quantity. In view of this, he could be charged only under Section 21(a) read with Sec. 28. There was no scope to frame a charge against him either under Section 21(b) or Sec. 21(c) read with sec. 28. To that extent, the order of the trial court is correct and needs no interference. 12. Before concluding, it may be noted that the learned Senior Counsel for accused No.2 pointed out that the trial Court had committed error in observing that the charge under Sec. 29 could be framed against the accused No.2. According to him, there is no such material about abetment or about any conspiracy to commit murder. However, the order passed by the trial court was not challenged by the accused and therefore that aspect cannot be looked into in the present Application filed by the prosecution. But at the same time, it may be noted that in para 20 of the impugned order, the learned Special Judge has observed that the charges are required to be framed as stated in that para. In fact, the so called proposed charges 1 to 5 cannot be the charges, but may be the 10 CRA-264-08.sxw points, which may be raised for the purpose of decision while writing the judgment. Framing of charges is totally different from the formulation of questions for determination while writing the judgment. It may also be noted that the learned Special Judge committed error in observing that charges against accused Nos. 1 and 3 could be framed under Sec. 21(c) which is against the facts and law. In view of these circumstances, as the charges are not yet framed, it will be appropriate that the trial court should consider the correct position of law at the time of framing charges. 13. For the aforesaid reasons, the Revision Application stands dismissed. However, while framing charges against the accused persons, the trial Court shall take note of the facts and the observations made in this order about Section 21(c) and Section 29. (J.H.BHATIA,J.)