1 R-3202-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINALAPPLICATION NO. 3202 OF 2010 Ms. Anuradha Sanyal .. Applicant. (Accused No.7) V/s. State of Maharashtra .. Respondent. --- Mr. Ayaz Khan for the Applicant. Smt. A.A.Mane , APP for the State. --- CORAM : SMT. V.K. TAHILRAMANI, J. DATE : Reserved on 23.09.2010. Pronounced on 28.10.2010 P.C. 1 Heard learned Advocate for the Applicant-original Accused No.7 and learned APP for the State. 2 The Applicant aggrieved by order dated 17.06.2010 passed by the learned Special Judge under the NDPS Act for Gr. Mumbai, whereby the Misc. Application (Exh.85)preferred by the Applicant under section 64A of the NDPS Act, to grant her immunity from prosecution, came to be rejected, has preferred this application. 2 R-3202-10 3 The brief facts of the case are that pursuant to information, a raid came to be effected at a Restaurant in Juhu in which a trance party was organized by some persons. The information, interalia, was received to the effect that accused nos. 1 to 7 were going to sell narcotic drugs and psychotropic substances to the boys and girls who were invited to the trance party. 4 During the raid it was found that the applicant -accused alongwith others were selling narcotic drugs in the said party. Hence, the applicant and other accused came to be searched. The applicant was found in possession of 20 grams of charas. The other persons were also found in possession of narcotic drugs and/ or psychotropic substances. Thereafter, the applicant and other accused came to be arrested. 5 The case of the applicant is that she has successfully undergone de- addiction course from K.E.M. Hospital, Mumbai. Thereafter, she approached the prosecuting agency for grant of relief under section 64A of the NDPS Act, however, the said application came to be rejected. 6 In order to better understand the matter, it would be necessary to reproduce Section 64A of the NDPS Act. Section 64A of the Act reads as 3 R-3202-10 under : “64A. Immunity from Prosecution to addicts volunteering for treatment.---- Any addict, who is charged with an offence punishable under section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substance : Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.”. 7 The learned counsel for the Applicant submitted that section 64A of the Act grants immunity from prosecution for any offence involving small quantity to addicts volunteering for treatment. He submitted that the fact that the applicant is an addict is clear from the fact that at the time when the raid was conducted, she was found to be under influence of narcotic drug as well as a psychotropic substance. To support his contention that the applicant is an addict, reliance is placed on reports which show that when she was apprehended she had consumed a narcotic drug as well as psychotropic substance. The blood and urine sample of the applicant was obtained immediately after the raid and on testing the blood and urine were found to be positive for cannabis constituents (charas/ganja) and methylenedioxymethamphetamine (MDMA)]. To show that the applicant 4 R-3202-10 successfully completed the deaddiction program Mr. Ayaz Khan relied on report dated 25th November, 2008 of Bombay De-addiction Centre of K.E.M. Hospital, Mumbai which is a hospital run by the Corporation, i.e. a local authority. The report shows that the applicant had completed the de- addiction treatment and her consecutive urine samples tested negative for cannabis. Hence, she came to be issued a fitness certificate. He also placed reliance on the decision of the Immunity Committee dated 24.07.2009. The Immunity Committee consisted of the Asst. Commissioner of Police, Anti Narcotic Cell; Dy. Commissioner of Police, Anti Narcotic Cell and the Head of Department; Department of Drugs De-Addiction Center, K.E.M.Hospital. In the said report the Committee has observed that the applicant has undergone de-addiction and rehabilitation course sincerely and seriously. It may be stated here that the prosecution has also not denied that the applicant had volunteered for treatment and that she has undergone the de-addiction course successfully from an institution or a hospital, as visualized under section 64A of the Act. 8. The report dated 18.10.2008 of the Drug De-addiction Laboratory, KEM Hospital, Parel, Mumbai shows that on that date the applicant tested only weakly positive for cannabis. Once a person consumes a drug it takes some time for the drug to leave the system. Hence, the applicant having 5 R-3202-10 consumed drugs on the night, between 5th and 6th October, by the 18th October the applicant tested only weakly positive for the said drugs and a few days thereafter, the test reports show that she tested negative for any narcotic drug or psychotropic substance, which indicates that after the date of the raid, she has not consumed any narcotic drug or psychotrophic substances. 9 The learned APP submitted that the section applied in case of the applicant is not just section 27 which deals with consumption of any narcotic drugs or psychotropic substance by an accused, but the applicant had been charged under section 20(ii)(A), section 27 and section 29 of the NDPS Act. The learned APP has reiterated that the applicant is not charged just under section 27 but also under section 29. She submitted that section 29 has been made applicable in this case as it was found that the applicant was a party to the criminal conspiracy to commit an offence punishable under Chapter IV of the NDPS Act. She further submitted that had it been just a case of personal consumption or that the contraband found with the applicant was only for personal use then the situation would have been different. However, the learned APP pointed out that in the present case the material on record, specially the statement of witnesses -Afzal Haji Khan and Imtiyaj Shafi Shaikh show that the applicant had come to the said party 6 R-3202-10 in order to sell drugs to other persons. 10 The learned Advocate for the applicant submitted that even if the applicant has been charged under section 29, the main charge is under section 20(ii)(a) of the Act. Section 20(ii)(b) is attracted in the cases of small quantity which has been rightly applied in the case of the applicant as she was found in possession of small quantity of charas of about 20 grams. He has placed reliance on various judgments to support his contention that the applicant can be made liable only for the quantity of drugs that she was carrying and not the quantity possessed by all the accused persons present at the time of the raid. He submitted that an individual can be punished only for what was seized from him or recovered at his instance. 11. Mr. Ayaz Khan, learned Advocate for the applicant submitted that NDPS Act is a reformative Act wherein a chance is given to addicts who are charged with any offence relating to a small quantity of drugs to voluntarily undergo a medical treatment for de-addiction as per section 64A of the Act. He further submitted that as the applicant had successfully complied with the requisites under section 64A of the Act, hence she be granted immunity from prosecution. 7 R-3202-10 12 In the present case, the prosecution case is not just that the applicant was found to have consumed the contraband stuff but she had entered into a conspiracy alongwith the other accused to sell drugs at the said trance party which was attended by more than 215 persons. At the said party, the applicant alongwith 6 to 7 other accused were found selling drugs to the persons in the trance party. Thus the charge against her is not just of consumption or even possession of contraband items but of selling the same to other persons. In the party almost 200 persons were found to have consumed narcotic drugs and/or psychotropic substances. 13 Looking to the nature of the allegations against the applicant, I do not think that this is a fit case to grant immunity from prosecution to the applicant, as provided under section 64A of the Act. Hence, no case is made out for interference with order dated 17.06.2010 passed by the learned Special Judge under NDPS Act. 14 The Application is rejected. 15 The learned trial Judge shall not be influenced by any observations made in this order while deciding the trial. (SMT. V.K. TAHILRAMANI, J.) .....