1 S.B.CRIMINAL APPEAL NO.1081/2004 (Irfan and anr. Vs. State) Date of Judgment : 24-11-2008 HON'BLE MR.JUSTICE GUMAN SINGH Mr.N.K.Tyagi, for the appellants. Mrs.Nirmala Sharma, Public Prosecutor for State. This appeal has been preferred by the accused-appellants Irfan S/o Mohd. Vali Khan and Irfan S/o Rais Ahmed against the judgment delivered by learned Special Judge, NDPS Cases, Baran dated 15.9.2004 whereby each one was convicted under Sec.8/21 of the NDPS Act and sentenced to 10 years rigorous imprisonment and fine of Rs.1.0 lac in default of payment of fine to further undergo one year rigorous imprisonment. Briefly stated, the prosecution case is that on 31.3.2003, Aashish Prabhakar, SHO, P.S. Kotwali, Baran received a secret information at about 4.30 PM and upon that, he proceeded with police party to Mamta Hostel, Baran and went to room no.21 where two suspects were staying. One of them was found with briefcase and another was having bag and they were about to leave the place. 2 They were detained in the room and on being enquired, they introduced themselves as Irfan S/o Mohd. Vali Khan and Irfan S/o Rais Ahmed, residents of U.P. Independent witnesses were called. At about 5.30 PM, Dy.S.P. reached to the place of incident and he was introduced with two suspects. Both the accused-appellants were given option to be searched before the Magistrate or the Gazetted Officer. Both the accused expressed their desire to be searched before the Magistrate. Thereafter, Addl.Distt. Magistrate, Baran was requested to come on spot. The Addl. Distt. Magistrate, Baran came on spot and in his presence, both the accused-appellants were searched. On being search, Irfan S/o Mohd.Vali Khan was found with briefcase of blue colour and in the briefcase, apart from his clothes, plastic packet was found and in the said packet, illegal smack weighing 500 gm was recovered. Out of the said smack, 10 gm was taken as sample which was marked as A-1 and the same was seized and sealed at the spot. Likewise, search of Irfan S/o Rais Ahmed was conducted, who was having bag. On being opened, a plastic packet was found along 3 with clothes in the bag. On being searched, 390 gm smack was found. Sample from it was taken out and was marked as B-1. The seized smack and the sample were sealed separately. On return to the police station, a case under Sec.8/21 of the NDPS Act was registered. After investigation, case was challaned to the court along with one co- accused Ramesh under Sec.8/29 of NDPS Act. Both the accused-appellants were charge- sheeted under Sec.8/21 of the NDPS Act while co-accused Ramesh was charge-sheeted under Sec.8/29 of the NDPS Act. The prosecution examined as many as 11 witnesses. Thereafter, statements of accused-appellants under Sec.313 Cr.P.C. were recorded. In the statements, they stated that they were falsely implicated. No defence witness was produced. After hearing final arguments in the case, co-accused Ramesh was acquitted for the offence under Sec.8/29 of the NDPS Act while the present accused-appellants were convicted and sentenced in the manner indicated herein above. Heard learned counsel for the appellants as also learned Public Prosecutor for the 4 State and perused the record of the case. Learned counsel for the appellants submitted that he does not want to press the appeal on merits. He mainly confined his arguments on the quantum of sentence and submitted that accused-appellants since have already undergone almost 5 years and 11 months sentence, therefore, they may be released for the sentence already undergone. Learned counsel has placed reliance on the judgment of Hon'ble Apex Court in E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau reported in J.T. 2008 III AD (Cr.)53, on the point that for the purposes of determining the actual quantity of the contraband, the neutral substance involved in the contraband is required to be deducted and real quantity of the contraband is to be determined for the purposes of Section 21 of the N.D.P.S. Act which provides a separate range of punishment for the small quantity, commercial quantity and intermediate quantity i.e. less than the commercial quantity. It is further submitted that as per FSL report Ex.P-13, the contraband substance recovered from the possession of 5 accused Irfan S/o Mohd.Vali Khan was found to be containing 13.49% morphine while contraband substance recovered from the possession of accused Irfan S/o Rais Ahmed was found to be 10.07% of morphine and, therefore, total quantity of morphine recovered from Irfan S/o Mohd. Vali Khan comes out to about 67 gm while from Irfan S/o Rais Ahmed, it comes to 42.2 gm. The relevant entry under notification dated 19.10.01 under Sec.2 of the NDPS Act is at S.No.77 which provides that small quantity of morphine is 5 gms while commercial quantity is mentioned to be 250 gm. It is further submitted that in view of above judicial pronouncement, sentence deserves to be scaled down and accused-appellants deserve to be released for the sentence already undergone. Learned Public Prosecutor agrees to the aforesaid legal proposition but opposed the reduction of sentence. On going through the evidence adduced by the prosecution, it is revealed that the prosecution has led evidence on the point of recovery of contraband article and seizure & 6 sealing thereof, and also on the point of keeping the seals intact until it reached to the chemical examination, through credible and reliable evidence and, as such, in view of the argument of learned counsel for the appellants on the point of quantum of sentence only, the prosecution case on merits is not required to be gone into in detail. As regards the argument of the learned counsel with regard to the quantum of sentence to be awarded in view of the pronouncement of Hon'ble Apex Court, the intention of legislature for introduction of amendment under Sec.21 of the NDPS Act appears to punish the people of less serious offence with less severe punishment as observed by the Hon'ble Apex Court as under: “In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance.s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment 7 as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.” In view of above legal position, the narcotic drug recovered in the case is required to be determined as per the percentage of contraband article found by the FSL. Thus, as submitted by the learned counsel, the quantity of smack recovered is from Irfan S/o Mohd.Vali Khan and on chemical examination by FSL, it is found containing 13.2% morphine and, as such, total amount of morphine comes to 67 gm. Likewise, from Irfan S/o Rais Ahmed, 400 gms of smack has been found and on chemical examination, same was containing 10.07% morphine and thereby quantity arrived at 42.2 gm and, therefore, the appellants who have already undergone almost 5 years and 11 months' sentence, their sentence deserves to be reduced to the substantive sentence already undergone and the amount of fine of Rs.1.0 lac also deserves to be scaled down. 8 For these reasons, the impugned judgment passed by learned Special Judge, N.D.P.S. Cases, Baran dated 15.9.2004 in sessions case no.59/2003 is modified and conviction of accused-appellants Irfan S/o Mohd.Vali Khan and Irfan S/o Rais Ahmad under Sec.8/21 of the NDPS Act, is maintained and the accused-appellants are directed to be released on the substantive sentence already undergone by them and the sentence of fine of Rs.1.0 lac in case of Irfan S/o Mohd.Vali Khan is reduced to Rs.25,000/-, in default of payment of fine to further undergo rigorous imprisonment of five months. In case of Irfan S/o Rais Ahmed, sentence of fine of Rs.1.0 lac is reduced to Rs.15,000/-, in default of payment of fine to further undergo rigorous imprisonment of three months. Revised jail warrants be prepared. Accordingly, the appeal stands disposed of. (GUMAN SINGH),J. Srawat/- item no.H/298 9 S.B.CRIMINAL APPEAL NO.1081/2004 (Irfan and anr. Vs. State) Date of Judgment : 24-11-2008 HON'BLE MR.JUSTICE GUMAN SINGH Mr.N.K.Tyagi, for the appellants. Mrs.Nirmala Sharma, Public Prosecutor for State. For these reasons, the impugned judgment passed by learned Special Judge, N.D.P.S. Cases, Baran dated 15.9.2004 in sessions case no.59/2003 is modified and conviction of accused-appellants Irfan S/o Mohd.Vali Khan and Irfan S/o Rais Ahmad under Sec.8/21 of the NDPS Act, is maintained and the accused-appellants are directed to be released on the substantive sentence already undergone by them and the sentence of fine of Rs.1.0 lac in case of Irfan S/o Mohd.Vali Khan is reduced to Rs.25,000/-, in default of payment of fine to further undergo rigorous imprisonment of five months. In case of Irfan S/o Rais Ahmed, sentence of fine of Rs.1.0 lac is reduced to Rs.15,000/-, in default of payment of fine to further undergo rigorous imprisonment of three months. Revised jail warrants be prepared. Accordingly, the appeal stands disposed of. (See separate judgment) (GUMAN SINGH),J. Srawat/- item no.H/298