State Thr. Int. Off., Narcotics Con.Bur vs Mushtaq Ahmad Etc

2. The facts which are necessary to be stated are that the accused- respondents were chargesheeted under Section 8 read with Section 20 of the NDPS Act and accordingly, they were sent up for trial. Accused persons denied the accusations and claimed trial. The prosecution to substantiate its stand examined number of witnesses and brought in series of documents in evidence. The learned trial Judge taking note of the fact that Mushtaq Ahmad, the first respondent and Gulzar Ahmad, the second respondent were in possession of 6 kg. 200 gms and 4 kgs. of charas respectively and the prosecution had been able to establish the same, treated the contraband article as commercial quantity and accordingly found them guilty for the offence punishable under Section 20(b) (ii) (C) of the NDPS Act and eventually considering the gravity of the offence and the proliferating and devastating menace the drugs have been able to create in the society and keeping in view the need for eradication, sentenced each of them as has been mentioned hereinabove.

In the circumstances, if the samples lifted from the substance recovered from the appellants would be 45 gms and 39 gms respectively taking each stick to have average weight of 890 (6.2 Kg-7) and 800 (4.0 Kg-5) gms respectively. However, if, working on the assumption made by learned trial Court that in view of confessional statements of the appellants, the whole substance was to be taken as Charas irrespective of restricted sampling, the Narcotic Drug content in the entire substance recovered from the appellants still would work out to be 316 gms and 196 gms respectively.”

21. In Amar Singh Ramaji Bhai Barot (supra) the appellant was found carrying a black packet which contained black colour liquid substance that smelled like opium. The police officer weighed the said substance recovered from him and found the weight to be 920 gms. 4.250 kg of a grey coloured substance suspected to be a drug, was recovered from the other accused who had already died. Out of the 920 gms opium recovered from the appellant, samples were sent to the Forensic Science Laboratory which opined that substance which had been sent was opium containing 2.8% anhydride morphine and also pieces of poppy flowers (posedoda). Both the accused persons faced trial and the trial court found both of them guilty for the offences punishable under Section 17 and 18 read with Section 29 of the NDPS Act and sentenced each of them to undergo rigorous imprisonment of 10 years with fine of Rs. 1 lakh each with the default clause. The appeal preferred by the other accused abated as he expired during the pendency of the appeal and the appeal of the Amarsingh Ramjibhai Barot was dismissed. A contention was canvassed before this Court that the High Court had fallen into error by taking a total quantity of the offending substance recovered from the two accused jointly and holding that the said quantity was more than the commercial quantity, warranting punishment under Section 21(C) of the NDPS Act. This Court addressed in detail to the factum of possession of 920 gms of black liquid and the FSL report that indicated the substance recovered from it was opium containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. The Court referred to definition of opium in Section 2(xv) and 2(xvi) and proceeded to state thus:-

Judged from any score, we do not find the view expressed by the High Court is correct. Therefore, we conclude and hold that the seized item fell under the commercial quantity and hence the conviction recorded by the trial court under Section 20 (b) (ii) (C) is absolutely impeccable.

29. In view of the aforesaid analysis, we are unable to sustain the judgment and order of the High Court and, accordingly, unsettle the same and find that the accused-respondents, Mushtaq Ahmad and Gulzar Ahmad, are guilty of offence punishable under Section 20(b)(ii)(C) of the NDPS Act and each of them is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac and, in default of payment of such fine, to suffer rigorous imprisonment for a further period of one year.

30. Resultantly, the appeals are allowed and the judgment and order passed by the High Court in Criminal Appeal Nos.35 and 36 of 2009, is set aside and that of the learned trial Judge, as far as the sentence is concerned, stands modified.