Mushtaq Ahmad and Another vs State and Others

Hasnain Massodi, J.—Challenge in these two Criminal Appeals is to the judgment recorded by Learned Third Additional Sessions Judge,

Jammu on 6th May, 2009 in case titled Narcotic Control Bureau v. Gulzar Ahmad and Anr. (File No. 13/Challan), convicting the Appellants of

offence punishable u/s 20(b)(ii)(c) of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter ""the Act"") and sentencing them to 12

years rigorous imprisonment, a fine of Rs. 2.00 lacs and default sentence of one year rigorous imprisonment. Before, a closer look at grounds of

attack set out in the memoranda of appeals, it would be appropriate to have an overview of background facts, discernible from the record.

The Narcotic Control Bureau (NCB for short), Zonal Unit, Rehari, Jammu on 5th April, 2004 received information from reliable sources that a

transaction of Charas was to take place on the said date in Rajinder Bazar, Kanak Mandi, area of Jammu city. The information prompted

Intelligence Officer NCB, Jammu to tele-phonically inform Zonal Director, NCB, stationed at Chandigarh, seek instructions, constitute a Naka

trap team associating officers/officials of the Customs Department, Jammu and two independent witnesses and lay Naka at Rajinder Bazar, Kanak

Mandi. The Naka party at about 8.30 PM spotted the Appellants one holding Card Board Carton (Box) and another a bag in his hand,

proceeding from Residency Road to Rajinder Bazar and intercepted them at Cholay Bhathuray Wali Gali, Chowk Kanak Mandi, Jammu. The

Appellants when questioned by the Intelligence Officer NCB, disclosed their identity. The Intelligence Officer, NCB (""complainant"" for short)

served notice u/s 50 NDPS on the Appellants, explained contents of the notices and gave them an option to get their person and the Card Board

Carton and bag searched in presence of a Gazetted Officer or a Magistrate. The Appellants opted for their search in presence of a Gazetted

Officer. The complainant, accordingly requested Shri S. L. Jarangal, Superintendent Customs to come on spot, so that the Appellants were

searched in his presence. The Superintendent of Custom after introducing himself to the Appellants, made the Appellants aware of their right to get

searched in presence of any other Gazetted Officer or a Magistrate. The Appellants expressed their faith in Superintendent of Customs and their

willingness to have their search taken in his presence.

The complainant thereafter signified his intention to take search of the Appellants, gave the Appellant an option to search the complainant before

their search was taken. On search of the Card Board Carton carried by the Appellant - Gulzar Ahmad, seven Polythene bags, each having in it a

brown coloured stick shaped material wrapped in Corn Cob cover with the thread tied around it were recovered. The white coloured bag carried

by the Appellant - Mushtaq Ahmad was found to have in it five packets, each packet having brown coloured stick shaped material wrapped in

Corn Cob cover and tied with thread around it. The Appellants admitted that the material recovered was Charas and was being carried from

Anantnag, Kashmir for delivery at Jammu. The recovered substance tested with the help of Drug Testing Kit on spot, tested positive for Charas.

The material recovered from the Appellant was found to weigh 6.200 kg and 4.00 kg respectively and marked as Lot-A and Lot-B. The NCB

after recovery memos were prepared, took two 25 gm samples from each of the lots in presence of the witnesses and marked samples as A-l, A-

2 and B-l and B-2 respectively.

The samples were sealed with hot seal and a paper slip duly signed by the Appellants and the witnesses. The remaining quantity of recovered

substance of both the lots was also sealed and deposited with the NCB Malkhana under proper receipt. The complainant served notices u/s 67 of

NDPS Act on the Appellants individually and recorded their statement. The Appellants were thereafter arrested and subjected to personal search.

The samples were sent to Central Revenue Control Laboratory (CRCL), New Delhi for analysis and on analysis reported to be ""Charas"".

The complainant after receipt of the CRCL Report and completion of usual formalities presented the complaint u/s 8/20/29 of Narcotics Drugs and

Psychotropic Substances Act, 1985 against the Appellants in Sessions Court, Jammu, wherefrom it was transferred to Third Additional Sessions

Court, Jammu for its disposal under law.

The Appellants were formally charged of the offence alleged in the complaint. The prosecution after the Appellants denied the charge, examined

listed witnesses including the complainant, Superintendent Customs and other witnesses of the Naka team, in whose presence the substance later

found to be Charas, was recovered.

The Appellants when confronted with the incriminatory circumstances appearing in the prosecution evidence and given an opportunity to offer their

explanation denied the occurrence. The Appellants in their statements u/s 342 Code of Criminal Procedure also denied to have made any

confessional statements u/s 67 NDPS Act and insisted that they were falsely implicated by NCB, Jammu. The Appellants examined two witnesses

in their defence.

Learned Trial court on going through the prosecution evidence - oral and documentary, held the prosecution to have proved beyond doubt that

on 5.4.2004, the complainant accompanied by other witnesses at about 8.30 PM, intercepted the Appellants at Cholay Bhaturay Wali Gali,

Chowk Kanak Mandi and recovered from the Appellants 6.200 kg and 4.00 kg brown coloured stick shaped material wrapped in Corn Cob

Covers, found to be Charas with the help of Drugs Testing Kit on spot and later confirmed by the Chemical Analyst in his report, on analysis of the

samples taken from the recovered material. The Trial Court was not impressed by the discrepancies and contradictions pointed out by the defence

in the testimony of prosecution witnesses and variation in the weight of samples taken out from the seized substance and delivered at CRCL. The

Trial Court in presence of statement of PW Rakesh Goel. Incharge NCB, Malkhana that the seized substance, duly sealed marked as Lot 1 and

Lot -- 2 and two parts of the sample A and B were deposited in Malkhana and entered in Malkhana at S. Nos. 21 and 23 also rejected the

contention that Section 55 NDPS Act was not followed. The Trial Court downplayed failure of the prosecution to produce the physical evidence

i.e. the recovered substance material in the Court. The argument that the sample was admittedly taken from only one of the packets recovered

from the Appellants respectively and that the sample were not to be treated as representative samples did not find favour with the Trial Court on

the ground that in face of confessional statements made by the Appellants u/s 67 NDPS Act, 1985 admitting that the substance recovered from

their possession was Charas, failure to take a sample from each of the packets was not fatal to the prosecution case. The Trial Court rejected the

argument that the confessional statements were recorded when the Appellants were in custody and were thus inadmissible and not to be relied

upon. The Trial Court has took the view that as there was no evidence on the file to suggest that the confessional statements were involuntary,

procured under force of threat and the Appellants did not retract confessions at the first opportunity available and that no suggestion was made to

PW Satish Kumar, who claimed to have recorded the confessional statements, that the confessional statements were not as a matter of fact made,

there was no reason to discard the confessional statements proven to have been made by the Appellants. The statement of defence witnesses were

held to be of no help to the Appellants inasmuch as their testimony did not disprove the case set up by the complainant against the Appellants, but

merely touched character and reputation of the Appellants.

The Trial Court after making on an indepth discussion of the case set up by the prosecution and the evidence brought on the file held the

Appellants guilty of the offence of which they were charged and proceeded to award the sentence of imprisonment and fine stated above.

The trial court judgment and order are assailed on the grounds that the judgment and order are outcome of mis-appreciation of facts and mis-

appreciation of law; that the complainant and other officials of NCB while making the alleged recovery and investigating the matter committed

gross violation of Section 42 and Sections 52 to 67 of the NDPS Act; that the prosecution witnesses namely Sushil Kumar and Balwinder Raj

associated with alleged recovery of Charas from the Appellants and projected by the prosecution as independent witnesses were on their cross

examination found to be employees of the officials of NCB and residents of Punjab though maliciously and mischievously shown in the complaint to

be residents of Jammu. The Appellants also find fault with the mode and manner in which their statements u/s 342 Code of Criminal Procedure

were recorded and later selectively appreciated by the Trial Court. The Appellant ? Gulzar Ahmad has further questioned the procedure followed

by Trial Court while taking cognizance of the case and proceeding with the trial. The Trial Court is said to have erroneously treated the complaint

as charge sheet u/s 173 Code of Criminal Procedure, unmindful of the fact that the procedure applicable to private complainant was to be

followed, while dealing with the matter. The complainant is said to have violated mandate of Sections 42(2) of the Act by avoiding to reduce into

writing the information received in the morning of 5.4.2004 regarding transaction of contraband expected to take place in the evening at Rajinder

Bazar, Jammu. The Trial Court, it is insisted, committed grave error by not appreciating fall out of failure of the prosecution to produce Charas

alleged to have been recovered from the Appellants as physical evidence of the occurrence. The Appellant also take exception to the observation

of the Trial Court that compliance of Section 55 NDPS Act, 1985 was not mandatory and the prosecution was not required to prove deposit of

seized contraband in Malkhana. The variation between the description of the seal affixed on the samples and that recorded in Malkhana register is

said to have been, on invalid grounds, ignored by the Trial Court. The failure of the prosecution to associate independent witnesses with the alleged

recovery of contraband, according to the Appellant rendered the prosecution case doubtful and the judgment and order of the Trial Court

unsustainable. The complainant, it is insisted played multiple roles, not permissible under law, inasmuch as the complaint organized and supervised

the trap, investigated the matter recorded confessional statement of the Appellants and thereafter filed the complaint.

We have gone through the memoranda of appeals, the judgment and order of the Trial Court as also Trial Court record. We have heard learned

Counsel for the Appellant in appeal No. 35/09, the panel lawyer engaged by State Legal Services Authority (SLSA) to prosecute the appeal of

Appellant - Gulzar Ahmad and learned Central Government Standing Counsel.

Learned Counsel for the Appellants insist that the Trial Court while recording the judgment of conviction and awarding sentence has not

appreciated the evidence brought on the record in right perspective and lost sight of serious infirmities in the prosecution case, which if taken note

of would have persuaded the Trial Court to dismiss the prosecution case.

Learned Counsel for the Appellants to question the impugned judgment advance following arguments:

(I) That the complainant failed to follow the mandate of Sections 41 and 42 of the Act at the time of alleged recovery. The complainant as an

officer of NCB though empowered to detain and search a person whom he has reason to believe to have committed any of offences punishable

under Act, it is insisted, can exercise such power between sunrise and sunset. A warrant is to be obtained from Metropolitan Magistrate or

Magistrate First Class or an authorisation from officer of the gazetted rank of the Narcotic Department in the event search and seizure is made

between sunset and sunrise. It is pointed out that in the present case as search, seizure and arrest was made after the sunset, a warrant u/s 41(1) or

an authorization u/s 41(2) was required to be obtained before such search seizure and arrest were effected. The search and seizure, it is argued has

been made without warrant or authorisation.

(II) That to impart credibility to the search and seizure, the complainant was required to associate independent witnesses with the search and

recovery of Charas from the Appellants. The very fact that the witnesses projected as independent witnesses were during the Trial revealed to be

employees of the officials of the NCB and thus under influence of the complainant and other members of the trap team, casts a serious doubt on

credibility of search and recovery. The incorrect residential address of the aforesaid witnesses, according to learned Counsel for the Appellants,

speaks volumes about malafides on part of the complainant and the members of the trap team and suggests that the Appellants were framed up in

the case.

(III) That the procedure followed by the Trial Court during the trial of the complaint was fundamentally wrong vitiating the trial as well as the

judgment and order impugned in the appeals. It is insisted that the Trial Court as against the procedure to be followed in case of trial commencing

with filing of a complaint followed procedure applicable to a case emanating from a charge sheet u/s 173 Code of Criminal Procedure.

(IV) That the confessional statements attributed to the Appellants and heavily relied upon by the Trial Court amounted to ""testimonial compulsion

and were thus inadmissible in evidence and not to be relied upon. The confessional statements, it is insisted were recorded after the Appellants

were arrested and thus offended Article 20(3) Constitution of India and 25 Evidence Act. It is pointed out that once the confessional statements

were not looked at and excluded from the prosecution evidence, the whole edifice of prosecution case was bound to crumble down.

(VI) That taking of the sample from the substance allegedly recovered from the Appellant was not in accordance with law inasmuch as sample

admittedly was taken from only one of the Corn Cob wrapped ""sticks"" allegedly recovered from the Appellants. The sample, it is contended in

both the cases was not a representative sample, representing the substance allegedly recovered from the Appellants. The Chemical analysis report,

it is pointed out at the most was applicable to the ""stick"" from which it was lifted.

(V) That the Trial Court erroneously downplayed failure of the prosecution to produce and prove alleged seized substance claimed to have been

marked as Lot-A and Lot ?B, in the Court and failed to appreciate that the failure to produce the physical evidence made recovery doubtful and

dealt a body blow to the prosecution case.

Let us deal with the grounds urged by learned Counsel for the Appellants' ad seriatim.

From a conjoint reading of Sections 41 and 42, it emerges that following officers may make search, seizure and arres t of any person whom

they have reasons to believe to be in possession of contraband or to have committed any offence punishable under the Act.

(i) An officer of any of the departments/organizations mentioned, to whom a warrant u/s 41(2) of the Act is addressed,

(ii) An officer of gazetted rank of any of the departments/organizations mentioned, empowered by any general or special order of the state

government to make such search, seizure and arrest in terms of Section 41(2) of the Act.

(iii) An officer, superior in rank to a peon, sepoy or constable of any of the departments/organizations mentioned, subordinate to the gazetted

officer empowered u/s 41(2) of the Act, duly authorised by such empowered gazetted officer to make such search seizure and arrest in terms of

Section 41(2) of the Act.

(iv) An officer of any of the departments/organizations mentioned, empowered by a general or special order by the Central Government or by the

State Government in terms of Section 42(1) of the Act.

While as, an officer mentioned in categories (i) to (iii) (supra) may exercise power, by day or by night, the officer mentioned in category (iv) in

absence of a warrant or authorization is to exercise such power between sunrise and sunset. However, such power may be exercised by an officer

in category (iv) at any time between sunset and sunrise even in absence of warrant or authorization, provided such officer has a reason to believe

that a search warrant or authorization cannot be obtained without affording opportunity to the offender to escape. The officer, however, is required

to record the grounds for such belief. In the present case, the complainant is of the rank of Intelligence Officer and was authorised by Zonal

Director, NCB an Indian Revenue Service officer, IRS duly au thorised u/s 41(2) and 42(3) to make the search and seizure and also to authorize

his subordinate, superior in rank to peon, sepoy or constable to make search and seizure at any time in day and night. The recovery, in the present

case admittedly was, made after sunset at about 2300 hours. The complainant having been authorised by a Gazetted Officer in terms of Section

41(2) of the Act, his powers were not restricted to search seizure and arrest from sunrise to sunset in terms of Section 42(1) of the Act.

This apart, in the present case search and recovery was not made at a private but on a public place. The complaint in terms of Section 43(b)

has unrestricted powers at any time (day or night) to detain any person whom he has reason to believe to be in his possession of any Narcotic

Drug or any Psychotropic Substance and even a controlled substance. The argument that non compliance with Section 42 of the Act vitiated the

recovery of contraband from the Appellants is, in the circumstances, bound to fail.

Furthermore, as laid down in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, relied upon in Khet Singh Vs.

Union of India (UOI), and followed in M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, irregularity, if any, committed

in search and seizure is not to lead to exclusion of the evidence procured during such search when the irregularity does not impinge upon the

evidence recovered.

There is no principle of universal application or an inviolable rule that search and recovery of contraband must invariably be made in presence

of an independent witness and that failure to associate an independence witness would always cast a doubt on credibility of search and recovery.

Furthermore, the witnesses to search and recovery are not to be disbelieved only because they belong to the Narcotic Control Bureau or any other

department associated with the campaign against Drug menace. If, the surrounding facts and circumstances inspire confidence in search and

recovery of the contraband, absence of an independent witness or failure on the part of the prosecution to examine independent witness associated

with search and recovery may not be fatal to the prosecution case.

In the present case, the complainant associated S/Shri Sushil Kumar and Balvinder Raj with the search operation. Mere fact, that the two

witnesses projected by the prosecution as independent witnesses, originally belonged to District Gurdaspur Punjab and were, nonetheless shown

to be residents of Jammu or that one of the witness Balvinder Raj was a domestic help of one Mr. Gulati, Assistant Commissioner Central Excise

does not make the witnesses interested witnesses, so as to prompt the Trial Court to discard their evidence. Furthermore, the search and recovery

in the present case was made in presence of Shri S. L. Jarangral, Superintendent of Customs a Gazetted rank Officer. There was no reason for the

Trial Court to disbelieve PW S. L. Jarangal, Superintendent of Customs when his testimony remained unimpeached in the cross examination.

The Supreme Court in Ashok Kumar v. State of Haryana AIR SC 3474, a case under NDPS Act, rejecting the argument that failure to

associate or examine an independent witness vitiated the trial observed:

What is contended by the learned Counsel for the Appellants is that no independent witness was kept present when the Appellant was searched.

But that circumstance cannot create any doubt as the Appellant was searched in presence of a Magistrate. The Magistrate was examined as a

witness and in his cross examination nothing was brought out on the basis of which it can be said that what he had deposed was not correct.

The principle of law has been reiterated in State of Punjab v. Makhan Chand AIR 2004 SC 3061, G. Srinivas Goud Vs. State of A.P., ,

Dharampal Singh Vs. State of Punjab, , Ajmer Singh v. State of Haryana 2010 (3) SCC 1746.

So viewed, the Trial Court judgment cannot be faulted for failure of the compliant to associate and examine independent witnesses in addition

to the witnesses associated with the search and recovery.

This takes us to the argument regarding procedure followed during the trial. The minutes of the proceedings before the Trial Court reveal that

the Trial Court treated the complaint as Challan/charge sheet u/s 173 Code of Criminal Procedure and on 3.9.2004 formally charged Appellants of

the offence alleged in the compliant and thereafter proceeded to record the prosecution evidence. Chapter XV Part B Code of Criminal Procedure

relates to the conditions requisite for initiation of proceedings. In terms of Section 190 cognizance of offence may be taken upon a complaint, a

report received from the police officer, information received from any person other than a police officer or upon personal knowledge or suspicion,

that such offence has been committed. Once a complaint is filed, the Magistrate is to examine the complainant and the witness present, unless the

complaint is presented by a public servant, as in present case, acting or purporting to Act in discharge of his official duties, in which case statement

of the complainant or witnessed is not required to be recorded. In case the Magistrate is satisfied that there is sufficient ground for proceeding,

process is to be issued against the accused in terms of Section 204 CrPC. When the accused appears or is brought before the Magistrate,

pursuant to the process issued, and it appears that the offence, cognizance whereof has been taken, is exclusively triable by Court of Session, the

case is to be committed by the Magistrate in terms of Section 205 Code of Criminal Procedure to the Court of Session. The Court of Session, is

thereafter to proceed with the trial in accordance with Chapter XXII Criminal Procedure Code.

In the present case, the complainant did not present the complaint before the Magistrate but straightaway filed the complaint in the Court of

Session at Jammu. It is contended by learned Counsel for the Appellants and emphatically by the panel lawyer, that the Session Court by directly

entertaining the complaint and proceeding to frame the charge has followed a wrong procedure and that the trial as also the judgment and order

impugned are vitiated because of the irregularity committed by the Trial Court. There is no scope for any disagreement with learned Counsel or the

Appellants that an officer of NCB, even if invested with powers of police officer u/s 53 of the Act, is not empowered to exercise powers under

Chapter XII Code of Criminal Procedure including power to submit a charge sheet u/s 173 Criminal Procedure Code. In Raj Kumar Karwal Vs.

Union of India and others, . Supreme Court following the law laid down in Badku Joti Savant Vs. State of Mysore, held that power to investigate

an offence under the Act with which an officer of NCB, Central Excise Revenue Intelligence etc is invested u/s 53 of the Act does not include

power to prosecute the offender by filing a report or a charge sheet u/s 173 CrPC. The Supreme Court repelling the argument that power to

investigate would necessarily involve exercise of all powers under Chapter XII of the code including culmination of investigation in a report u/s 173

CRPC observed:

Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the

provisions of the Act to show that the legislature desired to vest in the officers appointed u/s 53 of the Act, all the powers of Chapter XII, including

the power to submit a report u/s 173 of the Code.

The Court proceeded to observe:

This Clause (a) of S. 36 A (1) makes it clear that if the investigation is conducted by the police officer, it would conclude in a police report but if

the investigation is made by an officer of any other department including the DRI, the special court would take cognizance of the offence upon a

formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be u/s 190

of the Code. This clause, in our view, clinches the matter

However, the argument that an irregularity was committed in not filing the complaint in terms of Section 190 Code of Criminal Procedure

before the Magistrate and its committal in terms of Section 205 D CrP.C after taking cognizance u/s 204 CrPC, is made oblivious to Section

36A(d) of the Act. It is pertinent to point out that in terms of Section 36A of the Act, offence under the Act punishable with imprisonment for a

term of more than three years are triable only by the Special Court. Section 36A(d) of the Act relevant to the present controversy reads as under:

36A. Offences triable by Special Courts.-

(1)

(a) ...

(b) ...

(c) ...

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of

the Central Govt., or a State Govt., authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial

Section 36C of the Act, lays down that the provisions of the Code of Criminal Procedure, except otherwise provided in the Act, shall apply to the

proceedings before the Special Court. It follows that the procedure laid down under Ss 190, 200 to 204 and S 205 D CrP.C is excluded by

Section 36A(d) read with Section 36C of the Act in case of a complaint made by an officer of the Central Government or a State Government

authorised to file the complaint. In terms of Section 36D until a Special Court is constituted u/s 36, the offences punishable under NDPS 1985 Act

triable by a Special Court are to be tried by Court of Session. In the State of J&K, Special Courts u/s 36 of the Act have not been constituted till

date and an offence committed under the Act punishable with imprisonment of more than three years is to be tried by a Court of Session.

However, the Court of Session while trying an offence punishable under the Act, acts as a Special Court and in terms of Section 36A(d) is

competent to take cognizance of the offence without the accused being committed to it for trial. In the circumstances, there is no substance in the

argument advanced by learned Counsel for the Appellants that because Trial Court followed wrong procedure, the irregularity committed vitiated

the proceedings. Otherwise, also any irregularity in procedure which does not prejudice the accused, as was the case before Trial Court, does not

vitiate the proceedings. Reference in this regard may be made to law laid down in Willie (William) Slaney Vs. The State of Madhya Pradesh, .

Banwari v. State of Uttar Pradesh 1962 (SUPP.3) SCR 953.

The argument that confessional statements attributed to the Appellants were to be discarded inasmuch as these were made by the Appellants

while in custody and thus hit by Article 20(3) Constitution of India and Section 25 Evidence Act, is specious and rightly ignored by the Trial Court.

In the first place as authoritatively laid down in Raj Kumar Karwal Vs. Union of India and others, an officer of Narcotic Control Bureau is not a

police officer within meaning of Criminal Procedure Code, so as to render inadmissible in evidence u/s 25 of the Evidence Act, a statement made

to him during investigation. Secondly, the confessional statements were made by the Appellants before they were formally arrested and a case u/s

20 NDPS Act registered against them. The Appellants in the circumstances were not under arrest when the confessional statements were made by

them and the Trial Court was right in placing reliance on the confessional statements. In Kanhaiyalal v. Union of India 2008 (2) SCC (Cri) 474.

Supreme Court in context of investigation/inquiry in a case under NDPS Act observed:

...[Initially] an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether

there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At this stage the person concerned is not an

accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently.

What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally

charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not

under arrest, the bar u/s 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted.

It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play"". Thirdly,

there was nothing on the record to suggest that the confessional statements were involuntary or outcome of threat, coercion, force, promise or

inducement. The Appellants as pointed out by the Trial Court did not find it necessary to approach the Court before or after the trial commenced

with the complaint that they were subjected to any coercion and forced to make the confessional statements. The Appellants even in their

statement u/s 342 Code of Criminal Procedure denied having made any confessional statements and did not complain that such statements were

made involuntarily due to any threat or coercion. It is well settled law that as long as confessional statement u/s 67 of the Act is made by the

accused at the time when he was not under arrest and the confessional statements is not involuntary, the Trial Court can rely on it as a piece of

evidence with other evidence to record conviction. Reference in this regard may be made to law laid down in M. Prabhulal v. Assistant Director,

Directorate of Revenue Intelligence 2003 (8) SCC 44, Kanhaialal v. Union of India 2008 (2) SCC (Cri.) 474, Veera Ibrahim v. State of

Maharashtra 1967 (2) SCC 302, Bhanwar Singh Vs. Union of India (UOI), , Dadu Ram Alias Mohan v. State of Madhya Pradesh 207 Cri.L.J

1480.

The argument that the Trial Court ought not to have placed reliance on the confessional statements of the Appellants u/s 67 of the Act for the

reason that the scribe of the statements did not cross the witness box is advanced, unmindful of the fact that P Ws Sushil Kumar, Balwinder Raj

and Satish Kumar Sharma have deposed that the statements were recorded in their presence and that they put their signatures on the statements so

made (EXPW ? F, EXPWSK-VII, EXPW-VIII). The confessional statements of the Appellants u/s 67 NDPS Act were thus proved and rightly

taken note of by the Trial Court.

The failure of the prosecution to produce and get identified the case property i.e. Charas recovered from the Appellants though a lapse would

not be fatal to the prosecution case in presence of other cogent and convincing evidence. It is pertinent to point out that P Ws B. K. Tiwari, R. K.

Gupta, S.L. Jarangal Sushil Kumar, Balwinder Raj and Satish Kumar Sharma claimed to have been present when Charas like substance was

recovered from the Appellants, the recovered substance was weighed, samples were taken and the samples as also the remaining quantity of the

recovered substance was sealed. There was no reason for the Trial Court to disbelieve the prosecution witnesses, who withstood the cross

examination and came out un-scathed and unimpeached. Furthermore, the Trial court had before it testimony of Shri Rakesh Goel, Zonal Director,

NCB who did not only admit to have authorised search and seizure but also to have received Charas recovered from the Appellants and two parts

of the sample (duplicate), made entries in the Malkhana register and deposited it in the Malkhana. In the said background, though the Trial Court

while taking note of the plea as regards failure of the prosecution to produce physical evidence overlooked the argument, yet it is to pale into

insignificance in presence of well-knit and trustworthy prosecution evidence.

There is substance in the argument advanced by learned Counsel for the Appellants that samples taken from the recovered substance did not

have representative character. It maybe recalled that as per the prosecution case, seven brownish stick shaped packs wrapped in Corn Cob

covers tied with thread and put in separate polythene bags from the Card Board Carton carried by the Appellant ? Gulzar Ahmad and five sticks

shaped packs wrapped in Corn Cob covers tied with thread and put in white coloured PVC Bag printed with ""Amar Atta"" carried by the

Appellant ? Mushtaq Ahmad were recovered from their possession. PW Satish Kumar, has been fair enough to admit that he lifted sample only

from once stick out of seven sticks recovered from the Appellant ? Gulzar Ahmad and likewise, from one stick out of five sticks recovered from

Appellant ? Mushtaq Ahmad. The PW Satish Kumar has proceeded to admit that he did not even open the other packets or to see what was

inside the packets. In the circumstances, all that the reports of Chemical Analyst CRCL (Central Revenue Control Laboratory) tell us is what was

chemical composition of the stick from which the sample, was taken. Resultantly, the reports of Chemical Examiner pertain to the sticks from

which the samples referred to the CRCL, were lifted and not to the rest of the stick shaped packs recovered from the Appellants vide Recovery ?

Cum Seizure Memo EXPW-SL. This, however, cannot help the Appellants to go off the hook, though it may have an impact on the final outcome

of the case as regards the sentence imposed on the Appellants by the Trial Court.

The Trial Court though seemingly convinced that as the sample was taken from one of many sticks (seven from Appellant-Gulzar Ahmad and

five from Appellant -Mushtaq Ahmad) recovered from the Appellants and that the results of sample were not to be taken to certify chemical

composition of rest of the sticks the contention that Charas recovered was not ""commercial quantity"" within meaning of Section 2(viia) of the Act

read with S.O 1055 (E) dated 19.1.2001, on the ground that as the Appellants in their confessional statements u/s 67 of the Act admitted that the

substance recovered from their possession was Charas, the Charas seized from the Appellants having regard to its weighed i.e. 6.200 gm and 4.00

was to be taken as commercial quantity and the Appellants sentenced accordingly.

Learned Trial Court appears to have lost sight of the fact that even if whole of the substance recovered from the Appellants was on the basis of

their confessional statements u/s 67 of the Act taken to be ""Charas"" irrespective of sampling having been restricted to one of the seven sticks in

case of Appellant ? Gulzar Ahmad and one of the five sticks in case of Appellant ? Mushtaq Ahmad, still their confessional statements would not

improve the content of Narcotic Drug detected in the samples by the Chemical Analyst.

It needs to be pointed out that the Chemical Examiner as per the prosecution case did not only analyse the samples to find out whether it

comprised of or contained any Narcotic Drug but went a step further to find out ""percentage by weight"" of the Narcotic Drug in the sample. The

Chemical Examiner as per his reports dated 25.5.2004 certified that the sample taken from one of the seven brownish stick shaped substance

tested positive for Charas and that Tetra hydrocannabinol (THC) content in the sample was 5.1 per cent. In case of sample lifted from one of the

five sticks recovered from the Appellant ? Mushtaq Ahmad Tetra hydrocannabinol (THC) content in the sample was found to be 4.9 per cent. In

the circumstances, if the samples lifted from the substance recovered from the Appellants is taken to represents the single brown shaped stick, the

content of Narcotic Drug recovered from the Appellants would be 45 gms and 39 gms respectively taking each stick to have an 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.

The question that warrants attention and answer, is whether to classify the Narcotic drug recovered from the Appellant as ""Commercial

Intermediate"" or ""Small"", total quantity of the recovered substance or exact weight of the narcotic drug found in the recovered substance, worked

out on the basis of Chemical Analysis report is to be taken into account. The controversy has been set at rest by the Supreme Court in Ouseph

alias Thankachan v. State of Kerala 2004 (4) SCC 446 and cases that came up before the court thereafter.

In E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, , Supreme Court while referring to the Statement of Objects and Reasons

concerning N.D.P.S (Amendment) Act 2001 whereby the changes were made in the punishment structure under the N.D.P.S Act and graded

sentences introduced commented on rationale behind changed punishment structure, as under:

It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalize the

sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the

addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalized sentence structure, the

punishment would vary depending upon the quantity of offending material.

The Court after referring to the results of the chemical analysis as regard purity of heroin, observed:

...[We] find it difficult to accept the argument advanced on behalf of the Respondent that the rate of purity is irrelevant since any preparation

which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable u/s 21(c) of the NDPS Act,

because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on

the weight of the mixture as such. This maybe tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would

amount to a small quantity, but when the same 4 gm is mixed with 50 Kg of powdered sugar, it would be quantified as a commercial quantity. In

the mixture of a narcotic drug or a psychotropic substance with one of 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

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 as it appears to us is to punish the people who commit less

serious offences with less server punishment and those who commit grave crimes, such as trafficking in significant quantities, with more server

punishment.

The Court referred to the following observations made in Ouseph alias Thankachan v. State of Kerala 2004 (4) SCC 446:

The question to be considered by us is whether the psychotropic substance was in small quantity and if so, whether it was intended for personal

consumption. The words 'small quantity' have been specified by the Central Government by the Notification dated 23.7.1996. Learned Counsel

for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered

from the Appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each

ampoule contained only 2 ml and each ml contains only .03 mg. This means the total quantity found in the possession of the Appellant was only 66

mg. This is less than l/10th of the limit of small quantity specified under the notification.

In the aforementioned case, the Appellant was found to be in possession of 110 ampoules of psychotropic substance buprenorphine

[Tidigesic]. On analysis, each ampoule of 2 ml (1.8 gms) was found to have only 0.3 mg (17%) of the psychotropic substance. The accused was

sentenced to rigorous imprisonment for ten years and asked to pay a fine of Rs. l Lakh and in default of fine to undergo simple imprisonment for

further period of two years. The Supreme Court taking into account the purity level or percentage by weight of psychotropic substance, in the

recovered material held that only 66 mg of the psychotropic substance was as per analysis report fourtd in the 110 (198 mg) ampoules of the

recovered material i.e. buprenorphine [trade name Tidigesic]. It was held that the quantity so found was less than small quantity specified under the

notification and the accused sentenced to imprisonment for period of six months.

The Apex Court while dealing with the argument, that as per law laid down in Amar Singh Ramaji Bhai Barot v. State of Gujarat (2005) 7

SCC 55 entire material found in possession of accused and not content of contraband in the offending material was to be taken into consideration

while imposing punishment, observed:

Thus, Amarsing case cannot be taken to be an authority for advancing the proposition made by the learned Counsel for the Respondent that

the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for

application of Section 21 of the NDPS Act for the purpose of imposition of punishment.

In the background of above discussion the Supreme Court, reduced ten years rigorous imprisonment and a fine of Rs. l Lakh, in default of payment

of fine rigorous imprisonment for one more year, to six years rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine,

rigorous imprisonment for six months.

In Sami Ullaha Vs. Superintendent, Narcotic Central Bureau, , the samples of alleged contraband recovered weighing 2 Kg was found to have

2.6% of heroin. The contraband in 2 Kg seized substance was thus 52 gm. The Apex Court held that the quantity alleged to have recovered in

view of the chemical analysis report could be said to be intermediate quantity and rigor of Section 37 of the Act relating to the grant of bail was not

justified.

From the above discussion it emerges that in view of different layers of punishment prescribed under the Act, it is of utmost importance for the

trial Court after holding the accused guilty of contravention of any of the provisions of the Act or any of the Rules, Orders made thereunder i.e.,

possession of Narcotic Drugs or Psychotropic substance, to determine the quantity of such drug or substance involved in the contravention proved

against the accused and impose sentence accordingly.

For the reasons discussed above, the narcotic drug proved to have been recovered from the possession of the Appellants was of ""intermediate

quantity"" in terms of Section 2(viia) of the Act read with S.O 1055 (E) dated 19.1.2001 and the Appellants were to be held guilty and sentenced

accordingly.

The amendment made vide Notification S.O. 2941 (E) dated 18th November, 2009 in Notification S.O.1055(E) dated 19th October, 2001

adding Note 4 after Note 3 to which attention of the court is drawn cannot change complexion of the matter for the reason the alleged recovery

has been made way back on 5th April, 2004 i.e. more than five years prior to the amendment and also for the reason that it is nowhere alleged that

there were more than one Narcotic Drugs or isomers, esters, ethers and salts of the Narcotic Drug detected in the recovered substance.

The Appellants against the above backdrop were to be convicted of offence punishable u/s 8 read with Section 20(b)(ii)(B) of the Act and

sentenced to the punishment prescribed u/s 20(b)(ii)(B) of the Act and not to the punishment prescribed for the offence involving possession of

commercial quantity"" of Narcotic drug u/s 20(b)(ii)(c) of the Act. However the Appellants arrested on 5.4.2004 and are in custody for last more

than seven years.

We therefore, alter the conviction of the Appellants to Section 20(b)(ii)(B) of the NDPS Act and sentence the Appellants to the imprisonment

already undergone and a fine of Rs. 25000/- each. In default of payment of fine the Appellants shall suffer rigorous imprisonment for a further

period of six months. The Criminal Appeal No. 35/2009 titled Mushtaq Ahmad v. State and Cr. Appeal No. 36/2009 titled Gulzar Ahmad v.

State are disposed of accordingly.