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Ragu @ Ragupathi and Others Vs. The Inspector of police, Chennai - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCrl.A.No. 3 of 2010
Judge
AppellantRagu @ Ragupathi and Others
RespondentThe Inspector of police, Chennai
Excerpt:
.....died later. the said ravishankar identified the accused 1 to 3 and the said venkatesh, from 400 grams, 300 grams, 300 grams and 500 grams of heroin were seized and the samples were taken from them under a mahazer. thereafter, the accused persons were arrested and a case was registered in cr.no.112/2003. after completion of investigation, chargesheet was filed. 4. before the trial court, on the side of the prosecution 12 witnesses were examined as p.w.1 to p.w.12 and 66 documents were marked as ex.p.1 to ex.p.66. after the closure of the evidence, with regard to the incriminating evidence tendered against the accused, the accused were questioned under section 313 of cr.p.c., and the accused had admitted the same, for an in-between quantity. after analysing the evidence, both oral and.....
Judgment:

(Prayer: Criminal Appeal has been filed under Section 374 (2) of Cr.P.C., as against the judgment dated 23.12.2009 in C.C.No.130 of 2004 passed by the learned Principal Special Judge, Principal Special Court under EC and NDPS Act, Chennai.)

1. This appeal has been filed by the appellants as against the judgment dated 23.12.2009 in C.C.No.130 of 2004 passed by the learned Principal Special Judge, Principal Special Court under EC and NDPS Act, Chennai.

2. The appellants herein have been arrayed as A1 to A3 and they have been convicted for the alleged offences under Section 8(c) r/w 29 and 21(c) of NDPS Act 1985, as amended by Act, 9/01, and they were sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1 lakh, in default to undergo 6 months rigorous imprisonment, for each offence, by the Trial Court. Aggrieved over the same, the appellants/accused have come forward with the present appeal before this Court.

3. The brief facts of the case of the prosecution are as follows:

Based an information received by Thiru.Sekar, Sub-Inspector of Police, NIB CID, Chennai about the illicit sale of heroin by one Ravishankar in Room No.310, Hotel Indian Palace at No.68, Moore Street, Mannadi, Chennai, the former recorded the information and placed it before his immediate superior officer viz., the Inspector of Police, for orders. Thereafter, a team of Police officials proceeded to the scene of occurrence. At the scene of occurrence viz., at Room No.310, the Inspector of Police introduced himself to the occupant-Ravishankar and conducted a search. The Inspector of Police nominated one Mr.Dhanavel, the Hotel receptionist, as a witness to the search, since no other independent witness was available at that time. During the search, 1.500 kgs of heroin was seized from the said Ravishankar and as per his confession, at 07.00 hours on the same day, he was taken to a House No.259, 24th Street, Krishnapuram, Maduravoil, which was under the control of the above said Ravishankar on rental basis. The said Ravishankar knowingly allowed the said premises to be used for the commission of the offence under NDPS Act by the accused A1 to A3 and one Venkatesh who died later. The said Ravishankar identified the accused 1 to 3 and the said Venkatesh, from 400 grams, 300 grams, 300 grams and 500 grams of heroin were seized and the samples were taken from them under a mahazer. Thereafter, the accused persons were arrested and a case was registered in Cr.No.112/2003. After completion of investigation, chargesheet was filed.

4. Before the Trial Court, on the side of the prosecution 12 witnesses were examined as P.W.1 to P.W.12 and 66 documents were marked as Ex.P.1 to Ex.P.66. After the closure of the evidence, with regard to the incriminating evidence tendered against the accused, the accused were questioned under Section 313 of Cr.P.C., and the accused had admitted the same, for an in-between quantity. After analysing the evidence, both oral and documentary, the Trial Court found the accused guilty for the offences under Sections 8(c) r/w 29 and 21(c) of NDPS Act 1985 as amended by Act, 9/01 and convicted and sentenced the accused as stated supra. Aggrieved over the same, the present appeal has been filed by the appellants/accused.

5. It is the submission of the learned counsel for the appellant/accused that as per the Chemical Analytical Report-Ex.P.51, the percentage of Di-acetyle morphine present in the samples marked as S.10, S.12 and S.14 are 16.41 w/w, 10.30 w/w and 14.72 w/w respectively. Thus, the learned counsel for the petitioner submitted that actually the contraband seized from the accused 1 to 3 are 400 grams, 300 grams and 300 grams respectively, and as per the analyst's report Ex.P.51, the percentage of Di-acetyle Morphine present in the contraband seized from A1 to A3 are 65.640 grams, 30.900 grams and 44.160 grams respectively, which fall under the category of an in-between quantity; hence, the accused would be punishable only under Section 21(b) of the NDPS Act. In this regard, the learned counsel for the appellants has also relied upon the judgment of the Hon'ble Supreme Court reported in AIR SCW 2365 [Michel Raj Vs. Intelligence Officer, NCB], wherein it has been held as follows:

"When any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration."

But, the Trial Court, by relying upon the Government Notification published in Gazette of India Part-II, Section 3 Sub-Section (ii), dated 18.11.2009, rejected the contention of the learned counsel for the appellants/accused and imposed the punishment as stated supra. The relevant passage from the above said Government Notification reads as follows:

"The quantities shown in column 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salt of these drugs including, salts of esters, others and isomers, whenever existence of such substance is possible and not just its pure drug content.".

According to the learned counsel for the appellants, the said Notification will have only a prospective effect; whereas in the instant case, the alleged offence is said to have been committed on 26.12.2003, which is prior to the date of issuance of the said Notification. Hence, by applying the ratio laid down in the Michel Raj's case, the Trial Court ought to have punished the accused only under Section 21(b)of NDPS Act. In this regard, the learned counsel for the appellants has also relied upon the judgments delivered by the learned Single Judges of this Court reported in CDJ 2010 MHC 5783 (Thangarasu and another Vs. State) and CDJ 2013 MHC 2551 (Sellappah Satguneswaran @ Master Vs. Intelligence Officer, Narcotics Control Bureau) and the judgment delivered by a Division Bench of this Court dated 23.12.2011 in Crl.O.P.(MD).Nos.9668 of 2011 and 11953 of 2011 [M.Veludurai Vs. State].

6. That apart, the learned counsel for the appellants has also submitted that the accused persons are inside the prison for more than 6 1/2 years. Further, as per the analytical report, the appellants were in possession of an in-between quantity of the contraband. Hence, the sentence of 10 years may be modified to that of the period already undergone by A1 to A3 and thus, conviction may be confirmed.

7. With regard to the finding rendered by the Trial Court based on the Gazette Notification, it is the submission of the learned counsel for the appellants that the said Notification will have only the prospective effect and not retrospective effect. Since the offence is said to have been committed prior to the said Notification, in the present case by applying the ratio laid down in the Michel Raj's case, the sentence could be reduced to the period already undergone by the appellants. In this regard, the learned counsel for the appellants has also relied upon the judgment of a Division Bench of this Court dated 23.12.2011 in Crl.O.P.(MD).Nos.9668 of 2011 and 11953 of 2011 [M.Veludurai Vs. State], wherein it has been held as follows:

"24. The learned Special Public Prosecutor would submit that in many cases, where the prosecutions were launched before E.Michael Raj's case, Purity Tests were not conducted and as a result, there is likelihood of the accused, involved in crimes involving commercial quantities of Narcotic Drug/Psychotropic Substance, to escape with minimum punishments. In our considered opinion, the said apprehension is real. But, the law is not helpless. Even after filing of the charge sheet, there is no impediment for the Prosecuting Agency or the Court to send the remaining contraband for conducting Purity Test in the case of mixtures and preparations falling within the scope of entry No.239 and then, proceed with trial of the case. Having regard to the heinous nature of the offence under the Act, the Courts, which have been entrusted with the onerous task of delivering criminal justice, would do well by sending the contrabands in their custody during trial/appeal for Purity Test, if it is found that the contraband falls within the ambit of entry 239 of the notification. In pending appeals, such report can be received as additional evidence under Section 391 of the Code of Criminal Procedure. We would like to state that until the reports of Purity Tests are received, the trial may be postponed. In respect of the pending cases, including appeals, if any such request is made by any Court or Prosecuting Agency for holding Purity Test, the Laboratory concerned shall give top priority for such pending including appeals cases and submit report without any delay.

25. We are conscious of the fact that the Central Government has issued yet another notification dated 18.11.2009, wherein the Central Government has declared that in case of a mixture or preparation with or without a neutral substance, the entire quantity of mixture/preparation shall be decisive as to whether the Narcotic Drug/Psychotropic substance is a small quantity or commercial quantity. As held in Harijit Singh's case, cited supra, the said notification is only prospective in its operation. Therefore, in view of the said notification, in respect of the offences committed on or after 18.11.2009, Purity Test need not be conducted and that the ratio laid down in Michael Raj's case is not applicable to such cases. The ratio in Michael Raj's case is applicable only to the offences committed on or before 17.11.2009.

26. In the result, we answer the question, referred to us, as follows:-

i) If the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No.239 of the notification dated 19.10.2001 issued in S.O.No.1055(E) of the Central Government, it is absolutely necessary to conduct Purity Test to ascertain the exact quantity of Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Purity Test, as indicated, the contraband seized shall be construed only as a small quantity and accordingly, the accused shall be liable for punishment.

(ii) In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No.239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need of Purity Test and in such cases, the entire quantity of Narcotic Drug/Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction.

iii) In pending cases, including appeals, relating to the substances falling within the sweep of entry No.239, the Courts/Prosecuting Agency, may do well by forwarding the samples taken from the remaining contrabands in the custody of the Courts for Purity Test to estimate the percentage of Narcotic Drug/Psychotropic Substance in the mixture or preparation. In pending Criminal Appeals, the report of Purity Test may be received as additional evidence under Section 391 of the Code of Criminal Procedure.

(iv) If any such request is made in respect of the pending cases, the Laboratory concerned shall give top priority and submit reports without delay.

(v) We make it clear that the ratio laid down in Michael Raj's case, regarding Purity Test and the answers given by us herein above shall be applicable to offences committed on or before 17.11.2009 alone."

The learned counsel for the petitioner has also produced a number of judgments of this Court as well as the Hon'ble Supreme Court, wherein the conviction and sentence passed by the Trial Court was modified based on the Judgment stated supra. Thus, the learned counsel for the petitioner sought for modification of the sentence imposed on the petitioners to that of the sentence already undergone.

8. But, the learned Additional Public Prosecutor opposed the prayer of the learned counsel for the petitioners, contending that the accused admitted their guilt before the trial Court and they cannot challenge the conviction. At the same time, the learned Additional Public Prosecutor fairly admitted the fact that as per the Chemical Analytical Report-Ex.P.51, the percentage of Di-acetyle morphine present in the samples marked as S.10, S.12 and S.14 are 16.41 w/w, 10.30 w/w and 14.72 w/w respectively. Further, as per the analyst's report Ex.P.51, the contents of Di-acetyle Morphine in the contraband, which were found in possession of the accused, are 65.640 grams, 30.900 grams and 44.160 grams respectively, which fall under the category of in-between quantity.

9. I have carefully heard the submissions made on either side and perused the materials available on record.

10. From a perusal of the materials available on record, it is clear that though the quantities of the contraband seized from the appellants/accused are 400 grams, 300 grams and 300 grams respectively, as per the analyst's report-Ex.P.51, the percentage of narcotic substance Di-acetyle Morphine present in the contraband, which were found to be in the possession of the appellants/accused, are 65.640 grams, 30.900 grams and 44.160 grams respectively, which fall under the category of an in-between quantity. Hence, the accused shall be convicted under Section 21(b) of NDPS Act and not under Section 21(c) of the said Act.

11. Further, the offence is said to have been committed on 26.12.2003, which is prior to the date of issuance of the Government Notification published in Gazette of India Part-II, Section 3 Sub-Section (ii), dated 18.11.2009, which was referred by the Trial Court. The judgment of a Division Bench of this Court dated 23.12.2011 in Crl.O.P.(MD).Nos.9668 of 2011 and 11953 of 2011 [M.Veludurai Vs. State] also clearly says that the said Notification will be prospective in nature only and the ratio laid down in Michael Raj's case, regarding Purity Test shall be applicable to the offences committed on or before 17.11.2009 alone. Further, in an identical case in Crl.A.No.356 of 2012 (Sellappah Satguneswaran and Master Vs. Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai), vide judgment dated 16.04.2013, a learned Single Judge of this Court has modified the sentence imposed on the accused therein. Hence, I am of the opinion, in the instant case also the sentence imposed on the appellants herein could be modified.

12. Since the quantity of the contraband seized in this case falls in an in-between quantity, the appellants herein/accused are hereby convicted under Section 21(b) of NDPS Act, instead of Section 21(c) of the said Act as convicted by the Trial Court. The conviction of the appellants under Section 8(c) r/w 29 of NDPS Act passed by the Trial Court is unaltered. However, considering the facts and circumstances of the case, the sentence imposed by the Trial Court on the appellants/accused is hereby modified as follows:

The appellants/accused are convicted under Section 8(c) r/w 29 and 21(b) of NDPS Act and sentenced to undergo 7 years rigorous imprisonment, instead of 10 years, and to pay a fine of Rs.10,000/- (Rupees Ten Thousand only), in default to undergo 3 months rigorous imprisonment, for each offence. The substantive sentence of imprisonment imposed on the appellants/accused as stated above shall run concurrently.

With the above modifications, the Appeal is partly allowed.


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