2018 (4) TMI 1700 - HC - Indian Laws

Conviction of offence punishable under Section 21(c) of the NDPS Act, 1985 - seizure of Narcotics - mandatory provision of Section 42(1) and 42(2) of the NDPS Act - HELD THAT - The appellant was obviously a carrier of the contraband. The small quantity which is stipulated under the Act is 5 gms. While the commercial quantity is 250 gms. The appellant was found to be in possession of 609.6 gm which is obviously more than the commercial quantity. Thus it could be safely concluded that the appellant has committed an offence which is punishable under Section 21-C of the NDPS Act. However, considering the actual amount of heroin seized from the possession of the accused which is more than the commercial quantity of 250 gms. The aim and object of the 1985 Act, is to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, and to deter the illicit traffic in the said drugs and substances. In the present case the narcotic drugs which was found in possession of the appellant as per the analysis report is 609.6 gms, is much higher than the commercial quantity. Thus we find that the ends of justice will be sub-served if we reduce the sentence of the accused appellant to 16 years rigorous imprisonment with fine of ₹ 2 lakhs and in default of payment of such fine the appellant shall undergo simple imprisonment for 6 months more. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Compliance with mandatory provisions of the NDPS Act (Sections 42, 50, 52A, 55, and 57).
2. Validity of the trial process.
3. Admissibility of confessional statements under Section 67 of the NDPS Act.
4. Consideration of the actual quantity of narcotic substance for sentencing.

Issue-wise Detailed Analysis:

1. Compliance with Mandatory Provisions of the NDPS Act:
The appellant contended that the trial court violated mandatory provisions of Sections 42, 50, 52A, 55, and 57 of the NDPS Act. The prosecution argued that the provisions were duly complied with. The court found that:
- Section 42: The information was reduced to writing and submitted to the Zonal Director, thus complying with Section 42(1) and 42(2).
- Section 50: The search was conducted on bags, not the person, so Section 50 was not applicable as per established legal principles.
- Sections 55 and 57: The court held that these sections are procedural and non-compliance does not invalidate the trial if there is sufficient material on record. The evidence showed proper handling and storage of seized items.

2. Validity of the Trial Process:
The appellant argued that the trial was void ab initio due to non-compliance with Sections 244 to 246 Cr.P.C. The prosecution countered that the trial was conducted by a special court under Section 36-A(1)(d) of the NDPS Act, which allows the special court to take cognizance without committal proceedings. The court agreed with the prosecution, stating that the special court has original jurisdiction and the trial was conducted correctly.

3. Admissibility of Confessional Statements:
The appellant argued that confessional statements recorded under Section 67 of the NDPS Act are inadmissible under Section 25 of the Evidence Act. The court found that the statement was voluntary and not made under duress or coercion. The appellant's wife identified his signature, and no evidence suggested the statement was forced. The court held that the statement was admissible and supported by other evidence.

4. Consideration of Actual Quantity of Narcotic Substance for Sentencing:
The appellant argued that the trial court did not consider the actual quantity of heroin, which was 609.6 grams, not the gross weight of 8.175 kg. The court acknowledged the Supreme Court's ruling in E. Micheal Raj, which mandates considering the actual drug content. The court found that 609.6 grams is still above the commercial quantity threshold of 250 grams, justifying the conviction under Section 21-C of the NDPS Act. However, the court reduced the sentence from 18 years to 16 years of rigorous imprisonment, with a fine of ?2 lakhs, considering the actual quantity.

Conclusion:
The appeal was allowed in part. The conviction under Section 21-C of the NDPS Act was upheld, but the sentence was reduced to 16 years of rigorous imprisonment with a fine of ?2 lakhs, and in default, six months of simple imprisonment. The court emphasized the stringent provisions of the NDPS Act to deter illicit drug trafficking.