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TMI Blog2017 (10) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... D issued on 25.08.2004 was travelling to Rotterdam via Amsterdam by KLM Flight No. KL-872 on 04.03.2008 while he was proceeding for security check, his movement was found to be suspicious, hence the complainant decided to examine him and his baggage. The accused possessed with one checked in baggage bearing tag No. 0074 KL 175559 and one small white and green colour rexine bag tied on his waist. Notices U/s.102 of Customs Act and U/s 50 of NDPS Act were served upon the accused in the presence of two independent witnesses that he and his baggage were to be examined, and if he so desired, the same could be conducted in the presence of a Magistrate or a Gazetted Officer of Customs. The accused gave his consent for the search by any custom officer and made endorsement to this effect on both the notices. The checked-in baggage of the accused, make 'Diplomat' bearing tag No. 0074 KL 175559, on opening was found to be containing personal effects of the accused and even the waist bag did not contain anything objectionable. On further search, the contents of the suitcase were taken out and the upper and lower covers of the suitcase were removed, which was found containing black colour fibe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... screpancies in the case of the appellant and even the ownership of the alleged suitcase containing contraband is under question; that the suitcase did not belong to the appellant and there is probability that it could have been inadvertently exchanged by some other baggage; that prosecution is silent on the aspect that what steps were taken against the person/Mr. Nima who handed over the alleged suitcase to the appellant. The main contention raised by the counsel for the petitioner was that the psychotropic substance in Charas (Hashish) is primarily THC (Tetra hydro cannibinol),which is active ingredient and as per the Central Revenues Control Laboratory (hereinafter referred to as `CRCL') report the quantity of THC should be taken into account in order to determine whether the quantity of the drug shall be treated as 'Commercial' or 'Semi-Commercial'. In support of this contention, the counsel placed reliance upon the judgment passed by the Apex Court in E. Michael Raj v/s Intelligence Officer, Narcotics Control, Bureau' case reported in (2008) SCC 161 and further added that in the aforesaid ruling the rationale that has been applied to heroin should beyond doubt be applied to Has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW2 Superintendent Bishan Chand and PW8 Insp. ICD Anil Kumar. 10. PW1 Wang Kuan Chon testified as under: 'On 03.03.2008 I was posted as Custom Service Executive in Delhi Airport Service for KLM Airlines, in departure Hall if IGI Airport New Delhi. In the present case Sh. Anil Kumar ACO called me at departure hall to witness the proceedings of the present case. He was standing at custom counter. The passenger named Irwan Bin Hasim was intercepted by Sh Anil Kumar at the custom counter. The passenger was departing Delhi-Amsterdam-London by KLM Airlines, by flight No. KL-872. The passenger was the accused present in the Court (correctly identified). Sh Anil Kumar Sharma ACO served two notices, one U/s 102 Customs Act and U/s 50 NDPS Act in my presence. The notices were regarding search of the accused and baggages before Magistrate or a Gazetted Officer. The accused had replied in writing on the notices itself that he has no problem if any custom officer conduct his search. The accused was asked to open his baggage and the same was opened by him by the key which he was carrying with him. On opening of baggage it was found to contain some clothes and personal effects of the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the passenger. Thereafter two panch witness namely Mr Wang and Mr Deepak were called and I gave my introduction to them and also disclosed to them that the passenger was intercepted on suspicion and the search of his person and baggage to be conducted. The passenger opened the suitcase with the key which he was possessing. The suitcase was found to contain the personal effects of the passenger and nothing incrimating was found apparently. When the suitcase was found to be abnormally heavy the bottom of the suit from inside was opened with the help of screw driver and some polythene was spotted there, as such the entire bottom of the suit case was opened and it was found containing a big polythene wrapped with brown colour adhesive tape. The polythene was transparent in colour and I could see that it was containing some brown colour substance. The upper portion of the suitcase was opened and it was also found containing a big polythene wrapped with brown colour adhesive tape. The polythene was transparent in colour and I could see that it was also containing some brown colour substance. Thereafter the adhesive tape was removed from both the polythene to the extent it was possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature at point A and of Sh Ranjeet Gupta ACO at point B. There were three sample which were drawn in the present case. It is correct that in the test memo the substance is described as dark brown colour substance suspected to be Hashish, whereas in the DR Ex.PW 2/C-1 it is described as black substance. The case property was also sealed in my presence. The sealing was done in the presence of accused, panch witnesses and myself by the IO. It is wrong to suggest that alleged recovered substance was planted upon the accused or that I am deposing falsely.' 14. On perusal of the aforesaid testimonies, it is apparent on record that PW-8 intercepted the appellant as his movements were suspicious. On examining the passport of the appellant PW-8 decided to search the appellant in accordance with the procedure envisaged under the Customs Act and NDPS Act. The notice under Section 102 Customs Act (Ex. PW-1/13) and notice u/s 50 NDPS Act (Ex. Pw-1/A) was served on the Appellant. Procedure of search was conducted in presence of panch witnesses (PW-1) and Deepak (not examined). On search of the appellant two polythene bags were recovered from top and bottom of the suitcase and the substance on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e need not be physical possession but can be constructive, having power and control over the article in case in question, while the persons whom physical possession is given holds it subject to that power or control. 16. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness 1976 (1) All ER 844 (QBD). 17. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in MadanLal and Anr. v. State of Himachal Pradesh: 2003CriLJ3868.. 16. It has emerged from perusal of Ex-PW 8/C which is a disclosure/ confes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant sample, returned herewith are as under: LAB No Marked as THC content Gross wt with plastic pouch CLD-44(N) A-2 9.3% 23 gm 20. The issue of whether the quantity of drug shall be treated as 'commercial' or 'semi-commercial' has been dealt in the case of E.Micheal Raj vs Intelligence Officer, Narcotic Control Bureau,2008 5 SCC161. In E. Micheal Raj (supra) case the court accepted the submission that purity of heroine was 1.4% and 1.6%, respectively and treated it as a small quantity and held as under:- 16. On going through Amarsingh case (supra), we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s. In fact that was not the issue before the Court. The black-coloured liquid substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as `opium derivativewhich requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atives.Undoubtedly, Morphine is one of the derivatives of the Opium. Thus, the requirement under the law is first to identify and classify the recovered substance and then to find out under what entry it is required to be dealt with. If it is Opium as defined in clause (a) of Section 2(xv) then the percentage of Morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of a mixture as specified in clause (b) of Section 2(xv) of NDPS Act, that the quantify of morphine contents become relevant. 22. Thereafter, Supreme Court, in case of State through Intelligence Officer, Narcotics Control Bureau Vs. Mushtaq Ahmad and others (2016) 1 SCC 315 while dealing with the validity of percentage of THC in seized contraband accepted the law laid down in the case of Harjit Singh (supra) case and observed as under: '26. In the present case, the contraband article that has been seized is 'charas' and the dictionary clause clearly states that it can be crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. The definition also indicates that any mixture with or ..... 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