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TMI Blog2013 (5) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment of fine, to suffer further rigorous imprisonment for a period of one year. 2. The factual matrix as has been undraped by the prosecution is that on 23.12.1992 about 10.00 A.M., Kaptan Singh, the Sub-Inspector, along with other police officials, was present near Deer Park, Pipli, in connection with excise checking in a Tata Mobile Vehicle. Receiving a secret and reliable information to the effect that the accused-Appellant would come to the 'dhaba' situated on the G.T. Road, on his scooter, carrying opium and if a picket was held, he could be apprehended, he sent a V.T. message to the Additional Superintendent of Police to reach the place. Thereafter, Kaptan Singh, along with other police officials, went to the T-point of Jahajo Wali Road on G.T. Road and held a picket. In the meanwhile, the accused was seen coming on his scooter, bearing No. DLS-1756 and at that time Muhammad Akil, Additional S.P., Kurukshetra, along with his staff arrived at the spot. He was apprised of the situation and, thereafter, on his instructions search of the tool box of the scooter was conducted and a polythene bag containing of 5 kg. of opium was recovered. Ten grams opium was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. Apart from raising the contentions which were raised before the learned trial Judge, a further submission was put forth that as per the report of the Forensic Science Laboratory morphine content contained in the sample was found only to be 1.66% and as the morphine percentage in the bulk of the opium was required to be taken into consideration, the alleged recovery of opium did not fall within the ambit of noncommercial quantity and hence, the sentence should have been imposed regard being had to the non-commercial quantity and not commercial quantity. The High Court concurred with the view expressed by the learned trial Judge and proceeded to deal with the additional submission and ultimately held that as the seizure had taken place on 23.12.1992, the amendment which has been brought into the Act in the year 2001 would not be attracted. Be it noted, the non-production of the scooter before the trial court was highlighted with immense vehemence but the learned Single Judge repelled the said submission being devoid of any substance and further directed confiscation of the scooter in question as envisaged under the provisions contained in Sections 60(3) and 63 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence on record that the police officials had requested the people present in the 'dhaba'; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and Anr. (2001) 1 SCC 652 and Ramjee Rai and Ors. v. State of Bihar (2006) 13 SCC 229. Appreciating the evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalyst's report was 60 gms., which was more than 5 gms., i.e., small quantity, but less than 250 gms., i.e., commercial quantity. 12. In the case at hand, the High Court has opined that as the opium was seized on 23.12.1992, the amendment brought in the statute book would have no applicability. It is also wroth noting that the appeal was preferred in the year 1996. In Basheer Alias N.P. Basheer v. State of Kerala (2004) 3 SCC 609 while dealing with the constitutional validity of the proviso to Sub-section (1) of Section 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001), this Court upheld the constitutional validity of the said provision and opined thus:- In the result, we are of the view that the proviso to Section 41(1) of the amending Act 9 of 2001 is constitutional and is not hit by Article 14. Consequently, in all cases, in which the trial had concluded and appeals were pending on 2.10.2001, when amending Act 9 of 2001 came into force, the amendments introduced by the Amending Act 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the NDPS Act, 1985, as it stood before 2.10.2001. 13. Y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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