2011 ALL MR (Cri) 2859
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

S.A. BOBDE AND F.M. REIS, JJ.

Nandlal Shyamdas Vs. State Of Goa

Criminal Appeal No. 39 of 2009

12th August, 2011

Petitioner Counsel: Mr. J. P. D'SOUZA , Mr. K. POULEKAR
Respondent Counsel: Mr. C. A. FERREIRA

Narcotic Drugs and Psychotropic Substances Act (1985) S. 8(c) r/w S.20(b)(ii)(c) - Criminal trial - Benefit of doubt - Absolutely no material on record to draw any inference of doubt - Without any material on record, it is not possible to Create a doubt so as to give any benefit to the accused for the purpose of the Sentence.(2008)5 SCC 161 - Ref. to. (Para 10)

Cases Cited:
E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161 [Para 10]
Salim Ibrahim Chouhan @ Hussain Sahik Vs. State of Maharashtra, Criminal Appeal No. 268/2008 [Para 10]


JUDGMENT

S. A. BOBDE, J. :- This appeal is by an accused against judgment and order of the learned Special Judge, Narcotics Drugs and Psychotropic Substances Court, Mapusa (NDPS Court) sentencing the appellant to rigorous imprisonment for ten years and to pay a fine of Rs. One Lac and in default to undergo rigorous imprisonment for a further period of six months for an offence punishable under Section 8(C) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. The appellant has been found in illegal possession of 1.125 Kg. of a substance, which has been found to be Charas, near Arpora Market Junction, Arpora, Bardez-Goa between 9.15 hrs. to 12.15 hrs. on 02.02.2008. Initially, this appeal was heard by learned Single Judge of this Court who, by order dated 31.03.2010 found himself unable to agree with the judgment of the other learned Single Judge of this Court in Criminal Appeal No. 20/2009 - Yair Daniel Lavon ..vs.. State of Goa decided by Mr. N. A. Britto J., on 16.10.2009 and, therefore, took a view that the appeal can be more advantageously heard by a Bench of two or more Judges. The appeal is, thus, placed for decision before us under Chapter I Rule 7 of the Bombay High Court Appellate Side Rules for decision.

3. At the hearing, Mr. D'souza, learned counsel for the appellant, stated that the appellant does not challenge the recovery of contraband from the appellant but merely wishes to challenge the conviction and sentence under Section 8 (c) read with Section 20 (b) (ii) (C) of the NDPS Act, on the ground that the evidence is not sufficient to establish the charge that the appellant was found in possession of commercial quantity of Charas and was, therefore, liable for punishment for a period of ten years. It may be noted that Section 20 of the NDPS provides for graded punishment directly proportionate to the quantity of contraband found with the accused. Section 20 reads as follows:

"20. Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provisions of this act or any rule or order made or condition of licence granted thereunder,-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, processes, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-

(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to sub-clause (b),-

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

Thus the only question that falls for consideration before us is, whether the appellant was found to have possessed Charas in commercial quantity and is, therefore, liable to suffer imprisonment under Section 20 (b) (ii) (C) of the NDSP Act for ten years or above. In other words, whether the appellant has been found to be in possession of 1 Kg. or more of Charas, which is the commercial quantity prescribed by Notification dated 16.07.1996. The relevant entry-23 in the said Notification is as follows:


TABLE
[see sub-clause vii(a) and xxiii (a) of section 2 of the Act]

Sl.No.



Name of Nartotic Drug
and Psychotropic Subst-
(International non-propri-
etary name (INN)
Other non-
proprietary
name

Criminal name



Small
Quantity
(in gm.)

Commercial
Quantity
(in gm./kg)

1
2
3
4
5
6

1. to 22.
------
------
-----
-----
-----
23.


Cannabis and cannabis
resin

CHARAS,
HASHISH

EXTRACTS and
TINCTURES OF
CANNABIS
100


1 Kg.



4. The appellant was charged with being in illegal possession of 1.125 Kg. of Charas. This was seized by Anti Narcotic Cell and was forwarded to Chemical Analyser i.e. Senior Scientific Officer of the Directorate of Food and Drugs, Panaji. This Senior Scientific Officer deposed as PW1 and stated that he found inside a sealed envelope, yellow colour polythene carry-bag tied at the mouth with self knot, in turn containing dark brown colour substance. The witness deposed that the total weight of the substance was 1.125 Kgs. He further deposed that nineteen pieces were selected at random as representative sample and were analysed. The substances were put through the following tests and yielded the following result:

Microscopic examination : The substance was coarsely powdered treated with 10% sodium hydroxide and dropped of the resulting solutionw as taken on glass slide and observed under the miscroscopic showed presence of hair resembling Charas hair.

Identification test for Charas : The substance was extracted with petroleum ether filtered and filtrate was subjected to the following test:

Beam's Acid Test : Filtrate with beams 'reagent produced a red colour ring at the interaction of the two liquid, a positive test for Charas.

Neagm's teat : Filtrate with the neagm's reagent in presence of Hydro Chloric Acid develops colour grey changing to green to bule and finally violet a positive test for Charas.

Fast Blue B Salt Test : Filtrate with the solution of Fast blue salt reagent on agitation of two liquids, the aqueous layer turned red, a positive test for Charas."

The witness then concluded from the test as follows:

"I conclude from the above tests the substance analysed by me from the sealed envelope Exhibit 1 described above contains Charas."

The learned counsel for the appellant submitted that the last mentioned statement of the witness merely establishes that one of the component of the substance was Charas since the witness has stated that the substance analysed by him contains Charas. This, according to the learned counsel, implies that Charas was a part of the substance and the other part having been left unspecified, there is no way of telling that the appellant was found in possession of commercial quantity of Charas i.e. 1 Kg. or more and, therefore, was not liable to be punished under Section 20 (b) (ii) (C) of the NDPS Act.

5. The learned counsel for the appellant submitted that the witness used the word, "contains" while stating that the substance contains Charas and did not state that the substance "is Charas". According to the learned counsel, the appellant could have been punished for having possessed commercial quantity only if the witness had stated that the substance (entire) "is Charas" The learned counsel for the appellant relied on the meaning of the word "contain" in common usage and dictionary to state that it is used only to denote a part of the whole as being the content and not the whole.

6. We, however, find from the reading of the evidence in this case that statement of a witness that the substance analysed by him contains Charas, refers to the existence of Charas having been found throughout the substance that is 1.125 Kg. and not as if a part of substance was Charas. It must be remembered that the statement comes from a person trained in science and that is the way in which scientists state their conclusion about the contents of a substance which is analysed. For instance, a Scientist would state conclusion about analysis of a ring as, "I conclude that the ring which is 10 Tolas, contains gold". This would not lead to the conclusion that the ring is not of pure gold and is mixed with any other metal.

7. There is, therefore, no merit in the contention on behalf of the appellant that the statement of the witness that the substance contains Charas refers only to a part of the sample as being Charas, which means that only 1% may be Charas or even 99% may be Charas and that since there is an ambiguity as to how much of it is Charas, the benefit of this doubt must be given to the accused/appellant. The learned counsel further contended that the appellant was certainly not bound to establish what percentage of the substance was Charas but it was for the prosecution to prove beyond reasonable doubt that more than 1 Kg. from 1.125 Kg. was Charas.

We find that this argument on behalf of the appellant is based on an erroneous assumption that there is nothing in the evidence led by the prosecution that suggests that the substance contains anything other than Charas. There is a categorical assertion that the substance, which was analysed contains Charas. This cannot be interpreted to mean that Charas was only a part of the contents and there were other substances which have not been named and whose quantity or proportion has also not been established and, therefore, there is a doubt as to the quantity that was found in possession of the appellant. There is no foundation led in the evidence i.e. by cross-examination or in any manner by the appellant for the assumption that the substance contained a mixture of Charas with some other substance and that the weight of Charas in the said mixture was less than 1 Kg.

8. The learned counsel for the appellant relied on the judgment of this Court in Criminal Appeal No. 19/1991 decided on 23.10.1991. In that case, there is no finding that for want of small quantitative analysis, it may be concluded that the proportion of Charas was "small quantity" as is defined. In fact, the Division bench proceeded to observe about this contention in the following words;

"In fact, in view of this, it is not necessary for us to examine the other contentions raised by Mr. Chari that no quantitative analysis was done by Chemical Analyser and that the substance found with the appellant would fall under "small quantity".

In any case, we find from the deposition of the witness-Chemical Analyser-reproduced by the Division Bench that some foundation had been led by the accused while crossexamining the witness for being able to contend that the proportion of Charas was less than 1 gm. and that the rest may have been impurities.

9. In the case before us, we find that there is no crossexamination whatsoever of the witness on this point and the witness has not even been pointing if there was any other substance other than Charas found in the analysis. In fact, on this point, Mr. Carlos Ferreira, the learned Public Prosecutor, has rightly pointed out to the definition of Charas defined in the Act. The definition of Charas is as follows :

Section 2(iii) "cannabis (hemp)" means-(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

The definition of Charas contemplates that Charas may be crude or refined and there need not be mixture of any other substance along with Charas only because the witness said that the substance "contains Charas."

We find that even if it is assumed that the witness meant that there was some other substance along with Charas while saying that the substance "contains Charas", it need not refer to any other substance, which is not Charas but could very well refer to some impurity in crude Charas.

We make this observation only to point out absence of any foundation having been led for the contention now sought to be advanced.

10. The learned counsel for the appellant relied on the decision of the Supreme Court in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau; (2008) 5 SCC 161, where in the facts of that case, the Supreme Court made the following observations:

"15. ........Thus, 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 gms. and contains 0.2% of heroin or more would be punishable under Section 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 may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be qualified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or 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 the 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 severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment."

We find that the observations of the apex Court which dealt with assessment of a narcotic substance in a mixture has no application to the facts of the present case, where there is no evidence whatsoever of the substance found with the appellant being a mixture of Charas with anything else. In fact, on the contrary, the prosecution witness has referred only to Charas in his evidence and there is no suggestion to him in cross-examination that if the analysis shown the existence of any other substance in the contents.

The judgment of the Division Bench of this Court dated 02.06.2008, in Salim Ibrahim Chouhan @ Hussain Sahik Vs. State of Maharashtra; Criminal Appeal No. 268/2008, is not applicable to the facts of the present case. On the basis of the material on record, the actual quantity of Charas with the appellants therein was found to fall in between small quantity and commercial quantity on the basis of the CA report samples which contained 5.63 percent and 4.40 percent Charas. In the present case, no such material is found on record to draw such conclusion. Without any material on record, it is not possible to create a doubt so as to give any benefit to the appellants as contended by the learned counsel appearing for the appellants. There is absolutely no material on record to draw any inference of doubt and, as such, the contention of the learned counsel appearing for the appellants to the effect that the benefit of doubt is to be given to the appellant for the purpose of the sentence, cannot be accepted.

11. In the result, we find no merit in the appeal. The same is, therefore, dismissed.

Appeal dismissed.