1988 (11) TMI 356 - HC - Indian Laws

Appellant's Conviction Upheld for Narcotic Offense

The High Court confirmed the appellant's conviction under Section 21 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, ... - Issues Involved:1. Legality of the appellant's apprehension and search.2. Credibility of the witnesses.3. Discrepancies in the timeline of events.4. Delay in sending the seized property for chemical analysis.5. Applicability of Section 27 of the Act for small quantity possession.6. Correctness of the charges framed and sections applied.Detailed Analysis:1. Legality of the Appellant's Apprehension and Search:The appellant was apprehended by police officers on patrolling duty who noticed his suspicious behavior. The search was conducted in the presence of two panch witnesses, and four packets of heroin were found in the appellant's shirt pocket. The appellant's defense argued that the search was unauthorized under the Narcotic Drugs and Psychotropic Substances Act, 1985, as the constables were not empowered to seize narcotics and arrest a person from a public place. However, it was noted that Police Head Constable Thakur, who was part of the patrolling party, was authorized under a notification by the Home Department of the Government of Maharashtra, published in the Government Gazette on December 19, 1985. Thus, the search and seizure were deemed lawful.2. Credibility of the Witnesses:The main ocular evidence was provided by Police Constable Premanand Gopal Kalgutkar, who testified about the events leading to the appellant's apprehension and the subsequent search. His testimony was corroborated by Panch witness Arun Madhav Zankar, who confirmed the recovery of the packets and the sealing process. The defense argued that Zankar was a 'professional panch,' but the court found no substantial evidence to discredit his testimony. The court noted that Zankar had a fruit business and was not under any obligation to act as a panch witness for the police.3. Discrepancies in the Timeline of Events:The defense pointed out minor discrepancies in the timeline, such as the exact time of apprehension and the start of the panchanama. The court found these discrepancies to be negligible and not significant enough to affect the credibility of the witnesses or the integrity of the investigation. The court emphasized that minor variations in timings are expected and do not necessarily indicate falsehood or faulty investigation.4. Delay in Sending the Seized Property for Chemical Analysis:The seized property was sent to the Chemical Analyser on July 20, 1987, despite being apprehended on October 2, 1986. The court accepted the explanation provided by Police Head Constable Govind Sitaram Satardekar that it was a practice to send samples only in ten crimes per month to the Chemical Analyser. The court found no prejudice caused to the defense due to this delay, as the chain of custody was maintained, and the property was clearly identified and analyzed as heroin.5. Applicability of Section 27 of the Act for Small Quantity Possession:The defense argued that the appellant should be convicted under Section 27 of the Act, which pertains to small quantities intended for personal consumption, with a lighter punishment. The court rejected this argument, stating that the burden was on the appellant to prove that the narcotic drug was intended for personal consumption, which he failed to do. The presence of four packets indicated that the heroin was not for personal use but likely for sale or distribution.6. Correctness of the Charges Framed and Sections Applied:The trial court had incorrectly mentioned that the appellant was convicted under Section 17 read with Section 22 of the Act. The High Court clarified that the correct sections were Section 21 read with Section 8(c) of the Act, which pertain to the possession of manufactured drugs like heroin. Despite this error, the court found no prejudice caused to the appellant. The court also noted the need for Chemical Analyser's reports to specify the exact definition under Section 2 of the Act for better clarity in future cases.Conclusion:The High Court confirmed the appellant's conviction and the sentence of ten years rigorous imprisonment and a fine of one lakh rupees. The appeal was dismissed, with a clarification that the conviction was under Section 21 read with Section 8(c) of the Act. The court also directed that a copy of the judgment be sent to the Secretary, Public Health Department, Government of Maharashtra, to ensure that Chemical Analyser's reports in future cases clearly specify the definitions under Section 2 of the Act.