ASHOK ASUMAL BAJAJ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) CERTAIN features of some importances relating to the procedure to be followed in Narcotics cases where seizures of very small quantities of contraband is made, as also the manner in which a Court would approach section 27 of the Act for ascertaining as to whether the accused found in possession of the contraband can be said to have obtained it for personal consumption, fall for determination in this case. The appeal has been preferred by the appellant who has been convicted under section 22 of the Narcotic Drugs and psychotropic Substances Act and awarded a sentence of 10 years rigorous imprisonment and to pay a fine of Rs. 1, 00,000/- in default to suffer rigorous imprisonment for two years. It is alleged that on 16-6-1990 at about 10-35 a. m. the accused was apprehended by the Police authorities near Zulelal Mandir which is located adjacent to the Pimpri market. On his being searched in the presence of panchas, 8 pudis were found in his trouser pocket and it was detected that they contained Gard Powder. The Police weighed the packets which collectively recorded a weight of 1 gram 950 mlg. The contraband was sent to the Chemical Analyser and the Analysis report is to the effect that Heroin is detected in all the eight samples along with other opium alkaloids. The accused came to be prosecuted and the learned trial Judge accepted the prosecution evidence, convicted him and awarded a sentence as indicated above. The only feature of some relevance which needs to be mentioned is that the accused in his statement under section 313, Cr. P. C. mentioned that he is addicted to consumption of this particular material. The accused who is in custody has through this appeal assailed the correctness of the conviction recorded against him.

(2.) KUM. Dandekar, learned Counsel appearing on behalf of the appellant has assailed the evidence on record which consists of the deposition of the pancha who has supported the prosecution case, as also the P. S. I. Divane who carried out the raid. She contends that the police have falsely implicated the accused and that he was picked up on suspicion and the material which the Police do not have difficulty in laying their hands on was planted on him. We have scrutinised the depositions of these two witnesses as also the panchanama and in our considered view, there is nothing that has been brought on record that would justify our rejection of this evidence. That the accused was apprehended on the morning of 16-6-1990 and that the 8 pudis were found on his person has been established and the finding of the trial Court to this effect cannot be distrubed.

(3.) THE second submission advanced by the learned defence Counsel is that the investigating authorities have committed a serious error in having weighed the paper packets along with the drug and in having recorded the aggregate weight of 1. 950 grams. Ku. Dandekar submits that section 27 of the Act specifically prescribes a lesser punishment for possession of small quantities and she contends that had this error not been committed, that there is enough material on record to indicate that this case would come within the ambit of section 27 of the Act. The learned A. P. P. on instructions from the Investigating Officer has pointed out to us that in the present case, the amount of powder in each of the packets was so very small that the only option available to the Officer was to seize the packets in the condition in which they were. The learned A. P. P. conceded that it is the weight of the contraband which is material and particularly in cases where the quantity is small, it is more important for the investigating authorities to follow a procedure whereby the Court can definitely ascertain as to what exactly the small quantity was. In the present case, we do concede that there are practical difficulties in the way of the authorities in the matter of transferring the powder separately and thereafter ascertaining the exact weight of the powder. In the absence of the paper in which it is wrapped. To our mind, it is not impossible. All that the Officer is required to do is to ascertain the total weight, thereafter ascertain the weight of the wrappers and if these two are accurately recorded, the difference between them would certainly indicate the exact quantity and weight of the powder that was contained in the wrappers. It is not only desirable but essential that such a procedure be adhered to as otherwise a Court would find it difficult as in the present case to hold that the quantity involved is not within the ambit prescribed by section 27.