PAPPU SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is against judgment of conviction dated 1.10.2005 passed by Learned Special Judge, Panipat convicting the appellant for offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short "the Act") for keeping in his possession 600 grams of Smack without any lawful authority and sentencing him to undergo RI for twelve years and to pay a fine of Rs. 1,25,000/-. In default of payment of fine, the appellant was ordered to undergo RI for three years.

(2.) ON 22.8.2004, in the area of Bus Stand, Panipat, 600 grams of Smack was recovered from the appellant by police party headed by ASI Bhagat Singh-PW5. It is the case of the prosecution that when police party headed by the aforesaid ASI was patrolling outside the Bus Stand, accused carrying a bag in his hand was seen coming from inside Bus Stand. On seeing the police party, he turned back and started walking briskly. It arose suspicion. Appellant was apprehended. On inquiry, he was suspected to carry contraband. A notice under Section 50 of the Act was served upon him. Appellant opted to be searched in the presence of some Gazetted Officer. Shiv Dayal, DSP was called at the spot. He has been examined as PW3 in this case. As per directions of Gazetted Officer, bag in possession of the accused was searched and from that bag, 600 grams smack wrapped in a polythene was recovered. Two samples of 5 grams each were separated and residue along with sample parcels were taken into possession. A ruqa was sent to Police Station. On the basis thereof, a formal First Information Report (Ex.PG) was lodged. Accused along with case property and witnesses were produced before PW7-Om Singh, Inspector/SHO, Police Station City Panipat, who verified the investigation and put his seal on both the sample parcels. Investigating Officer was directed to deposit the case property with Moharar Head Constable, Police Station City Panipat. From the report (Ex.PX) of Forensic Science Laboratory, Haryana Madhuban, the contents of the sample were found to be that of diacetylmorphine. After conducting other formal investigations, prosecution was launched against the accused.

(3.) ARGUMENT , which was raised with substantial force, was that the report (Ex.PX) of Forensic Science Laboratory shows 8.9 % diacetylmorphine in the sample weighing 5 grams. It is contended that if such content of diacetylmorphine is taken into consideration in 600 grams of total contraband recovered, it shall be a non-commercial quantity and therefore, punishment awarded is not sustainable. The learned counsel for the appellant has relied upon judgments of Hon'ble Supreme Court reported as AIR 2008 SC 1720 E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau and AIR 2009 SC 1977 State of NCT of Delhi v. Ashif Khan @ Kalu.