Time frame of chemical analysis report of drug substance
Anuj
(Querist) 01 May 2013
This query is : Resolved
Thank you so much Dear Experts,
Arest of my father has been done by showing commercial quantity of 50 Kg of contrabaned purported to be a Methaqualone. The PP says since this is commercial qauntity the period for filing CA Report and complaint is 180 days as per sec 167(2) of Cr.PC Act 1973.
My father has never indulge in any such kind of unethical doings. He is now 59 year old age man and a diabitic and Blood pressure patient.
The contrabaned was seized from some courier company by the Customs AIU officials and that companys directors deliberatly mentioned my father name in the case and they get relive themselves from the case. Now my father is only the person they are treating as accused in the said case.
If required I can also attach copy of Remand application for your reference.
Please Help my father.
ajay sethi
(Expert) 01 May 2013
wait for CA report . since quantity mentioned is 50 kgs and commercial quantity your father wont be released on bail easily .
why should any courier company implicate your father ? your father must have dispatched by courier some goods . before dispatch courier company must have opened packet to cross check what are the contents of the package ?
ajay sethi
(Expert) 01 May 2013
As per the provisions of Section 36- A(4) of the NDPS Act, in case of commercial quantity, if the charge sheet is not
filed within 180 days, then only the accused can be released on bail under Section 167(2) of Cr.P.C.
under Sectino 21, where contravention involves small quantity, the punishment may be rigorous imprisonment which may extend to six months or with fine which may extend to ten thousand rupees, or with both, where the contravention involves commercial quantity, the offence is punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years, and fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. However, if the contravention involves a quantity less than commercial quantity but greater than small quantity, the punishment may be rigorous imprisonment for a term which may extend to ten years and fine which may extend to one lakh rupees.
ajay sethi
(Expert) 01 May 2013
ombay High Court
Rajesh Jaswantlal Solanki vs 3) The State Of Maharashtra on 15 February, 2011
Bench: J. H. Bhatia
1 Cri-176-11-&-200-11.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Mhi
CRIMINAL APPLICATION NO. 176 OF 2011
AND
CRIMINAL APPLICATION NO. 200 OF 2011
CRIMINAL APPLICATION NO. 176 OF 2011
Rajesh Jaswantlal Solanki )
Aged - 45 years, Occ: Business, )
resding at Room No.601, 6th floor, )
Shikhar Tower Gokuldas Pasta Lane, near )
Chitra Cinema, Dadar East, Mumbai - 14. ).. Applicant/orig.complainant Versus
1. Ravindranath Shelatkar )
Age 52 years resident of 1204, Bhakti)
Park, Salt Pan Road, Near Imax )
Cinema, Wadala, Mumbi 37. )
(Presently lodged and detained at )
Mumbai Central Prison, Mumbai) )
(Order of grant of bail stayed till )
4th February 2011). )..Accused 1. 2) The Deputy Commissioner of Police )
Unit-1, Crime Branch, CID, Mumbai.)
3) The State of Maharashtra )..Respondents WITH
CRIMINAL APPLICATION NO. 200 OF 2011
Rajesh Jaswantlal Solanki )
Aged - 45 years, Occ: Business, )
resding at Room No.601, 6th floor, )
2 Cri-176-11-&-200-11.sxw
Shikhar Tower Gokuldas Pasta Lane, near )
Chitra Cinema, Dadar East, Mumbai - 14. ).. Applicant/orig.complainant Vs.
1) Rajendra Dhondu Bhosale )
Age 38 years, Resident of New )
Body Guard Police Line, Room No.12)
New Dockyard Road, Mumbai 10. )
(presently lodged and detained at )
Mumbai Central Prisoon, Mumbai). )
(Order of grant of bail stayed till )
8th February 2011). )..Accused
2) The Deputy Commissioner of Police )
Unit-1, Crime Branch, CID, Mumbai.)
3) The State of Maharashtra. )..Respondents Mr.Swapnil Wagh i/b. Mr. Rizwan G.Merchant,Advocates, for the applicant. Mr.A.K.Wanwari i/b. Mr.K.A.J.Merchant,Advocates for the respondent No.1. Mr. Ayaz Khan, Advocate, for the respondent No.1 (in B.A.No.200/2011). Smt. P.P.Shinde, APP, for the Respondent - State.
CORAM: J.H.BHATIA,J.
DATE : 15th February, 2011.
JUDGMENT.
1. Both these Applications are filed by the original complainant for cancellation of bail granted to the accused persons, who are respondent No.1 in these two Applications by orders dated 1.2.2011 and 3.2.2011. 3 Cri-176-11-&-200-11.sxw
2. The implementation of the impugned orders was stayed by this Court and with consent of the learned Counsel, these Applications were taken up for hearing urgently.
3. To state in brief, the accused No.1 Ravindranath Shelatkar and the complainant/applicant had some rivalry. According to the complainant, accused No.1 Ravindranath hatched a conspiracy with accused Rajendra Bhosle, who was a police officer and some other police officers of Dongri Police Station, to falsely implicate the complainant in a case under the NDPS Act. As per the conspiracy, the accused persons planted 340 grams of heroin in the car of the complainant and arrested him. Accused Rajendra Bhosle registered Crime No.4/2004 under Sections 8(c) and 21 of the NDPS Act against the applicant and he was in custody for 150 days. On his application, the investigation was taken over by the superior officers and the true facts were revealed . The applicant was discharged and on the complaint of the present applicant, the learned Addl. C.M.M., 2nd Court, Mazgaon, Mumbai, directed investigation under Section 156(3) by the DCP Zone- I. The complaint was investigated by the officers of M.R.A. Marg Police Station and FIR came to be registered against 11 police officers, including Rajendra Bhosle and the builder Ravindra Shelatkar and his friend. Statements of several witnesses were recorded by the Investigating Officer and also under Sec. 164 4 Cri-176-11-&-200-11.sxw
Cr.P.C. The accused Rajendra Bhosale and Ravindra Shelatkar came to be arrested under the provisions of NDPS Act for possessing the contraband and for planting the same in the car of the applicant.
4. Both the accused persons filed applications for bail under Section 167(2) Cr.P.C. contending that in view of the C.A. report, the quantity of heroin was less than commercial quantity and as the charge sheet was not filed within 60 days after the date of arrest, they be released on bail. The learned Special Judge accepted the cotentions and granted bail to both the accused. According to the applicant, the C.A. report was misread and on the basis of the C.A. report, it cannot be held that the quantity of the drug was less than commercial quantity. According to him, as the quantity in possession of the accused persons, which was planted in the car of the applicant, was 340 grams, in view of a Notification dated 18.11.2009 issued by the Government of India, entire mixture or solution has to be taken into consideration for the purpose of deciding whether it is a commercial or small quantity. According to him, commercial quantity of heroin as well as opium derivative being 250 grams, in this case, the accused were in possession of 340 grams of heroine or opium derivative. Therefore, prima facie, the accused were in possession of commercial quantity. As per the provisions of Section 36- A(4) of the NDPS Act, in case of commercial quantity, if the charge sheet is not 5 Cri-176-11-&-200-11.sxw
filed within 180 days, then only the accused can be released on bail under Section 167(2) of Cr.P.C.
5. The learned APP supported the applications filed by the complainant for cancellation of bail.
6. The learned counsel for the accused referred to several provisions of the NDPS Act and the Judgments of the Supreme Court, particularly the Judgment in E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 2 SCC (Cri) 558 in support of their contention that purity of heroin or morphin in the total quantity of contraband article is relevant to come to a finding as to whether the accused were in possession of small quantity or commercial quantity or intermediate quantity of heroin or opium derivative.
7. According to the applicant, the samples sent to the C.A. were tampered with and therefore fresh samples are required to be sent for test to Forensic Science Laboratory, Hyderabad or Chandigarh. The learned Counsel for the parties fairly conceded that at this stage, the Court will have to decide the matter on the basis of the C.A. report dated 10.12.2004 presuming the same to be correct. It appears that 8 samples were taken and they were sent to Forensic 6 Cri-176-11-&-200-11.sxw
Science Laboratory, Mumbai and as per the report dated 10.12.2004, the traces of heroin and Monoacetyl Morphine along with other opium alkaloids is detected in Exh.1 to 8. As per the report, Exhibits 1 to 8 fall under Section 2(xvi)(e) of the NDPS Act. The report also shows that the percentage of Monoacetyl Morphine is as follows :-
"Exh.No. Monoacetyl Morphine (MAM)% 1 1.56
2 1.69
3 1.65
4 1.82
5 1.90
6 1.90
7 1.66
8 1.65" On an average, the sample contained 1.72% of Monoacetyl Morphine.
8. To appreciate the arguments of the learned Counsel for the parties, it 7 Cri-176-11-&-200-11.sxw
will be necessary to refer to the definitions of certain important terms. Under Section 2(xi) of the NDPS Act, "manufactured drug" means (a) all coca derivatives medicinal cannabis, opium derivatives and poppy straw concentrate and any other narcotic substance or preparation which the Central Government may, declare to be manufactured drug. Under Section 2(xv) "opium" means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine;" As per Section 2(xvi)(e) "opium derivative" means all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine. Diacetylmorphine is also known as heroin as shown by clause (d) of Section 2(xvi). In the present case, minimum Monoacetyl Morphine was 1.56% and maximum was 1.90% in the said 8 samples. Thus, each sample contained more than 0.2% Morphine. The learned Counsel for the applicant referred to the Multilingual Dictionary of Narcotic Drugs and Psychotropic Substances under International Control. As per this dictionary, Monoacetyl Morphine, 3 acetylmorphine and 6 acetylmorhine are the chemical names while the common name is "Morphine". The C.A. report shows that traces of heroin and Monoacetyl Morphine along with other opium alkaloids were detected. As the percentage of Morphine was more than 0.2% and the samples also contained heroin or diacetylmorphone they fall within the 8 Cri-176-11-&-200-11.sxw
definition of "opium derivatives" under Section 2(xvi)(e) as reported by the C.A.
9. Prior to the NDPS Amendment Act, 2001 (with effect from 2.10.2001) irrespective of the quantity of the drug, the sentence, which could be awarded, would be same. However, the said Amendment was brought with intention to rationalise the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances.
10. In the case of E. Micheal Raj (supra), total quantity of contraband seized from the accused was 4.07 kg. However, as per the Forensic Science Laboratory report, purity of heroin was 1.4% and 1.6% respectively in the two samples and therefore, the quantity of heroin in the total contraband was just 60 grams. As the total quantity of heroin seized was below 250 grams, which is a commercial quantity, it was contended that the accused could be sentenced for possessing not the commercial quantity, but less than commercial quantity or intermediate quantity. In view of the Amendment of 2001, and in view of the fact that small quantity has been mentioned as 5 grams and commercial quantity has been mentioned as 250 grams, it was necessary to find out the purity of heroin to find out whether the accused was in possession of commercial quantity, small 9 Cri-176-11-&-200-11.sxw
quantity or intermediate quantity. After the Amendment of 2001, under Sectino 21, where contravention involves small quantity, the punishment may be rigorous imprisonment which may extend to six months or with fine which may extend to ten thousand rupees, or with both, where the contravention involves commercial quantity, the offence is punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years, and fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. However, if the contravention involves a quantity less than commercial quantity but greater than small quantity, the punishment may be rigorous imprisonment for a term which may extend to ten years and fine which may extend to one lakh rupees. In E.Micheal Raj, the Supreme Court observed thus in para 15 :-
"15. It appears from the Statement of Objects and
Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalized sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to 10 Cri-176-11-&-200-11.sxw
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 gm 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 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified 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 insignificant quantities, with more severe punishment."
The Supreme Court held that even though the accused was found in possession of 4.07 kg. of contraband article, heroin in 11 Cri-176-11-&-200-11.sxw
the same was only 60 grams and therefore it was less than commercial quantity and sentence was passed accordingly. Same view has been reiterated by the Supreme Court in State of NCT of Delhi vs. Asif Khan (2009) 4 SCC 42. In that case, according to prosecution, 310 grams of heroin was recovered from the accused. As per Forensic Science Laboratory sample contained 0.95% of diacetylmorphin and thus the weight of heroin in the said contraband was only 2.945 grams which is small quantity within the meaning of Section (xxiii-a) and the accused was liable to be sentenced accordingly. Same view was taken in Ouseph v. State of Kerala, (2004) 4 SCC 446.
11. The learned Counsel for the accused vehemently contended that the percentage of Morphine or heroin in the contraband would also be equally relevant for the purpose of deciding whether the provisions of Section 167(2) Cr. P.C. are applicable or not. For this purpose, the learned Counsel placed reliance upon Sami Ullaha vs. Superintendent,Narcotic Central Bureau 2008 Drugs Cases (Narcotics) 705. In Sami Ullaha, the accused was granted bail by the Special Court, but it was cancelled by the High Court. The order of the High Court was set aside by the Supreme Court. In that case, the contraband weighing 2 kgs. was recovered from the accused. However, the report from the Central Revenue Control laboratory, New Delhi, revealed that only 2.6% of the sample was found to be heroin and, therefore, the quantity alleged to have been recovered from the accused could be said to be intermediate quantity. Therefore, the rigours of Section 37 in respect of grant of bail could not be applicable to the same. 12 Cri-176-11-&-200-11.sxw
12. Section 36-A(4) of the NDPS Act reads thus :- (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27-A or for offences involving commercial quantity the references in sub- section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur,shall be construed as reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eight days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
As per proviso to Section 167 (2) Cr. P.C. if charge sheet is not filed within 90 days after the date of arrest, where investigation relates to an offence punishable with death,imprisonment for life or imprisonment for a term of not less than ten years and if the charge sheet is not filed within sixty days, where the investigation relates to any other offence, the accused is entitled to be released on bail. In view of the provisions of Section 36-A(4) of the NDPS Act, where the accused is arrested for an offence involving commercial quantity and the charge sheet is not 13 Cri-176-11-&-200-11.sxw
filed within 180 days after the date of arrest, the accused would be entitled to be released on bail unless of course, the said period has been extended by the Special Court. In view of this legal position, if the accused are involved in an offence involving commercial quantity, bail cannot be granted to them under Section 167(2) Cr P.C. unless the period of 180 days after the date of arrest has expired, but if the quantity is less than commercial quantity, the accused will be entitled to be released on bail if the charge sheet is not filed within 60 days after the date of arrest. Therefore, it is necessary to find out whether the contraband found in possession of the accused was a commercial quantity or less than commercial quantity.
13. Keeping in mind the above authorities and the legal position, the facts of the present case will have to be examined. In the present case, contraband which was allegedly in possession of the accused persons was 340 grams. It was treated as heroin. However, as pointed out earlier, the C.A. report reveals that only traces of heroin, Monoacetyl Morphine along with other opium alkaloids was detected in the same. The percentage of Morphine was though more than 0.2% and actually it comes to around 1.72%. In view of the presence of heroin, though in a very small quantity, and presence of Morphine in the samples the said samples fall within the definition of opium derivative within the meaning of 14 Cri-176-11-&-200-11.sxw
Section 2(xvi)(e) of NDPS Act. The learned Counsel for the accused pointed out that the applicant, when he was facing the same case earlier as an accused, had contended that the total quantity of Morphine was just 5.8 grams, which was less than the commercial quantity. On the other hand, the learned Counsel for the applicant contended that if the C.A. report is carefully read, it will reveal that the samples contained heroin and Monoacetyl Morphine along with other opium alkaloids and not the neutral substances ordinary sugar or any other eatable article. In the Notification issued by the Government of India, under clauses (vii- a) and (xxiii-a) of Section 2 of the NDPS Act, small and commercial quantities of the different narcotics drugs and psychotropic substances are given. Entry No.56 pertains to heroin or dicetylmorphin and small quantity is shown to be 5 grams and commercial quantity to be 250 grams. In the present case, only traces of heroin were found and the percentage of heroin is not mentioned Therefore, it could be said that the heroin in the said samples must be less than small quantity. Entry 77 deals with morphine and case, small quantity is 5 grams and commercial quantity is 250 grams. In view of the percentage of morphine found in the samples, morphine may be slightly more than small quantity, but less than commercial quantity. Entry 92 deals with opium which is punishable under Section 18. In case of opium and other preparation containing opium, the small quantity is 25 grams while commercial quantity is 2.5 kg. The C.A. report does 15 Cri-176-11-&-200-11.sxw
not show that samples were opium. Entry 93 pertains to Opium Derivatives. Column 4 of the said Notification, which gives the chemical names, shows that the Opium Derivatives in Entry 93 means material other than heroin, morphine or those listed herein. In case of opium derivatives also the small quantity is 5 grams and commercial quantity is 250 grams. As the opium derivatives shown in Entry 93 pertains to opium derivatives other than heroin or morphine and those listed in the Notification, the percentage of heroin or morphine is not determinative factor. In the present case, the C.A. report reveals that besides the traces of heroin and some percentage of morphine, it contained other opium alkaloids. The report does not reveal that the samples contained anything other than heroin, morphine or other opium alkaloids. None of these articles are the neutral substances and therefore, the case would fall within the meaning of Entry 93 and as the quantity of the said substance, which was opium derivative, was 340 grams, it was a commercial quantity.
14. The learned Counsel for the accused referred to Entry 239 in the Notification which reads as follows :-
"239. Any mixture or preparation that of with or without a neutral material, of any of the above drugs. - x xx *Lesser of the Small quantity between the quantities 16 Cri-176-11-&-200-11.sxw
given against the respective narcotic drugs or
psychotropic substances mentioned above forming part of the mixture.
**Lesser of the Commercial quantity between the
quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture."
In my opinion, Entry 239 has no application to the facts of the present case because Entry 93 about opium derivative is specific.
15. The learned Counsel for the applicant contends that the Judgment in E.Micheal Raj (supra) was delivered by the Supreme Court on 11.3.2008 and the Government of India made an amendment by Notification dated 18.11.2009 in the earlier notification dated 19.10.2001 and added Note 4 which reads as follows :- "(4) The quantities shown in column 5 and column
6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic
substances of that particular drug in dosage form or isomers, esters, ethers and salts of those drugs, including salts of esters, ethers and isomers,wherever existence of such substance is possible and not just its pure drug content."
The learned Counsel contends that in view of this amendment, the total 17 Cri-176-11-&-200-11.sxw
quantity of substance will have to be taken into consideration and therefore, the authority in E. Micheal Raj will be no more applicable.
16. On the other hand, the learned Counsel for the accused contended that the said amendment will not affect the present case in any way for two reasons. Firstly, the said amendment cannot be given retrospective effect. According to the learned Counsel, on the basis of the notification in force since 2001, as interpreted by the Supreme Court in E.Michael Raj,if the accused was found in possession of less than commercial quantity for the purpose of punishment as well as for the purpose of grant of bail,he will have to be dealt with as per authorities in E.Micheal Raj and Sami Ullaha. By making amendment in 2009, the punishment which could be awarded to the accused for the offence committed in the year 2004 could not have been more stringent and serious. The learned Counsel placed reliance upon Superintendent, Narcotic Control Bureau vs. Parash Singh (2009) 2 SCC (Cri)1147, in support of his contention that if the punishment prescribed by the amendment is higher than what was prescribed by law in force at the time of commission of offence, such amendment 18 Cri-176-11-&-200-11.sxw
cannot be given retrospective effect. This position of law was reiterated by the Supreme Court in the case of Parash Singh and there can be no dispute about this legal proposition. Secondly, the learned Counsel also tried to point out that if the language of Note 4, as inserted by the Notification dated 18.11.2009, is read carefully, it only indicates that the quantity prescribed in the Notification shall apply to entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug. The learned Counsel contended that if the total quantity contained neutral substance, the neutral substance cannot be considered and taken into account for the purpose of deciding the commercial or small quantity even after the said amendment. Prima facie, there appears substance in the contention of the learned Counsel for the accused in this respect. Therefore, in my opinion, the amendment of 2009 need not be taken into consideration.
17. Even if that amendment is kept aside, the contraband found in possession of the accused was opium derivative within the meaning of Section 2(xvi)(e) and Entry 93 is applicable to the same. As pointed out above, the C.A. report indicates that the traces of heroin and 19 Cri-176-11-&-200-11.sxw
Morphine along with opium alkaloids were found in the said samples. There is nothing to show that any neutral substance was found in the said substances. Therefore, at this stage, the entire quantity of 340 grams will have to be treated as opium derivative, which is a commercial quantity as per Entry 93 and therefore as per the provisions of Section 36-A(4) of NDPS Act, the accused would be entitled to be released on bail only if charge sheet is not filed within 180 days after the arrest. The learned trial Court did not consider these aspects and committed error in holding that it was less than commercial quantity merely because the percentage of morphine was between 1.56% and 1.90%.
18. The learned Counsel for the accused contended that when the trial Court has considered the material and granted bail, there should be very strong and exceptional circumstances to cancel the bail. In the present case, the trial Court proceeded with the matter on the basis of wrong assumption and without properly looking to the provisions of law and particularly Entry 93 in the notification and committed error in holding that the accused are entitled to be released on bail if the charge sheet is not filed within 60 days. When the bail 20 Cri-176-11-&-200-11.sxw
has been granted in clear contravention of law, this Court can certainly interfere.
19. For the aforesaid reasons, both the Applications are allowed and the impugned orders dated 1.2.2011 and 3.2.2011 granting bail to the accused under proviso to Section 167(2) of Cr.P.C. are hereby set aside.
(J.H.BHATIA,J.)
