Kamla & Anr v. State (NCT of Delhi)

1. Exemption allowed subject to just exceptions. Crl.Rev.P. No.235/2016 & Crl.M.A. No.4824/2016

2. The present revision petition has been preferred by the petitioners under Section 397 ofthe Code of Criminal Procedure (Cr. P.C.) read with Section 482 Cr. P.C. for setting aside the order dated 27^^ February, 2016 passed by learned Special Judge-NDPS, New Delhi and alteration of the order on charge under Section 20(b)(i)(C) & 20(b)(ii)(B) of the NDPS Act, in a case arising out of FIR No.70/2013 to registered under Sections 20 & 29 ofthe NDPS Act at Police Station Sagarpur.

3. The facts giving rise to the present petition fall within a very narrow compass. A thumbnail sketch of the facts of the case is to the Crl.Rev.P. No.235/2016 2016:DHC:9229 u effect that on 30^March, 2013, a secret information was received bythe police officials of Police Station Sagarpur, Delhi to the effect that the petitioners would be carrying contraband in vehicle bearing Reg.No.DL IL CA 2072 XUV Mahindra at about 1:00 to 2:00 p.m. On the basis of the said information, nakabandi was effected and on arriving of the said vehicle, a baghaving substance which was smelling and was grassy with seeds and leaves was recovered by the police which, from its very appearance, was considered as ganja. The said substance was weighed 20.[4] Kgoutof which one kilogram of sample was taken. Onthe basis of rukka, FIR No.70/13 was registered under Section 20/29 of NDPS Act at Police Station Sagarpur.

4. Learned counsel for the petitioners has further submitted that the petitioners were arrested and the said sample was sent for testing to Forensic Science Laboratory (FSL), Rohini, which vide report dated IS**" April, 2013, opined that the sealed parcel S-I contained dried greenish brown vegetative flowering and fruiting material stated to be ganja weight 954 gm (approximately) with polythene. It is stated that after completion of investigation, a chargesheet was filed against the petitioners.

5. It is next contended by learned counsel for the petitioners that statement of PW 1 Constable Seema was recorded and for the first time, the mouth ofKatta which contained the contraband, was opened on 19^^ Crl.Rev.P.No.235/2016 March, 2014, and in that, the description of the contraband had been given as under:- "The mouth of katta is now opened and found to contain many number of twigs branches, greenish brown in colour which the witness identifies as the ganja recovered from the accused persons. The katta along with the ganja is now exhibited as Ex.P 2."

6. It is alleged by learned counsel for the petitioners that as per the rukka, the substance recovered was, in the form of grass, seeds along with leaves which cannot be termed as "ganja" and that the same could have been "bhang" which is out ofthe purview ofNDPS Act.

7. It further transpires that the accused persons, after going through the said anomalies, preferred an application under Section 91 Cr. P.C. for producing the case property in Court. The prayer made in the said application is stated to have been declined by the Trial Court vide order dated 22"^ December, 2015 and if that application had been allowed, the physical features of the property like quantity and quality could have been ascertained.

8. Aggrieved by the same, another application under Section 216 Cr. P.C. for alteration of charge was preferred on the ground that the sample which was weighed as 1 kg was found to contain 954 gms. with polythene and if the weight of the polythene is taken as 10 gm. then the net weight of the sample could be 944 gm and if the weight of the total contraband is reduced in the same ratio, then the alleged recovery could not be under the scope of commercial quantity and, therefore, the charge under Section 20(b)(ii)(c) of NDPS Act was not maintainable against the present petitioners. It was also alleged in the said application that the recovered contraband could not have been considered as "ganja" as defined under Section 2(iii)(b) ofthe NDPS Act which reads as follows:- "Ganja, that is, the flowering or Suiting tops of the cannabis plaint (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated."

9. It is further submitted that the Trial Court e^ed in law in not appreciating the fact that there was about 60 gm. of deficiency in the weight of sample taken out as one kilogram and with the same analogy the reduction of weight was to be extended to the whole recovery of 20.[4] Kg. Thus, the benefit of doubt is in favour ofthe petitioners.

10. In support of his contention, learned counsel for the petitioners relies on the pronouncement of the Hon'ble Supreme Court in CBI v. Karimullah Osan Khan, being Crl. Appeal No.1127/09 decided on 4^ March, 2014, in which it was held that the charge can be altered or amended at any stage oftrial. Applying the same analogy, had the charge against the petitioners been altered, the petitioners would not have been facing trial for commercial quantity but for a lesser offence.

11. The sheet anchor for the respondent/State version has been that the applications preferred by the petitioners under Section 91 Cr. P.C. & 234 Cr. P.C. were declined with the observation that the case is at the final stage. The application under Section 216 Cr. P.C. for alteration of the charge was dismissed by the Trial Court vide order dated 27^^^ February, 2016 observing that my view this application is clearly without merit and the same is liable to be dismissed. As stated above, the case is at the stage of final arguments and Ld. Counsel for defense instead of advancingfinal arguments, is moving one application or the other which has tendency only to delay the trial"

12. I have heard learned counsel for the parties at length; gone through the available records and the judgment cited by learned counsel for the petitioners.

13. It is pertinent to mention herethat the application under Section 91 Cr.P.C. read with Section 234 Cr.P.C. preferred by the accused for production of the case property in Court wasdismissed onthe ground that the same was moved before arguing the case on merits. It is made clear that the order for production of the case propertycan be made only if the defence satisfies the Court at the time of final arguments that the production of case property is mandatory, taking into consideration the testimony of the prosecution witnesses and the record of the case. In the instant case, the contraband had already been sent to the Forensic Science Laboratory for its opinion and a report in this regard has been received from the FSL and, therefore, allowing the application under Section 91 Crl.Rev.P.No.235/2016 Cr.P.C. would have been hasty as the same could be taken into consideration at the time of final arguments.

14. So far as the application under Section 216 Cr.P.C. regarding alteration of charge framed against the accused is concerned, it is crystal clear that the charges have been framed in accordance with the material placed. As per Section 216 Cr.P.C., it is the sole prerogative of the Trial Court to alter or add to any charge(s) only after satisfying itself with the material available before it. The petitioner is always at liberty to raise this point at the time of final arguments.

15. The petitioner is, thus, playing tactics to delay the judicial proceedings by moving application after application and trying to avoid the outcome or gain an advantage instead of leading the case to final arguments on merits.