Rate of purity of drug decisive for determination of sentences
The principle stated in decision is that the rate of purity of the drug is decisive for determining the quantum of sentence—for “small”, “intermediary” or “commercial” quantity. The punishment must be based on the volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such. In other words, the quantity of the neutral substance 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 purpose of determining the quantity with reference to the quantum of punishment.
Thus, considering the significance of the issues raised by the respondents and the grounds of challenge of the appellants/petitioners concerning the impugned notification, to observe judicial rectitude and in deference to the aforementioned decisions we direct that these matters be placed before at least a three Judges Bench for an authoritative pronouncement on the matters in issue, which we think are of seminal public importance.
The three Judges Bench may have to consider, amongst others, the following questions:
(a) Whether the decision of this Court in E. Micheal Raj requires reconsideration having omitted to take note of entry No. 239 and Note 2(two) of the notification dated 19.10.2001 as also the interplay of the other provisions of the Act with section 21?
(b) Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?
(c) Does the Act permit the Central Government to resort to such dispensation?
(d) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
(e) Whether section 21 of the Act is a standalone provision or intrinsically linked to the other provisions dealing with “manufactured drug” and “preparation” containing any manufactured drug?
Hira Singh v. Union of India 2017 (176) AIC 64 (SC)
Circumstances of last seen together without explanation not sufficient
Hon’ble L. Nageswara Rao and Navin Sinha, JJ., have held that admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this court are:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;
The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
The circumstances should be of a conclusive nature and tendency;
They should exclude every possible hypothesis except the one to be proved; and
There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the ace must have been done by the accused.
The circumstance of last seen together cannot by itself from the basis of holding the accused guilty of the offence. In Kanhaiya lal v. State of Rajasthan, this Court held that:
“12. The circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. the theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan.”
It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.
From the principle laid down by this Court, the circumstances of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons.
Anjan Kumar Sarma v. State of Assam 2017 (176) AIC 116 (SC)
To classify detenue as “Goonda” is gross abuse of statutory power of preventive detention
Hon’ble L. Nageswara Rao and Navin Sinha, JJ., have held that an order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution. The power being statutory in nature, its exercise has to be within the limitations of the statute, and must be exercised for the purpose the power is conferred. If the power is misused, or abused for collateral purpose, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.
The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial well-being. Recourse to normal legal procedure would be time consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business od spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenu as a “goonda” affecting public order, because of inadequate yield even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex-facie extraneous to the Act.
V. Shantha v. State of Telangana, 2017 (176) AIC 125 (SC)