BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05/02/2010
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.A.(MD)No.228 of 2009
L. Sundhuskhan ... Appellant/Accused
vs
State rep. by the
Superintendent of Customs
Customs Preventive Unit
Tondi - 623 409.
Tiruvadanai Taluk
Ramanathapuram District. ... Respondent/Complainant
Prayer
This Criminal Appeal is filed under Section 374 of Cr.P.C. praying to
set aside the judgment and conviction of the appellant/accused passed by the
Special Judge, Special Court for EC Act & NDPS Act Cases, Pudukkottai in
C.C.No.333 of 2004 dated 03.01.2007 and allow the appeal.
!For Appellant ... Sri.T.K. Sampath
^For Respondent ... No appearance
:JUDGMENT
This appeal is preferred against the judgment of the Special Judge,
Special Court for EC Act & NDPS Act Cases, Pudukkottai passed in C.C.No.333 of
2004 on 03.01.2007 convicting the appellant for offences under section 8(c)
r/w.21(c), 28 and 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985
and sentencing him to undergo rigorous imprisonment for 10 years and to pay a
fine of Rs.1 lakh for each offence and in default of the fine amount to undergo
rigorous imprisonment for 2 years.
2. The case of the prosecution is that, this appellant was found in
possession of 380 gms. of morphine/ heroin placed in an uncovered plastic box
and at his residence at D.No.24 Sangama Gothara Street, South Street, Tondi,
Ramanathapuram District. This appellant was so found in possession at 5 pm on
28.11.2003. This appellant and two others are said to be involved and it is the
prosecution case that this appellant/accused informed that he had obtained the
offending substance from one Syed Abuthahir. As the said Syed Abuthahir and one
other person by name Seenivasappa had absconded and Non-bailable warrant was
pending against them, the case against such persons was split up and this
appellant alone faced trial for offences u/s.8(c) r/w. 21(c), 28 and 29 of The
Narcotic Drugs and Psychotropic Substances Act, 1985 as amended by Act 9 of
2001. The judgment of the lower court reveals that the accused has admitted the
offence alleged against him and also filed a written statement to that effect.
On consideration of the facts of the case and being of opinion that the accused
had been proved to be in possession of 380 gms. of morphine/heroin, the lower
court convicted the accused for offences under section 8(c) r/w.21(c), 28 and 29
of The Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to
undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh for
each offence and in default of the fine amount to undergo rigorous imprisonment
for 2 years.
3. In the present appeal, the only contention raised is that the lower
court ought not to have sentenced the accused as per provisions of section 21(c)
of the NDPS Act. The offending substance seized from this appellant/ accused
was in 3 containers, containing 150 gms., 150gms. and 80 gms., respectively.
The total weight of the substance seized from him was 380 gms. The chemical
analysis report revealed that the percentage of offending substance viz.
morphine/heroin was 10%. This would make the quantum of morphine/heroin held by
the accused to be 38 gms. Possession of such quantum could not attract section
21(c) of the Act and would be covered by 21(b) thereof.
4. The Hon’ble Supreme Court of India in E. Micheal Raj v. Intelligence
Officer, Narcotic Control Bureau, 2008 (5) SCC 161, has held as follows :
‘8.The provisions of the NDPS Act were amended by the Narcotic
Drugs and Psychotropic substances (Amendment) Act, 2001 (Act 9 of 2001)
(w.e.f.2.10.2001), which rationalised the punishment structure under the NDPS
Act by providing graded sentences linked to the quantity of narcotic drugs or
psychotropic substances carried. Thus, by the amending Act, the sentence
structure changed drastically. “Small quantity” and “commercial quantity” were
defined under Section 2(xxiii-a) and Section 2(vii-a) respectively. New Section
21 also provides for proportionate sentence for possessing small, intermediate
and commercial quantities of offending material. As per Entry 56 of the
Notification dated 19.10.2001 issued by the Central Government which deals with
heroin, small quantity has been mentioned as 5 gm and commercial quantity has
been mentioned as 250 gm. So, the basic question for decision is whether the
contravention involved in this case is small, intermediate or commercial
quantity under Section 21 of the NDPS Act, and whether the total weight of the
substance is relevant or percentage of heroin content translated into weight is
relevant for ascertaining the quantity recovered from the accused.
14. As a consequence of the amending Act, the sentence
structure underwent a drastic change. The amending Act for the first time
introduced the concept of “commercial quantity” in relation to narcotic drugs or
psychotropic substances by adding clause (vii-a) in Section 2, which
defines this term as any quantity greater than a quantity specified by the
Central Government by notification in the Official Gazette. Further, the term
“small quantity” is defined in Section 2(xxiii-a) as any quantity lesser than
the quantity specified by the Central Government by notification in the Official
Gazette. Under the rationalised sentence structure, the punishment would vary
depending upon whether the quantity of offending material is “small quantity”,
“commercial quantity” or something in-between.
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 rationalised sentence structure, the
punishment would vary depending upon the quantity of offending material. Thus,
we find it difficult to 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 in significant quantities, with more severe punishment.’
5. Relying on the above, learned counsel for the appellant submits that
the total quantum of offending substances seized from the appellant is 380 gms.
The chemical analysis report informs that the percentage of morphine is 10% and
this would make the total offending substance held by the appellant as 38 gms.
If so, the offence would attract sentencing not under 21(c) but under 21(b) of
the NDPS Act. Learned counsel submits that such offence does not attract a
minimum sentence and given the fact that the appellant already has suffered
incarceration for a period over six years, this Court may be pleased to direct
the release of the appellant.
6. Heard the learned counsel and perused the material.
7. On consideration, this court finds that the reliance placed on the
judgment of the Hon’ble Apex Court and the contention raised in the given
factual situation above mentioned, is well founded. The offence committed by
the accused would attract sentencing u/s.21(b) of the Act, which does not
stipulate a minimum sentence. Given the fact that the appellant already has
suffered sentence of rigorous imprisonment for over six years, viz. from
29.11.2003, this court is of the opinion that the sentence undergone by the
accused in relation to the offence found to be committed by him is sufficient
and that there need be no separate sentence of fine.
8. The appeal is ordered accordingly. The appellant shall be released
from custody, if not wanted in connection with any other case.
avr
To
1. The Superintendent of Customs
Customs Preventive Unit
Tondi – 623 409,
Tiruvadanai Taluk
Ramanathapuram District.
2. The Special Judge,
Special Court for EC & NDPS
Act Cases, Pudukkottai.
3. The Public Prosecutor
Madurai Bench of Madras High Court
Madurai.