IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2100 of 2004(C)
1. ARUN JOJO @ JOJO,
... Petitioner
Vs
1. THE NARCOTIC CONTROL BEUREAU,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.SASTHAMANGALAM S. AJITHKUMAR
For Respondent :.
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/08/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 2100 OF 2004
AND
Crl. Appeal NO. 426 of 2005
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Dated this the 14th day of August, 2009.
J U D G M E N T
Crl.Appeal 2100/04 is filed by the first accused in
S.C.1042/03 whereby he has been convicted u/s 21(c) of the
N.D.P.S. Act and sentenced to undergo rigorous imprisonment
for a period of 10 years and to pay a fine of Rs.1,00,000/- and
in default to undergo a further imprisonment for a period of
two years. The other appeal 426/05 is filed with a prayer to
set aside the judgment of acquittal passed against the accused
u/Ss.23(c), 27A, 28 and 29 of the N.D.P.S. Act. Since the
subject matter is one and the same and part and parcel of the
same transaction the appeals have to be disposed of jointly.
2. It is the case of the prosecution that on 26.4.2003
at about 8 a.m. the Intelligence Officer attached to the Narcotic
Control Bureau, regional Intelligence Unit, Thiruvananthapuram
got a secret information that one Abdul Vaheed had conspired
to send a consignment of heroin, a narcotic drug, to Mali by
Crl. Appeal NO. 2100 OF 2004 &
Crl. Appeal NO. 426 of 2005
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Flight I.C.963 dated 26.4.2003 through a carrier by name Arun
Jojo @ Jojo. The information thus received was reduced into
writing and forwarded to the Superior Officer. Later the
officials reached the Airport, apprehended the accused,
conducted a search on him but was unable to find anything
with him and therefore he was of-loaded from the aircraft,
taken to the Medical College Hospital and was administered
purgatives and he passed two motions and on the first motion
there were 35 capsules and in the second time 29 capsules
thereby totaling 295 gms. of heroin. The Court after elaborate
consideration of the materials found that there is no evidence
to find guilt of Abdul Vaheed and again it also held that there is
no evidence to convict the 1st accused u/Ss. 23(c), 27A, 28 and
29 of the N.D.P.S. Act. The Court arrived at that finding on the
basis that the conspiracy alleged by the prosecution is not
proved to the satisfaction of the Court. So the Court found the
first accused also not guilty u/s 29 of the N.D.P.S. Act. The
Court also held that there is no evidence to prove the offence
u/s 28 relating to attempt to commit such offence. It also held
Crl. Appeal NO. 2100 OF 2004 &
Crl. Appeal NO. 426 of 2005
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that the involvement of the first accused in regard to the
alleged trafficking of narcotic drug is not proved and therefore
found him not guilty u/s 27A of the N.D.P.S. Act. As the
narcotic drug carried by the first accused has not been
exported the Court found the offence u/s 23 of the N.D.P.S Act
is also not attracted.
3. I had heard the learned counsel for the appellant in
Crl.Appeal 426/05 as well as the other case. The finding of the
Court below regarding the non availability of evidence and
materials to find out the first accused guilty u/s 23, 27A, 28
and 29 of the N.D.P.S. Act is correct in the backdrop of the
discussion made by the Court after adverting to all the
materials on record. The materials are not sufficient to reverse
the finding of acquittal under those Sections.
4. Now the main question is regarding the conviction of
the first accused u/s 21(c) of the N.D.P.S. Act. 21(c) refers to
commercial quantity. Commercial quantity of heroin comes
into play when it is more than 250 gms. According to the
prosecution since it is 295 gms. that is recovered it will amount
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Crl. Appeal NO. 426 of 2005
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to commercial quantity and therefore the conviction u/s 21(c)
of the N.D.P.S. Act is sustainable.
5. Before adverting to that question it may be
necessary in the light of the appeal filed by the accused to find
out whether he can be roped into any of the offences u/Ss.21
of the Act. As stated by me earlier on getting specific
information the offence has been detected. It is stated that
the first accused had swallowed the capsules even while he was
sitting in the hotel, then he left for the airport and reached the
airport and he was followed by the narcotic officers. With the
aid and help of PW1 and in his presence he was apprehended
and was examined. In an ordinary physical examination
nothing could be detected or traced out from him and therefore
as per the evidence available he was off-loaded from the
aircraft and was taken to the hospital namely Medical College
Hospital, Thiruvananthapuram. There the Doctor administered
him some purgatives and the first motion he had at 10.30 a.m.
brought out 35 capsules and in the next motion about 29
capsules and PW4 had given details about the same. From
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these 64 capsules a total of 295 gm of heroin was found out.
The correctness of this was challenged in the light of non
examination of some of the persons and a decision was also
cited namely Narcotic Control Bureau v. Abdul Hussain
(2003 SCC (Crl) 1608). The Court distinguished that
decision basing on the reason the doctor who had administered
the purgative was through out available with the accused and it
was with his aid the capsules came out and he was personally
present and therefore it is a solid form of evidence and it does
not lack any legal sanctity. As discussed by me earlier from
the materials it is very clear that the first accused was
apprehended from the airport. He was tested, he was brought
to the Medical College Hospital and with the help of the Doctor
purgative was administered which brought out 64 capsules of
heroin. So the possession of 295 gms. of heroin is proved
beyond doubt in this case and there is no legal or procedural
lacunae in the matter.
6. But now the question arises is whether these 295
gms itself can be taken as a quantity or not. This matter came
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up for consideration before the Apex Court in the decision
reported in Micheal Raj v. Intelligence Officer (2008 (2)
KLT 36). The Court held that,
“Under the rationalized 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 gms. And
contains 0.2% of heroin or more would be
punishable under S.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 gms. of heroin is recovered from an
accused, it would amount to a small quantity,
but when the same 4 gms. Is mixed with 50
kgs. of the 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,
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Crl. Appeal NO. 426 of 2005
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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 i appear 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. When
any narcotic drug or psychotropic substance is
found mixed with one or more neutral
substances for the purpose of imposition of
punishment it is the content of the narcotic drug
or psychotropic substance which shall be taken
into consideration.”
7. Now, I will refer to a decision of this Court reported
in Naushad v. Intelligence officer, Narcotics Control
Bureau (2007 (2) KLT SN 77 C.No.102). It was held in
that case unless proved by approved scientific methods,
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including quantitative test, it is not proper to conclude what is
the percentage of diacetylmorphine. The learned Judge held
that admittedly heroin or diacetylmorphine is a combination of
more than one component and quantitative test has to be
conducted to find out the exact percentage of the components
which constitute the substance. The Court below found the
accused guilty for the offences punishable u/s 21(c) and 28
and 29 of the N.D.P.S. ct. This finding was on the basis of the
prosecution allegation that the contraband articles seized from
accused Nos.1 and 2 of one kg. each. So the dictum laid down
in the above two decisions are to the effect that when the
actual content of diacetylmorphine is as described for small
quantity, intermediate quantity or commercial quantity it is
that quantity which has to be taken into consideration to
decide the question of type of quantity held by a particular
person. It is in such circumstances it is imperative that there
must be a quantitative test conducted to find out the actual
content of diacetylmorphine in a particular sample seized or
the quantum seized from a particular person. Unfortunately in
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the case before us though it is taken out no quantitative test is
conducted to find out the exact quantity of these
diacetylmorphine. Therefore the Court is in the dark as to the
exact content of the above said diacetylmorphine in the total
heroin seized. When it is so, necessarily the benefit has to go
to the accused. Whatever it may be, there will be at least a
negligible percentage in that drug which is seized from him
and therefore it will at least attract an offence u/s 21(a) of the
N.D.P.S. Act. Therefore as there is no quantitative test done
in this case the conviction passed u/s 21(c) has to be set aside
and it has to be made under S.21(a) of the N.D.P.S. Act.
When it is so the punishment prescribed is rigorous
imprisonment for a term which may extent to six months or
with fine which may extent to Rs.10,000/- or with both. I am
informed that the accused is undergoing imprisonment for the
last six years. He is in custody from 27.4.2003 onwards. He
has never been released on bail. So almost more than six
years have elapsed. Therefore under the circumstances it may
not be correct to impose a sentence of fine on him over and
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above the imprisonment for six years. Therefore u/s 21(a) of
the N.D.P.S. Act he is sentenced to undergo rigorous
imprisonment for a period of six months.
In the result Crl.Appeal No.2100 of 2004 is disposed as
follows:
1) Finding of guilt u/s 21(c) of the N.D.P.S. Act and the
conviction and sentence passed thereunder are set aside.
2) He is found guilty u/s 21(a) of the N.D.P.S. Act and
he is convicted thereunder and sentenced to undergo rigorous
imprisonment for a period of six months.
3) Since he has already undergone the period of
imprisonment for more than six years he is not bound to suffer
any more punishment for this offence and he shall be released
from jail if he is not required in connection with any other
criminal case.
Crl.Appeal No. 426/05 is dismissed.
M.N. KRISHNAN, JUDGE.
ul/-