IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3285 of 2008()
1. KUMAR @ ADUPPUKUMAR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.SAJU.S.A
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/12/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO. 3285 OF 2008
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Dated this the 18th day of December,2008
ORDER
First accused in S.C.1139/2005 on the file of
Additional Sessions Court, Thiruvananthapuram filed
this revision challenging the charge framed by the
learned Sessions Judge.
2. Learned counsel appearing for the revision
petitioner and learned Public Prosecutor were
heard.
3. The relevant charge framed by the learned
Sessions Judge reads:-
“That you the first accused
purchased 72 ampules of
Buprenorphine injection a
psychotropic substance, from the
third accused for the purpose of
sale and the second accused
reached for conducting the sale
of the same from the 1st accused
and the first accused was
arrested with the contraband
CRRP 3285/2008 2
article around 12.15 P.M on
24.12.2004 near Chempaka lodge
in Oolampara junction,
Peroorkada and on perusal of the
records this court finds you are
liable to be charge sheeted
under section 22 of Narcotic
Drugs and Psychotropic
Substances Act r/w S. 34 of IPC
within my cognizance.”
A reading of the charge establish that learned
Sessions Judge did not apply his mind. Section 22
of NDPS Act provides for punishment for
contravention in relation to Psychotropic
Substances. Clause (a) deals with punishment where
the contravention involves small quantity, clause
(b) where contravention involves quantity lesser
than commercial quantity and clause (c) where the
contravention involves commercial quantity. The
charge does not show whether it is for the offence
under clause (a) or clause (b) or clause (c).
Prosecution case is that 72 ampules of
Buprenorphine injection was seized. The record
CRRP 3285/2008 3
shows that each ampule contained 2 ml. of liquid.
While considering the question whether it is a
small quantity or a commercial quantity, the
relevant aspect is what is the actual content of
weight of the narcotic or psychotropic drug. If
the total content of the narcotic drug in all the
72 ampules together is below the small quantity,
the offence could only be under clause (a) of
Section 22 and not either under clause (b) or
clause (c). Learned Sessions Judge did not
consider this aspect at all. The charge is
therefore set aside. Learned Sessions Judge is
directed to rehear the prosecution and defence and
frame proper charge after considering the question
whether the drug seized from the accused is a
small quantity or not. Learned Sessions Judge
shall consider the question in the light of the
decision of the Apex Court in E. Micheal Raj v.
Intelligence Officer, Narcotic Control Bureau
(2008(5) SCC 161). Send back the records.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
CRRP 3285/2008 4
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006