JUDGMENT
K.A. Abdul Gafoor, J.
1. The appellant is the accused No. 1 in S.C. No. 1082/01 on the file of Special Judge (N.D.P.S. Act) Thiruvananthapuram. There were altogether two accused. Accused No. 2 escaped from custody. He could not be found out. Therefore, the accused No. 1 alone faced trial. The offence alleged was one punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’).
2. The prosecution case was that PW4, the Intelligence Officer of Narcotic Control Bureau got an information on 5.3.2001 at about 7 a.m. from an informant that two persons with certain drugs would be arriving in Thiruvananthapuram bus stand in a Tamil Nadu Transport Corporation bus. Consequently, the information so received was written down by him and was communicated to his superior officer, PW5. PW5 with a written endorsement directed PW4 to proceed with the matter. Accordingly, PWs. 4 and 5 and other two officials along with the informant went to Thampanoor bus stand and waited for the arrival of Tamil Nadu Transport Corporation bus indicated by the informant. When the bus came, the informant gave signal to PW4. He found out two persons. One among them, the appellant, was having a plastic bag in his possession. PWs.4 and 5 disclosed their identity to both the accused that they were officers from Narcotic Control Bureau and said that there was suspicion that they were in possession of narcotic drugs and wanted to search and inspect them. PWs. 4 and 5 also enquired with the accused that if they would desire the presence of Gazetted Officer or Magistrate, to conduct their body search. They replied in negative. Thereupon, the second accused disclosed to PW4 that the plastic bag in the hands of the appellant/accused No. 1 contained narcotic drugs. Plastic bag was taken. Inside, two covers were found out concealed by banian and towel. Each cover approximately weighed 2 Kgs. Altogether, it weighed 4.08 Kgs. It was suspected to be manufactured drug, heroine. Samples were taken and sent to laboratory concerned. The reports are marked as Exts.P16 and P17 analysis. They were on quantitative and qualitative basis. Both the reports disclosed that the samples contained nothing other than heroine. Of course, Ext.P17 indicated that the purity was between 1.4 and 1.6.
3. PW1 was the independent witness who attested Ext.Pl seizure mahazar and also deposed before the Court below about the compliance of the procedure contained in Section 50 of the Act and also testified seizure. The Court below appreciating the evidence on record found that the accused No. 1/appellant was in possession of a manufactured drug, heroine, without any authority and thus committed an offence punishable under Section 21 of the Act. The quantity as mentioned above come to 4.08 Kgs. The punishment for possession of that much quantity of manufactured drug even before the amendment by Act 9/01 was a minimum term of 10 years and fine of Rs. 1,00,000/-. The occurrence was before the amendment of the Act. But the conviction was on 19.1.2004, after the enforcement of the amendment. Even going by the amended provision the quantity comes beyond commercial quantity. Necessarily, the punishment is same as that was existing before the amendment. Therefore, when the offence is proved, there was no other option for the Court below to impose a punishment as already ordered. This conviction and sentence are under challenge in this, Criminal Appeal.
4. Three contentions are mainly urged. The first contention is that Ext.P17 lab report relating to quantitative analysis disclosed that the manufactured drug seized from the appellant in the form of powder was of purity 1.4 in one packet and 1.6 in another. That means, if the entire quantity is taken, manufactured drug will come only 16% thereof. That will be between commercial and small quantity as per the amended provision, in which case, the sentence shall be, even if the offence is proved, for a term of three years. There will be no minimum sentence. But imprisonment ordered upto ten years and fine of Rs. 1,00,000/-. Therefore, this is not a case where a minimum sentence of 10 years has to be passed.
5. I am unable to accept this contention. Section 21 provides that
“whoever in contravention of any provision of this Act or any rule or order made or condition of licence /granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-state or uses any manufactured drug or any preparation containing any manufactured drugs shall be punishable”.
Manufactured drug is defined under Section 2(xi): It reads,
“manufactured drug means, all coca derivatives medicinal cannabis, opium derivatives and poppy straw concentrate”.
Heroine is an opium derivative. This is not disputed. Therefore, what had been seized from the appellant as per Ext.Pl mahazar duly attested by PW1 is a manufactured drug. The offence under Section 21 can be in respect of manufactured drug as also in respect of any preparation containing any manufacturing drug. Preparation is defined in Section 2(xx). It is as follows:
“Preparation in relation to a narcotic drug or psychotropic substance means anyone or more such drugs or substances in dosage form of any solution or mixture, in whatever physical state, containing one or more such drugs or substances”.
Heroine is a narcotic drug. Any mixture of narcotic drug with any other substance whatever be the purity also comes within the Section 21 of the Act. Therefore, the rate of purity is irrelevant! Quantity of mixture containing as a whole has to be taken for the purpose of offence punishable under Section 21 of the Act. Purity test report, Ext.P17, therefore, does not in any way advance the case of the appellant/accused.
6. It is further contended based on Exts.P3 and P3(a), the confession statement of the accused and its translation respectively and Exts.P12 and P12(a), the confession statement of the second accused and its translation that both are contradictory. The Court need not consider that aspect because even in the absence of the confession there is sufficient evidence in this case form PW1, Ext.Pl, testimony of PW4, Ext.P16 and Ext.Pl7 that the substance seized from the accused is a manufactured drug. Thus, the accused had been found in possession of manufactured drug weighing about 4.08 Kgms. In terms of evidence of PWs.1 and 4, Exts. PI, P16 and P17,1 need not much labour to find out there is discrepancy with respect to the confession of either of the accused. Therefore, that contention also does not in any way improve the case of the appellant to escape conviction.
7. The next contention raised is that there was violation of the protective provisions envisaged in Section 42 of the Act. Section 42 obliges the officer concerned who received an information to write down the information and forward the same immediately to his superior officer. Ext.P6 is the information said to be written down by PW4. It also reveals that he had placed the same immediately to PW5, his immediate superior officer who had endorsed it with signature that PW4 shall proceed with the matter further. In such circumstances, it cannot be taken that there is no violation of the provision of Section 42 of the Act.
8. At the same time, it is contended relying on the evidence on record including the evidence revealed in the cross examination of PW4, that there is no proof beyond doubt of any kind of offence in this case. Because, there is all chance of a case being foisted on the accused, PW4 had admitted that he had received an information even few days ago from the informant that there was a chance of two persons coming to Thiruvananthapuram bus stand with certain contraband. This has not been reduced in writing. But that was only a vague information. Whoever will be coming or the exact time had not been disclosed. It was only at about 7 a.m. on 5.3.2001 the real, cogent, trustworthy information was passed over by the informant to PW4. Of course, as contended by the counsel for the appellant, it was a written information stated to be given by the informant nursed by the Narcotic Control Bureau. He had insisted that his identity shall not be diverged. Therefore, the alleged written information said to be given by the informant to PW4 could not have been produced in Court. It is contended by the appellant that if at all there was anything of that sort, it should have been forwarded to the Zonal Office of the Narcotic Control Bureau, Chennai as usually done, in which case there will be sufficient evidence of despatch of such information passed over to the Zonal Office. PW4 in his evidence disclosed that such despatch register was being kept in his office. He had also confessed that the register will not disclose the written information received from the informant or its despatch to the Zonal Office. Merely because he had stated so, it cannot be concluded that he did not receive any written information. It had been reduced in writing in Ext.P6 as the original cannot be given in Court as the informant insisted not to disclose his identity. The appellant could have at least cited any one of the Zonal Office if there is much dispute as to whether it had been received or not. PW4 had stated that he had sent the information with covering letter to the Zonal Office. Therefore that contention cannot be accepted.
9. On the other hand, the evidence of PW1 and Ext.P1 disclosed that the contraband had been seized from the accused/appellant and Exts.P6, P16 and P17 disclosed that the substance seized was heroine, a manufactured drug. Necessarily, these are the conclusive evidence to prove the offence under Section 21 of the Act. In such circumstances, I find no reason to disbelieve PW1. Therefore, the conviction cannot therefore, be said to be unjustified.
Appeal fails, dismissed.