L. Sundhuskhan vs State

C.T. Selvam, J.—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 u/s 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.

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 u/s 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.

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., 150 gms. 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.

The Hon''ble Supreme Court of India in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, , 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 u/s 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 u/s 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.

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.

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 u/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 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.''

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.

Heard the learned Counsel and perused the material.

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.

The appeal is ordered accordingly. The appellant shall be released from custody, if not wanted in connection with any other case.