Raju Kandan Mudaliar vs State by The Intelligence Officer

S. Tamilvanan, J.—The above Criminal Appeal has been preferred against the judgment of conviction and sentence, dated 06.08.2004,

made in C.C. No. 155 of 2003, on the file of the learned Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai.

The appellant herein is the accused in the case before the trial court and after the trial, he was convicted under Sections 8(c) read with 21 and

29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) (hereinafter referred to as ""the NDPS Act"") and sentenced to

undergo ten years Rigorous Imprisonment and to pay a fine of Rs. 1 lakh and in default of payment of fine amount, he shall undergo a further

period of six months Rigorous Imprisonment. Aggrieved by which, the convicted accused has preferred this appeal.

Heard both sides.

Mr. T.K. Sampath learned Counsel appearing for the appellant submitted that though the alleged seized contraband is stated as a commercial

quantity by the respondent, as per the chemical analysis report, in the light of the decisions rendered by the Hon''ble Apex Court, the same

weighing 54 grams, could be construed only less than the commercial quantity as per the NDPS Act, but the same was not legally considered by

the Court below. Learned Counsel further contended that there was a non-compliance of the provisions of Section 42(2) of the NDPS Act.

According to the learned Counsel, the information received by the Officer was not recorded and submitted to his immediate superior Officer;

though the Intelligence Report-Ex.P-1 was the basis for the interception, search of the appellant and recovery of contraband, on account of the

infirmities found in it, the same could not have been relied upon by the Court below; similarly, the inventory of the article or clothings found in the

bag, in which contraband was alleged to have been kept, was not taken to show that the bag belongs to the appellant and further the independent

witnesses who were examined on the side of the prosecution did not support the prosecution case and therefore the testimonies of official

witnesses cannot be relied upon for want of independent corroboration to convict the accused; similarly the test of the sample packet sent for

chemical analysis cannot be relied upon because of the difference in weight of the samples taken and samples tested in the laboratory; with the

aforesaid grounds the learned Counsel for the appellant pleaded that the appellant/accused could have been acquitted by giving the benefit of

doubt and also on the ground of non-compliance of mandatory provisions of the NDPS Act.

Per contra, the learned Special Public Prosecutor for DRI Cases appearing for the respondent submitted that the prosecution has proved and

established the case against the appellant/accused only as per the law. As per the prosecution case, based on an information, the accused was

intercepted at Perambur Railway Station while he alighted from Mumbai � Chennai Express at Coach No. S-3 and on search of the black

colour Zipper Bag with a brand name ""Polo Santa Roberta"", which was found in possession of the accused, it was brought to light that it contained

1.500 kgs of brown colour powder suspected to be heroin, a narcotic drug; the said 1.500 kgs were found in two packets weighing about 1.00 kg

and 500 gms powder respectively wrapped and concealed in a towel. However, the sample drawn from the packet weighing about 500 gms was

found to be a non-heroin substance and from the pocket weighing about 1.00 kg sample, on analysis, it was found that it contained Diacetyl

Morphine (Heroin) for which a case under Sections 8(c) read with 21 and 29 of the NDPS Act was registered.

In order to establish the prosecution case, 10 witnesses were examined on the side of the prosecution apart from marking 27 exhibits and 5

MOs. Considering the evidence available on record and the arguments advanced by the learned Counsel on both sides, the Court found the

appellant/accused guilty punishable under Sections 8(c) read with 21 and 29 of the NDPS Act and accordingly, convicted and sentenced the

appellant to undergo ten years Rigorous Imprisonment for each count and to pay a fine of Rs. 1 lakh each and in default of paying the fine amount,

to undergo further period of six months Rigorous Imprisonment under each Sections.

P.W.1, i.e., the Intelligence Officer, Directorate of Revenue Intelligence, Chennai, on the information gathered came to know that the

appellant/accused was carrying heroin, a narcotic drug, accompanied by his wife with an infant and another male person to Chennai, in Mumbai

� Chennai Express on the date of occurrence in Coach No. S-3 and would alight at Perambur Railway Station, recorded the said information

and the same was sent to P.W.8-the Assistant Director of DRI, Chennai. P.W.8-the Assistant Director, also corroborated the evidence adduced

by P.W.1 with regard to the information being reduced into writing and sent to him for perusal and therefore the arguments advanced by the

learned Counsel appearing for the appellant that the mandatory provisions u/s 42(2) of the NDPS Act was not complied with, cannot be accepted.

After ascertaining the arrival of Mumbai�Chennai Express, which was delayed by two hours, the Officers including P.W.1 and others, went to

Perambur Railway Station and requested P.W.9, who was the station Master of the Peramblur Railway Station, and one other independent

witness for the proposed seizure of contraband from the appellant/accused. As per the evidence available on record, while the appellant/accused

alighted from Coach No. S-3 of Mumbai � Chennai Express at about 16.30 hours, accompanied by his wife with an infant and a male person,

they were intercepted and enquired as to whether they were carrying narcotic drugs, the reply was in the negative. On a request the accused

produced the Journey cum Reservation Ticket dated 18.01.2003 for Train No. 6011 Bombay � Chennai Express and he was carrying a jute

carry bag and a black colour Zipper Bag with brand name ""Polo Santa Roberta"", on examination it was found that the jute carry bag contained

some eatables and personal clothings and on examination of the black colour Zipper Bag with brand name Polo Santa Roberta, the same was

found containing personal belongings and toilet soaps, while removing the same, one turkey towel wrapped bundle was found which contained a

packet of heroin powder. P.Ws.2 and 3 who were Intelligence Officers of DRI also accompanied P.W.1 to Perambur Railway Station and they

deposed evidence on the same line of evidence given by P.W.1 about intercepting and seizure of the contraband. The evidence of P.Ws.2 and 3

corroborates the evidence of P.W.1 with regard to the occurrence and seizure of the contraband. As per the evidence, the prosecution has

established that the contraband was seized from the appellant/accused properly in the presence of witnesses as contemplated under the NDPS

Act.

P.W.4, who was the Assistant Chemical Examiner, Central Revenue Laboratory, Customs House, Chennai, analysed the samples, which were

received by him with a covering letter. According to him, the samples had been received by him with seals intact in a proper condition and the

sample packets were registered in the laboratory in Lab No. 345 and Lab No. 346; the sample packet of P-1 and S-1, Lab No. 345, weighing

2.560 gms and P-2 S-1, Lab No. 346 weighing 1.640 gms were returned by him after the chemical analysis. As per the evidence of P.W.4, the

brown powder found in the sample packets were analysed, as per the procedure contemplated and as per the recommended methods, for testing

heroin by National Narcotics Laboratory, United Nations. Accordingly, the sample packet P-1 S-1 Lab No. 345 answered positive for heroin

and another sample packet P-2 S-1 Lab No. 346 not answered as positive for heroin.

In the cross examination, P.W.4 has categorically stated that he has stated in the analytical report-Ex.P-13 that the percentage of the heroin

found was only 5.4 and hence, for the seized contraband, the contents of Diacetyl Morphine (Heroin) would be 54 gms. The substance found in

the other sample, P-1 S-1 Lab No. 345 was not heroin, as per Ex.P.13, as contended by the learned Counsel appearing for the appellant. Hence,

it is clear that the contraband recovered from the appellant could be construed only as 54 gms of heroin, though the seized contraband was 1.5

Kgs.

As per Section 21(b) of NDPS Act, if the seized quantity of the contraband is less than the commercial quantity, the punishment imposed shall

be up to ten years and with a fine up to Rs. 1 lakh and therefore there is no minimum mandatory sentence, as it is less than the commercial quantity

as contended by the learned Counsel appearing for the appellant. The seized quantity of heroin was 54 gms as per the evidence of P.W.4 and the

chemical analysis report-Ex.P-13, hence, the same has to be construed by this Court, only less than the commercial quantity.

However, considering the evidence of the prosecution witnesses and the documents marked on the side of the prosecution, I am of the view

that the guilt of the appellant/accused has been proved, though the quantity of the contraband, as per law is only 54 grams of heroin, which is less

than commercial quantity, as contemplated u/s 21(b) of NDPS Act. Hence, I could find no error or infirmity in the conviction made by the Court

below in convicting the appellant/accused. Learned Counsel appearing for the appellant/accused submitted that the sentence imposed on the

appellant is disproportionately on the higher side.

Learned Counsel appearing for the appellant has also advanced his arguments mainly with reference to the question of sentence imposed on

the appellant/accused. According to the learned Counsel, even if the Court holds that the guilt of the accused is proved by the prosecution beyond

reasonable doubt, the punishment imposed on the appellant is disproportionate, in view of the various judgments rendered by the Hon''ble Apex

Court. In support of his contention, the learned Counsel relied upon the following decisions of the Hon''ble Apex Court:

(i) State of NCT of Delhi Vs. Ashif Khan @ Kalu, and

(ii) E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, .

In the decision reported in State of NCT of Delhi Vs. Ashif Khan @ Kalu, the Hon''ble Supreme Court has held that in a mixture of a narcotic

drug or a psychotropic substance with one or more neutral substance or the substances, the quantity of the neutral substance or substances shall

not be taken into account''s while considering whether small quantity or a commercial quantity of the narcotic drug or psychotropic substance is

recovered but only the actual contents by weight of the narcotic drug or psychotropic substance as the case may be relevant for terminating

whether it would constitute a small quantity or commercial quantity and accordingly upheld the decision of the High Court holding that it was a

small quantity and it would come u/s 21(a) of NDPS Act, and accordingly the appeal preferred by the State was dismissed by the Apex Court.

It is not in dispute that as per the Notification issued by the Government of India, which deals with heroin, small quantity has been mentioned as

5 gms and commercial quantity has been mentioned as 250 gms. So the basic question for the decision herein is whether the contravention involved

in the instant 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.

The quantity of the contraband seized from the accused is a relevant factor in imposing punishment under the NDPS Act. When it is a

commercial quantity, the law stipulates that the sentence shall be not less than 10 years RI with the fine not less than Rs. 1 lakh, however, the same

is not applicable to less than commercial quantity.

In the decision reported in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, the Hon''ble Apex Court has ruled by taking a

similar view, wherein, though a huge quantity was seized, as per the analysis report, the contraband seized was found about 60 gms of heroin and

therefore it was held as less than the commercial quantity. The Hon''ble Apex Court has further held that ends of justice would be subserved if the

sentence of the appellant-accused is reduced to six years Rigorous Imprisonment with a fine of Rs. 20,000/- and in default of payment of fine to

undergo six months Rigorous Imprisonment as the appellant/accused therein had undergone the sentence imposed on him and based on the verdixt,

he was directed to be set at liberty forthwith.

In the instant case, as per the chemical analysis report, it has been proved that the quantity of the contraband seized is only 54 gms of Diacetyl

morhpine (heroin), in view of the Judgment rendered by the Hon''ble Apex Court, in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control

Bureau, . In the aforesaid case, the seized contraband, as per the analysts report was about 60 gms. In the instant case, the same is only 54 gms,

however, which is more than 5 gms, classified as small quantity, but less than 250 gms, which is a commercial quantity and therefore, the sentence

has to be imposed on the appellant/accused only u/s 21(b) of NDPS Act.

In the case on hand, as per the chemical analysis report the seized contraband was only 54 gms and as submitted by the learned Counsel

appearing for the appellant, the appellant/accused is in prison from the date of arrest i.e., 19.01.2003, which is more than six years and three

months and therefore, the decision rendered by the Hon''ble Apex Court reported in E. Micheal Raj''s case reported in (2008) 5 SCC 161

(referred to supra) is squarely applicable to the facts of the case on hand.

In the light of the aforesaid decision, I find it reasonable to hold that the sentence imposed on the appellant/accused is disproportionately on the

higher side and to meet the ends of justice, the same has to be reduced as per the ruling of the Hon''ble Apex Court referred to above.

Accordingly, the Criminal Appeal is partly allowed and being modified only regarding the sentence imposed on the appellant. The the

appellant/accused has already undergone imprisonment of more than six years and three months Rigorous Imprisonment. Hence, considering the

facts and circumstances of the case, in the light of the decisions of the Hon''ble Apex Court, the appellant/accused is sentenced to undergo only six

years Rigorous Imprisonment and to pay a fine of Rs. 20,000/- and in default to undergo a further period of 3 months RI, u/s 21(b) of NDPS Act.

As he has already undergone the period of sentence, the appellant/accused is hereby directed to be set at liberty forthwith, if he is not required in

any other case. The connected MP is closed.