Rekhaparameswari vs Assistant Collector of Customs, Prosecution Cell, Preventive Department

T. Sudanthiram, J.—The appellant herein stands convicted by the learned Principal Special Judge, under NDPS Act, Chennai in C.C. No.

54 of 1994 for the offences u/s 8(c) r/w 21(c) of the NDPS Act, 1985, sentenced to undergo 15 years rigorous imprisonment and to pay a fine of

Rs. 1 lakh in default to undergo 2 years rigorous imprisonment; u/s 23 r/w 28 of the NDPS Act sentenced to undergo 15 years Rigorous

imprisonment and to pay a fine of Rs. 1 lakh in default to undergo 2 years rigorous imprisonment and also u/s 135(A) of the Indian Customs Act

and sentenced to undergo 2 years rigorous imprisonment and the sentence of imprisonment to run concurrently. Aggrieved by the said conviction

and sentence, the appellant herein had preferred this appeal.

The case of the prosecution in brief is as follows:

P.W.1 Usharani, who was the Security Officer at Madras Meenambakkam Airport, was on duty on 20.02.1989 at 6.30a.m., and she was

searching the female passengers who were bound to go in the Flight IC-573 to Colombo .The Sub Inspector of Police one Mr. Pachimuthu, at

6.45a.m., instructed P.W.1 to search one passenger by name Gnanambigai Muthiah, who is the appellant herein. P.W.1 searched her with

handhold metal detector. As the metal detector struck, P.W.1 touched with hands and she felt some soft powder substance being kept inside.

When P.W.1 enquired the accused, as there was no reply, she produced her before the Inspector of police who directed P.W.1 to search her in a

separate place in the presence of two witnesses. Two female witnesses were brought and the accused was searched by P.W.1 in the presence of

those two witnesses in the make-up room of the security officers. The dresses except undergarment of the accused were removed and searched

and nothing was found concealed in the dress. P.W.1 asked the accused to remove her Jetty which she was wearing. On verification, it was found

that two jetties were stitched together and in between a polythene packet was concealed. P.W.1 while enquired about it, was informed by the

accused that it was brown sugar. The accused was produced before the Inspector of Police and the Inspector of Police instructed her to produce

the accused before the Customs Officers. On weighing the packet, it was found to contain 500 grams of brown sugar. The contraband and two

jetties, passport and other articles were recovered under Ex.P.1. Three packets of samples weighing 5 grams were also taken and the sample

packets were sealed. P.W.1 took the accused along with the seized articles and mahazar to P.W.2, Prisy Arogiyasamy, Superintendent of

Customs Department.

P.W.2 on receiving M.O.1 contrabands and samples M.O.2 series and jetties M.O.4, Air ticket Ex.P.2, Boarding Card Ex.P.3 and other

articles enquired the accused. The accused gave a statement before P.W.2 and it was recorded. Ex.P.9 is the statement which was written by the

accused herself. As per the statement, the accused revealed her original name as Rekha Parameswari. She signed twice, one in the name of Rekha

Parameswari and another one in the name of Gnanambigai. P.W.2 brought the accused from the Airport to the Customs Office and was produced

before the Superintendent of Police Vasudevan. The Customs Officer one Thirumani arrested the accused. The accused was produced before the

learned Magistrate for remand by the Customs Officer.

P.W.4 Viswanathan who was working as Assistant Chemical Examiner of Customs on receiving the sealed packet along with the test memo

analysed the samples in the packet and found that it contained Di-Acetyl-Morphine known as heroin. After analysing the samples, the remnants

were packed in the same packets and it was handed over to the Security Officer Antony Xavier. The chemical analyst report issued by him is

Ex.P.12.

P.W.3 Mr. Rajagopal was the Preventing Officer in the Customs department, Prosecution Wing. He sent the mahazar, statement and chemical

analysis report and other documents to the Customs Additional Collector, Gopinath. The said Officer issued sanction for prosecution on

31.03.1989. Ex.P.11 is the sanction for prosecution. As Mr. Gopinath, Additional Collector died, P.W.5 identified his signature in Ex.P.11.

In order to establish the case, the prosecution has examined 4 witnesses, marked 13 exhibits and produced 4 material objects. When the

accused was questioned u/s 313 Cr.P.C with regard to the incriminating circumstances, the accused denied her complicity and stated that as far as

Ex.P.9 statement concerned, it was obtained by coercion and threat. She further stated that she had given statement before P.W.1, Usharani

stating that she did not know, but suppressing that statement P.W.s.1 and 2 obtained her signature in white papers. The accused had not examined

any defence witness.

The learned Judge after analysing the evidence convicted the accused as already stated above.

Mr. B. Kumar, learned Senior Counsel appearing for the appellant submitted that the occurrence relates to the year 1989 and the appellant was

originally released on bail. The complaint was filed in the year 1994 and the trial commenced only on 17.09.1997. On 30.09.1997 the accused

had absconded and she was rearrested on 24.09.2000. The Judgment was delivered in this case on 14.12.2002. The accused is continuously in

prison from the date of rearrest, i.e., on 24.09.2000 and she is in jail for more than eight years. In such circumstances, the learned Senior Counsel

confined his arguments only to the question of sentence, since according to the defence, the offence would not fall u/s 21(c) of the Act, but u/s

21(b) of the NDPS Act. The learned Counsel on record also made an endorsement that the argument is confined only on the question of sentence

based on the quantity of the heroin seized.

The learned Senior Counsel further submitted that Section 21 of the NDPS Act was amended, by the Act 9 of 2001 with effect from

02.10.2001. The petitioner was charged as per the old provisions of Section 21 of the NDPS Act, but pending trial, the amendment has come into

effect and the said amendment was also made applicable to all the cases pending trial with a retrospective effect. The amendment was brought to

the principal Act to rationalize sentences prescribed in respect of offences relating to manufacturing drugs and preparation containing manufactured

drugs, Psychotropic substances, illegal import or export of Narcotic drugs and psychotropic substances. Prior to the amendment, the punishment

for possession, in a small quantity for personal consumption of Narcotic drugs and also psychotropic substances was prescribed u/s 27 of the

NDPS Act and punishment not covered u/s 27 of the NDPS Act was prescribed u/s 21 of the NDPS Act with minimum sentence of 10 years

rigorous imprisonment and maximum sentence of 20 years and also with the minimum sentence of fine of Rs. 1 lakh with maximum fine of Rs. 2

lakhs. As per the amended provision of the Section 21 of the NDPS Act, the punishment is divided into three categories, as to where (a)

Contravention involving small quantity (b) Contravention involving quantity lesser than commercial quantity, but greater than small quantity and (c)

Contravention involving commercial quantity.

The learned Senior Counsel further submitted that the trial Court had convicted the accused wrongly u/s 21(c) of the NDPS Act. The total

quantity of the powder seized is only 500 grams. At the most the prosecution had established through chemical analyst report, Ex.P.12 only the

presence of Di-Acetyl-Morphine in it. To bring the offence u/s 21(c) of the NDPS Act, the prosecution is to establish that the contraband

contained 250 grams of Di-Acetyl-Morphine to bring it under the commercial quantity as per the Serial No. 56 in the table given in exercise of the

power conferred by Clause (vii a) and (xxiii a) of Section 2 of the NDPS Act 1984. In the absence of percentage of Di-Acetyl-Morphine present

being given, it is erroneous to conclude the seized quantity of the powder contained more than 250 grams of Di-Acetyl-Morphine or heroin.

The learned Senior Counsel in support of his contention, relied on the decision of the Honourable Supreme Court reported in 2008 (2) SCC

(Crl.) 558 (Michel Raj v. Intelligence Officer, Narcotic Control Bureau)

Per contra, Mr. Dhanapal Raj, learned Special Public Prosecutor submitted that the entire substance which was seized weighing 500 grams

was brown sugar and the sample taken from that contraband on analysing by the chemical analyst, proved that it is a substance of Di-Acetyl-

Morphine which is also called heroin. It is not the report of the analyst that some other substance also was mixed with it and therefore it is not a

mixture ,and as such the whole substance should be taken as heroin weighing to 500 grams which is a commercial quantity.

This Court considered the submission of both sides and perused the records. Though the learned Senior Counsel did not argue challenging the

seizure of the contraband, this Court perused the evidence and also the judgment of the trial Court. Several contentions were raised before the trial

Court challenging the seizure of the contraband and the trial Court has discussed about it. Though this Court is not giving in detail about the

findings, this Court is satisfied with the reasons given by the trial Court for accepting the evidence regarding the seizure of the contraband from

accused/appellant herein.

The point for consideration now is that whether the accused should be sentenced u/s 21(c) of the NDPS Act 1985 as the contravention

involves commercial quantity or Section 21(b) of the NDPS Act as the contravention involves 150 grams lesser than commercial quantity but

greater than small quantity or whether the contravention involves only small quantity.

Section 21 of the NDPS Act before amendment was as follows:

Punishment for Contravention in relation to manufactured drugs and preparation:- Whoever, in contravention of any provision of this Act, or

any Rule or order made or condition of licence granted thereunder, manufactures, possess, sells, purchases, transports, imports inter-State,

exports inter-State, or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous

imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not

be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 21 of the NDPS Act after amendment is as follows:

Punishment for contravention in relation to manufactured drugs and preparation:

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 drug shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may

extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term

which may extend to ten years, and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which

may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;

Provided that the Court may, for reasons to be recorded in the Judgment, impose a fine exceeding two lakh rupees.

As per mahazar Ex.P.1, the polythene packet contained suspected brown sugar in the form of brown colour powder weighing 500grams and

the samples were taken from the said brown colour powder. As per Ex.P.12 analyst report issued by the Assistant Chemical Examiner P.W.4, the

sample was in the form of brown powder. It answered test for the presence of Di-Acetyl-Morphine in it. P.W.4 also had given evidence only to

that effect. P.W.4 has not given any evidence as to whether the whole sample powder which was in brown colour was only Di-Acetyl-Morphine

or a part of it was Di-Acetyl-Morphine. It is only stated by him that the brown powder answered the test for the presence of Di-Acetyl-Morphine,

but the percentage of the Di-Acetyl-Morphine in the powder is not given.

The Honourable Supreme Court in the decision reported in 2008 (2) SCC 558 (Michel Raj v. Intelligence Officer, Narcotic Control Bureau),

had observed as follows:

On going through Amarsingh case 2005 S.C.C. (Crl.) 1704 we do not find that the Court was considering the question of mixture of a narcotic

drug or psychotropic substance with one or more neutral substance(s). In fact that was not the issue before the Court. The black-coloured liquid

substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for

the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as ""opium derivative"" which requires a minimum 0.2% morphine. The

content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or

commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more

neutral substance(s). Thus, Amarsingh case cannot be taken to be an authority for advancing the proposition made by the learned Counsel for the

respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be

considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic

drug or psychotropic substance is found mixed with one or more neutral substance(s), for the purpose of imposition of punishment it is the content

of the narcotic drug or psychotropic substance which shall be taken into consideration.

The said Judgment also has been followed by the Honourable Supreme Court reported in 2009 (3) Scale 429 (State of NCT of Delhi v. Ashif

Khan @ Kalu)

In this case, though the test was conducted from the samples for the presence of the heroin, the purity test has not been conducted so as to

establish the quantity of the Di-Acetyl-Morphine in the whole mixture .Merely because the powder was in brown colour, it can not be said that the

total quantity of the powder is only Di-Acetyl-Morphine. No adverse inference can be drawn against the accused in the absence of any specific

evidence or any other material to draw such an inference. Certainly, it is the duty of the prosecution to establish that the contravention involves a

commercial quantity in order to bring the offence u/s 21(c) of the NDPS Act.

Though originally the charge against the accused was u/s 8(c) r/w 21 of the NDPS Act, after examining all the witnesses and after completion

of the prosecution evidence, the charge was amended on 25.11.2002 u/s 8(c) r/w Section 21(c) and the argument was heard after two days.

While the trial Court was aware of the specific provision of Section 21(c) of the NDPS Act, and amended the charge against the accused had not

taken any steps for sending the contraband for purity test. The prosecution also has not taken any steps pending trial to get a fresh report from the

analyst. The prosecution has miserably failed to establish that the contravention involves the commercial quantity, the conviction u/s 21(c) of the

NDPS Act is not sustainable. At the same time, this Court is not prepared to hold that the contravention involves only small quantity of 5 grams as

per Entry-50 in the table. It is not possible to conclude that the total quantity of 500 grams of brown powder would contain only 5 grams or less

than 5 grams of Di-Acetyl-Morphine. In the circumstances of the case, it is safe to conclude that the contravention by the accused involves quantity

less than commercial quantity, but greater than small quantity, which is punishable u/s 21(b) of the NDPS Act.

This Court therefore holds that the accused is guilty not u/s 21(c) of the NDPS Act, but u/s 8(c) r/w 21(b) of the NDPS Act and she is

sentenced to undergo 8 years rigorous imprisonment and a fine of Rs. 25,000/- is imposed and in default sentenced to undergo 3 months rigorous

imprisonment. The conviction by trial Court u/s 23 r/w 28 of the NDPS Act is confirmed and the sentence is modified to undergo 8 years rigorous

imprisonment and a fine amount of Rs. 25,000/- is imposed in default sentenced to undergo 3 months rigorous imprisonment. The conviction by

trial Court u/s 125-A of the Customs Act and the sentence of 2 years imprisonment are confirmed. The sentences of imprisonment are to run

concurrently.

As it is reported by the learned Senior Counsel that the petitioner has been in prison for more than 8 years and 6 months, the jail authority may

verify and if the petitioner has already undergone the sentence of imprisonment and the default sentence of imprisonment for non-payment of fine,

the appellant shall be released forthwith, if not required in any other case.

The appeal is partly allowed, with the above modification.