Sellappah Satguneswaran @ Master vs Intelligence Officer, Narcotics Control Bureau, South Zonal Unit

T. Sudanthiram, J.—The appellant herein is the first accused in C.C. No. 9 of 2009, on the file of the learned Principal Special Judge,

Principal Special Court under NDPS Act, Chennai, and he stands convicted for the offences under Sections 8(c) read with 29, 21(c), 25 and 28

of NDPS Act and sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs. 1 lakh for each offence, in

default, to undergo six months rigorous imprisonment for each offence. The substantive sentences of imprisonment imposed on the accused were

ordered to run concurrently. Challenging the said conviction and sentence, the appellant had preferred this Criminal Appeal before this Court. The

case of the prosecution, in brief, is as follows:

On 22.8.2008, the Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, on receiving information, rushed to the Jet Airways,

Chennai International Airport. Then, the NCB officers approached the officials of Jet Airways, Chennai International Airport at about 11.30 hours

and introduced themselves as officers of NCB, South Zonal Unit, Chennai, by showing their identity cards and requested them to stand as

witnesses for the search proceedings to be conducted by them under NDPS Act. Then, the NCB Officers along with the independent witnesses,

with the assistance of Jet Airways staff, located one Perumal Shanmuganathan, who was standing in the Jet Airways check-in counter area along

with his luggage. When the NCB officers introduced themselves, enquired about his name and details, he revealed his name as Perumal

Shanmuganathan. The NCB officers asked him to identity his luggage and he showed one trolley suitcase, which had an inscription on it ''POLO'',

one carton box, which had an inscription ""Prestige DELIGHT 2.2 liters"" and Another carton box having an inscription ""Shadows Induction Cooker

SLS-2018"". The NCB officers informed him about their intention to search. When the said Perumal Shanmuganathan was questioned by the NCB

officers as to whether he was given any articles by the appellant/first accused for taking the same to Colombo and handing over it to his person

there, he replied in affirmative. Thereafter, he showed two carton boxes which were in his possession, opened the carton box inscribed as

Prestige Delight 2.2 litres"" and took out the electric rice cooker. On opening the top lid portion, they found a silver colour foil packet and on

broke opening the bottom portion of the cooker, they found another silver colour foil packet, which were seized. Then, on opening the carton box

inscribed as ""Shadows induction cooker SLS-2018"", they found a silver colour foil packet and the same was seized. Then, the NCB officers

opened the three packets wherein 253 grams, 197 grams and 260 grams, totaling to 710 grams of heroin was found and on opening the other

three packets, 255 grams, 251 grams and 253 grams, totaling to 759 grams of heroin was found. Subsequently, the statement of the accused was

recorded. Exhibit P-37 is the statement of the accused recorded u/s 67 of the NDPS Act.

(ii) In order to establish the case, the prosecution examined P.Ws. 1 to 5, marked Exhibits P-1 to P-59 and produced M.Os. 1 to 25. On behalf

of the accused, no witness was examined and no document was marked.

(iii) The Trial Court, after analyzing the oral and documentary evidence, convicted and sentenced the accused as already stated above.

The learned counsel for the appellant submitted that he has not challenged the evidence with regard to the seizure of contraband from the

accused, but, he has challenged the conviction imposed by the trial Court on the basis that the seized contraband was of commercial quantity and

that actually the contraband seized comes under ''in between quantity'' as per the Chemical Analysis Report. The learned counsel for the appellant

also relied on a decision of the Honourable Supreme Court reported in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, .

The learned Special Public Prosecutor for NCB Cases submitted that the accused admitted his guilt before the trial Court and he has also filed a

memo to that extent. Therefore, he cannot challenge the conviction and he had not raised any ground in the memorandum of criminal appeal that

the contraband seized is only ''in between quantity''. At the same time, the learned Special Public Prosecutor fairly admitted the fact that as per the

Chemical Analysis Reports-Exhibits P-44 and 45, though the total contraband seized is 710 grams and 759 grams respectively, as per the

percentage of Di-Acetyl-Morphine, the actual quantity of heroin comes to 71 grams and 70 grams respectively.

This Court has considered the submissions made by the learned counsel on either side and perused the records.

The accused had already admitted his guilt and evidence also has been let in to prove the recovery of contraband from the accused. The

accused also has given a statement u/s 67 of the NDPS Act before the officials which is marked as Exhibit P-37. The prosecution has proved that

the accused was in possession of the contraband and the contraband recovered from him was heroin. Totally, six packets were recovered from the

accused and samples were taken from each packet. The percentage of Di-Acetyl-Morphine, in each of the sample packets was found to be

10.1%, 8.7%, 8.4% and 8.9%, 8.8% and 6.8% respectively. On that basis, the quantity of heroin recovered from the accused comes nearly about

141 grams which is less than 250 grams prescribed as commercial quantity. Following the ratio laid down by the Hon''ble Supreme Court in the

decision cited supra, this Court is of the view that the accused is liable to be convicted u/s 21(b) of the NDPS Act and not u/s 21(c) of the NDPS

Act.

It is brought to the notice of this Court by the learned counsel for the appellant that the appellant is in jail for more than four years.

In the result, the conviction and sentence imposed by the trial Court on the accused for the offence u/s 21(c) of the NDPS Act are set aside.

Instead, he is convicted u/s 21(b) of the NDPS Act and sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 10,000/-,

in default, to undergo 15 days rigorous imprisonment.

In view of the said alteration in conviction and sentence of imprisonment imposed by the trial Court for the offence u/s 21(c) of the NDPS Act,

the sentence of imprisonment imposed for the offences under Sections 8(c) read with 29, 25 and 28 of the NDPS Act are also altered and the

accused is sentenced to undergo five years rigorous imprisonment for each offence and to pay a fine of Rs. 10,000/- for each offence, in default, to

undergo 15 days rigorous imprisonment for each offence. The substantive sentences of imprisonment are to run concurrently. The criminal appeal is

partly allowed, with the above modification.