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PETITIONER: RAJU @ SALAM

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       05/05/1999

BENCH: G.T. Nanavati & S.N. Phukan

JUDGMENT:

Nanavati, J.

     The  appellant has been convicted under Section 21  of the  Narcotic  Drugs  and Psychotropic  Substances  Act  and sentenced  to suffer rigorous imprisonment for 10 years  and to  pay  afine  of Rs.l lakh.  His conviction by  the  trial court  has  been  confirmed  by the  High  Court.   He  has, therefore, filed this appeal.

     The  facts  as  found by the trial court are  that  on 27.12.83,  the appellant was found in possession of 100 mgs. of  brown  sugar.   It was at about 1.25 p.m.  when  he  was passing  on a road.  Though it 1s not very clear as to  what exactly  was  the explanation given him to them, it  appears from  cross-examination  of the witnesses and the  statement recorded  under  Section 313 Cr.P.C.  that he had  purchased the  said quantity from one Mattancharry Rafeeque for a  sum of  Rs,25/-  for  his   personal  consumption.   Though  the quantity found was ’small quantity’, the Trial Court refused to give benefit of Section 27 of the Act to the appellant on the  ground that he had failed to establish that It was  for his  personal consumption.  The Trial Court proceeded on the basis  that  the appellant possessed the same for  sale  and convicted  him under Section 21 of the Act.  The High  Court also  adopted the saroe line of reasoning and confirmed  the finding recorded by the Trial Court.

     What  1s  contended  by the learned  counsel  for  the appellant  1s  that  the  courts  below  have  not  properly considered   the  defence  raised  by  the  appellant.    He submitted  that even though he had raised the plea that  the quantity  of 100 mgs.  was ’small quantity’ and it was  kept for  his personal consumption, the trial court rejected  the said  plea  on  the ground that no evidence was led  by  the appellant to prove his defence and that if the appellant was an  addict  to brown sugar, one would havs found  withdrawal symptoms in him but no sJch tendencies were exhibited by the appellant at any stage of trial.

     The  prosecution  had led no evidence to show that  he was  an addict or that he was regularly taking brown  sugar. Therefore,  it  was not proper to reject the defence of  the appellant  on the ground that during the trial the appellant was  in custody and could not have consumed brown sugar  and yet  he did not exhibit withdrawal symptoms.  It is also not in  dispute  that  the quantity which he  was  carrying  was

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’small quantity’.  The value of it was only Rs.25/-.  It is, therefore,  doubtful if such a small quantity was  purchased by him for sale and make any profit out of it.  In any case, there is no evidence on the basis of which such an inference can be drawn.  These aspects have not been considered by the trial  court and the High Court.  We are of the opinion that this appeal deserves to be allowed and the conviction of the appellant  deserves to be altered from Section 21 to Section 27 of the NDPS Act.

     We  accordingly  allow  this   appeal  and  alter  the conviction  of  the appellant from under Section 21  to  one under Section 27 of the NDPS Act and also alter the sentence of  10 years rigorous imprisonment and a fine of Rs.  1 lakh to  rigorous  imprisonment  for  one  year  and  a  fine  of Rs.5,000/-.   In  default of payment of fine, the  appellant shall  suffer  further  imprisonment for a period  of  three months.       The appeal is allowed accordingly.