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CASE NO.: Appeal (crl.)  1022 of 1997

PETITIONER: Sajan Abraham

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 26/02/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT: J U D G M E N T

B.P. Singh, J.

       The appellant herein was charged of having committed  the offence punishable under Section 21 of the Narcotic Drugs  and Psychotropic Substances Act, 1985 (hereinafter referred to  as ’the NDPS Act’) and was put up for trial before the Ist  Additional Sessions Court, Ernakulam.  The case of the  prosecution was that on 10th October, 1993 at about 7.45 p.m.   he was found in possession of 25 ampoules of manufactured  drug, namely \026 Buprenorphine Hydrocholride (Tidigesic)  alongwith three syringes when he was apprehended on the road  near Blue Tronics Junction, Palluruthy.  The learned Additional  Sessions Judge by his judgment and order dated 5th March,  1994 acquitted the appellant of the charge levelled against him.   On appeal by the State being Criminal Appeal No. 533 of 1994  the acquittal of the appellant was set aside and the appeal  preferred by the State was allowed.  The appellant was found  guilty of the offence punishable under Section 21 of the NDPS  Act and was sentenced to undergo rigorous imprisonment for  10 years and to pay a fine of rupees one lakh, in default to  undergo simple imprisonment for one year.  

       The appellant preferred an appeal before this Court being  Criminal Appeal No. 1022 of  1997 but the same was dismissed  by this Court by judgment and order dated 7th August, 2001.   The appellant then filed a review petition being Review Petition  (Crl.) No.1236 of 2001 which was allowed by this Court and  the appeal restored to its original number.  The appeal has now  been placed before us for disposal.

       While allowing the review petition this Court observed  that the appellant should have taken up a plea in the light of the  decision of this Court in Hussain  vs.  State of Kerala : (2000) 8  SCC 139 in which the same article Buprenorphine  Hydrocholride (Tidigesic) was found to be a psychotropic  substance and the quantity which was found in possession of  the accused was within the prescribed limit, being a small  quantity.  Consequently benefit of the same was granted to the  accused in that case and he was acquitted.  This Court felt,  while allowing the review petition, that the appellant should be  permitted to take up that contention in this case in order to  prevent a miscarriage of justice.  This Court noticed that the  total quantity involved is 25 ampoules of Buprenorphine  Hydrocholride (Titidigesic) of 2 ml. each.  Counsel for the State  of Kerala submitted that the limit of small quantity as per the

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Notification is 1 gm.  Thus the total quantity seized from the  appellant would fall within the limit of small quantity used for  medicinal purposes.  The appellant was permitted to file a  petition seeking permission to raise additional grounds in the  appeal.         An application has been filed by the appellant for  permission to urge additional grounds in his appeal.  We allow  the said application.           It was not disputed before us by the learned counsel  appearing on behalf of the State that the total quantity seized  from the appellant would fall within the limit prescribed under  Section 27 of small quantity to be used for medicinal purpose,  namely \026 1 gm.  It is also not contended that the quantity seized  from the appellant was in excess of the quantity prescribed  under Rule 66.    

       Section 21 of the NDPS Act, as it stood at the relevant  time provided as follows :- "21.    Punishment for contravention in relation to  manufactured drugs and preparations. \026 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 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."   

       It is thus apparent that what is made punishable under  Section 21 is, -  possession, sale, purchase etc. of the drugs and  preparations mentioned therein in contravention of any  provision of the Act or any rule or order made or condition of  licence granted thereunder.  Obviously, therefore, if any rule  permits a person to possess any psychotropic substance within  the limits specified under the rule and subject to such  conditions as the rule may prescribes, such a person cannot be  held guilty of the offence under Section 21 of the Act if it is  shown that his possession is not in contravention of such rule.  

Rule 66 of the Narcotic Drugs and Psychotropic  Substances Rules, 1985 (hereinafter referred to as ’the NDPS  Rules’) provides as follows :-

"66.    Possession, etc. of psychotropic substances.  \026 (1)  No person shall possess any psychotropic  substance for any of the purpose covered by the  1945 Rules, unless he is lawfully authorized to  possess such substance for any of the said purposes  under these Rules.

(2)  Notwithstanding anything contained in  sub-rule (1), any research institution, or a hospital  or dispensary maintained or supported by  Government or local body or by charity or

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voluntary subscription, which is not authorized to  possess any psychotropic substance under the 1945  Rules, or any person who is not so authorized  under the 1945 Rules, may possess a reasonable  quantity of such substance as may be necessary for  their genuine scientific requirements or genuine  medical requirements, or both for such period as is  deemed necessary by the said research institution  or, as the case may be, the said hospital or  dispensary or person :

Provided that where such psychotropic  substance is in possession of an individual for his  personal medical use the quantity thereof shall not  exceed one hundred dosage units at a time.

(3)  The research institution, hospital and  dispensary referred to in sub-rule (2) shall  maintain proper accounts and records in relation to  the purchase and consumption of the psychotropic  substance in their possession."  

       Sub-rule (2) therefore permits a person to keep in his  possession for his personal medicinal use the psychotropic  substance upto one hundred dosage units at a time.   

       In the instant case there is evidence on record which  indicates that the appellant used the said drug and this is  obvious from the deposition of the Investigating Officer, PW-3  as well as the deposition of his mother, DW.1.  Moreover three  syringes were also recovered from the appellant which also is  indicative of the fact that the psychotropic substance recovered  from him was for his personal consumption and not for trading  purposes.   

       In similar circumstances this Court in Ouseph @  Thankachan vs.  State of Kerala (Criminal Appeal No. 1256 of  2001 disposed of on 6th December, 2001) drew such an  inference.  There also the accused was found to possess  110  ampoules of the same psychotropic substance together with two  syringes.  

       In Hussain  vs.  State of Kerala (supra) the appellant was  found to possess 6 ampoules of the same psychotropic  substance.  This Court allowed the appeal preferred by the  accused giving him the benefit of Rule 66 of the NDPS Rules  which permitted the appellant to keep in his possession for his  personal medicinal use the psychotropic substance upto 100  dosage units at a time.   

       Learned counsel for the State submitted that unless the  appellant held a permit granted under Rule 66 of the NDPS  Rules, he cannot claim benefit under the provisions of that  Rule.  We find no substance in the argument because having  regard to the provisions of Section 9 of the NDPS Act under  which the Rules have been framed, the Central Government is  empowered by Rules to permit and regulate the matters  mentioned therein.  Rule 66 itself permits possession of  psychotropic substance below a specified quantity and subject  to the conditions stated therein.  Thus if the possession of  psychotropic substance is justified under the said Rule, no  separate permit is required to be issued to the person possessing  such psychotropic substance because the Rule itself permits  possession of such psychotropic substance to the extent

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mentioned in the Rule and subject to the conditions laid down  therein.  Thus following the principle laid down in Hussain  vs.   State of Kerala (supra) and having regard to the provisions of  Rule 66 of the NDPS Rules read with Section 21 of the NDPS  Act, we are satisfied that the psychotropic substance namely, -              Buprenorphine Hydrocholride (Tidigesic) found in possession  of the appellant was not in breach of Rule 66 of the NDPS  Rules and having regard to the fact that the same was for his  personal consumption, no offence under Section 21 of the  NDPS Act is made out.

       In the result this appeal is allowed and the appellant is  acquitted of the charge levelled against him.  The appellant is  on bail.  His bail bonds are discharged.