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CASE NO.: Appeal (crl.)  1250 of 2005

PETITIONER: E. Micheal Raj

RESPONDENT: Intelligence Officer, Narcotic Control Bureau

DATE OF JUDGMENT: 11/03/2008

BENCH: P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T P.P. NAOLEKAR, J.: 1.      This appeal by special leave is directed against the judgment  and order dated 25.8.2004 of the Kerala High Court in Criminal  Appeal No. 185 of 2004 whereby the conviction and sentence of the  accused-appellant under Section 21(c) of the Narcotic Drugs and  Psychotropic Substances Act, 1985 (hereinafter referred to as \023the  NDPS Act\024)  was confirmed. 2.      The relevant facts of the case are that on 5.3.2001, the  Intelligence Officer was informed by an informant that two persons  with certain drugs would be arriving by a Tamil Nadu Transport  Corporation Bus at Thiruvananthapuram Bus Stand. The Officer  along with other persons and the informant went to the bus stand and  waited for the bus. At about 9.00 a.m., the two accused alighted from  the Tamil Nadu Transport Corporation bus. They were identified by  the informant. They were intercepted by the officials.  The officials   disclosed their identity and the accused were searched. When asked  about possession of narcotic drugs, it was admitted by the accused  that they were carrying 4 kgs. of heroin and they handed over the bag  to the Officer. The bag contained two packets wrapped in Tamil  newspapers secured with brown adhesive tape in which light grey  powder was found. Two samples of 5 gms. each  from both the drug  packets were packed, sealed and sent for testing to the Laboratory.  The accused were arrested, but the second accused escaped while  on the way to produce them before the Magistrate.  On 26.3.2001,  the Customs House Laboratory, Cochin sent a report confirming the  samples as answering to the test of crude heroin, a narcotic drug  covered under the NDPS Act. The report further said that the  Laboratory was not equipped to conduct a quantitative test. Thus, the  samples were sent for quantitative test.  On 22.2.2002, a quantitative  test was done in the Customs Laboratory, Chennai where the purity  was tested and the quantitative test report indicated as follows :        

S.No Marking on  the cover Lab No. Wt of the  sample  received  with plastic  cover Wt of the  remnant  received  with plastic  cover Purity

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1. S1 235 5.6g 5.0 g 1.4% 2. S3 236 4.9 g 4.6g 1.6%        

3.      The accused-appellant was charged with the offence  committed under Section 8(c) read with Sections 21 and 29 of the  NDPS Act by the Intelligence Officer, Narcotic Control Bureau.  The  Special Judge for Trial of Cases under the NDPS Act found that the  substance found in possession of the accused was an opium  derivative which has been defined under Section 2(xvi), and under  Section 2(xvi)(e) a preparation, containing more than 0.2% of  morphine or diacetylmorphine, is an opium derivative; and that since  this contraband article contained 1.4% and 1.6% heroin it is an opium  derivative, and punishable under Section 21 of the NDPS Act.  Since  the manufactured drug being carried weighed 4.07 kg., it would come  under Section 21(c) being a commercial quantity, but since the  accused is only a carrier and is not the beneficiary of the transaction,  he would not be awarded the maximum sentence and would be  awarded the minimum sentence of 10 years\022 rigorous imprisonment  and a fine of rupees one lakh, in default  of payment of fine rigorous  imprisonment for one more year.  On an appeal being preferred, the  High Court found the accused guilty.  The High Court said that  Section 21 of the NDPS Act when read with Section 2(xi) which  defines ‘manufactured drug\022, makes it evident that the packet seized  from the appellant is a manufactured drug. The offence can be in  respect of the manufactured drug as well as preparation of  manufactured drug. ‘Preparation\022 has been defined in Section 2(xx).   Again, any mixture of narcotic drug with other substances will also  come within Section 21 of the NDPS Act, so the rate of purity  becomes irrelevant. The purity test does not advance the case of the  accused.   As per the High Court, it is the whole quantity of mixture  which has to be taken into consideration for imposing the punishment  under Section 21 of the NDPS Act.  The High Court maintained the  conviction and sentence awarded by the Special Judge.  4.      The only submission made by Shri K.V. Viswanathan, learned  counsel for the appellant is confined to the limited issue relating to  sentence of the appellant under Section 21 of the NDPS Act.   As per  the learned counsel, the conviction and sentence of the appellant is  contrary to law because the total quantity of contraband seized from  him was 4.07 kgs.  Since the purity of heroin is 1.4% and 1.6%  respectively in two samples, therefore the quantity of heroin in  possession is only 60 gms. [(1.4+1.6)/2 = 1.5% of 4.07 kgs. = 60  gms.). Thus, the total quantity of heroin seized is below 250 gms., i.e.  below the commercial quantity.  It is submitted that it is not the total  weight of the substance allegedly recovered that is material, but the  percentage content of heroin translated into weight that is relevant.   5.      On the other hand,  Shri Vikas Sharma, learned counsel  appearing for the respondent urged that it is only the weight of the  substance found in possession of the appellant and recovered from  him ought to be seen, and once the substance tested positive for  heroin, its percentage content in the substance was irrelevant, the  entire substance would be viewed as a narcotic drug and  consequently the total weight of the substance ought to be taken into  consideration for determining whether it was a ‘small quantity\022 or a  ‘commercial quantity\022.  

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6.      The provisions of the NDPS Act were amended by the  Narcotic Drugs and Psychotropic Substances (Amendment) Act,  2001 (Act 9 of 2001) (w.e.f  2.10.2001), which rationalized the  punishment structure under the NDPS Act by providing graded  sentences linked to the quantity of narcotic drugs or psychotropic  substances carried.   Thus, by the Amending Act, the sentence  structure changed drastically. ‘Small quantity\022 and ‘commercial  quantity\022 were defined under Section 2(xxiiia) and Section 2(viia)  respectively.  New Section 21 also provides for proportionate  sentence for possessing small, intermediate and commercial  quantities of offending material. As per Entry 56 of the Notification  dated 19.10.2001 issued by the Central Government 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  decision is whether the contravention involved in this case is small,  intermediate or commercial quantity under Section 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. 7.      To appreciate the arguments of the parties, the relevant  Sections of the NDPS Act have to be looked into, which are as under:  Section 2 (viia) (inserted by Amending Act 9 of 2001 w.e.f   2.10.2001)

\023‘Commercial quantity\022, in relation to narcotic drugs and  psychotropic substances, means any quantity greater than the  quantity specified by the Central Government by notification in  the Official Gazette;\024  

Section 2(xxiiia) (inserted by Amending Act 9 of 2001 w.e.f   2.10.2001)

\023’Small quantity’, in relation to narcotic drugs and psychotropic  substances, means any quantity lesser than the quantity  specified by the Central Government by notification in the  Official Gazette;\024

Section 2(xvi)  \023‘Opium derivative\022 means- (a) Medicinal opium, that is, opium which has undergone the  processes necessary to adapt it for medicinal use in  accordance with the requirements of the Indian Pharmacopoeia  or any other Pharmacopoeia notified in this behalf by the  Central Government, whether in powder form or granulated or  otherwise or mixed with neutral materials;   (b) Prepared opium, that is, any product of opium by any series  of operations designed to transform opium into an extract  suitable for smoking and the dross or other residue remaining  after opium is smoked;   (c) Phenanthrene alkaloids, namely, morphine, codeine,  thebaine and their salts;   (d) Diacetylmorphine, that is, the alkaloid also known as  diamorphine or heroin and its salts; and

(e) All preparations containing more than 0.2 percent of  morphine or containing any diacetylmorphine;\024

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Section 2 (xi)  \023‘Manufactured drug\022 means - (a) All coca derivatives, medicinal connabis, opium derivatives  and poppy straw concentrate;   (b) Any other narcotic substance or preparation which the  Central Government may, having regard to the available  information as to its nature or to a decision, if any, under any  International Convention, by notification in the Official Gazette,  declare to be a manufactured drug;

but does not include any narcotic substance or preparation  which the Central Government may, having regard to the  available information as to its nature or to a decision, if any,  under any International Convention, by notification in the  Official Gazette, declare not to be a manufactured drug.\024

Section 21. Punishment for contravention in relation to  manufactured drugs and preparations [substituted by the  Amending Act 9 of 2001, w.e.f. 2.10.2001]

\023Whoever, 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.\024  

8.      The Statement of Objects and Reasons concerning the   Amending  Act of 2001 is as follows:      \023Narcotic Drugs and Psychotropic Substances Act, 1985  provides deterrent punishment for various offences relating to  illicit trafficking in narcotic drugs and psychotropic substances.  Most of the offences invite uniform punishment of minimum ten  years’ rigorous imprisonment which may extend up to twenty  years. While the Act envisages severe punishments for drug  traffickers, it envisages reformative approach towards addicts.  In view of the general delay in trial it has been found that the  addicts prefer not to invoke the provisions of the Act. The strict  bail provisions under the Act add to their misery.  

       Therefore, it is proposed to rationalise the sentence  structure so as to ensure that while drug traffickers who traffic  in significant quantities of drugs are punished with deterrent

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sentences, the addicts and those who commit less serious  offences are sentenced to less severe punishment. This  requires rationalisation of the sentence structure provided  under the Act. It is also proposed to restrict the application of  strict bail provisions to those offenders who indulge in serious  offences.\024

9.      The entry of the Notification under which the substance found in  possession of the appellant falls is Entry 56 or Entry 239.  The  relevant portion of the Notification dated 19.10.2001 issued by the  Central Government reads as under:         \023S.O. 1055(E), dated 19-10-2001. \026 In exercise of the powers  conferred by clauses (viia) and (xxiiia) of section 2 of the Narcotic  Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in  supersession of Ministry of Finance, Department of Revenue  Notification S.O. 527(E) dated 16th July, 1996, except as respects  things done or omitted to be done before such supersession, the  Central Government hereby specifies the quantity mentioned in  columns 5 and 6 of the Table below, in relation to the narcotic drug  and psychotropic substance mentioned in the corresponding entry in  columns 2 to 4 of the said Table, as the small quantity and  commercial quantity respectively for the purposes of the said clauses  of that section.  

Sl.  No Name of  Narcotic  Drug and  Psychotropic  Substance \005\005.. Other  non- propriety  name Chemical Name Small  Quantity  (in gm) Commercial  Quantity (in  gm./kg.)  56 Heroin

Diacetylmorphine 5 250 gm. 239 Any mixture  or  preparation  that of with  or without a  neutral  material, of  any of the  above drugs.

\005\005\005\005\005\005\005\005\005\005\005. * ** * Lesser of the small quantity between the quantities given against the respective narcotic  drugs or psychotropic substances mentioned above forming part of the mixture.

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** Lesser of the commercial quantity between the quantities given against the respective  narcotic drugs or psychotropic substances mentioned above forming part of the mixture.\024

10.     The possession of offending substance would be considered an  offence punishable under the NDPS Act, as heroin is an opium  derivative as per Section 2(xvi)(e) which says that \023all preparations  containing more than 0.2 percent of morphine or containing any  diacetylmorphine\024 is an opium derivative.  Further, according to  Section 2(xi), all opium derivatives fall under the category of  manufactured drug.      Thus, we conclude that the offending  substance is an opium derivative and hence a manufactured drug,  the possession of which is in contravention of the provisions of  Section 8 of the NDPS Act  which prohibits certain operations to the  effect that no person shall produce, manufacture, possess, sell,  purchase, transport, warehouse, use, consume, import inter-State,  export inter-State, import into India, export from India or tranship any  narcotic drug or psychotropic substance. 11.     In the present case, the opium derivative which has been found  in possession of the accused-appellant is prohibited under Section 8  of the NDPS Act and thus punishable under Section 21 thereof.  The  question is only with regard to the quantum of punishment. 12.     As a consequence of the Amending Act, the sentence structure  underwent a drastic change. The Amending Act for the first time  introduced the concept of \021commercial quantity\022 in relation to narcotic  drugs  or  psychotropic  substances  by adding clause (viia) in  Section 2, which defines this term as any quantity greater than a  quantity specified by the Central Government by notification in the  Official  Gazette. Further, the term ’small quantity’ is defined in  Section 2, clause (xxiiia), as any quantity lesser than the quantity  specified by the Central Government by notification in the Official  Gazette.  Under the rationalised sentence structure, the punishment  would vary depending upon whether the quantity of offending material  is ’small quantity’, ‘commercial quantity\022 or something in-between.   13.     It appears from the Statement of Objects and Reasons of the  Amending Act of 2001 that the intention of the legislature was to  rationalize the sentence structure so as to ensure that while drug  traffickers who traffic in significant quantities of drugs are punished  with deterrent sentence, the addicts and those who commit less  serious offences are sentenced to less severe punishment. Under the  rationalised sentence structure, the punishment would vary  depending upon  the quantity of offending material.   Thus, we find it  difficult to accept the argument advanced on behalf of the respondent  that the rate of purity is irrelevant since any preparation which is more  than the commercial quantity of 250 gms. and contains 0.2% of  heroin or more would be punishable under Section 21(c) of the NDPS  Act, because the intention of the legislature as it appears to us is to  levy punishment based on the content of the offending drug in the  mixture and not on the weight of the mixture as such.  This may be  tested on the following rationale.  Supposing  4 gms. of heroin is  recovered from an accused,  it would amount to a small quantity, but  when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it  would be quantified as a commercial quantity.  In the mixture of a  narcotic drug or a psychotropic substance with one or more neutral  substance/s, the quantity of the neutral substance/s is not to be taken  into consideration while determining the small quantity or commercial  quantity of a narcotic drug or psychotropic substance.  It is only the  actual content by weight of the narcotic drug which is relevant for the  purposes of determining whether it would constitute small quantity or  commercial quantity.  The intention of the legislature for introduction  of the amendment as it appear to us is to punish the people who  commit less serious offences with less severe punishment and those  who commit grave crimes, such as trafficking in significant quantities,  with more severe punishment.   14.     In the case of Ouseph alias Thankachan v. State of Kerala,  (2004) 4 SCC 446, this Court in para 8 has held as under:

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          \023The question to be considered by us is whether the  psychotropic substance was in a small quantity and if so,  whether it was intended for personal consumption.   The words  \023small quantity\024 have been specified by the Central Government  by the notification dated 23-7-1996. Learned counsel for the  State has brought to our notice that as per the said notification  small quantity has been specified as 1 gram. If so, the quantity  recovered from the appellant is far below the limit of small  quantity specified in the notification issued by the Central  Government. It is admitted that each ampoule contained only 2  ml and each ml contains only .3 mg. This means the total  quantity found in the possession of the appellant was only 66  mg. This is less than 1/10th of the limit of small quantity  specified under the notification.\024         From the aforesaid decision, we find that the Court has taken the  quantity of the narcotic drug or psychotropic substance found in the  mixture, relevant for the purpose of imposition of punishment. 15.     The learned counsel for the respondent placed reliance on the  decision of this Court in Amarsingh Ramjibhai Barot v. State of  Gujarat, (2005) 7 SCC 550, in support of his contention that the  entire material found in possession irrespective of the content of the  offending material has to be taken into consideration while imposing  the punishment.  In Amarsingh case (supra), two persons, namely,  Amarsingh and Danabhai were apprehended.  Amarsingh was found  carrying a plastic bag which contained a black-coloured liquid  substance weighing 920 gms.  Similarly, 4.250 kg. of grey-coloured  substance was recovered from Danabhai.  Samples were sent to the  Forensic Science  Laboratory (FSL).  The FSL report indicated that  the sample from Amarsingh was opium as described in the NDPS Act  containing 2.8% anhydride morphine apart from pieces of poppy  flowers and the sample relating to Danabhai was reported to be  opium as described in the NDPS Act having 1.2% anhydride  morphine and also containing pieces of poppy flowers.  Both the  accused were charged and tried under Sections 15, 17 and 18 read  with Section 29 of the NDPS Act.  The High Court found that the  conviction under Sections 17 and 18 read with Section 29 of the  NDPS Act was not correct, but convicted Amarsingh under Section  21(c) and also under Section 21(c) read with Section 29 of the NDPS  Act, for individually being in possession of opium and for being jointly,  in conspiracy with the other accused.  The High Court found the  accused possessed of commercial quantity and convicted and  sentenced him for 10 years\022 rigorous imprisonment plus fine of Rs. 1  lakh.  Being aggrieved, Amarsingh approached this Court.  This Court  has held in para 14 of the judgment as under :

\023There does not appear to be any acceptable evidence that the  black substance found with the appellant was \023coagulated juice  of the opium poppy\024 and \023any mixture, with or without any  neutral material, of the coagulated juice of the opium poppy\024.   FSL has given its opinion that it is \023opium as described in the  NDPS Act\024.  That is not binding on the court.\024        The Court further held that the evidence also does not indicate that  the substance recovered from the appellant would fall within the  meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi), but  residuary clause (e) would apply and consequently it would amount to  opium derivative as all opium derivatives fall within the expression  ‘manufactured drugs\022.   Thus, the Court arrived at the conclusion that  what was recovered from the appellant was manufactured drug and  the offence proved against the appellant fell clearly within Section 21  of the NDPS Act for illicit possession of manufactured drug.  The  Court concluded and held in para 17 as under:

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\023In respect of opium derivatives (at Sl.No.93) in the said  notification, 5 grams is specified as \023small quantity\024 and 250  grams as \023commercial quantity\024.  The High Court was,  therefore, right in finding that the appellant was guilty of  unlawful possession of \023commercial quantity\024 of a manufactured  drug.  Consequently, his case would be covered by clause (c)  and not clause (a) or (b) of Section 21 of the NDPS Act.\024   This Court has, therefore, upheld the imposition of minimum  punishment under Section 21(c) of 10 years\022 rigorous imprisonment  with fine of Rs. 1 lakh. 16.     On going through Amarsingh case (supra), 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\022 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 (supra) 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. 17.     In the present case, the narcotic drug which was found in  possession of the appellant as per the Analyst\022s report is 60 gms.  which is more than 5 gms., i.e. small quantity, but less than 250 gms.,  i.e. commercial quantity.  The quantity of 60 gms. is lesser than the  commercial quantity, but greater than the small quantity and, thus,  the appellant would be punishable under Section 21(b) of the NDPS  Act.   Further, it is evident that the appellant is merely a carrier and is  not a kingpin. 18.     In these circumstances, the ends of justice would be subserved  if we reduce the sentence of the accused-appellant to 6 years\022  rigorous imprisonment with fine of Rs.20,000/- and in default of  payment of fine rigorous imprisonment for six months.  We order  accordingly.   

19.     The accused-appellant is stated to be in jail since 6.3.2001.  He  has, therefore, undergone the sentence imposed on him.  He shall be  set at liberty forthwith if not required in any other case. 20.     The appeal stands disposed of in the above terms.