Abraham Vs. State of Kerala  Insc 125 (26 February 2004)
Hegde & B.P. Singh B.P. Singh, J.
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 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.
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
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.
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.
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 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
application has been filed by the appellant for permission to urge additional
grounds in his appeal. We allow the said application.
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 1 gm. It is also not contended that the quantity seized from the
appellant was in excess of the quantity prescribed under Rule 66.
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. 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 ;
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.
66 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred
to as 'the NDPS Rules') provides as follows :-
Possession, etc. of psychotropic substances.
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.
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 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 :
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.
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
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.
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
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.
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 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.
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.