Salam Vs. State of Kerala  INSC 184 (5 May 1999)
& S.N. Phukan Nanavati, J.
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.
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.
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.
prosecution had led no evidence to show that he was an addict or that he was
regularly taking brown sugar.
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 '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.
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
appeal is allowed accordingly.