E.
Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau [2008] INSC 415
(11 March 2008)
P.P. NAOLEKAR & LOKESHWAR SINGH PANTA 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 the NDPS Act) 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 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 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, 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 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 or a
`commercial quantity.
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 and `commercial
quantity 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)
`Commercial quantity, 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; Section
2(xxiiia) (inserted by Amending Act 9 of 2001 w.e.f 2.10.2001) '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; Section 2(xvi) `Opium derivative means-
-
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;
-
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;
-
Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their
salts;
-
Diacetylmorphine, that is, the alkaloid also known as diamorphine or
heroin and its salts; and
-
All preparations containing more than
0.2 percent of morphine or containing any diacetylmorphine; Section 2 (xi)
`Manufactured drug 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. 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] 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, - (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.
8. The Statement of Objects and Reasons concerning the Amending Act of 2001
is as follows:
Narcotic
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 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.
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:
S.O. 1055(E), dated 19-10-2001. 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 ..
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..
* ** * Lesser of the small quantity between the quantities given against the
respective narcotic drugs or psychotropic substances mentioned above forming part
of the mixture.
** Lesser of the commercial quantity between the quantities given against
the respective narcotic drugs or psychotropic substances mentioned above
forming part of the mixture.
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 all preparations containing more than 0.2
percent of morphine or containing any diacetylmorphine 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
commercial quantity 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 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:
The 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 small quantity 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. 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 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 :
There does not appear to be any acceptable evidence that the black
substance found with the appellant was coagulated juice of the opium
poppy and any mixture, with or without any neutral material, of the
coagulated juice of the opium poppy.
FSL has given its opinion that it is opium as described in the NDPS
Act. That is not binding on the court. 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. 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:
In respect of opium derivatives (at Sl.No.93) in the said notification,
5 grams is specified as small quantity and 250 grams as
commercial quantity. The High Court was, therefore, right in finding
that the appellant was guilty of unlawful possession of commercial
quantity 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.
This Court has, therefore, upheld the imposition of minimum punishment under
Section 21(c) of 10 years 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 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 Analysts 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 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.
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