CRL.A. No. 1909 of 2005: Sheelas s/o Abdul Khader v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.A.No.1909 OF 2005** **AGAINST THE JUDGMENT IN SC NO.172/2004 DATED 09-09-2005 ON THE FILE OF THE 1ST ADDITIONAL SESSIONS COURT, ERNAKULAM** ## **APPELLANT/ACCUSED:** **SHEELAS S/O.ABDUL KHADER,C.C.NO.1/1266, CHIRATTAPPALAM,, FORT KOCHI VILLAGE.** ## **BY ADV. SRI.P.N.SASIDHARAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1909/2005 2** ## **JUDGMENT** ## **Dated this the 15th day of December 2020** .. Appellant is the accused in S.C. No. 172/2004 on the file of the 1[st] Additional Sessions Court, Ernakulam. The above case is charge sheeted by the Mattanchery Police against the appellant alleging offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act for short). 2. The prosecution case is that on 06.03.2004 at 6.40 p.m., the Sub Inspector of Police, Mattancherry and party apprehended the accused in front of the Puthiyapally near Irimbichi Kavala, Mattancherry village in possession of 19 ampules of Norphine each containing 2 ml., 3 syringes and needles. Hence, it is alleged that the accused committed the offence under Section 22(b) of the NDPS Act. ## **CRL.APPEAL No.1909/2005 3** 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts. P1 to P11 are the exhibits marked on the side of the prosecution. MO1 to MO12 are the material objects. 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 22(b) of the NDPS Act. He was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.10,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and learned Public Prosecutor. 6. The learned counsel for the appellant even though argued that, the prosecution failed to prove the offence, subsequently restricted his argument to the effect that, even if the entire ## **CRL.APPEAL No.1909/2005 4** allegations are accepted, the offence under Section 22(b) of the NDPS Act is not attracted and at the maximum only the offence under Section 22(a) of the NDPS Act is attracted in this case. According to the counsel, even if the prosecution case is accepted, the prosecution is able to prove only to the effect that, a small quantity Norphine is in possession of the appellant. The learned counsel submitted that, the appellant already undergone 88 days detention during the pre trial and after trial period. The learned counsel submitted that, the maximum punishment that can be imposed for the offence under Section 22(a) of the NDPS Act is only six months. The contention of the appellant is that, there is no criminal antecedents to him and now 16 years elapsed after the alleged seizure. He contended that, he may not be sent to jail at this distance of time. 7. The learned Public Prosecutor submitted ## **CRL.APPEAL No.1909/2005 5** that, there is oral and documentary evidence to prove the offence under Section 22(b) of the NDPS Act and therefore, there is nothing to interfere with the conviction and sentence imposed by the lower court. 8. The points for consideration in this appeal is whether the accused committed the offence under Section 22(b) of the NDPS Act. 9. To attract Section 22(b) of the NDPS Act, the prosecution has to prove that the accused was in possession of Psychotropic Substances which involves the quantity lesser than the commercial quantity but greater than small quantity. Admittedly, the substance recovered from the accused is Buprenorphine. As per notification S.O. 1055(E) dated 19.10.2001, which prescribe the specification of the small and commercial quantity of Narcotic Drugs and Psychotropic Substances, Buprenorphine is mentioned as Entry No. 169. In column No. 5 and 6 of the table in ## **CRL.APPEAL No.1909/2005 6** the above notification, the small quantity and the commercial quantity of each Narcotic Drugs and Psychotropic Substances is mentioned. The small quantity of Buprenorphine as per Entry No. 169 of the above notification is 1 gm. and the commercial quantity is 20 gm. 10. As per the prosecution case, 19 ampules of Buprenorphine was seized from the appellant containing with 2 ml each. As per Ext.P11 analyst report, it is stated that each 2 ml ampules containing .29 ml gm of Buprenorphine. 11. In Ouseph @ Thankachan v. State of Kerala [(2004)4 SCC 446], the Apex Court observed like this. _“8. 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 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_ ## **CRL.APPEAL No.1909/2005 7** _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.”_ 12. The Apex Court in Hira Singh v. Union of India [2020(4) KLT 389(SC)] considered the earlier decision of the Apex Court in E.Micheal Raj v. Intelligence Officer, Narcotic Control Bureau [2008(2) KLT 36(SC). In E.Micheal Raj’s case (supra), the Apex Court took the view that, when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment it is the content of the narcotic drug or narcotic substance which shall be taken into consideration. This dictum in Michel Raj’s case was reversed by the larger Bench decision in Hira Singh (supra). But in paragraph 2.3 of Hira Singh judgment, it is held that like this: _“2.3 The NDPS Act, as originally enacted in_ ## **CRL.APPEAL No.1909/2005 8** _1985 included in Section 2(xx) the definition of 'preparation'. It is submitted that the definition of 'preparation' reveals that preparation means “in relation to NDPS” one or more drugs or substance in dosage or solution or mixture. The 'mixture' is defined as mechanical mixture or two or more substances as distinct from chemical combination or a fluid with foreign substance in suspension or foreign element in a composition. The 'solution' is defined as a liquid or semi-liquid preparation obtained by the combination of a solid with the solvent. The 'dosage' means a definite quantity or something regarded as analogous to medicine in use or effect. A bare look at the definitions, it is apparent that a drug or substance can be mixed with one or more substances (mixture) or change its physical state by means of any fluid or solvent (solution) or be divided or apportioned (dosage). In other words, the NDPS Act as originally enacted dealt not only with the pure content of the drug or psychotropic substance but, its preparation in a mixture, solution or dosage in the case of E.Micheal Raj (supra), there is no reference to the aforesaid.”_ 13. Admittedly, the contraband seized from the appellant in this case is an injection and not a mixture. As per Ext.P11 Analyst report, each ampule contained 0.29 ml.gram. According ## **CRL.APPEAL No.1909/2005 9** to the prosecution, 19 ampoules were seized from the possession of the appellant. If that is taken into consideration, the total quantity of Buprenorphine seized from the appellant will be only 11.02 ml.gram. Admittedly, the small quantity as per entry No.169 is 1 gram. Therefore, the quantity seized from the appellant is far below the small quantity. Moreover, even if the ampoules seized from the appellant is taken as ampoules containing 2ml., the total quantity seized from the appellant is only 38 ml.litre which is equal to 38 ml.gram. Then also the quantity will be far below the small quantity as per the notification. In such circumstances, according to me, the trial court erred in convicting the appellant under section 22(b) of the NDPS Act. Section 22(b) of the NDPS Act is applicable only if the accused was found in ## **CRL.APPEAL No.1909/2005 10** possession of narcotic substance which involves a quantity lesser than the commercial quantity but greater than the small quantity. In this case, admittedly, the quantity seized from the appellant is small quantity and that also far below the small quantity. In such circumstances, only an offence under Section 22(a) of the NDPS Act is attracted in this case. If that is the case, the conviction and sentence imposed on the appellant under Section 22(b) of the NDPS Act is to be set aside and he is to be convicted under Section 22(a) of the NDPS Act. I do so. 14. The next question to be decided is what is the sentence to be imposed. The maximum punishment that can be imposed under Section 22(a) of the NDPS Act is six months or with fine which may extend to Rs.10,000/- or with both. A reading of Section 22(a) of the ## **CRL.APPEAL No.1909/2005 11** NDPS Act will show that, sentence of imprisonment is not mandatory. The sentence that can be imposed under Section 22(a) of the NDPS Act is extended to one year as per the notification SRO 1183(E)dated 30.4.2014. But that notification came into force only with effect from 1.5.2014. The alleged seizure in this case was on 6.3.2004. At that time, the maximum punishment that can be imposed is only six months under Section 22(a) of the NDPS Act. Admittedly, in this case, the accused was in custody for about 88 days which includes pre-trial detention and the detention after conviction. Moreover, an amount of Rs.10,000/is already deposited as fine as per the suspension order passed by this court. The quantity of Norphine seized from the appellant is far below the small quantity. According to me, the detention period already undergone by ## **CRL.APPEAL No.1909/2005 12** the appellant and the fine amount already paid will be sufficient in the facts and circumstances of this case. Therefore, this criminal appeal is allowed in part with the following directions: i) The conviction and sentence imposed on the appellant under Section 22(b) of the NDPS Act are set aside; ii) The appellant is convicted under Section 22(a) of the NDPS Act; iii) The appellant is sentenced to undergo simple imprisonment for 88 days and to pay a fine of Rs.10,000/- (Rupees Ten thousand only) under Section 22(a) of the NDPS Act. In default of payment of fine, the appellant is directed to undergo simple imprisonment for one month; iv) Set off is allowed; **CRL.APPEAL No.1909/2005 13** v) If the fine amount is already paid by the appellant, that will be adjusted against the amount now ordered as fine. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**