Salam v. Kerala State represented by the C.I.O. of Police, Mattancherry

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4031 of 2008() ----------------------------------CRL.M.P.3641/2008 IN S.C.NO.156/2004 OF ADDL. SESSIONS COURT, ERNAKULAM REVN. PETITIONER(S): ACCUSED --------------------------------------------------- SALAM, S/O. ABDUL KADER CV/586, NEAR OUT AGENCY, MATTANCHERRY VILLAGE ERNAKULAM DISTRICT. BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY RESPONDENT(S): COMPLAINANT ------------------------------------- KERALA STATE REPRESENTED BY THE C.I.OF POLICE, MATTANCHERRY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** =========================== Crl.R.P. NO.4031 OF 2008 =========================== Dated this the 18th day of December,2008 ## ORDER Revision is filed challenging the order passed by the Additional Sessions Judge, Ernakulam in S.C.156/2004 dismissing the petition filed by the accused revision petitioner to alter the charge from Section 22(c) to 22(a) of NDPS Act. Learned Sessions Judge considering the decision of this court in **Salam v. Union of India (2008(1) KLT 498** held that as 1675 ampules were seized from the petitioner and each ampules contained 2 ml.of buprenorphine Tidigesic .The total quantity would be 3350 ml and 1 gram of buprenorphine equivalent to 3333.33 ml. and therefore it is not a small quantity and therefore the charge cannot be altered to Section 22(a) of NDPS Act. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. CRRP4031/2008 2 3. The learned counsel relying on the decision of the Apex Court in **E.Micheal Raj v. Intelligence** ## **Officer, Narcotic Control Bureau (2008 ) 5 SCC 161)** argued that it is only the actual content of the weight of the offending drug which is relevant for the purpose of determining whether it constitute a small quantity or commercial quantity and the certificate of Chemical Analyst relied on by the prosecution establish that only 0.29 mg. of buprenorphine was detected in one ml. and if so computed the total content of the buprenorphine would only be less than the small quantity and therefore finding of the learned Sessions Judge is not sustainable. Learned Public Prosecutor did not dispute this legal proposition. 4. The question is whether it is a small quantity or not, is to be fixed based on the actual content of the weight of the narcotic drug and not on the total quantity irrespective of actual content. Apex Court in Micheal Raj's case CRRP4031/2008 3 (supra) settled the position in paragraph 15. It reads:- “It appears from the Statement of Objects and reasons of the amending Act of 2001 that the intention of the legislature was to rationalise 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 CRRP4031/2008 4 argument advanced on behalf of the respondent that the rate of purity if irrelevant since any preparation which is more than the commercial quantity of 250 gm 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 gm of heroin is recovered from an accused, it would amount to a same quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be CRRP4031/2008 5 quantified as a commercial quantity. In the mixture of a narcotic drug or a phychotropic 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 phychotropic 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 appears to us is to punish the people who CRRP4031/2008 6 commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.” It is therefore clear that it is only the actual content by weight of the narcotic drug, which is relevant for the purpose of determining whether it constitutes a small quantity or commercial quantity. If that be so, the question can be decided only based on the buprenorphine content of one ml as stated in the report namely 0.2 ml.gm and computing the total content of 1675 ampoules. If so calculated it would definitely be below 3350 as found by the learned Sessions Judge. As the total content would only be less than one gram, the charge could only be under section 22(a) and not 22 (c) of NDPS Act. Revision is allowed. The order passed by the Additional Sessions Judge, Ernakulam in CRRP4031/2008 7 Crl.M.P.3641/2008 in S.C.156/2004 is set aside. Crl.M.P.3641/2008 stands allowed. The charge is altered to under section 22(a) of NDPS Act. Learned Sessions Judge , Ernakulam is directed to read and explain the charge and record the pleading. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006