IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1294-1295 OF 2015
(@ SLP(Crl) Nos. 8567-8568 of 2015)
State through Intelligence Officer
Narcotics Control Bureau ... Appellant
Versus
Mushtaq Ahmad Etc. ... Respondents
J U D G M E N T
Dipak Misra, J.
In this appeal, by special leave, the State of Jammu and Kashmir has
called in question the legal propriety of the judgment and order passed in
Criminal Appeal Nos. 35 and 36 of 2009 whereby the High Court has converted
the conviction recorded by the learned trial Judge holding the accused
respondents guilty of the offence punishable under Section 20 (b) (ii) (C)
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity,
“the NDPS Act”) and sentencing each of them to suffer rigorous imprisonment
for a period of 12 years and further to pay a fine of Rs.2 lakhs each and
in case of default of payment of fine to undergo rigorous imprisonment for
period of one year to one under Section 8 read with Section 20 (b) (ii) (B)
of the NDPS Act and restricted the period of custody to the period already
undergone, that is, slightly more than seven years and to pay a fine of
Rs.25,000/- each with a modified default clause.
2. The facts which are necessary to be stated are that the accused-
respondents were chargesheeted under Section 8 read with Section 20 of the
NDPS Act and accordingly, they were sent up for trial. Accused persons
denied the accusations and claimed trial. The prosecution to substantiate
its stand examined number of witnesses and brought in series of documents
in evidence. The learned trial Judge taking note of the fact that Mushtaq
Ahmad, the first respondent and Gulzar Ahmad, the second respondent were in
possession of 6 kg. 200 gms and 4 kgs. of charas respectively and the
prosecution had been able to establish the same, treated the contraband
article as commercial quantity and accordingly found them guilty for the
offence punishable under Section 20(b) (ii) (C) of the NDPS Act and
eventually considering the gravity of the offence and the proliferating and
devastating menace the drugs have been able to create in the society and
keeping in view the need for eradication, sentenced each of them as has
been mentioned hereinabove.
3. The aforesaid judgment of conviction and order of sentence
constrained the respondents-accused to prefer Criminal Appeal Nos. 35 and
36 of 2009 and the Division Bench of the High Court of Jammu and Kashmir at
Jammu heard both the appeals together. The Division Bench addressed to
various aspects and taking into consideration the law laid down in Amar
Singh Ramaji Bhai Barot v. State of Gujarat[1] and Samiullah v.
Superintendent Narcotic Control Bureau[2], and E. Micheal Raj v.
Intelligence Officer Narcotic Control Bureau[3] came to hold that the
narcotic drug proved to have been recovered from the possession of the
accused persons was of “intermediate quantity” in terms of Section 2(viia)
of the NDPS Act read with S.O. 1055(E) dated 19.1.2001 and the addition of
“Note 3” after “Note 4
did not change the complexion of the matter for the reason that the
alleged recovery had been made way back on 5.4.2004, that is, more than
five years prior to the amendment had come in force and further there was
no allegation that there were more than one narcotic drugs or isomers,
esters, ethers and salts of the narcotic drug detected in the recovered
substance. Being of this view, the High Court opined that the accused
could only be convicted for the offence punishable under Section 8 read
with Section 20(b) (ii) (B) of the NDPS Act. The High Court, accordingly,
held thus:-
“38. The appellants against the above backdrop were to be convicted of
offence punishable under section 8 read with section 20 (b) (ii) (B) of the
Act and sentenced to the punishment prescribed under section 20 (b) (ii)
(B) of the Act and not to the punishment prescribed for the offence
involving possession of “commercial quantity” of narcotic drug under
section 20 (b) (ii) (c) of the Act. However, the appellants arrested on
5.4.2004 and are in custody for last more than seven years.
39. We therefore, alter the conviction of the appellants to section 20
(b) (ii) (B) of the NDPS Act and sentence the appellants to the
imprisonment already undergone and a fine of Rs.25000/- each. In default
of payment of fine the appellants shall suffer rigorous imprisonment for a
further period of six months. The Criminal Appeal No. 35/2009 titled
Mushtaq Ahmad v/s State and Cr. Appeal No. 36/2009 titled Gulzar Ahmad v/s
State are disposed of accordingly.”
4. It is submitted by Ms. Sushma Manchanda, learned counsel appearing
for the State that the High Court has fallen into error by converting the
conviction from Section 20(b)(ii) (C) to Section 20(b)(ii) (B) of the NDPS
Act relying on the decisions in Amar Singh Ramaji Bhai Barot (supra),
Ouseph @ Thankachan v. State of Kerala[4] and E. Micheal Raj (supra)
without taking into consideration the definition of “charas” under the
dictionary clause of the NDPS Act and fallaciously dwelt upon the other
substance which has no applicability. She has seriously criticized the
finding recorded by the Division Bench of the High Court on the ground that
neither the definition nor the stipulations in the relevant notification
lend support to such a finding and, therefore, the conclusion arrived at by
the High Court is vulnerable in law.
5. Ms. Nidhi, learned counsel for the respondent, per contra, submitted
that the High Court has rightly converted the offence from Section
20(b)(ii) (C) to Section 8 read with Section 20(b)(ii) (B) of the NDPS Act
regard being had to the percentage in the seized contraband article and the
sentence imposed being in the upper limit of the sentence prescribed in the
provision, the same does not warrant any interference by this Court. It is
her further submission that the reliance on the authorities placed by the
High Court cannot be found fault with. Additionally, it is contended by
him that the discretion exercised by the High Court cannot be regarded as
injudicious warranting interference by this Court.
6. We shall deal with the first aspect first, for our finding on that
score shall foreclose other submissions as there would be no warrant for
the same. There is no dispute over the fact that the contraband articles
were seized on 5.4.2004. Section 8 of the NDPS Act at that time read as
follows:-
“8. Prohibition of certain operations.—No person shall—
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) 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,
except for medical or scientific purposes and in the manner and to the
extent provided by the provisions of this Act or the Rules or Orders made
thereunder and in a case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in accordance with the
terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the
Rules made thereunder, the prohibition against the cultivation of the
cannabis plant for the production of ganja or the production, possession,
use, consumption, purchase, sale, transport, warehousing, import inter-
State and export inter-State of ganja for any purpose other than medical
and scientific purpose shall take effect only from the date which the
Central Government may, by notification in the Official Gazette, specify in
this behalf:
Provided further that nothing in this section shall apply to the export of
poppy straw for decorative purposes.”
7. Section 20 of the NDPS Act at the relevant time after certain
amendments read thus:-
“20. Punishment for contravention in relation to cannabis plant and
cannabis.—Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence granted thereunder,—
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis, shall be
punishable –
(i) where such contravention relates to clause (a) with rigorous
imprisonment for a term which may extend to ten years and shall also be
liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),--
(A) and involves small quantity, with rigorous imprisonment for a term
which may extend to one year, or with fine, which may extend to ten
thousand rupees, or with both;
(B) and 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) and 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. Prior to the amendment, Section 20 of the NDPS Act read as follows:-
“20. Punishment for contravention in relation to cannabis plant and
cannabis.—Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence granted thereunder,—
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis, shall be
punishable, –
(i) where such contravention relates to ganja or the cultivation of
cannabis plant, with rigorous imprisonment for a term which may extend to
five years and shall also be liable to fine which may extend to fifty
thousand rupees;
(ii) where such contravention relates to cannabis other than ganja, 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 and 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.”
9. The legislature amended certain provisions of the NDPS Act which came
into effect on 2.10.2001 vide amending Act 9 of 2001. Be it stated the
said Act rationalized the structure of punishment under the NDPS Act by
providing graded sentences linked to the quantity of narcotic product or
psychotropic substance in relation to which the offence was committed. The
statement of objects and reasons to the Bill declares the intention thus:-
“STATEMENT OF OBJECTS AND REASONS
Amendment Act 9 of 2001.—The 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.”
10. Section 41 (1) of the Amending Act 9 of 2001 determined the
application or exclusion of the amending provisions. The said provision
read as follows:-
“41. Application of this Act to pending cases.—(1) Notwithstanding
anything contained in sub-section (2) of Section 1, all cases pending
before the courts or under investigation at the commencement of this Act
shall be disposed of in accordance with the provisions of the principal Act
as amended by this Act and accordingly, any person found guilty of any
offence punishable under the principal Act, as it stood immediately before
such commencement, shall be liable for a punishment which is lesser than
the punishment for which he is otherwise liable at the date of the
commission of such offence:
Provided that nothing in this section shall apply to cases pending in
appeal.”
11. The question arose with regard to the constitutional validity of the
said provision inasmuch as there was a classification between the accused
facing trial and the convicts who had already been convicted and their
appeals were pending after 2.10.2001. This Court in Basheer v. State of
Kerala[5], after referring to certain authorities pertaining to
classification came to hold as follows:-
“In the result, we are of the view that the proviso to Section 41(1) of the
amending Act 9 of 2001 is constitutional and is not hit by Article 14.
Consequently, in all cases, in which the trials had concluded and appeals
were pending on 2-10-2001, when amending Act 9 of 2001 came into force, the
amendments introduced by the amending Act 9 of 2001 would not be applicable
and they would have to be disposed of in accordance with the NDPS Act,
1985, as it stood before 2-10-2001.”
12. In the case at hand, admittedly the occurrence had taken place in
2004 and, therefore, 2001 Act applies. The ‘Notes’ that came to be
inserted by way of amendment at a later date need not be debated upon in
this case, for the simon pure reason the said Notes would not be attracted
regard being had to the factual score in the present case. Presently, we
shall refer to certain pertinent provisions of the NDPS Act. Section 2
(viia) of the NDPS Act defines commercial quantity. It is as follows:-
“2. (viia) “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;”
13. Section 2 (xxiiia) of the NDPS Act defines small quantity. It reads
as follows:-
“2. (xxiiia) “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;”
14. At this juncture, it is appropriate to refer to the definition of
cannabis (hemp) as contained in Section 2(iii) of the NDPS Act:-
“(a) charas, that is, the separated resin, in whatever form, whether crude
or purified, obtained from the cannabis plant and also includes
concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant
(excluding the seeds and leaves when not accompanied by the tops), by
whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above
forms of cannabis or any drink prepared therefrom;”
[Emphasis supplied]
15. It is pertinent to reproduce the relevant extract from the
notification dated 19th October, 2001 issued under Clause (viia) and
(xxiiia) of Section 2 of the NDPS Act. The requisite part of the table is
reproduced below:-
|“Sl.|Name of Narcotic |Other |Chemical |Small |Commercia|
| |Drug and |non-propri|Name |Quanti|l |
|No. |Psychotropic |etary name| |ty (in|Quantity |
| |Substance | | |gm.) |(in |
| |[International | | | |gm/kg) |
| |non-proprietary | | | | |
| |name (INN)] | | | | |
|(1) |(2) |(3) |(4) |(5) |(6) |
|23. |Cannabis and |CHARAS, |EXTRACTS AND|100 |1 kg. |
| |cannabis resin |HASHISH |TINCTURES OF| | |
| | | |CANNABIS | | |
|150 |Tetrahydrocannababi| |The |2 |50 gm |
| |nol | |following | | |
| | | |isomers and | | |
| | | |their | | |
| | | |stereochemim| | |
| | | |ical | | |
| | | |variants:- | | |
| | | |7,8,9,10- | | |
| | | |tetrahydro-6| | |
| | | |,6,9- | | |
| | | |trimethyl-3-| | |
| | | |pentyl-6H- | | |
| | | |dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-1-o1 | | |
| | | |(9R, 10aR)- | | |
| | | |8,9,10,10a- | | |
| | | |tetrahydro-6| | |
| | | |,6,9-trimeth| | |
| | | |y1-3-pentyl-| | |
| | | |6H-dibenzo[b| | |
| | | |,d] | | |
| | | |pyranl-ol | | |
| | | |(6aR, 9R, | | |
| | | |10aR)- 6a, | | |
| | | |9,10,10a- | | |
| | | |tetrahydro-6| | |
| | | |,6,9- | | |
| | | |trimethyl-3-| | |
| | | |penty1 – 6H-| | |
| | | |dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-1-o1 | | |
| | | |(6aR, 10aR)-| | |
| | | |6a, | | |
| | | |7,10,10a- | | |
| | | |tetrahydro- | | |
| | | |6,6,9- | | |
| | | |trimethyl – | | |
| | | |3-penty1-6H-| | |
| | | |dibenzo | | |
| | | |[b,d] pyran-| | |
| | | |1-ol | | |
| | | |6a,7,8,9- | | |
| | | |tetrahydro- | | |
| | | |6,6,9-trimet| | |
| | | |hyl-3-pentyl| | |
| | | |-6H-dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-l-ol | | |
| | | |(6aR, 10aR)-| | |
| | | |6a,7,8,9,10,| | |
| | | |10a- | | |
| | | |hexahydro-6,| | |
| | | |6-dimthyl-I-| | |
| | | |9- methylene| | |
| | | |3- | | |
| | | |pentyl-6H- | | |
| | | |dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-1-o]” | | |
[Emphasis supplied]
16. The learned trial Judge had treated the seized contraband article
falling within the definition of commercial quantity and accordingly found
the accused persons guilty and imposed the sentence. He has taken note of
the fact that the notification issued on 19.10.2001 clearly shows that more
than one kilogram is commercial quantity. The High Court while reversing
the finding pertaining to commercial quantity has stated thus:-
“It needs to be pointed out that the Chemical Examiner as per the
prosecution case did not only analyze the samples to find out whether it
comprised of or contained any Narcotic Drug but went a step further to find
out “percentage by weight” of the Narcotic Drug in the sample. The Chemical
Examiner as per his reports dated 25.04.2004 certified that the sample
taken from one of the seven brownish stick shaped substance tested positive
for Charas and the Tetra hydrocannabinol (THC) content in the sample was
5.1 percent. In case of sample lifted from one of the five sticks
recovered from the appellant Mushtaq Ahmad Tetra hydrocannabinol (THC)
content in the sample was 5.1 percent. In case of sample lifted from one
of the five sticks recovered from the appellant Mushtaq Ahmad Tetra
hydrocannabinol (THC) content in the sample was found to be 4.9 percent.
In the circumstances, if the samples lifted from the substance recovered
from the appellants would be 45 gms and 39 gms respectively taking each
stick to have average weight of 890 (6.2 Kg-7) and 800 (4.0 Kg-5) gms
respectively. However, if, working on the assumption made by learned trial
Court that in view of confessional statements of the appellants, the whole
substance was to be taken as Charas irrespective of restricted sampling,
the Narcotic Drug content in the entire substance recovered from the
appellants still would work out to be 316 gms and 196 gms respectively.”
17. We have reproduced the aforesaid paragraph to appreciate that the
High Court has been guided by presence of “Tetra-hydrocannabinol” (THC)
content and on that foundation has proceeded to hold that the seized item
from both the accused persons is beyond the small quantity but lesser than
the commercial quantity. To arrive at the said conclusion, reliance has
been placed essentially on Ouseph @ Thankachan (supra) and E. Micheal Raj
(supra).
18. We think it appropriate to analyse the ratio of the said decisions.
In Ouseph @ Thankachan (supra), the accused was found in possession of 110
ampoules of buprenorphine trade name of which is Tidigesic. The court
addressed to the issue whether psychotropic substance was in small quantity
and if so, whether it was for personal consumption. In that regard, the
Court proceeded to state thus:-
“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.”
19. In E. Micheal Raj (supra), a two-Judge Bench while dealing with the
determination of a small or commercial quantity in relation to narcotic
drug or psychotropic substance in a mixture with one or more neutral
substance opined that the quantity of neutral substance is not to be taken
into consideration and it is the only actual content by weight of the
offending drug which is relevant for the purpose of determining whether it
would constitute small quantity or commercial quantity should be
considered. The question arose in E. Micheal Raj (supra) under which Entry
of the notification the substance found in possession of the appellants
would fall, that is, whether Entry 56 or Entry 239. After referring to the
Entries, the Court held as under:-
“14. 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 (vii-a) 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(xxiii-a), 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.
15. 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 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 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 small quantity, but when the same 4 gm is mixed with
50 kg of powdered 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 appears 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.”
20. In the said case, the Court accepted the submission that purity of
heroin was 1.4% and 1.6% respectively and, therefore, the quantity of
heroin in possession was only 60 gms and on that ground treated it as a
small quantity.
21. In Amar Singh Ramaji Bhai Barot (supra) the appellant was found
carrying a black packet which contained black colour liquid substance that
smelled like opium. The police officer weighed the said substance
recovered from him and found the weight to be 920 gms. 4.250 kg of a grey
coloured substance suspected to be a drug, was recovered from the other
accused who had already died. Out of the 920 gms opium recovered from the
appellant, samples were sent to the Forensic Science Laboratory which
opined that substance which had been sent was opium containing 2.8%
anhydride morphine and also pieces of poppy flowers (posedoda). Both the
accused persons faced trial and the trial court found both of them guilty
for the offences punishable under Section 17 and 18 read with Section 29 of
the NDPS Act and sentenced each of them to undergo rigorous imprisonment of
10 years with fine of Rs. 1 lakh each with the default clause. The appeal
preferred by the other accused abated as he expired during the pendency of
the appeal and the appeal of the Amarsingh Ramjibhai Barot was dismissed.
A contention was canvassed before this Court that the High Court had fallen
into error by taking a total quantity of the offending substance recovered
from the two accused jointly and holding that the said quantity was more
than the commercial quantity, warranting punishment under Section 21(C) of
the NDPS Act. This Court addressed in detail to the factum of possession
of 920 gms of black liquid and the FSL report that indicated the substance
recovered from it was opium containing 2.8% anhydride morphine, apart from
pieces of poppy (posedoda) flowers found in the sample. The Court referred
to definition of opium in Section 2(xv) and 2(xvi) and proceeded to state
thus:-
“14. 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.
15. 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). The residuary clause (e) would take into its sweep
all preparations containing more than 0.2 per cent of morphine. The FSL
report proves that the substance recovered from the appellant had 2.8 per
cent anhydride morphine. Consequently, it would amount to “opium
derivative” within the meaning of Section 2(xvi)(e). Clause (a) of Section
2(xi) defines the expression “manufactured drug” as:
“2. (xi) ‘manufactured drug’ means—
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy
straw concentrate;
(b) * * *”
All “opium derivatives” fall within the expression “manufactured drug” as
defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion
that what was recovered from the appellant was “manufactured drug” within
the meaning of Section 2(xi) of the NDPS Act. The material on record,
therefore, indicates that the offence proved against the appellant fell
clearly within Section 21 of the NDPS Act for illicit possession of
“manufactured drug”.”
22. Being of this view, this Court concurred with the decision taken by
the High Court that it was a commercial quantity. The said decision has
been distinguished in E. Micheal Raj (supra) by opining thus:-
“18. Being aggrieved, Amarsingh approached this Court. This Court has held
in para 14 of the judgment as under:
“14. 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:
“17. 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.
19. On going through Amarsingh case 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
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.”
23. We have referred to the said decision as the learned counsel for the
State submitted that the said decision applies to the present case. In our
considered opinion, the factual matrix in the said case was totally
different and, in fact, it was dealing with the manufacturing and the
percentage content and hence, we need not delve into the same.
24. In the present case, the contraband article that has been seized is
“charas” and the dictionary clause clearly states that it can be crude or
purified obtained from the cannabis plant and also includes concentrated
preparation and resin known as hashish oil or liquid hashish. The
definition also indicates that any mixture with or without any neutral
material of any of the cannabis or any drink prepared therefrom. The
reference in Section 2(iii)(c) refers to any mixture which has a further
reference to charas, which states crude or purified. The chemical name for
charas and hashish is “extracts and tinctures of cannabis”. It finds
mention at Entry No.23 of the Notification. Serial No.150 of the
Notification deals with “tetrahydrocannababinol” having a long list.
24. Regard being had to the aforesaid factual score, reference to a two-
Judge Bench decision in Harjit Singh v. State of Punjab[6], would be apt.
In the said case 7.10 kgs. of opium was ceased from the accused. A
contention was raised before this Court that the opium recovered from the
appellant weighing 7.10 kgs. contained 0.8% morphine, that is, 56.96 gms.
and hence, the quantity was below the commercial quantity. The two-Judge
Bench referred to the pronouncement in E. Micheal Raj (supra) and referred
to various Entries in the notification, namely, Entry 77 that deals with
morphine, Entry 92 that deals with opium and Entry 93 that deals with opium
derivatives. The Court posed the question whether the case would fall
under Entry 92 or Entry 93 or any other Entry. The Court referred to the
definition of opium under the NDPS Act, the chemical analysis made by the
Forensic Science Laboratory, took note of the percentage of morphine, the
amendment brought in 2001 and came to hold thus:-
“21. In the instant case, the material recovered from the appellant was
opium. It was of a commercial quantity and could not have been for personal
consumption of the appellant. Thus the appellant being in possession of the
contraband substance had violated the provisions of Section 8 of the NDPS
Act and was rightly convicted under Section 18(b) of the NDPS Act. The
instant case squarely falls under clause (a) of Section 2(xv) of the NDPS
Act and clause (b) thereof is not attracted for the simple reason that the
substance recovered was opium in the form of the coagulated juice of the
opium poppy. It was not a mixture of opium with any other neutral
substance. There was no preparation to produce any new substance from the
said coagulated juice. For the purpose of imposition of punishment if the
quantity of morphine in opium is taken as a decisive factor, Entry 92
becomes totally redundant.
22. Thus, as the case falls under clause (a) of Section 2(xv), no further
consideration is required on the issue. More so, opium derivatives have to
be dealt with under Entry 93, so in case of pure opium falling under clause
(a) of Section 2(xv), determination of the quantity of morphine is not
required. Entry 92 is exclusively applicable for ascertaining whether the
quantity of opium falls within the category of small quantity or commercial
quantity.”
25. In the said case, the judgment referred in E. Micheal Raj (supra) was
distinguished by stating thus:-
“The judgment in E. Micheal Raj has dealt with heroin i.e. diacetylmorphine
which is an “opium derivative” within the meaning of the term as defined in
Section 2(xvi) of the NDPS Act and therefore, a “manufactured drug” within
the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the
said judgment is not relevant to the adjudication of the present case.”
Eventually, in paragraph 25 the Court held thus:-
“The notification applicable herein specifies small and commercial
quantities of various narcotic drugs and psychotropic substances for each
contraband material. Entry 56 deals with heroin, Entry 77 deals with
morphine, Entry 92 deals with opium, Entry 93 deals with opium derivatives
and so on and so forth. Therefore, the notification also makes a
distinction not only between opium and morphine but also between opium and
opium derivatives. Undoubtedly, morphine is one of the derivatives of the
opium. Thus, the requirement under the law is first to identify and
classify the recovered substance and then to find out under what entry it
is required to be dealt with. If it is opium as defined in clause (a) of
Section 2(xv) then the percentage of morphine contents would be totally
irrelevant. It is only if the offending substance is found in the form of a
mixture as specified in clause (b) of Section 2(xv) of the NDPS Act, that
the quantity of morphine contents becomes relevant.”
26. Another aspect needs to be noted. The High Court in paragraph 28 has
found that the seized article contained more than 50 gms. Tetra
hydrocannabinol in respect of both the accused persons. The commercial
quantity for the contraband article, namely, Tetra hydrocannabinol (THC) as
stated in Entry no. 150 is 50 gms. Even assuming the said percentage is
found in the seized item then also the contraband article would go beyond
the “intermediate” quantity and fall under the “commercial” quantity.
Judged from any score, we do not find the view expressed by the High Court
is correct. Therefore, we conclude and hold that the seized item fell
under the commercial quantity and hence the conviction recorded by the
trial court under Section 20 (b) (ii) (C) is absolutely impeccable.
27. We will be failing in our duty if we do not deal with another
submission put forth by the learned counsel for the respondents-accused.
It is her submission that the accused persons have already spent more than
seven years in custody and, therefore, they should not be incarcerated
again. Section 20 (b) (ii) (C) stipulates that the minimum sentence will
be ten years which may extend to twenty years and the minimum fine
imposable is one lakhs rupees which may extend to two lakhs rupees. The
provision also provides about the default clause which stipulates
imposition of fine exceeding two lakh rupees, for the reasons to be
recorded by the Court. When a minimum punishment is prescribed, no court
can impose lesser punishment. In Narendra Champaklal Trivedi v. State of
Gujarat[7], while a submission was advanced that in exercise of power under
Article 142 of the Constitution, this Court can impose a lesser punishment
than the prescribed one, this Court ruled that:-
“...where the minimum sentence is provided, we think it would not be at all
appropriate to exercise jurisdiction under Article 142 of the Constitution
of India to reduce the sentence on the ground of the so-called mitigating
factors as that would tantamount to supplanting statutory mandate and
further it would amount to ignoring the substantive statutory provision
that prescribes minimum sentence for a criminal act...”
28. Yet again, in State of Madhya Pradesh v. Ayub Khan[8], where the High
Court had awarded the lesser punishment this Court while analyzing the
position in law has opined thus:-
“The legislature, in its wisdom, has fixed a mandatory minimum sentence for
certain offences—keeping, possessing arms and ammunition is a serious
offence for which sentence shall not be less than three years. The
legislature, in its wisdom, felt that there should be a mandatory minimum
sentence for such offences having felt the increased need to provide for
more stringent punishment to curb unauthorised access to arms and
ammunition, especially in a situation where we are facing with menace of
terrorism and other anti-national activities. A person who is found to be
in possession of country-made barrelled gun with two round bullets and 50
gm explosive without licence, must in the absence of proof to the contrary
be presumed to be carrying it with the intention of using it when an
opportunity arises which would be detrimental to the people at large.
Possibly, taking into consideration all those aspects, including the
national interest and safety of the fellow citizens, the legislature in its
wisdom has prescribed a minimum mandatory sentence. Once the accused was
found guilty for the offence committed under Section 25(1)(a) of the Arms
Act, he has necessarily to undergo the minimum mandatory sentence,
prescribed under the statute.”
29. In view of the aforesaid analysis, we are unable to sustain the
judgment and order of the High Court and, accordingly, unsettle the same
and find that the accused-respondents, Mushtaq Ahmad and Gulzar Ahmad, are
guilty of offence punishable under Section 20(b)(ii)(C) of the NDPS Act and
each of them is sentenced to undergo rigorous imprisonment for ten years
and to pay a fine of Rs.1 lac and, in default of payment of such fine, to
suffer rigorous imprisonment for a further period of one year.
30. Resultantly, the appeals are allowed and the judgment and order
passed by the High Court in Criminal Appeal Nos.35 and 36 of 2009, is set
aside and that of the learned trial Judge, as far as the sentence is
concerned, stands modified.
...............................J.
[Dipak Misra]
...............................J.
[Prafulla C. Pant]
New Delhi
October 06, 2015.
-----------------------
[1] (2005) 7 SCC 55
[2] AIR 2009 SC 1357
[3] (2008) 5 SCC 161
[4] (2004) 4 SCC 446
[5] (2004) 3 SCC 609
[6] (2011) 4 SCC 441
[7] (2012) 7 SCC 80
[8] (2012) 8 SCC 676
-----------------------
31
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1294-1295 OF 2015
(@ SLP(Crl) Nos. 8567-8568 of 2015)
State through Intelligence Officer
Narcotics Control Bureau ... Appellant
Versus
Mushtaq Ahmad Etc. ... Respondents
J U D G M E N T
Dipak Misra, J.
In this appeal, by special leave, the State of Jammu and Kashmir has
called in question the legal propriety of the judgment and order passed in
Criminal Appeal Nos. 35 and 36 of 2009 whereby the High Court has converted
the conviction recorded by the learned trial Judge holding the accused
respondents guilty of the offence punishable under Section 20 (b) (ii) (C)
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity,
“the NDPS Act”) and sentencing each of them to suffer rigorous imprisonment
for a period of 12 years and further to pay a fine of Rs.2 lakhs each and
in case of default of payment of fine to undergo rigorous imprisonment for
period of one year to one under Section 8 read with Section 20 (b) (ii) (B)
of the NDPS Act and restricted the period of custody to the period already
undergone, that is, slightly more than seven years and to pay a fine of
Rs.25,000/- each with a modified default clause.
2. The facts which are necessary to be stated are that the accused-
respondents were chargesheeted under Section 8 read with Section 20 of the
NDPS Act and accordingly, they were sent up for trial. Accused persons
denied the accusations and claimed trial. The prosecution to substantiate
its stand examined number of witnesses and brought in series of documents
in evidence. The learned trial Judge taking note of the fact that Mushtaq
Ahmad, the first respondent and Gulzar Ahmad, the second respondent were in
possession of 6 kg. 200 gms and 4 kgs. of charas respectively and the
prosecution had been able to establish the same, treated the contraband
article as commercial quantity and accordingly found them guilty for the
offence punishable under Section 20(b) (ii) (C) of the NDPS Act and
eventually considering the gravity of the offence and the proliferating and
devastating menace the drugs have been able to create in the society and
keeping in view the need for eradication, sentenced each of them as has
been mentioned hereinabove.
3. The aforesaid judgment of conviction and order of sentence
constrained the respondents-accused to prefer Criminal Appeal Nos. 35 and
36 of 2009 and the Division Bench of the High Court of Jammu and Kashmir at
Jammu heard both the appeals together. The Division Bench addressed to
various aspects and taking into consideration the law laid down in Amar
Singh Ramaji Bhai Barot v. State of Gujarat[1] and Samiullah v.
Superintendent Narcotic Control Bureau[2], and E. Micheal Raj v.
Intelligence Officer Narcotic Control Bureau[3] came to hold that the
narcotic drug proved to have been recovered from the possession of the
accused persons was of “intermediate quantity” in terms of Section 2(viia)
of the NDPS Act read with S.O. 1055(E) dated 19.1.2001 and the addition of
“Note 3” after “Note 4
did not change the complexion of the matter for the reason that the
alleged recovery had been made way back on 5.4.2004, that is, more than
five years prior to the amendment had come in force and further there was
no allegation that there were more than one narcotic drugs or isomers,
esters, ethers and salts of the narcotic drug detected in the recovered
substance. Being of this view, the High Court opined that the accused
could only be convicted for the offence punishable under Section 8 read
with Section 20(b) (ii) (B) of the NDPS Act. The High Court, accordingly,
held thus:-
“38. The appellants against the above backdrop were to be convicted of
offence punishable under section 8 read with section 20 (b) (ii) (B) of the
Act and sentenced to the punishment prescribed under section 20 (b) (ii)
(B) of the Act and not to the punishment prescribed for the offence
involving possession of “commercial quantity” of narcotic drug under
section 20 (b) (ii) (c) of the Act. However, the appellants arrested on
5.4.2004 and are in custody for last more than seven years.
39. We therefore, alter the conviction of the appellants to section 20
(b) (ii) (B) of the NDPS Act and sentence the appellants to the
imprisonment already undergone and a fine of Rs.25000/- each. In default
of payment of fine the appellants shall suffer rigorous imprisonment for a
further period of six months. The Criminal Appeal No. 35/2009 titled
Mushtaq Ahmad v/s State and Cr. Appeal No. 36/2009 titled Gulzar Ahmad v/s
State are disposed of accordingly.”
4. It is submitted by Ms. Sushma Manchanda, learned counsel appearing
for the State that the High Court has fallen into error by converting the
conviction from Section 20(b)(ii) (C) to Section 20(b)(ii) (B) of the NDPS
Act relying on the decisions in Amar Singh Ramaji Bhai Barot (supra),
Ouseph @ Thankachan v. State of Kerala[4] and E. Micheal Raj (supra)
without taking into consideration the definition of “charas” under the
dictionary clause of the NDPS Act and fallaciously dwelt upon the other
substance which has no applicability. She has seriously criticized the
finding recorded by the Division Bench of the High Court on the ground that
neither the definition nor the stipulations in the relevant notification
lend support to such a finding and, therefore, the conclusion arrived at by
the High Court is vulnerable in law.
5. Ms. Nidhi, learned counsel for the respondent, per contra, submitted
that the High Court has rightly converted the offence from Section
20(b)(ii) (C) to Section 8 read with Section 20(b)(ii) (B) of the NDPS Act
regard being had to the percentage in the seized contraband article and the
sentence imposed being in the upper limit of the sentence prescribed in the
provision, the same does not warrant any interference by this Court. It is
her further submission that the reliance on the authorities placed by the
High Court cannot be found fault with. Additionally, it is contended by
him that the discretion exercised by the High Court cannot be regarded as
injudicious warranting interference by this Court.
6. We shall deal with the first aspect first, for our finding on that
score shall foreclose other submissions as there would be no warrant for
the same. There is no dispute over the fact that the contraband articles
were seized on 5.4.2004. Section 8 of the NDPS Act at that time read as
follows:-
“8. Prohibition of certain operations.—No person shall—
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) 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,
except for medical or scientific purposes and in the manner and to the
extent provided by the provisions of this Act or the Rules or Orders made
thereunder and in a case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in accordance with the
terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the
Rules made thereunder, the prohibition against the cultivation of the
cannabis plant for the production of ganja or the production, possession,
use, consumption, purchase, sale, transport, warehousing, import inter-
State and export inter-State of ganja for any purpose other than medical
and scientific purpose shall take effect only from the date which the
Central Government may, by notification in the Official Gazette, specify in
this behalf:
Provided further that nothing in this section shall apply to the export of
poppy straw for decorative purposes.”
7. Section 20 of the NDPS Act at the relevant time after certain
amendments read thus:-
“20. Punishment for contravention in relation to cannabis plant and
cannabis.—Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence granted thereunder,—
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis, shall be
punishable –
(i) where such contravention relates to clause (a) with rigorous
imprisonment for a term which may extend to ten years and shall also be
liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),--
(A) and involves small quantity, with rigorous imprisonment for a term
which may extend to one year, or with fine, which may extend to ten
thousand rupees, or with both;
(B) and 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) and 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. Prior to the amendment, Section 20 of the NDPS Act read as follows:-
“20. Punishment for contravention in relation to cannabis plant and
cannabis.—Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence granted thereunder,—
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis, shall be
punishable, –
(i) where such contravention relates to ganja or the cultivation of
cannabis plant, with rigorous imprisonment for a term which may extend to
five years and shall also be liable to fine which may extend to fifty
thousand rupees;
(ii) where such contravention relates to cannabis other than ganja, 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 and 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.”
9. The legislature amended certain provisions of the NDPS Act which came
into effect on 2.10.2001 vide amending Act 9 of 2001. Be it stated the
said Act rationalized the structure of punishment under the NDPS Act by
providing graded sentences linked to the quantity of narcotic product or
psychotropic substance in relation to which the offence was committed. The
statement of objects and reasons to the Bill declares the intention thus:-
“STATEMENT OF OBJECTS AND REASONS
Amendment Act 9 of 2001.—The 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.”
10. Section 41 (1) of the Amending Act 9 of 2001 determined the
application or exclusion of the amending provisions. The said provision
read as follows:-
“41. Application of this Act to pending cases.—(1) Notwithstanding
anything contained in sub-section (2) of Section 1, all cases pending
before the courts or under investigation at the commencement of this Act
shall be disposed of in accordance with the provisions of the principal Act
as amended by this Act and accordingly, any person found guilty of any
offence punishable under the principal Act, as it stood immediately before
such commencement, shall be liable for a punishment which is lesser than
the punishment for which he is otherwise liable at the date of the
commission of such offence:
Provided that nothing in this section shall apply to cases pending in
appeal.”
11. The question arose with regard to the constitutional validity of the
said provision inasmuch as there was a classification between the accused
facing trial and the convicts who had already been convicted and their
appeals were pending after 2.10.2001. This Court in Basheer v. State of
Kerala[5], after referring to certain authorities pertaining to
classification came to hold as follows:-
“In the result, we are of the view that the proviso to Section 41(1) of the
amending Act 9 of 2001 is constitutional and is not hit by Article 14.
Consequently, in all cases, in which the trials had concluded and appeals
were pending on 2-10-2001, when amending Act 9 of 2001 came into force, the
amendments introduced by the amending Act 9 of 2001 would not be applicable
and they would have to be disposed of in accordance with the NDPS Act,
1985, as it stood before 2-10-2001.”
12. In the case at hand, admittedly the occurrence had taken place in
2004 and, therefore, 2001 Act applies. The ‘Notes’ that came to be
inserted by way of amendment at a later date need not be debated upon in
this case, for the simon pure reason the said Notes would not be attracted
regard being had to the factual score in the present case. Presently, we
shall refer to certain pertinent provisions of the NDPS Act. Section 2
(viia) of the NDPS Act defines commercial quantity. It is as follows:-
“2. (viia) “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;”
13. Section 2 (xxiiia) of the NDPS Act defines small quantity. It reads
as follows:-
“2. (xxiiia) “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;”
14. At this juncture, it is appropriate to refer to the definition of
cannabis (hemp) as contained in Section 2(iii) of the NDPS Act:-
“(a) charas, that is, the separated resin, in whatever form, whether crude
or purified, obtained from the cannabis plant and also includes
concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant
(excluding the seeds and leaves when not accompanied by the tops), by
whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above
forms of cannabis or any drink prepared therefrom;”
[Emphasis supplied]
15. It is pertinent to reproduce the relevant extract from the
notification dated 19th October, 2001 issued under Clause (viia) and
(xxiiia) of Section 2 of the NDPS Act. The requisite part of the table is
reproduced below:-
|“Sl.|Name of Narcotic |Other |Chemical |Small |Commercia|
| |Drug and |non-propri|Name |Quanti|l |
|No. |Psychotropic |etary name| |ty (in|Quantity |
| |Substance | | |gm.) |(in |
| |[International | | | |gm/kg) |
| |non-proprietary | | | | |
| |name (INN)] | | | | |
|(1) |(2) |(3) |(4) |(5) |(6) |
|23. |Cannabis and |CHARAS, |EXTRACTS AND|100 |1 kg. |
| |cannabis resin |HASHISH |TINCTURES OF| | |
| | | |CANNABIS | | |
|150 |Tetrahydrocannababi| |The |2 |50 gm |
| |nol | |following | | |
| | | |isomers and | | |
| | | |their | | |
| | | |stereochemim| | |
| | | |ical | | |
| | | |variants:- | | |
| | | |7,8,9,10- | | |
| | | |tetrahydro-6| | |
| | | |,6,9- | | |
| | | |trimethyl-3-| | |
| | | |pentyl-6H- | | |
| | | |dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-1-o1 | | |
| | | |(9R, 10aR)- | | |
| | | |8,9,10,10a- | | |
| | | |tetrahydro-6| | |
| | | |,6,9-trimeth| | |
| | | |y1-3-pentyl-| | |
| | | |6H-dibenzo[b| | |
| | | |,d] | | |
| | | |pyranl-ol | | |
| | | |(6aR, 9R, | | |
| | | |10aR)- 6a, | | |
| | | |9,10,10a- | | |
| | | |tetrahydro-6| | |
| | | |,6,9- | | |
| | | |trimethyl-3-| | |
| | | |penty1 – 6H-| | |
| | | |dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-1-o1 | | |
| | | |(6aR, 10aR)-| | |
| | | |6a, | | |
| | | |7,10,10a- | | |
| | | |tetrahydro- | | |
| | | |6,6,9- | | |
| | | |trimethyl – | | |
| | | |3-penty1-6H-| | |
| | | |dibenzo | | |
| | | |[b,d] pyran-| | |
| | | |1-ol | | |
| | | |6a,7,8,9- | | |
| | | |tetrahydro- | | |
| | | |6,6,9-trimet| | |
| | | |hyl-3-pentyl| | |
| | | |-6H-dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-l-ol | | |
| | | |(6aR, 10aR)-| | |
| | | |6a,7,8,9,10,| | |
| | | |10a- | | |
| | | |hexahydro-6,| | |
| | | |6-dimthyl-I-| | |
| | | |9- methylene| | |
| | | |3- | | |
| | | |pentyl-6H- | | |
| | | |dibenzo | | |
| | | |[b,d] | | |
| | | |pyran-1-o]” | | |
[Emphasis supplied]
16. The learned trial Judge had treated the seized contraband article
falling within the definition of commercial quantity and accordingly found
the accused persons guilty and imposed the sentence. He has taken note of
the fact that the notification issued on 19.10.2001 clearly shows that more
than one kilogram is commercial quantity. The High Court while reversing
the finding pertaining to commercial quantity has stated thus:-
“It needs to be pointed out that the Chemical Examiner as per the
prosecution case did not only analyze the samples to find out whether it
comprised of or contained any Narcotic Drug but went a step further to find
out “percentage by weight” of the Narcotic Drug in the sample. The Chemical
Examiner as per his reports dated 25.04.2004 certified that the sample
taken from one of the seven brownish stick shaped substance tested positive
for Charas and the Tetra hydrocannabinol (THC) content in the sample was
5.1 percent. In case of sample lifted from one of the five sticks
recovered from the appellant Mushtaq Ahmad Tetra hydrocannabinol (THC)
content in the sample was 5.1 percent. In case of sample lifted from one
of the five sticks recovered from the appellant Mushtaq Ahmad Tetra
hydrocannabinol (THC) content in the sample was found to be 4.9 percent.
In the circumstances, if the samples lifted from the substance recovered
from the appellants would be 45 gms and 39 gms respectively taking each
stick to have average weight of 890 (6.2 Kg-7) and 800 (4.0 Kg-5) gms
respectively. However, if, working on the assumption made by learned trial
Court that in view of confessional statements of the appellants, the whole
substance was to be taken as Charas irrespective of restricted sampling,
the Narcotic Drug content in the entire substance recovered from the
appellants still would work out to be 316 gms and 196 gms respectively.”
17. We have reproduced the aforesaid paragraph to appreciate that the
High Court has been guided by presence of “Tetra-hydrocannabinol” (THC)
content and on that foundation has proceeded to hold that the seized item
from both the accused persons is beyond the small quantity but lesser than
the commercial quantity. To arrive at the said conclusion, reliance has
been placed essentially on Ouseph @ Thankachan (supra) and E. Micheal Raj
(supra).
18. We think it appropriate to analyse the ratio of the said decisions.
In Ouseph @ Thankachan (supra), the accused was found in possession of 110
ampoules of buprenorphine trade name of which is Tidigesic. The court
addressed to the issue whether psychotropic substance was in small quantity
and if so, whether it was for personal consumption. In that regard, the
Court proceeded to state thus:-
“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.”
19. In E. Micheal Raj (supra), a two-Judge Bench while dealing with the
determination of a small or commercial quantity in relation to narcotic
drug or psychotropic substance in a mixture with one or more neutral
substance opined that the quantity of neutral substance is not to be taken
into consideration and it is the only actual content by weight of the
offending drug which is relevant for the purpose of determining whether it
would constitute small quantity or commercial quantity should be
considered. The question arose in E. Micheal Raj (supra) under which Entry
of the notification the substance found in possession of the appellants
would fall, that is, whether Entry 56 or Entry 239. After referring to the
Entries, the Court held as under:-
“14. 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 (vii-a) 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(xxiii-a), 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.
15. 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 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 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 small quantity, but when the same 4 gm is mixed with
50 kg of powdered 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 appears 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.”
20. In the said case, the Court accepted the submission that purity of
heroin was 1.4% and 1.6% respectively and, therefore, the quantity of
heroin in possession was only 60 gms and on that ground treated it as a
small quantity.
21. In Amar Singh Ramaji Bhai Barot (supra) the appellant was found
carrying a black packet which contained black colour liquid substance that
smelled like opium. The police officer weighed the said substance
recovered from him and found the weight to be 920 gms. 4.250 kg of a grey
coloured substance suspected to be a drug, was recovered from the other
accused who had already died. Out of the 920 gms opium recovered from the
appellant, samples were sent to the Forensic Science Laboratory which
opined that substance which had been sent was opium containing 2.8%
anhydride morphine and also pieces of poppy flowers (posedoda). Both the
accused persons faced trial and the trial court found both of them guilty
for the offences punishable under Section 17 and 18 read with Section 29 of
the NDPS Act and sentenced each of them to undergo rigorous imprisonment of
10 years with fine of Rs. 1 lakh each with the default clause. The appeal
preferred by the other accused abated as he expired during the pendency of
the appeal and the appeal of the Amarsingh Ramjibhai Barot was dismissed.
A contention was canvassed before this Court that the High Court had fallen
into error by taking a total quantity of the offending substance recovered
from the two accused jointly and holding that the said quantity was more
than the commercial quantity, warranting punishment under Section 21(C) of
the NDPS Act. This Court addressed in detail to the factum of possession
of 920 gms of black liquid and the FSL report that indicated the substance
recovered from it was opium containing 2.8% anhydride morphine, apart from
pieces of poppy (posedoda) flowers found in the sample. The Court referred
to definition of opium in Section 2(xv) and 2(xvi) and proceeded to state
thus:-
“14. 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.
15. 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). The residuary clause (e) would take into its sweep
all preparations containing more than 0.2 per cent of morphine. The FSL
report proves that the substance recovered from the appellant had 2.8 per
cent anhydride morphine. Consequently, it would amount to “opium
derivative” within the meaning of Section 2(xvi)(e). Clause (a) of Section
2(xi) defines the expression “manufactured drug” as:
“2. (xi) ‘manufactured drug’ means—
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy
straw concentrate;
(b) * * *”
All “opium derivatives” fall within the expression “manufactured drug” as
defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion
that what was recovered from the appellant was “manufactured drug” within
the meaning of Section 2(xi) of the NDPS Act. The material on record,
therefore, indicates that the offence proved against the appellant fell
clearly within Section 21 of the NDPS Act for illicit possession of
“manufactured drug”.”
22. Being of this view, this Court concurred with the decision taken by
the High Court that it was a commercial quantity. The said decision has
been distinguished in E. Micheal Raj (supra) by opining thus:-
“18. Being aggrieved, Amarsingh approached this Court. This Court has held
in para 14 of the judgment as under:
“14. 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:
“17. 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.
19. On going through Amarsingh case 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
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.”
23. We have referred to the said decision as the learned counsel for the
State submitted that the said decision applies to the present case. In our
considered opinion, the factual matrix in the said case was totally
different and, in fact, it was dealing with the manufacturing and the
percentage content and hence, we need not delve into the same.
24. In the present case, the contraband article that has been seized is
“charas” and the dictionary clause clearly states that it can be crude or
purified obtained from the cannabis plant and also includes concentrated
preparation and resin known as hashish oil or liquid hashish. The
definition also indicates that any mixture with or without any neutral
material of any of the cannabis or any drink prepared therefrom. The
reference in Section 2(iii)(c) refers to any mixture which has a further
reference to charas, which states crude or purified. The chemical name for
charas and hashish is “extracts and tinctures of cannabis”. It finds
mention at Entry No.23 of the Notification. Serial No.150 of the
Notification deals with “tetrahydrocannababinol” having a long list.
24. Regard being had to the aforesaid factual score, reference to a two-
Judge Bench decision in Harjit Singh v. State of Punjab[6], would be apt.
In the said case 7.10 kgs. of opium was ceased from the accused. A
contention was raised before this Court that the opium recovered from the
appellant weighing 7.10 kgs. contained 0.8% morphine, that is, 56.96 gms.
and hence, the quantity was below the commercial quantity. The two-Judge
Bench referred to the pronouncement in E. Micheal Raj (supra) and referred
to various Entries in the notification, namely, Entry 77 that deals with
morphine, Entry 92 that deals with opium and Entry 93 that deals with opium
derivatives. The Court posed the question whether the case would fall
under Entry 92 or Entry 93 or any other Entry. The Court referred to the
definition of opium under the NDPS Act, the chemical analysis made by the
Forensic Science Laboratory, took note of the percentage of morphine, the
amendment brought in 2001 and came to hold thus:-
“21. In the instant case, the material recovered from the appellant was
opium. It was of a commercial quantity and could not have been for personal
consumption of the appellant. Thus the appellant being in possession of the
contraband substance had violated the provisions of Section 8 of the NDPS
Act and was rightly convicted under Section 18(b) of the NDPS Act. The
instant case squarely falls under clause (a) of Section 2(xv) of the NDPS
Act and clause (b) thereof is not attracted for the simple reason that the
substance recovered was opium in the form of the coagulated juice of the
opium poppy. It was not a mixture of opium with any other neutral
substance. There was no preparation to produce any new substance from the
said coagulated juice. For the purpose of imposition of punishment if the
quantity of morphine in opium is taken as a decisive factor, Entry 92
becomes totally redundant.
22. Thus, as the case falls under clause (a) of Section 2(xv), no further
consideration is required on the issue. More so, opium derivatives have to
be dealt with under Entry 93, so in case of pure opium falling under clause
(a) of Section 2(xv), determination of the quantity of morphine is not
required. Entry 92 is exclusively applicable for ascertaining whether the
quantity of opium falls within the category of small quantity or commercial
quantity.”
25. In the said case, the judgment referred in E. Micheal Raj (supra) was
distinguished by stating thus:-
“The judgment in E. Micheal Raj has dealt with heroin i.e. diacetylmorphine
which is an “opium derivative” within the meaning of the term as defined in
Section 2(xvi) of the NDPS Act and therefore, a “manufactured drug” within
the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the
said judgment is not relevant to the adjudication of the present case.”
Eventually, in paragraph 25 the Court held thus:-
“The notification applicable herein specifies small and commercial
quantities of various narcotic drugs and psychotropic substances for each
contraband material. Entry 56 deals with heroin, Entry 77 deals with
morphine, Entry 92 deals with opium, Entry 93 deals with opium derivatives
and so on and so forth. Therefore, the notification also makes a
distinction not only between opium and morphine but also between opium and
opium derivatives. Undoubtedly, morphine is one of the derivatives of the
opium. Thus, the requirement under the law is first to identify and
classify the recovered substance and then to find out under what entry it
is required to be dealt with. If it is opium as defined in clause (a) of
Section 2(xv) then the percentage of morphine contents would be totally
irrelevant. It is only if the offending substance is found in the form of a
mixture as specified in clause (b) of Section 2(xv) of the NDPS Act, that
the quantity of morphine contents becomes relevant.”
26. Another aspect needs to be noted. The High Court in paragraph 28 has
found that the seized article contained more than 50 gms. Tetra
hydrocannabinol in respect of both the accused persons. The commercial
quantity for the contraband article, namely, Tetra hydrocannabinol (THC) as
stated in Entry no. 150 is 50 gms. Even assuming the said percentage is
found in the seized item then also the contraband article would go beyond
the “intermediate” quantity and fall under the “commercial” quantity.
Judged from any score, we do not find the view expressed by the High Court
is correct. Therefore, we conclude and hold that the seized item fell
under the commercial quantity and hence the conviction recorded by the
trial court under Section 20 (b) (ii) (C) is absolutely impeccable.
27. We will be failing in our duty if we do not deal with another
submission put forth by the learned counsel for the respondents-accused.
It is her submission that the accused persons have already spent more than
seven years in custody and, therefore, they should not be incarcerated
again. Section 20 (b) (ii) (C) stipulates that the minimum sentence will
be ten years which may extend to twenty years and the minimum fine
imposable is one lakhs rupees which may extend to two lakhs rupees. The
provision also provides about the default clause which stipulates
imposition of fine exceeding two lakh rupees, for the reasons to be
recorded by the Court. When a minimum punishment is prescribed, no court
can impose lesser punishment. In Narendra Champaklal Trivedi v. State of
Gujarat[7], while a submission was advanced that in exercise of power under
Article 142 of the Constitution, this Court can impose a lesser punishment
than the prescribed one, this Court ruled that:-
“...where the minimum sentence is provided, we think it would not be at all
appropriate to exercise jurisdiction under Article 142 of the Constitution
of India to reduce the sentence on the ground of the so-called mitigating
factors as that would tantamount to supplanting statutory mandate and
further it would amount to ignoring the substantive statutory provision
that prescribes minimum sentence for a criminal act...”
28. Yet again, in State of Madhya Pradesh v. Ayub Khan[8], where the High
Court had awarded the lesser punishment this Court while analyzing the
position in law has opined thus:-
“The legislature, in its wisdom, has fixed a mandatory minimum sentence for
certain offences—keeping, possessing arms and ammunition is a serious
offence for which sentence shall not be less than three years. The
legislature, in its wisdom, felt that there should be a mandatory minimum
sentence for such offences having felt the increased need to provide for
more stringent punishment to curb unauthorised access to arms and
ammunition, especially in a situation where we are facing with menace of
terrorism and other anti-national activities. A person who is found to be
in possession of country-made barrelled gun with two round bullets and 50
gm explosive without licence, must in the absence of proof to the contrary
be presumed to be carrying it with the intention of using it when an
opportunity arises which would be detrimental to the people at large.
Possibly, taking into consideration all those aspects, including the
national interest and safety of the fellow citizens, the legislature in its
wisdom has prescribed a minimum mandatory sentence. Once the accused was
found guilty for the offence committed under Section 25(1)(a) of the Arms
Act, he has necessarily to undergo the minimum mandatory sentence,
prescribed under the statute.”
29. In view of the aforesaid analysis, we are unable to sustain the
judgment and order of the High Court and, accordingly, unsettle the same
and find that the accused-respondents, Mushtaq Ahmad and Gulzar Ahmad, are
guilty of offence punishable under Section 20(b)(ii)(C) of the NDPS Act and
each of them is sentenced to undergo rigorous imprisonment for ten years
and to pay a fine of Rs.1 lac and, in default of payment of such fine, to
suffer rigorous imprisonment for a further period of one year.
30. Resultantly, the appeals are allowed and the judgment and order
passed by the High Court in Criminal Appeal Nos.35 and 36 of 2009, is set
aside and that of the learned trial Judge, as far as the sentence is
concerned, stands modified.
...............................J.
[Dipak Misra]
...............................J.
[Prafulla C. Pant]
New Delhi
October 06, 2015.
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[1] (2005) 7 SCC 55
[2] AIR 2009 SC 1357
[3] (2008) 5 SCC 161
[4] (2004) 4 SCC 446
[5] (2004) 3 SCC 609
[6] (2011) 4 SCC 441
[7] (2012) 7 SCC 80
[8] (2012) 8 SCC 676
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31
