TMI Blog2015 (10) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... ble - Judgment and order of the High Court is set aside and the Respondents are held guilty - Appeal allowed and judgment is modified – Appeal allowed judgement made in favour of the Revenue. - Criminal Appeal Nos. 1294-1295 of 2015 (@ SLP(Crl) Nos. 8567-8568 of 2015) - - - Dated:- 6-10-2015 - Dipak Misra And Prafulla C. Pant, JJ. JUDGMENT 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 ₹ 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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. Sushm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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 ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ₹ 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 (2011) 4 SCC 441, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 1 lac and, in default of payment of such fine, to suffer r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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