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State through Intelligence Officer Narcotics Control Bureau Versus Mushtaq Ahmad Etc.

2015 (10) TMI 548 - SUPREME COURT

Appeal against Judgement and Order passed by High Court - Offence under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 Revenue contended that 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 and criticized the finding recorded by the Division Bench of the High Court stating the same as vulnerable in law Respondent holds that High Court has rightly converted the offence from S .....

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bsolutely impeccable - 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 .....

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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 ₹ 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 sen .....

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ty 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 .....

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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 .....

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(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 t .....

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ji Bhai Barot (supra), Ouseph @ Thankachan v. State of Kerala (2004) 4 SCC 446 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 an .....

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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 a .....

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r 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 .....

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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 .....

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erm 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, Sec .....

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f 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 rea .....

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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 addi .....

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isation 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 .....

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ing 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 (2004) 3 SCC 609, 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 a .....

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ct 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 an .....

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tained 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 mater .....

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ntity (in gm/kg) (1) (2) (3) (4) (5) (6) 23. Cannabis and cannabis resin CHARAS, HASHISH EXTRACTS AND TINCTURES OF CANNABIS 100 1 kg. 150 Tetrahydrocannababinol The following isomers and their stereochemimic al variants:- 7,8,9,10- tetrahydro-6,6,9 - trimethyl-3-pent yl-6H- dibenzo [b,d] pyran-1-o1 (9R, 10aR)- 8,9,10,10atetrahydro- 6,6,9 -trimethy1-3-pe ntyl-6H-dibenzo [b,d] pyranl-ol (6aR, 9R, 10aR)- 6a, 9,10,10atetrahydro- 6,6,9 - trimethyl-3-pent y1 - 6Hdibenzo [b,d] pyran-1-o1 (6aR, 10aR)- 6 .....

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n 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. Th .....

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ad 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 r .....

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clusion, 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: .....

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ied 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 .....

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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 .....

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nalise 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 .....

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en 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 determinin .....

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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 .....

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fault 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 ad .....

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d 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 FS .....

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e 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 dis .....

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nding 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 offen .....

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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 ₹ 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 .....

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re 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 .....

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ith 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 .....

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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 .....

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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 .....

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se (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(x .....

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m, 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 percent .....

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ra 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 .....

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wo 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 (2012) 7 SCC 80, 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 .....

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CC 676, 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 stringen .....

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