Second accused Samundeeswaran alias Samu challenges before this court by filing this criminal appeal the judgment of conviction and sentence recorded by the Trial Court.
2. Learned Principal Sessions Judge under E.C. & and NDPS Act, Chennai convicted the accused for offence under
section 8(c) read with
section 21(c) of the NDPS Act and sentenced him to undergo ten years rigorous imprisonment and to pay fine of Rs.1,00,000/= with usual default sentence.
3. Learned counsel appearing for the appellant would submit that the appellant now does not like to challenge the conviction recorded by the Trial Court. On the basis of the verdict passed by the Supreme Court in E.MICHEAL RAJ v. NARCOTICS CONTROL BUREAU ((2008) 5 SCC 161), the learned counsel appearing for the appellant would submit that purity test is a mandatory one to assess whether the accused possessed small quantity or commercial quantity or intermediate quantity of the contraband. Inasmuch as the respondent has not gone for the purity test to assess the purity of heroin in the total contraband weighing 350 grams, the benefit flowed out of such a lapse on the part of the respondent will have to be conferred on the accused. In any case, he would submit that the appellant had already undergone imprisonment for five years short of 17 days. Therefore, this court may consider the sentence already undergone by the appellant and reduce it to the extent already undergone by the appellant, he would further contend.
4. Learned Government Advocate (Criminal Side) appearing for the State would submit that even if we construe that the accused possessed intermediate quantity of heroin, this court is empowered to impose sentence of ten years and fine of Rs.1,00,000/=. Considering the menace of the Narcotic Drugs, the court may sustain the sentence imposed on the appellant, he would submit.
5. In MICHEAL RAJ's case referred to above, the Supreme Court has categorically held that the total weight of the contraband substance is not relevant. But, the percentage of pure heroin content found in the total weight of the contraband matters while determining the small, intermediate and commercial quantity of contraband. Admittedly, purity test was not conducted in this case by the respondent police. Therefore, as rightly pointed out by the learned counsel appearing for the appellant, benefit of such lapse will have to be conferred on the appellant. At any rate, the court finds that the percentage of pure heroin content translated into weight would definitely exceed five grams though it might not have exceeded 250 grams.
6. Considering the above facts and circumstances and the sentence already undergone by the appellant, the conviction part of the judgment impugned is sustained and the sentence part of the impugned judgment stands modified and the appellant is sentenced to the period already undergone by him. Coming to the fine of Rs.1,00,000/= imposed by the Trial Court on the appellant, the court finds that ends of justice would be subserved if the fine amount of Rs.1,00,000/= is reduced to Rs.25,000/=. Accordingly, the fine imposed already is modified and a fine of Rs.25,000/= is imposed on him in default to undergo six months rigorous imprisonment. The appeal stands dismissed with the above modification of sentence.
ssk.
To
1. The Principal Special Judge, Special Court under E.C.
& NDPS Act, Chennai.
2. The Inspector of Police, NIB CID, Chennai