(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and the order passed by the learned Sessions Judge in Sessions Case No.313 of 2004; whereby, the appellant-accused has been convicted for the offence under Section 18(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the sentence has been imposed of 12 years of R.I. with the fine of Rs.1 Lac and further 1 year R.I. for default in payment of fine.
2. As per the prosecution case, on September 30, 2004, Kuldipsinh Joravarsinh Rathod working as Police Constable at Shahpur Rangila Police Station received an information through his informant that one person named Sunil Kailashchandra Sikligar of M.P. residing near Shahnavaz Manzil, 3rd floor in the building of Ushmanbhai Qureshi nearby Capital Hotel had brought quantity of opium and was to sale the same by finding the customers and the said constable, PW-1, informed to senior P.I. Shri Kanani, PW-8, and upon the receipt of such information, Shri Kanani PW-8, intimated in writing to his higher officer and called for panchas and instructed for arrangement of the raid. Thereafter, P.I. Shri Kanani, PW-8, went to the place at which the address was given and the door was knocked. One person had opened the door and upon inquiry, he informed the name as Sunil Kailashchandra of M.P. accused herein. The said officer, Shri Kanani informed the accused that he was Gazetted Officer and if the accused was desirous to have search and seizure in presence of any other officer, such option was available to him but the accused did not opt for it and thereafter, the search was made in which two plastic bags were found containing charas and the weighing scale of 500, 200, 100 and 50 grams were there with one knife containing some black material. Thereafter, Altaf Malek PW-6, was called for weighing the quantity and it was found that in one bag, the opium was having weight of 1.089 Kg. and in the another beg, the quantity of opium was found 2.125 Kg. The Scientific Officer for preliminary test and the photographer were also called. Photographs were taken by the Photographer and the quantity was seized. Samples were also taken and sealed and the remaining mudamal was also sealed and thereafter, the complaint was filed with Shahpur Rangila Police Station.
3. The police, thereafter, investigated into the complaint and ultimately, charge-sheet was filed and the case was committed to the Sessions Court being Sessions Case No.313 of 2004. The prosecution in order to prove the guilt of the accused examined 11 witnesses. On behalf of the defence 3 witnesses were examined. The details of the witnesses, who were examined by the prosecution as well as the defence, is mentioned by the learned Sessions Judge at paragraph No.5 of the judgment. The prosecution also produced the documentary evidence of 21 documents, details of which are mentioned by the learned Sessions Judge at paragraph No.6 of the judgment. The learned Sessions Judge, thereafter, recorded the statement of the accused under Section 313 of Criminal Procedure Code;wherein, the accused denied the evidence against him and he stated that one Nannu was staying in the room and no contraband item was recovered from him where he was staying and he had not consumed any psychotropic substance nor he was purchasing or selling any such material. The accused stated that he was knowing tailoring work and he was wrongly involved in the case.
4. The learned Sessions Judge, thereafter, heard the prosecution and the defence and ultimately, found that the prosecution has been able to prove the case for the charged offence under Section 18 of NDPS Act being in conscious possession of 3.214 Kg. opium, which is contraband prohibited psychotropic substance.
5. The learned Sessions Judge, thereafter, heard the prosecution and the defence on the aspect of sentence and ultimately, imposed the sentence as referred herein above. Under the circumstances, present appeal before this Court.
6. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have considered the entire evidence on record. We have heard learned counsel appearing for the appellant, Ms.Sagar, as well as the learned APP, Ms.Shah, for the State.
7. As such, the evidence produced by the prosecution, if considered with the documentary evidence, the guilt of the accused for the alleged offence is proved and we may also state that no detailed discussions on the said aspect is required since learned counsel for the appellant-accused has also not challenged the conviction for the alleged offence, as held by the learned Sessions Judge. The only contention raised by the learned counsel for the appellant is that the sentence imposed by the learned Sessions Judge is excessive, keeping in view the content of morphine contained in the material of opium as found by the FSL. Learned counsel in furtherance to her submission relied upon the decision of the Apex Court in case of E.Micheal Raj V/s. Intelligence Officer reported in AIR 2008 SC 1720 and it was submitted that in the said case, it has been observed by the Apex Court that conviction and the sentence can be made keeping in view the proportion and the contents of the prohibited psychotropic substance i.e. morphine in the said case. It was submitted by the learned counsel that in the said case, the Apex Court reduced the sentence to 6 years R.I. with the fine of Rs.20,000/- and in default, sentence of 6 months and learned counsel submitted that in the present case also, the same view be taken.
8. Learned APP while supporting the judgment of the learned Sessions Judge submitted that the sentence imposed by the learned Sessions Judge is just and proper and no interference may be made by this Court to the discretion exercised by the learned Sessions Judge.
9. As the conviction is not under challenge, on the position of conscious possession, no discussion is required on the said aspects as already observed earlier. However, before we consider the facts of the present case, we find it appropriate to refer to the decision of the Apex Court in the case of E. Michel Raj (supra) upon which, the heavy reliance is placed by the learned counsel for the appellant. In the case of E. Michel Raj (supra), the only contention raised before the Apex Court was the sentence imposed upon the appellant therein and the said aspect is apparent from para-4 of the said judgment. In the said decision, it was observed by the Apex Court at paragraph Nos.13 to 16 as under:
“13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize 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 gms. 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 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a 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 appear 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.
14. In the case of Ouseph alias Thankachan v. State of Kerala, (2004) 4 SCC 446, this Court in para 8 has held as under :
"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."
From the aforesaid decision, we find that the Court has taken the quantity of the narcotic drug or psychotropic substance found in the mixture, relevant for the purpose of imposition of punishment.
15. The learned counsel for the respondent placed reliance on the decision of this Court in Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550, in support of his contention that the entire material found in possession irrespective of the content of the offending material has to be taken into consideration while imposing the punishment. In Amarsingh case (supra), two persons, namely, Amarsingh and Danabhai were apprehended. Amarsingh was found carrying a plastic bag which contained a black-coloured liquid substance weighing 920 gms. Similarly, 4.250 kg. of grey-coloured substance was recovered from Danabhai. Samples were sent to the Forensic Science Laboratory (FSL). The FSL report indicated that the sample from Amarsingh was opium as described in the NDPS Act containing 2.8% anhydride morphine apart from pieces of poppy flowers and the sample relating to Danabhai was reported to be opium as described in the NDPS Act having 1.2% anhydride morphine and also containing pieces of poppy flowers. Both the accused were charged and tried under Sections 15, 17 and 18 read with Section 29 of the NDPS Act. The High Court found that the conviction under Sections 17 and 18 read with Section 29 of the NDPS Act was not correct, but convicted Amarsingh under Section 21(c) and also under Section 21(c) read with Section 29 of the NDPS Act, for individually being in possession of opium and for being jointly, in conspiracy with the other accused. The High Court found the accused possessed of commercial quantity and convicted and sentenced him for 10 years rigorous imprisonment plus fine of Rs. 1 lakh. Being aggrieved, Amarsingh approached this Court. This Court has held in para 14 of the judgment as under :
"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 :
"In respect of opium derivatives (at SI. 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 quantify" 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.
16. On going through Amarsingh case (supra), 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 (supra) 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”.
(Emphasis Supplied) 10.Thereafter, it appears that in the said case as narcotic drug found in the possession of the accused was more than 60 grams, which was more than 5 grams, the Apex Court found that quantity of 60 grams, is lesser than the commercial quantity and greater than small quantity, the appellant therein would be punishable under Section 21(b) of the NDPS Act. The Court found that the appellant was a mere carrier and was not a king pin. Thereafter, the Apex Court reduced the sentence to 6 years R.I. with the fine of Rs.20,000/- and in default, R.I. for 6 months.
11. The examination of the facts of the present case, shows that the total quantity was 3.214 Kg. opium and FSL Report Exh.54 shows that after chemical analysis, it was found that the material contained 2.8.% morphine, which is a narcotic drug. If the total material quantity is considered with the aforesaid contents of morphine, the total morphine found would come to 89.99 grams or rather it can be said as 90 grams. It is, in this light of the fact situation, the matter if further examined, as per table of NDPS Act, at item No.77, the small quantity of morphine is 5 grams;whereas, the commercial quantity is 250 grams. The aforesaid aspect, if further considered with the botanical examination of the samples, through Narcotic Department, produced at Exh.55, it has been found that the material contained particles of plants of poppy straws.
12. Under these circumstances, it can be said that the material recovered contains narcotic drug i.e. morphine and it also contained particles of plants of poppy straws. As per the above referred decision of the Apex Court at paragraph No.16, it has been observed by the Apex Court after considering the Amarsinh's case (supra) reported in 2005 (7) SCC 550; that the Amarsinh's 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, it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. The Apex Court, further, observed 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”. There is no reliable or authenticated exact weight available of the contents of particles of the poppy straws which itself is a psychotropic substance. However, the exact weight or contents, from the material seized, of morphine, which is a narcotic drug, can be traced and calculated, if considered on the basis of FSL report at 2.8%, as referred to herein above, such would come to 90 grams. Item morphine is mentioned at serial No.77 in the table where the commercial quantity is 250 grams and the small quantity is 5 grams. Hence, it would be the case of possession of narcotic drug more than small quantity but lesser than commercial quantity.
13. It appears to us that the learned Sessions Judge was guided by entry No.92 of the table and found that the quantity recovered from the possession of the accused was more than commercial quantity i.e. more than 2.5 Kg. and the sentence has been imposed. In any case, the decision of the Apex Court in case of E.Micheal Raj (supra) is dated 11.3.2008 and therefore, the learned Sessions Judge had no occasion to consider the aforesaid aspects. In the present case, appeal being continuous proceeding, in view of the aforesaid decision of the Apex Court in case of E.Micheal Raj (supra), the question of imposition of the sentence deserves can be considered.
14. In view of the aforesaid facts and circumstances, that the material seized contained morphine of 90 grams lesser than commercial quantity prescribed vide entry No.77 of the table, we find that the ends of justice would be met, if the sentence is reduced to 8 years R.I. and the fine is reduced to Rs.80,000/- and in default, sentence of 8 months R.I. in the event, fine is not paid.
15. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge for holding the accused guilty and for conviction is not interfered with. However, the sentence imposed shall stand reduced to 8 years R.I. with the fine of Rs.80,000/- and on failure to pay the fine, there shall be additional 8 months R.I.
16. The Appeal is allowed to the aforesaid extent.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (ashish)