The appellant herein stands convicted by the learned Special Judge, Additional Special Court under NDPS Act, Chennai, in C.C.No.9 of 2004 for the offences under Sections 8(c) r/w 21(c), 28 and 29 of the NDPS Act, 1985, and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1 lakh in default to undergo six months rigorous imprisonment each and the sentences are ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant herein had preferred this appeal.
2. The case of the prosecution in brief is as follows:
On 24.04.2007 at about 2.30p.m., P.W.3 Intelligence Officer received an information about the drug trafficking and at about 2.30p.m., the appellant was intercepted by P.W.3 and other officers at Anna International Airport and he was enquired. The accused admitted that he swallowed 80 capsules containing heroine. On the same day at 5.30p.m he was produced before the IX Metropolitan Magistrate, Saidapet, and on court's direction he was taken to the Adyar Malar Hospital and X-ray was taken on his stomach and he was admitted in the hospital and in the night he ejected 32 capsules 115 grams heroine. Samples were taken from the said heroin and the heroin was seized under mahazar Ex.P.2 and samples S.1 and S.2 were taken On the next day, at about 5.00p.m., the accused ejected another 25 capsules containing 86 grams and samples S.3 and S.4 were taken from the heroin and the contraband was seized under mahazar Ex.P.43. On the next day on 26.07.2003, again the accused ejected another 12 capsules containing 43 grams of heroin and Samples S.5 and S.6 were taken from that heroin and the contraband was seized under mahazar Ex.P.44. Agaon on the next day on 27.07.2003, at 7.00 hours, the accused ejected another 11 capsules containing 41 grams of heroin and Samples S.7 and S.8 were taken and the contraband was seized under Ex.P.46. On 27.07.2003 at 6.00p.m, the accused was taken to the NCB Office and the statement was taken under
Section 67 of the NDPS Act which was recorded by P.W.2, and accused was arrested at 10.00p.m.,. The properties were sent to Court and samples were sent for chemical analysis. P.W.4, the Chemical analyst on analysing the samples gave report Ex.P.21. According to the chemical analysis report, S.1 sample contains 38.1% di-acytyl-morphine, S.3 sample contains 35.2% di-acytyl-morphine, S.5 sample contains 33.1% di-acytyl-morphine and S.7 sample contains 37.4% di-acytyl-morphine. A complaint was also filed against the accused.
3. In order to establish the case, prosecution has examined 9 witnesses, marked 52 exhibits and produced 18 material objects. After examination of witnesses, the accused was questioned under
Section 313 Cr.P.C., and he denied his complicity and on the side of the defence, neither any witness was examined nor any document was marked. The trial Court after considering the evidence, convicted the accused as stated above.
4. Mr.R.Rajan, learned counsel appearing for the appellant submitted that he is confining his argument only to the question of sentence, since according to the defence, the offences would not fall under
Section 21(c) of the NDPS Act, but only under
Section 21(b) of the NDPS Act. The learned counsel on record made an endorsement that the arguments is only on the question of sentence based on the quantity of heroin seized. Though the appellant has also filed an application for bail, with the consent of the learned Special Public Prosecutor and the learned counsel for the appellant , the matter is taken up for final disposal, since counsel for the appellant has confined his argument only to the question of sentence.
5. The learned counsel for the appellant submits that the trial Court convicted the accused wrongly under
Section 21(c) of the NDPS Act. The total quantity of heroin seized is only 283 grams as per the chemical analyst report Ex.P.21. From the samples, the analyst found by average only 35.95% of di-acytyl-morphine. As such in the total quantity of 283 grams seized, presence of di-acytyl-morphine comes only to 101.74 grams which does not come under the category of commercial quantity as per Serial No.56 in the table given in the NDPS Act.
6. The learned counsel for the appellant in support of his contention relied on the decisions of the Honourable Supreme Court reported in 2008(2) SCC (Crl.) 558 (Michel Raj v. Intelligence Officer, Narcotic Control Bureau) and 2009(3) SCALE 429(State of NCT of Delhi v. Ashif Khan @ Kalu)
7. Per contra, Mr.Dhanapal Raj, learned Special Public Prosecutor submitted that the entire substance which was seized weighing 283 grams was heroin and the samples taken from the contraband on analysing were found to contain the substane of di-acytyl-morphine which is also called as heroin. The learned Special Public Prosecutor further submits that even if the offence is converted under
Section 21(b) of the NDPS Act, the sentence of imprisonment of ten years awarded by the trial Court could be imposed for the offence under
Section 21(b) of the NDPS Act.
8. This Court considered the submissions made by both sides and perused the records. Though the learned counsel for the appellant did not challenge the seizure of contraband, this Court perused the evidence and also the Judgment of the trial Court. Several contentions were raised by the trial court in respect of the seizure of the contraband and the trial Court discussed about it. This Court is satisfied with the reasons given by the trial Court regarding the seizure of the contraband from the accused.
9. The point for consideration is that whether the accused could be sentenced under
Section 21(c) of the NDPS Act as the contravention involves commercial quantity or under
Section 21(b) of the NDPS Act, as the contravention involves 101.74 Grams of heroin which is lesser than the commercial quantity but greater than the smaller quantity.
10. The Honourable Supreme Court in the decision reported in 2008(2) SCC 558 (Micheal Raj v. Intelligence Officer, Narcotic Control Bureau), had observed as follows:
"19.On going through Amarsingh case(2005 S.C.C.(Crl.) 1704) 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."
The said Judgment also has been followed by this Court reported in 2009(1) TLNJ (Crl.) 43 (Rekha Parameswari v. Assistant Collector of Customs, Prosecution Cell Preventive Department, Madras).
11. In this case, as per the Chemical Analyst Report, on analysing four samples, purity test has been conducted so as to establish the quantity of di-acytyl-morphine in the whole mixure. According to the Chemical Analyst, S.1 sample contained 38.1% di-acytyl-morphine, S.3 sample contained 35.2% di-acytyl-morphine, S.5 sample contained 33.1% di-acytyl-morphine and S.7 sample contained 37.4% di-acytyl-morphine. The four samples of 20 grams contained only an average of 35.95% of di-acytyl-morphine and as such the total quantity of 283 grams would contain only 101.74 grams of di-acytyl-morphine. From the result of the chemical analyst report, it is only established that the total quantity of heroin seized from the accused is only lesser than commercial quantity.
12. For the above said reasons, the circumstances of the case, the conviction and sentence imposed on the of the accused under
Section 8(c) r/w 21(c) of the NDPS Act is set aside, instead he is convicted under
Section 8(c) r/w 21(b) of the NDPS Act. The accused is sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.25,000/- and in default to undergo three months rigorous imprisonment. The conviction on the accused by trial Court under
Section 28 and
29 of the NDPS Act is confirmed, but the sentence is modified for each offence as the accused to undergo 5 years rigorous imprisonment and to pay a fine amount of Rs.25,000/- and in default of payment of fine to undergo 3 months rigorous imprisonment. The sentences of imprisonment imposed for all the offences shall run concurrently.
13. As it is reported by the learned Counsel that the appellant has been in prison for more than six years, the jail authority may verify and if the appellant has already undergone the sentence of imprisonment and the default sentence of imprisonment for non-payment of fine, the appellant shall be released forthwith, if not required in any other case.
14. The appeal is partly allowed, with the above modification.
ksr To
1.Special Judge, Additional Special Court under NDPS Act, Chennai.
2.Intelligence Officer Narcotics Control Bureau South Zonal Unit Chennai.
3.The Public Prosecutor Chennai