IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3285 of 2008() ---------------------------------- S.C.1139/2005 OF ADDL.SESSIONS COURT (FAST TRACK COURT-1) THIRUVANANTHAPURAM. REVN. PETITIONER(S): IST ACCUSED -------------------------------- KUMAR @ ADUPPUKUMAR, S/O. THANKAPPAN, KANJIRAVILAKATHU VEEDU, KEEZHARANNOOR, NEDUMKAD WARD, MANACAUD VILLAGE. BY ADV. SRI.SAJU.S.A RESPONDENT(S): STATE ----------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3285 OF 2008 =========================== Dated this the 18th day of December,2008 ORDER First accused in S.C.1139/2005 on the file of Additional Sessions Court, Thiruvananthapuram filed this revision challenging the charge framed by the learned Sessions Judge. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. The relevant charge framed by the learned Sessions Judge reads:- “That you the first accused purchased 72 ampules of Buprenorphine injection a psychotropic substance, from the third accused for the purpose of sale and the second accused reached for conducting the sale of the same from the 1st accused and the first accused was arrested with the contraband CRRP 3285/2008 2 article around 12.15 P.M on 24.12.2004 near Chempaka lodge in Oolampara junction, Peroorkada and on perusal of the records this court finds you are liable to be charge sheeted under section 22 of Narcotic Drugs and Psychotropic Substances Act r/w S. 34 of IPC within my cognizance.” A reading of the charge establish that learned Sessions Judge did not apply his mind. Section 22 of NDPS Act provides for punishment for contravention in relation to Psychotropic Substances. Clause (a) deals with punishment where the contravention involves small quantity, clause (b) where contravention involves quantity lesser than commercial quantity and clause (c) where the contravention involves commercial quantity. The charge does not show whether it is for the offence under clause (a) or clause (b) or clause (c). Prosecution case is that 72 ampules of Buprenorphine injection was seized. The record CRRP 3285/2008 3 shows that each ampule contained 2 ml. of liquid. While considering the question whether it is a small quantity or a commercial quantity, the relevant aspect is what is the actual content of weight of the narcotic or psychotropic drug. If the total content of the narcotic drug in all the 72 ampules together is below the small quantity, the offence could only be under clause (a) of Section 22 and not either under clause (b) or clause (c). Learned Sessions Judge did not consider this aspect at all. The charge is therefore set aside. Learned Sessions Judge is directed to rehear the prosecution and defence and frame proper charge after considering the question whether the drug seized from the accused is a small quantity or not. Learned Sessions Judge shall consider the question in the light of the decision of the Apex Court in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008(5) SCC 161). Send back the records. M.SASIDHARAN NAMBIAR JUDGE tpl/- CRRP 3285/2008 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006