IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 CRL.A.No. 2100 of 2004(C) ------------------------------------ SC. NO.1042/2003 OF THE SPL. JUDGE FOR THE TRIAL OF CASES UNDER N.D.P.S. ACT,THIRUVANANTHAPURAM. ........... APPELLANT(S): ACCUSED --------------------- ARUN JOJO @ JOJO, S/O. (LATE) RAJAGOPAL, GEETHA BHAVAN, CHERUVAKKEL, SREEKARIYAM P.O., THIRUVANANTHAPURAM. BY ADVS. MR.SASTHAMANGALAM S. AJITHKUMAR MR.KRISHNADAS P.NAIR SMT.K.L.SREEKALA MR.HARIDAS P.NAIR MR.PRABHU VIJAYAKUMAR RESPONDENT(S): COMPLAINANT -------------------------- 1. THE NARCOTIC CONTROL BEUREAU, REGIONAL INTELLIGENCE UNIT, THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. ADV. . FOR R1 BY SPL. PUBLIC PROSECUTOR MR.C.P.UDAYABHANU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009 , ALONG WITH CRA. NO.426 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 2100 OF 2004 AND Crl. Appeal NO. 426 of 2005 = = = = = = = = = = = = = = = Dated this the 14th day of August, 2009. J U D G M E N T Crl.Appeal 2100/04 is filed by the first accused in S.C.1042/03 whereby he has been convicted u/s 21(c) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default to undergo a further imprisonment for a period of two years. The other appeal 426/05 is filed with a prayer to set aside the judgment of acquittal passed against the accused u/Ss.23(c), 27A, 28 and 29 of the N.D.P.S. Act. Since the subject matter is one and the same and part and parcel of the same transaction the appeals have to be disposed of jointly. 2. It is the case of the prosecution that on 26.4.2003 at about 8 a.m. the Intelligence Officer attached to the Narcotic Control Bureau, regional Intelligence Unit, Thiruvananthapuram got a secret information that one Abdul Vaheed had conspired to send a consignment of heroin, a narcotic drug, to Mali by Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -2- Flight I.C.963 dated 26.4.2003 through a carrier by name Arun Jojo @ Jojo. The information thus received was reduced into writing and forwarded to the Superior Officer. Later the officials reached the Airport, apprehended the accused, conducted a search on him but was unable to find anything with him and therefore he was of-loaded from the aircraft, taken to the Medical College Hospital and was administered purgatives and he passed two motions and on the first motion there were 35 capsules and in the second time 29 capsules thereby totaling 295 gms. of heroin. The Court after elaborate consideration of the materials found that there is no evidence to find guilt of Abdul Vaheed and again it also held that there is no evidence to convict the 1st accused u/Ss. 23(c), 27A, 28 and 29 of the N.D.P.S. Act. The Court arrived at that finding on the basis that the conspiracy alleged by the prosecution is not proved to the satisfaction of the Court. So the Court found the first accused also not guilty u/s 29 of the N.D.P.S. Act. The Court also held that there is no evidence to prove the offence u/s 28 relating to attempt to commit such offence. It also held Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -3- that the involvement of the first accused in regard to the alleged trafficking of narcotic drug is not proved and therefore found him not guilty u/s 27A of the N.D.P.S. Act. As the narcotic drug carried by the first accused has not been exported the Court found the offence u/s 23 of the N.D.P.S Act is also not attracted. 3. I had heard the learned counsel for the appellant in Crl.Appeal 426/05 as well as the other case. The finding of the Court below regarding the non availability of evidence and materials to find out the first accused guilty u/s 23, 27A, 28 and 29 of the N.D.P.S. Act is correct in the backdrop of the discussion made by the Court after adverting to all the materials on record. The materials are not sufficient to reverse the finding of acquittal under those Sections. 4. Now the main question is regarding the conviction of the first accused u/s 21(c) of the N.D.P.S. Act. 21(c) refers to commercial quantity. Commercial quantity of heroin comes into play when it is more than 250 gms. According to the prosecution since it is 295 gms. that is recovered it will amount Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -4- to commercial quantity and therefore the conviction u/s 21(c) of the N.D.P.S. Act is sustainable. 5. Before adverting to that question it may be necessary in the light of the appeal filed by the accused to find out whether he can be roped into any of the offences u/Ss.21 of the Act. As stated by me earlier on getting specific information the offence has been detected. It is stated that the first accused had swallowed the capsules even while he was sitting in the hotel, then he left for the airport and reached the airport and he was followed by the narcotic officers. With the aid and help of PW1 and in his presence he was apprehended and was examined. In an ordinary physical examination nothing could be detected or traced out from him and therefore as per the evidence available he was off-loaded from the aircraft and was taken to the hospital namely Medical College Hospital, Thiruvananthapuram. There the Doctor administered him some purgatives and the first motion he had at 10.30 a.m. brought out 35 capsules and in the next motion about 29 capsules and PW4 had given details about the same. From Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -5- these 64 capsules a total of 295 gm of heroin was found out. The correctness of this was challenged in the light of non examination of some of the persons and a decision was also cited namely Narcotic Control Bureau v. Abdul Hussain (2003 SCC (Crl) 1608). The Court distinguished that decision basing on the reason the doctor who had administered the purgative was through out available with the accused and it was with his aid the capsules came out and he was personally present and therefore it is a solid form of evidence and it does not lack any legal sanctity. As discussed by me earlier from the materials it is very clear that the first accused was apprehended from the airport. He was tested, he was brought to the Medical College Hospital and with the help of the Doctor purgative was administered which brought out 64 capsules of heroin. So the possession of 295 gms. of heroin is proved beyond doubt in this case and there is no legal or procedural lacunae in the matter. 6. But now the question arises is whether these 295 gms itself can be taken as a quantity or not. This matter came Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -6- up for consideration before the Apex Court in the decision reported in Micheal Raj v. Intelligence Officer (2008 (2) KLT 36). The Court held that, “Under the rationalized 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 S.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 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, Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -7- 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 i 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. When any narcotic drug or psychotropic substance is found mixed with one or more neutral substances for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.” 7. Now, I will refer to a decision of this Court reported in Naushad v. Intelligence officer, Narcotics Control Bureau (2007 (2) KLT SN 77 C.No.102). It was held in that case unless proved by approved scientific methods, Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -8- including quantitative test, it is not proper to conclude what is the percentage of diacetylmorphine. The learned Judge held that admittedly heroin or diacetylmorphine is a combination of more than one component and quantitative test has to be conducted to find out the exact percentage of the components which constitute the substance. The Court below found the accused guilty for the offences punishable u/s 21(c) and 28 and 29 of the N.D.P.S. ct. This finding was on the basis of the prosecution allegation that the contraband articles seized from accused Nos.1 and 2 of one kg. each. So the dictum laid down in the above two decisions are to the effect that when the actual content of diacetylmorphine is as described for small quantity, intermediate quantity or commercial quantity it is that quantity which has to be taken into consideration to decide the question of type of quantity held by a particular person. It is in such circumstances it is imperative that there must be a quantitative test conducted to find out the actual content of diacetylmorphine in a particular sample seized or the quantum seized from a particular person. Unfortunately in Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -9- the case before us though it is taken out no quantitative test is conducted to find out the exact quantity of these diacetylmorphine. Therefore the Court is in the dark as to the exact content of the above said diacetylmorphine in the total heroin seized. When it is so, necessarily the benefit has to go to the accused. Whatever it may be, there will be at least a negligible percentage in that drug which is seized from him and therefore it will at least attract an offence u/s 21(a) of the N.D.P.S. Act. Therefore as there is no quantitative test done in this case the conviction passed u/s 21(c) has to be set aside and it has to be made under S.21(a) of the N.D.P.S. Act. When it is so the punishment prescribed is rigorous imprisonment for a term which may extent to six months or with fine which may extent to Rs.10,000/- or with both. I am informed that the accused is undergoing imprisonment for the last six years. He is in custody from 27.4.2003 onwards. He has never been released on bail. So almost more than six years have elapsed. Therefore under the circumstances it may not be correct to impose a sentence of fine on him over and Crl. Appeal NO. 2100 OF 2004 & Crl. Appeal NO. 426 of 2005 -10- above the imprisonment for six years. Therefore u/s 21(a) of the N.D.P.S. Act he is sentenced to undergo rigorous imprisonment for a period of six months. In the result Crl.Appeal No.2100 of 2004 is disposed as follows: 1) Finding of guilt u/s 21(c) of the N.D.P.S. Act and the conviction and sentence passed thereunder are set aside. 2) He is found guilty u/s 21(a) of the N.D.P.S. Act and he is convicted thereunder and sentenced to undergo rigorous imprisonment for a period of six months. 3) Since he has already undergone the period of imprisonment for more than six years he is not bound to suffer any more punishment for this offence and he shall be released from jail if he is not required in connection with any other criminal case. Crl.Appeal No. 426/05 is dismissed. M.N. KRISHNAN, JUDGE. ul/-