[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.268 OF 2008 Salim Ibrahim Chouhan @ ] Hussain @ Shaikh ] Muslim aged about 39 years ] permanently residing at ] Room No.A/302, Rukaiyya ] Palace, Behind Jama Masjid ] Somwar Bazar, Malad (W) ] Mumbai and presently ] undergoing sentence at ] Nasik Road, Central Prison, ] Nasik Road. ]..Appellant [Ori.Accused No.1] Vs. State of Maharashtra ] (At the instance of Anti ] Narcotics Cell Vide ] C.R.No.368 of 2006 ]..Respondents .... Mr.A.T.Lalla i/b Lalla & Lalla for Appellant Mr.Rajesh More APP for State .... WITH CRIMINAL APPEAL NO. 325 OF 2008 Nasir Abubaker Shaikh ] @ Nasir Chatai, ] Indian Muslim Inhabitant ] Aged about 48 years, ] last residing at R/7 Bldg. ] MMRD Colony, Ram Mandir Rd. ] Goregaon (W), Mumbai, at ] present Lodged at Nasik ] Central Jail, Nasik ] Nasik Road, Nasik ]..Appellant [Ori.Accused No.2] Vs. [-2-] The State of Maharashtra ] At the instance of A.N.C. ] Mumbai, having their office ] at Azad Maidan, Mumbai ]..Respondent [Ori.Complainant] .... Mr.Taraq Sayed Advcoate for Appellant Mr.V.B.Konde-Deshmukh APP for State .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JULY 2, 2008 DATE : JULY 2, 2008 DATE : JULY 2, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-original accused No.1 Salim Ibrahim Chouhan has preferred Criminal Appeal No. 268 of 2008 and appellant-original accused no.2 Nasir Abubaker Shaikh has preferred Criminal Appeal No. 325 of 2008. In both these appeals, the appellants have impugned the judgment and order dated 29.2.2008 passed by the learned Special Judge, Greater Bombay in NDPS Spl.Case No. 75 of 2007. Hence, both these appeals are being disposed of by this common judgment. By the impugned judgment, the learned Special Judge convicted and sentenced both the appellants under Section 20(c) and under Section 8(c) punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act"). Both [-3-] the appellants were sentenced to ten years RI and to pay a fine of Rs.1 lakh i/d RI for three months on each count. 2. The prosecution case briefly stated is as under: . On 21.11.2006 at about 2.30 p.m. information was received by PW 5 PSI Chavan attached to Anti-Corruption Cell that absconding accused Farooque was a supplier of charas. The present accused nos.1 and 2 were main customers of Farooque and that on 22.12.2006 between 6.00 p.m. to 7 p.m. they were likely to indulge in transaction of charas near Vishal Sweets Ram Mandir Road, Goregaon. Thereafter a trap was arranged and both the accused came to be apprehended. Each of them was found carrying 6 kgs. of charas. The samples were sent to C.A. The C.A. report Exhibit-20 shows that charas was detected in the said samples. 3. I have heard the learned advocates for both the appellants-original accused nos. 1 and 2 and the learned APP for the respondent No.1-State. I have perused the impugned judgment and order as well as [-4-] the evidence adduced in the present case. After carefully considering the matter, I am of the opinion that this appeal deserves to be allowed partly. 4. The learned counsel for both the appellants have stated that they are not arguing for acquittal and they are only praying that the sentence may be reduced in view of the fact that as per the C.A. report the quantity of heroin does not fall under commercial quantity but it falls under intermediate category. They submitted that according to prosecution, 6 kgs. charas was found in possession of each of the appellant. As far as appellant-Salim Ibrahim Chouhan is concerned, the CA report Exhibit-20 shows that the percentage of charas was 5.63 % and as far as appellant-Nasir Abubaker Shaikh is concerned, the C.A. report Exh.20 shows that percentage of charas was 4.40%. It is submitted that on consideration of the percentage of charas found as per the C.A. report, the actual charas found with the appellant-Salim Ibrahim Chouhan is 321.6 gms. and the actual charas found with appellant-Nasir Abubaker Shaikh is 264 gms. In support of this contention, the [-5-] learned counsel placed reliance on the decision of the Supreme Court in the case of K. Micheal Raj K. Micheal Raj K. Micheal Raj Vs. Intelligence Officer, N.C.B. Vs. Intelligence Officer, N.C.B. Vs. Intelligence Officer, N.C.B. reported in 2008 2008 2008 AIR SCW 2365. AIR SCW 2365. AIR SCW 2365. In the said judgment, 4.07 kgs. of heroin was found with the accused. As per the CA report, percentage of heroin was 1.5%. The Supreme Court observed that if the percentage of heroin is 1.5% then taking into consideration the total quantity of 4.07 kgs. the actual content of heroin would be 60 gms. The Supreme Court further observed that "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 commercial quantity." The Supreme Court further observed that "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. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst’s report is 60 gms. which is more than 5 gms. i.e. small quantity, but less [-6-] than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act". 5. Looking to these facts, in the said case, the sentence of the appellant came to be reduced and fine was also reduced to Rs.25,000/- in default RI for six months. 6. In the present case, the charas which has been found in possession of both the accused-persons is prohibited under Section 8(c) of the NDPS Act and thus punishable under Section 20 thereof. The question which arises for consideration is whether it would fall under small quantity, commercial quantity or intermediate quantity and if it falls under intermediate quantity what should be the quantum of punishment. As per the prosecution case, 6 kgs. of charas was found with each of the appellants. As per the CA report, samples contained 5.63% and 4.40 % charas. On applying the calculation in the case of Michael Raj, the actual quantity of charas with appellant Nasir Abubaker [-7-] Shaikh would be 321.6 gms. and actual quantity of charas found with accused Salim Ibrahim Chouhan would be 264 gms. Both these quantities would fall in between small quantity and commercial quantity. 7. As the consequence of the Amending Act 2001, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of "commercial quantity" in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2 which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further the term "small quantity" is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending materials is "small quantity", "commercial quantity" or something in between. 8. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the [-8-] intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, 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. The intention of the legislature as it appears 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. The intention of the legislature for introduction of the amendment as it appears to me 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. 9. In the present case, as per the CA report (Exh.20) it is seen that the charas which was found in possession of the appellant Nasir Abubaker Shaikh is 264 gms. and charas which was found in possession of appellant-Salim Ibrahim Chouhan was 321.6 gms. which is more than 100 gms i.e. small [-9-] quantity but less than 1000 gms. i.e. commercial quantity. It is clear that the quantity is lesser than the commercial quantity. Thus, both the appellants cannot be said to be punishable under Section 20(c) of the NDPS Act and both the appellants would be punishable under Section 20(b) of the NDPS Act. Furthermore, from the evidence, it is clear that the appellants are not the kingpin and Farooque was the kingpin in this case. 10. As far as appellant-Nasir Abubaker Shaikh is concerned, he has a minor child of 4 years and the said child is suffering from HIV. The medical reports clearly show that the child is HIV Positive. Mr.Taraq Sayed submitted that the family is extermely poor and there is no earning member in the family, therefore, it is very difficult for the wife alone to provide for the constant medical treatment and care which is necessary for the child, hence, it is prayed that sentence of imprisonment may be reduced to the period already undergone by the appellant-Nasir Abubaker Shaikh and the fine amount may also be reduced. 11. As far as appellant-Salim Ibrahim Chouhan is concerned, Mr.Lalla submitted that the appellant is [-10-] the only earning member in his house and he has three minor children hence, sentence of imprisonment may be reduced to the period undergone. Looking to these facts and especially the fact that sentence of imprisonment of co-accused is reduced to the period undergone, in view of the fact that there should not be disparity between the two accused, sentence of imprisonment of appellant- Salim Ibrahim Chouhan is also reduced to the period undergone by him. However, in his case sentence of fine as imposed on him by the learned Special Judge is maintained. 12. In the result, the conviction of both the appellants by the learned Special Judge, (N.D.P.S.Act), by judgment and order dated 29.2.2008 in NDPS Special Case No. 75 of 2007 for the offence under Section 8(c) punishable under 29 of the N.D.P.S.Act is maintained. The conviction and sentence for the offence under Section 8(c) punishable under Section 20(c) is set aside. Instead the appellants are convicted for the offence under Section 8(c) punishable under Section 20(b) of the NDPS Act. The substantive sentences of imprisonment under each of the counts, is [-11-] reduced to the period undergone by them. The fine amount of appellant-Nasir Abubaker Shaikh is reduced to Rs.5,000/- under each head in default RI for three months under each head. The fine amount of appellant-Salim Ibrahim Chouhan under each head and the in default sentence is maintained. 13. Appeal is partly allowed. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]