IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 CRL.A.No. 1938 of 2003 --------------------------------------- SC.131/2003 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANT/ACCUSED: V.BICHATHU, W/C.LATE KUNHIKOYA, BANGLADESH COLONEY, HOUSE NO.1/2711, WEST HILL, PUTHIYANGADI AMSOM DESOM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT AND STATE: 1. THE SUB INSPECTOR OF POLICE, NADAKKAVU POLICE STATION. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No.1938 of 2003 --------------------------- JUDGMENT Appeal is by the accused in S.C.No.131/03 on the Court of the Special Judge (NDPS Act cases), Vadakara, who has been found guilty and convicted of the offence under Section 21(b) the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'), as amended by Act 9 of 2001 and sentenced thereunder to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.50,000/- and in default to undergo rigorous imprisonment for a further term of one year. 2. At the time of arguments, counsel for the appellant submitted that there is no material available in evidence, so as to enable him to canvass for an acquittal of the accused, but, that all the same, conviction for offence under Section 21(b) of the Act would not be tenable and cannot be sustained, as there is no evidence in the case to CRA 1938/03 2 establish that the brown sugar seized from the possession of the appellant exceeded “small quantity” as defined under the Act and that therefore, punishment that could have been awarded to the appellant was only punishment under Section 21(a) of the Act and not punishment under Section 21(b) of the Act. 3. According to the learned counsel, the total quantity of brown sugar detected to have been possessed by the appellant is only 61 gms. inclusive of the weight of the plastic cover, wherein it had been kept and that the reports of chemical analysis would not show that the entire 61 gms. so seized from the possession of the appellant was brown sugar, but only that, it contains diacetylmorphine (heroin) and that there is absolutely no evidence as regards the quantity of heroin or brown sugar contained in the commodity, seizure of which was effected from the possession of the appellant. CRA 1938/03 3 4. Exhibits P6 and P7 are the chemical analysis reports respectively in relation to the samples sent for chemical analysis in the first instance and the rest of the contraband articles forwarded later for chemical analysis. The reports of the chemical analysis show only that in the samples S1-A, S1-B, S2-A and S2-B as also in the substances under Items 1 to 172, it was found that it contained diacetylmorphine (heroin). This only shows that the contraband seized was a mixture of diacetylmorphine. The contents of diacetylmorphine in the substance confiscated is not quantified. The result is that, as rightly contended by the counsel for the appellant, the appellant is entitled to the benefit of doubt that the quantity of diacetylmorphine could be of small quantity. In that event, the conviction of the appellant under Section 21(b) of the Act deserves to be altered to one under Section 21(a) of the Act. CRA 1938/03 4 In the result, I alter the conviction of the appellant to one under Section 21(a) of the Act from one under Section 21(b) of the Act and consequently modify the sentence awarded to the appellant to one of rigorous imprisonment for a term of three months and to pay a fine of Rs.7,000/- and in default to undergo a further term of rigorous imprisonment for two months. The appeal, thus, stands partly allowed. 16th January, 2008 (K.P.Balachandran, Judge) tkv