IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 CRL.A.No. 977 of 2004(B) ---------------------------------- SC.231/2000 of SPL.COURT (NDPS ACT CASES), VADAKARA ............................................. APPELLANT(S): ACCUSED ------------------------------------- P.K.NOUSHAD, S/O. POKKER, ALANKAR MANZIL, EDAKKANDY VALAPPU, PILAKKOOL, THALASSERY. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.977 OF 2004 ............................................. Dated this the 19th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Special Judge (N.D.P.S.Act Cases), Vadakara in S.C.No.231/2000. The accused was charge sheeted for an offence under Section 21 of the N.D.P.S. Act as it stood then and was found guilty and convicted and thereafter sentenced to undergo R.I for 15 years and to pay a fine of Rs. Two lakhs with a default sentence of S.I for two years. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether the accused is entitled to the benefit of the provisions of the amended N.D.P.S. Act by Act 9 of 2001 (2) If it is so, what is the type of quantity which the accused possessed at the time of seizure (3) What will be the proper sentence. 3. Heard the learned counsel for the appellant as well as the Prosecutor. For the sake of convenience, all the : 2 : CRL.A.NO.977 OF 2004 points are answered together. It is the case of the prosecution that on 2.3.1999 at 5 p.m the C.I of Police, Nadakkavu got an information that one had reached Room No.303 of Kingsway Tourist Home at Kozhikode for sale of Brown sugar. He prepared a search memorandum and forwarded to the JFCM-IV, Kozhikode and proceeded to the place along with the police party. He reached the room by about 5.25 p.m and the accused was found inside the room. He was informed that as having received information that the accused was having brown sugar and he was also informed about the right which is vested in him under Section 50 for searching his body and room. In the presence of the witnesses, the accused was searched and it was found that he was in possession of brown sugar in a plastic cover which weighed 125 grams. It was sampled and sealed and seized by preparing a search list. An amount of Rs.1,400/= was found in his shirt's pocket. With these allegations, he faced the trial. PWs 1 to 3 were examined, Exts. P1 to P13 and MOs 1 to 15 were marked. On a detailed analysis of the entire materials, the court found that the accused was found to be in possession of the brown sugar and : 3 : CRL.A.NO.977 OF 2004 thereafter as per the provisions then in existence, found him guilty and sentenced him to undergo 15 years imprisonment. I had gone through the entire records available in the matter and the evidence regarding the apprehension, search and detection of 125 grams of brown sugar from the accused stands proved in this case. But, the question is whether he is entitled to the benefit of subsequent enactment by which the NDPS Act has been amended. NDPS Act has been amended by Act 9 of 2001 and it has come into force on the second day of October 2001. It is true that the judgment was rendered by the court below on 5.5.2001 prior to coming into force of the amendment. But, we find a relevant provision under the Act which is Section 41, which reads a s follows: “41. Application of this Act to pending cases:- (1) Notwithstanding anything contained in sub-section (2) of section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise : 4 : CRL.A.NO.977 OF 2004 liable at the date of the commission of such offence: Provided that nothing in this section shall apply to cases pending in appeal. 2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force.” 4. A reading of the above extracted provision would show that any person found guilty of any offence punishable under principal Act shall be liable for punishment which is less than the punishment for which he is otherwise liable at the date of the commission of such offence. So, the extended benefit is available to the accused. 5. Now what is the extended benefit is the next question. By virtue of the amendment, the possession of drugs had been classified into three; such as (1) small quantity (2) intermediate quantity (3) commercial quantity. Section 21(a) to (c) deals with different types of punishment to be inflicted with respect to the quantity possessed by a person. 6. Now, how can the quantity possessed to be found out is the next question to be decided in this case. What is : 5 : CRL.A.NO.977 OF 2004 seized from the accused is 125 gram of brown sugar and a reading of the chemical analysis report which is marked as Ext.P11 would show that impure heroin is commercially known as brown sugar. Then schedule attached to the Act, item 56 deals with heroin. If diacetylmorphine content in the heroin is up to 5 grams, it is classified as a small quantity and if it is 250 gram and above, it is called commercial quantity which necessarily means that in between 5 and 250 grams it should be intermediate quantity. In order to find out the diacetylmorphine percentage, a quantitative test is to be conducted. 7. A learned Judge of this Court in the decision reported in Noushad K.K v. Intelligence Officer, Narcotics Control Bureau (ILR 2207 (2) 485) had considered this point. The learned Judge held that 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. For determining the offence committed by the accused, it is necessary to get the data which should show the exact percentage of diacetylmorphine content in the : 6 : CRL.A.NO.977 OF 2004 substance seized from the accused. This decision was rendered on the basis of the decision of the Apex Court reported in Micheal Raj v. Intelligence Officer (2008 (2) KLT 36 (SC). In that case, the Hon'ble Supreme Court held that the content of the narcotic drug or psychotropic substance which shall be taken into consideration, which means when a narcotic drug or psychotropic substance is seized, the percentage of the narcotic drug or psychotropic substance from the materials seized has to be found out by a scientific analysis and if on scientific analysis the quantum is fixed by performing a quantitative test, then it can easily be seen what is the content available in the drug or in the substance seized. 8. So as held by this Court in Noushad's case 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. So, unless the quantity is properly estimated, then for the purpose of arriving at a decision on Sections 21(a) to (c ) of the NDPS Act, the court has to only rely upon such materials. Here admittedly no : 7 : CRL.A.NO.977 OF 2004 quantitative analysis is conducted and the percentage of presence of the diacetylmorphine is not found out. 9. Then what will be the result in such cases is the point to be considered. Admittedly when it is heroin, necessarily it will contain diacetylmorphine. So, a quantity less than 5 gram would attract the offence under Section 21 (a) of the NDPS Act. So, in the absence of any other evidence, that benefit has to be conferred upon the accused and it has to be stated that he is guilty of possessing small quantity. So far as this case is concerned, the possession is with respect to the small quantity of heroin. When it is so, the punishment that can be imposed is 6 months R.I or with fine which may extent to Rs.10,000/= or with both. I am informed that the present accused is in jail for more than 10 years. 10. When a person is convicted previously with the same offence, Section 31 can be attracted. But, such particulars were not made available by the prosecution and no charge was framed under Section 31 of the Act, it does not arise for consideration in this appeal as well. 11. So, from these analysis I hold that the accused was : 8 : CRL.A.NO.977 OF 2004 found to be in possession of heroin and for that he has to be sentenced to undergo imprisonment for a period of 6 months and to pay a fine of Rs.5,000/=. 12. In the result, the criminal appeal is disposed of as follows: The accused is found guilty for possessing heroin and is convicted and sentenced to undergo R.I for 6 months and to pay a fine of Rs.5,000/= and in default to undergo further S.I for a period of two months. He shall be entitled to set off as contemplated under Section 428 of the Criminal Procedure Code. It is need less to say that the sentence has to be worked out in accordance with the materials available under law and if he had already suffered the sentence, he is to be set at liberty if his detention is not required in another case. M.N.KRISHNAN, JUDGE cl