:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 662 OF 2005 Mohamound Mehri Allahyari, Aged 54 years, Iranian Natinal, Yusuf Abad, Tehran (Iran) (At present the appellant is Custody at Mumbai Central Prison) ....Appellant Versus 1. Union of India, Ayakar Bhavan, Churchgate, Mumbai. 2. Asst. Commissioner of Customs, Air Intelligence Unit, Sahar Air Port, Mumbai. 3. State of Maharashtra ....Respondents. ALONGWITH CRIMINAL APPEAL NO.663 OF 2005 Rajabali Nejad Dehghan Aged 53, years, Iranian National Tehran, Motahari Avenue, Opp. Indian Embassy (Iran). ....Appellant (At present the appellant is Custody at Mumbai Central Prison) V/s. 1. Union of India, Aykar Bhavan, Churchgate, Mumbai. 2. Asst. Commissioner of Customs Air Intelligence Unit, Sahar Air Port, Mumbai. 3. State of Maharashtra. .....Respondents. ---- Mr. A.P. Mundargi with V.M. Advani & R.R.Shah for the appellant in Criminal Appeal No.662 of 2005. Mr. A.P. Mundargi with Mr. A.M. Sachwani & I.M. :2: Ahuja for the appellant in Criminal Appeal No. 663 of 2005. Mr. H.V. Mehta for Union of India in both the above criminal appeals. Ms. Rajeshree Gadhvi for the State in both the above criminal appeals. ---- CORAM: CORAM: CORAM: V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J. DATE: DATE: DATE: 1st March, 2006 1st March, 2006 1st March, 2006 ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Both these appeals can be disposed of by a common judgment since the appellants are challenging the judgment and order passed by the Special Judge in Special Case No. 53 of 2004. The appellant in Criminal Appeal No. 662 of 2005 is original accused No.2 whereas the appellant in Criminal Appeal No. 663 is original accused No.1. 2. The prosecution case, in brief, is as under:- 3. On 28th/29th February, 2004, the Officers of Air Intelligence Unit of Customs were on duty at Sahar Airport. At that time, they noticed two accused carrying three heavy zipper suitcases and they were moving towards the check-in-counter of the Emirate Airways. Since the Officers found that they were nervous, and their movements were suspicious, they decided to examine their baggage thoroughly and, :3: accordingly, instructed the staff of that Airlines to keep their baggage aside. Thereafter, the Officers intercepted the accused after the accused completed immigration and customs formality and were proceeding for security check before boarding the flight for Dubai. The Officers asked them whether they were carrying any narcotic drugs. The accused replied that they were carrying some ready-made garments and personal effect. The Officers called panchas and explained to them that they wanted to examine the baggage of the accused and requested them to act as panchas. In the presence of panchas, both the Officers gave the accused option of being searched in the presence of the Magistrate or a Gazetted Officer. The accused preferred to examine before the Gazetted Officer. They identified their two suitcases. After the first suitcase was opened, it was found that it contained 29 packets of Buprenorphine injections, each containing 5 strips of the injection of 10 ampoules each i.e. 1450 ampoule and two boxes containing 8891 ampoules. Thus, the total number of 10341 ampoules of 2 ml. each and containing 0.3 mg. per ml. of Buprenorphine was found. Two boxes of 50 ampoules each were taken as samples from the said packets. Thereafter, the second black coloured zipper suitcase was opened. It also contained 30 packets of :4: Buprenorphine injections and, in the said bag also there were about 10,329 ampoules of 2 ml. and each containing 3 mg. per ml. of Buprenorphine were found. Two packets of 50 ampoules each were taken as samples from the said packets. The other hand bag was found to contain personal effect. The panchanama was accordingly made. All the cartons were sealed. The locks and keys were packed in one envelope and travel documents were put in separate envelope and the envelopes were sealed. The accused were off loaded from the flight. Their statements were recorded. In their statements, they admitted that they had carried the said injections and they had admitted that these injections were arranged by the relative of the accused No.2 and they were being smuggled out of India for the purpose of selling them for profit in Tehran. The accused stated in their statements that they would have earned 1,000 US Dollars as profit by selling these injections. Both the accused were arrested. Further investigation was made by the Officers and a complaint was filed against the accused. The process was issued against both the accused and, thereafter, the Special Judge framed the charge against the accused under section 29 read with section 8(c) of the NDPS Act. The accused pleaded not guilty to the charge. :5: 4. The prosecution examined in all 15 witnesses and also produced documentary evidence in support of its case. The Trial Court convicted the accused for having committed an offence punishable under section 29 read with section 22 of the NDPS Act and to pay fine of Rs 50,000/- and, in default of payment of fine, to further undergo rigorous imprisonment for 9 months. The Trial Court also convicted the accused for an offence punishable under section 23 read with section 28 of the NDPS Act and sentenced them to suffer rigorous imprisonment for 4 years and to pay fine of Rs 30,000/- and, in default of payment of fine, to further undergo rigorous imprisonment for 6 months and for the offence punishable under section 22 of the NDPS Act, the Trial Court sentenced them to suffer rigorous imprisonment for 4 years and to pay fine of Rs 25,000/- and, in default of payment of fine, to suffer rigorous imprisonment for 3 months. The Court further directed that the substantive sentence of the prisoners shall run concurrently. Being aggrieved by the said judgment and order passed by the Special Judge, both the accused have preferred these two appeals. :6: 5. The learned Counsel appearing on behalf of the appellants submitted that he did not wish to challenge the Judgment and Order passed by the Special Judge on merits and he submitted that the conviction awarded by the Special Judge may be maintained. He submitted that the sentence, however, imposed by the Special Judge may be reduced to the sentence which the appellants have already undergone. He submitted that the appellants had already paid the fine which was imposed on them by the Special Judge. He submitted that the appellants were in jail since 1/3/2004 and they had already completed more than two years of sentence. He submitted that the appellants are Iranian Nationals and that the total quantity of Buprenorphine found in each ampoule being 0.3 mg., the total quantity which was found with both the accused would be 12.4 gms. He submitted that these suitcases were carried by two accused and, therefore, if the quantity is divided between the two accused, each of them was carrying 6.2 gms. He submitted that, therefore, this quantity was slightly more than the small quantity and, therefore, in view of the amendment to the NDPS Act, the appellants could be given a sentence up to 10 years of rigorous imprisonment. He submitted that the sentence of four years may, therefore, be reduced to two years. He :7: submitted that from the statements of the accused which were recorded by the Officers of the Bureau, it could be seen that the said injections were being taken from India to Iran for the purpose of selling them at profit since these injections were not available in Iran. It is submitted that these injections were being sold at the Medical Stores in India on the prescription of the registered medical practitioner and these injections were used for medicinal purposes as pain killer for the treatment of cancer and such other ailments. He submitted that the appellants were tying to smuggle these injections in the same form for the purpose of selling them as injections in Iran. He submitted that, therefore, at the highest the appellants would be said to have committed an offence under the Drugs & Cosmetics Act for carrying scheduled drugs without a licence. He relied upon the judgement of the learned Single Judge of this Court in the case of H.V. Henry, Intelligence Officer vs. Ravi Prakash Goel and Anr in Criminal Application No. 3295 of 2005 delivered on 30/1/2006, wherein the learned Judge has held that Buprenorphine was not a narcotic substance. The learned Counsel appearing on behalf of the appellants submitted that the learned Single Judge of this Court had relied on three judgments of different High Court which had :8: taken a similar view. He submitted that the learned Single Judge of this Court had distinguished the judgments of the Supreme Court which were relied upon by the Counsel for the Bureau. He relied upon the Judgment of the Delhi High Court in the case of Rajinder Gupta & Ors Vs. State, reported in 2005 (84) 2005 (84) 2005 (84) DRJ DRJ DRJ 19. 19. 19. He also relied upon the judgment in the case of Sajan Abraham Vs. State of Kerala reported in (2004) (2004) (2004) 4 SCC 441. 4 SCC 441. 4 SCC 441. The learned Counsel for the appellants also relied upon the judgment of the High Court of Uttaranchal in Criminal Bail Application No. 917 of 2005. The learned Counsel for the appellants, therefore, submitted that in view of the order passed by the learned Single Judge of this Court, the appellants ought to be released on the sentence which they had already undergone. 6. The learned Counsel for the respondents, on the other hand, submitted that Buprenorphine was a narcotic substance and it was included in the list of narcotic substances to the Schedule which is appended to the Act and the moment such a substance is found to be in possession in excess of the quantity which is prescribed under the Notification, such a person is liable to be prosecuted under the provisions of the NDPS Act. He submitted that merely because the said :9: substance was not mentioned in the list, it should not come out of the purview of the substantive provisions of the NDPS Act. He relied upon the judgment of the Supreme Court which is referred to by the learned Single Judge of this Court on which reliance has been placed by the learned Counsel for the appellants. He submitted that the Trial Court had awarded 4 years for the commission of the said offence and there is no reason to reduce the said sentence. He submitted that no leniency should be shown to the appellants. 7. I have heard the learned Counsel for the appellants and the respondents at length. I have given my anxious consideration to the submissions made by the learned Counsel for the appellants and the respondents. Since the learned Counsel for the appellants did not argue on the merits of the case and restricted his arguments on the sentence which was awarded by the trial court, I am of the view that it is not necessary to decide the controversy as to whether Buprenorphine falls outside the purview of the NDPS Act or that the possession of Buprenorphine injections beyond the prescribed quantity is an offence not under the NDPS Act but under the Drugs and Cosmetics Act. This is so because the learned Counsel for the appellants conceded that he does not wish to :10: press this ground. The only question, therefore, which has to be considered is, whether the sentence awarded by the trial court should be reduced or not. In my view, the appellants have already paid an amount of fine which is imposed by the trial court. They have also undergone two years of sentence. The appellants are Iranian Citizens and were carrying Buprenorphine injections in their suitcases. These injections are used for medicinal purposes. In their statements which were recorded by the Officers of the Bureau, the appellants have stated that they intended to take these injections to Iran and wanted to earn profit of 1,000 US dollars. The intention, therefore, was to sell these injections in Iran where these injections were not available in the open market. Apart from that, the total quantity which was found in possession of both the appellants is roughly 12.4 gms. The small quantity in respect of Buprenorphine is 1 gm It is an admitted position that the total quantity of 12.4 gms was found to be in joint possession of both the appellants. Even otherwise, therefore, if the total quantity is divided between the two appellants, it would come to 6.2 gms each which is slightly above the small quantity. It is an accepted position that Buprenorphine is used for providing substitution treatment to opioid addicts and also for the treatment :11: of cancer and HIV infected persons. Considering all these factors, in my view, the sentence awarded by the trial court will have to be reduced from four years to two years. The sentence awarded by the trial court is reduced from four years to two years. Accordingly, the following order is passed:- O R D E R . The appeals are partly allowed. The sentence awarded by the trial court is reduced from four years to two years. . The appellants have already undergone sentence of two years. The appellants shall pay fine as imposed by the Special Judge and, on payment of fine, they shall be released forthwith, if they are not required in any other case. The passport, if impounded, be handed over to the appellants. . Both the appeals are partly allowed in the above terms. V.M. V.M. V.M. KANADE, J. KANADE, J. KANADE, J.