IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.A.No. 1645 of 2003(D) ------------------------------------- SC.NO.2/2000 OF ADDL.SESSIONS COURT, NORTH PARAVUR. .................... APPELLANT/ ACCUSED: ----------------------------------- RIYAZ, S/O. RASHEED, PUTHENVEETTIL HOUSE, VELIBHAGAM, PALLURUTHI DESOM, PALLURUTHY VILLAGE. BY ADV. MR.T.D.ROBIN. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KALAMASSERI. (CRIME NO.217 OF 99 OF KALAMASSERI POLICE STATION). BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1645 OF 2003 ------------------------------ Dated this the 10th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions judge, North Paravur in S.C.No.2/2000. It was a case charge sheeted under Section 22 of the N.D.P.S. Act and the accused was convicted and sentenced there under. He was sentenced to undergo R.I for a period of 20 years and to pay a fine of Rs. Two lakhs and in default of payment, to undergo R.I for 5 years under Section 22 of the N.D.P.S. Act. The judgment of the court below was delivered on 5.10.2001. 2. The points that arise for determination in the appeal are (1) whether the accused is entitled to the benefit of the amendment which came into effect on 2.10.2001 (2) whether the quantity possessed by him is a small quantity whereby the punishment has to be under Section 22(a). 3. Points: Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that 2 CRL.A.NO1645/03 the accused was found in possession of 10 ampules of Buprenorphine Tidigisic. It was seized from the possession of the accused by the Sub Inspector of Police, Kalamassery at 9.50 a.m on 17.9.1999 on the side of the Peechingaparambu road. He was arrested and he had stood for trial. The prosecution examined PWs 1 to 6 and Exts.P1 to P14 and MOs 1 to 5 were marked. 4. On the side of the defence Dws 1 and 2 were examined and Ext.D1 was marked. After the trial, the court found him guilty and convicted him for the offence. 5. The learned counsel for the appellant very strongly contends before me that the amended act came into force on 2.10.2001 and as per the amended act, suppose the quantum of Buprenorphine possessed is of a small quantity, the punishment that can be imposed is only for a period of 6 months or with fine, which may extend to Rs. 10,000/= or with both. So, the question that has to be determined in this case is whether it is a small quantity or not. 6. In the decision reported in E. Micheal Raj v. 3 CRL.A.NO1645/03 Intelligence Officer, Narcotic Control Bureau (2008 (5) SCC 161) the Apex Court has held that it is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. 7. From the chemical examiner's report which is produced before this Court and marked as Ext.P13 through PW.6, 4 ampules were sent for analysis and it was found that the ampules contained .255 mg of Buprenorphine. The case of the prosecution is that the accused was in possession of 10 ampules. If the content of Buprenorphine per ampule is taken, i.e., for every ml. had .3mg, then each ampule will have .6 mg. When there are 10 ampules it will come to 6 gm. So, Buprenorphine seized from the accused is 6 mg. 8. It is submitted that 1000 mg = 1gm and by following the table attached to NDPS Act 1969, 1 gm is a small quantity and 20 gm is a commercial quantity. When it is only 6 mg, then necessarily the quantity seized is only of a small quantity and it does not attract intermediate quantity 4 CRL.A.NO1645/03 or commercial quantity. So, the factum that 1 gm is 1000 mg can be easily found out for the reason that 10 mg = 1 centigram and 10centigram = 1 decigram and 10 decigram = 1 gm and 10x10x10 means 1000 mg= 1gm. A Judge of this Court in Ismail v. State of Kerala (2007 (1) KLT 959) has also held in the same fashion as is seen notified by SRO 1055 E dated 19.10.2001. 9. Now the next question will be whether the accused will be entitled to the benefit. The accused was convicted only on 5.10.2001. The amended act has come into force on 2.10.2001. It is true that the table had been published only on 19.10.2001. The matter is pending before the competent court of jurisdiction even now. So, at the time of pronouncement of the judgment, the amended act has come into being and therefore, it has to be stated that the accused is entitled to the benefit contained in the amended act. Even otherwise, I find from the old Act that the Government of India by a notification SRO 527 E dated 16.7.1996 had prescribed a table for the small quantity for the purpose of the section. Item 204 5 CRL.A.NO1645/03 therein deals with Buprenorphine and the small quantity is 1 gm. So as early as in 1996, the Government of India has notified that Buprenorphine up to a weight of 1 gm is a small quantity. So even on the date of the pronouncement of the judgment, this condition is coming within the specified quantity of a small quantity. So from this discussion, it has to be held that the accused was only in possession of 6 mg of Buprenorphine which was perfectly below the quantum prescribed as small quantity i..e., one gm and therefore, he is entitled to the benefit under Section 22 (a) of the NDPS Act. Under Section 22(a), a person who possesses small quantity can be sentenced to imprisonment for a term which may extend to 6 months or with fine which may extend to Rs.10,000/= or with both. It can be seen from the materials available that the accused was in pre-trial custody from 17.9.1999 to 30.11.1999 and again was undergoing the period of conviction from 5.10.2001 to 29.10.2003 which is beyond the period of 6 months prescribed by the Statute. Since he had been in jail for more than the prescribed period by the statute, I do not 6 CRL.A.NO1645/03 propose to impose any fine on him. Nothing remains to be served as sentence. 10. Therefore the criminal appeal is disposed of as follows: The conviction and sentence passed under Section 22 of the NDPS Act is modified to one as conviction under Section 22(a) of the NDPS Act and the accused is sentenced to undergo R.I for 6 months. Since the accused had already undergone imprisonment for more than two years, he need not be again confined to jail and therefore, he is set at liberty. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO1645/03