IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.08.2011 CORAM THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.A.No.446 of 2010 and M.P.No.1 of 2011 Sakthivel .. Appellant/Single Accused Versus The State rep. by, Inspector of Police, NIB CID, Salem. (Crime No.25/05 .. Respondent/Complainant Prayer:- Criminal Appeal filed under Section 374 of Cr.P.C., praying to set aside the conviction of the appellant in C.C.No.181 of 2005 dated 18.1.2006 by the learned Special Judge (EC Act Cases) at Salem, by allowing this appeal including the fine amount. For Appellant : Mr.T.K.Sampath For Respondent : Mr.A.N.Thambidurai, Additional Public Prosecutor - - - - - JUDGMENT The appellant stands convicted for the offence under Section 8 (c) r/w. 21 (c) of NDPS Act and sentenced to suffer 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, and in default, to undergo 2 ½ years rigorous imprisonment by the learned Special Judge (EC Act Cases), Salem, in his judgement dated 18.1.2006 and made in C.C.No.181 of 2005. Challenging the order of conviction and sentence, the appellant has preferred this Criminal Appeal. 2. Pending disposal of the appeal, he has filed a petition under Section 389 (1) of Criminal Procedure Code to suspend the sentence imposed on him. 3. When this petition came up for hearing, Mr.T.K.Sampath, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the appellant has submitted that in so far as the appeal in Crl.A.No.446 of 2010 is concerned, there is nothing to argue the facts at length, but he is going to confine his argument only on quantum of sentence. He has also made an endorsement on the reverse of the memorandum of appeal. The learned Additional Public Prosecutor (Crl.Side) has also conceded to argue the appeal only on quantum of sentence and therefore, with the mutual consent of both the learned counsels viz., Mr.T.K.Sampath and the Learned Additional Public Prosecutor, the appeal itself is taken up for disposal. 4. The case of the prosecution, in short is that on 9.3.2005 at about 10.00 am., near second plat form of Pallapatti new bus stand, the appellant was found in possession of the offending drugs viz., Alprazolan, worth about Rs.50,00,000/- without any valid permit or license from the Government. Hence, the appellant was charge sheeted by the police under Section 8 (c) r/w. Section 22 (c) of Narcotic Drugs and Psychotropic Substances Act, 1985. 5. The prosecution in order to substantiate it's case has totally examined 4 witnesses and during the course of their examination Exs. P1 to P12 were marked. Apart from this, the material objects ranging from M.Os. 1, to 5 were also marked. On evaluating the evidences both oral and documentary, the learned Special Judge has found that the appellant guilty convicted and sentenced as aforesaid. Now, Mr.T.K.Sampath, the learned counsel for the appellant has based his argument on the following grounds. (1) As per the case of the prosecution, the accused was found in possession of heroin weighing about one Kilogram and it was also seized under the Seizure Mahazar, Ex.P3. The samples were also drawn from the seized offending drug and sent to chemical analysis wherein it was found by P.W.3 that Alprazolan alone was found to be detected in the sample and that heroin was not detected. (2) The weight of the sample drawn from the seized contraband was differed from the weight of the sample which was received by P.W.3, Scientific Assistant at her office. (3) The samples which were drawn from the seized offending drugs were sent to the Forensic Sciences Laboratory belatedly. The belated transmission of the samples would give room for suspicion as to whether the samples which were actually drawn from the seized contraband were sent to chemical analysis. (4) The purity test to find out the actual content of the contraband was not conducted. (5) The appellant has totally served for about 6 ½ years in the prison and his long period of confinement to be taken into consideration for the disposal of this appeal. https://hcservices.ecourts.gov.in/hcservices/ 6. This Court has also gone through the judgements of the trial court. Though the above said grounds were raised before the trial court at the time of trial, the trial court has not considered all those points while recording the conviction and sentence on the accused. 7. It is established that though P.W.5 has seized heroin from the possession of the appellant, in fact heroin was not detected instead Alprazolan alone was detected. Alprazolan is also a Narcotic Drug and listed in Serial No.178 of the tabular column as contemplated under Section 2 of NDPS Act. Sub Clause vii (a) of Section 2 of the Act deals with commercial quantity. It says that in relation to Narcotic Drugs and Psychotropic Substances means any quantity greater than the quantities specified by the Central Government by notification in the official gazette whereas sub clause xxiii-a of Section 2, explains the small quantity. It reads that in relation to Narcotic Drugs and Psychotropic Substances means, any quantity lesser than the quantities specified by the Central Government by notification in the official gazette. As per the tabular column Serial No.178 Psychotropic Substances means any quantity greater than the quantities specified by the Central Government by notification in the official gazette. As per the list, Serial No.178, insofar as the drug called Alprazolan is concerned, five grams is said to be a small quantity whereas 100 grams is said to be the commercial quantity. 8. (i) On coming to the present case on hand, Mr.T.K.Sampath, the learned counsel for the appellant submitted that as per the case of prosecution, P.W.1 had received the discreet message stating that the appellant was having heroin in his possession. He had also recorded the message accordingly. But, during the course of chemical examination, the offending drug was found to be only Alprazolan. This detection of Alprazolan from the seized offending drug is definitely a set back to the case of the prosecution. ii. Admittedly there is a vast difference in respect of weight between the actual samples drawn from the seized contraband and the samples received by P.W.3 at her office. But, in this connection Mr.T.K.Sampath, the learned counsel has submitted that for the variation of weight on the samples drawn from the seized contraband and the samples sent to the chemical analysis, the prosecution has not given any satisfactory explanation. iii. The Learned counsel for the appellant has also submitted that since the samples have been sent to chemical analysis belatedly, it would give rise to presumption that the samples which were drawn https://hcservices.ecourts.gov.in/hcservices/ would not have been sent to chemical analysis and that the prosecution has also not come forward with acceptable reasons for the belated submission of the samples for chemical analysis. iv. Mr.T.K.Sampath, the learned counsel for the appellant has also submitted that insofar as the seized offending drug is concerned, purity test has not been conducted. This fact has also been fairly conceded by the Learned Additional Public Prosecutor. He would submit that if the purity test was conducted, then the exact content of the drugs which is prevented under the law would have been found out. But on the failure of the prosecuting agency, the purity test was omitted to be conducted and hence the benefit of doubt should have been given in favour of the petitioner and he should have been acquitted by the trial court. Thus the material lacuna and discrepancy on the part of the prosecution has not been considered by the trial court. 9. In support of his contention, Mr.T.K.Sampath, the learned counsel for the appellant has placed reliance upon the decision in E.Micheal Raj V. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5 SCC, 161. In this case, while penning down the judgement on behalf the Division Bench Hon'ble Mr.Justice P.P.Naolekar has observed that " in the present case, which was found in possession of the appellant-accused is prohibited under Section 8 of the NDPS Act and thus punishable under Section 21 thereof. The question is only with regard to the quantum of punishment. The punishment would vary depending upon whether the quantity of offending material is "small quantity", "commercial quantity" or something in between. " Their Lordship has also held that "as per the notification issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm and commercial quantity has been mentioned as 250 gm. So, the basic question for decision herein is whether the contravention involved in the instant case is small, intermediate or commercial quantity under Section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused." His Lordship has also held in paragraph No.15 that the intention of the legislature as it appears to us to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. In the mixture of a Narcotic Drug or a Psychotropic Substance with one or more natural substance(s), the quantity of the natural substance(s) is not to be taken into https://hcservices.ecourts.gov.in/hcservices/ consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. Besides this, His Lordship has also held that in the present appeal, the appellant's submission was confined to the limited issue related to his sentence under Section 21 of the NDPS Act. As per the appellant his conviction and sentence was contrary to law because the total quantity of contraband seized from him was 4.07 kg and since the purity of heroin was 1.4% and 1.6% respectively in two samples, therefore, the quantity of heroin in his possession was only about 60 gm ( 1.4 + 1.6)/2 + 1.5%; 1.5% of 4.07 kg = 61.05 gm). Thus, the total quantity of heroin seized was below 250 gm i.e. below the commercial quantity. It was submitted that it was not the total weight of the substance allegedly recovered that was material, but the percentage content of heroin translated into weight that was relevant. 10. On coming to the case on hand, originally, the seized offending drug was found to be heroin. But on chemical analysis, it was found to be Alprazolan which is also a psychotropic drug barred by Section 8 of the NDPS Act. However, the prosecuting agency ought to have conducted purity test as held by the Apex Court in the aforecited decision. But, admittedly, the purity test has not been conducted. If the purity test is conducted, then the exact content of Narcotic Drug would have been detected and it would be more beneficial to the petitioner also. 11. As rightly held in the aforecited decision, the total weight of the substance allegedly recovered from the petitioner is not a criteria to mark with the charge under Section 21(c) of the NDPS Act. But the exact percentage of the content which is translated into weight alone is relevant factor to find the accused guilty in respect of a particular charge. 12. Besides this Mr.T.K.Sampath, the learned counsel for the appellant has also placed reliance upon another decision of this Court in L.Sundhuskhan vs. State reported in 2010 (2) Drugs Cases (Narcotics) 150, Madras High Court. In this case, the appellant was charged under Section 8(c) read with Sections 21 (c ), 28 and 29 of NDPS Act. When the appeal came up for hearing, a question was arisen as to whether contravention involved is small, intermediate or commercial quantity under Section 21 of the NDPS Act. Another question was also arisen as to whether the total weight of the substance is relevant or percentage of heroin content translated into weight is https://hcservices.ecourts.gov.in/hcservices/ relevant for ascertaining the quantity recovered from the accused. It was alleged that 380 gms of heroin was found in possession of the appellant. In purity test, the chemical analysis report revealed that the percentage of morphine/heroin was 10% which made the total offending substance held by the appellant as 38 gms. When the appeal came up for hearing the appellant had already served the sentence of six years. Therefore, the length of period of imprisonment was taken into consideration and this Court has reduced the quantum of sentence to the period already undergone. 13. In order to fortify his argument, Mr. T.K.Sampath, the learned counsel for the petitioner has also placed reliance on an another decision reported in State of NCT of Delhi Vs. Ashif Khan @ Kalu. In this case also the Apex Court has referred E.Micheal Raj Case reported in (2008) 5 SCC, 161 and after referring the above said decision, the Apex Court has held that the percentage of heroin content translated into weight alone is relevant. Reference was also made to the decision in Ouseph Vs. State of Kerala reported in (2004 (4) SCC 446). In this connection the Apex Court in Paragraph 5 has observed as follows: It was held that the percentage of heroin content translated into weight is relevant. Reference was made to an earlier judgment and observed in paragraph 16 as follows: “8. The question to be considered by us is whether the psychotropic substance was is a small quantity and if so, whether it was intended for personal consumption. The words 'small quantity' have been specified by the Central Government by the Notification dated 23.7.1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each sample contained only 2 ml and each ml contains only 3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification." Ultimately, the Apex Court has held that, we find that the Court has taken the Narcotic Psychotropic Substances found in the mixture, relevant for the purpose of imposition of punishment. The same ratio has also been followed by this Court in the Judgement in Criminal Appeal No.220 of 2008, dated 7.7.2009 and besides this Court has also https://hcservices.ecourts.gov.in/hcservices/ held in Mohammed Rawzdeen alias Rawzdeen Vs. State represented by the Intelligence Officer with Criminal Appeal No.361 of 2008 reported in 2010 (1) Drugs Cases (Narcotics) 350 Madras High Court. In the above said decision also arguments were advanced on question of sentence alone. The appellant in the above said cases were found guilty under Section 8 (c ) r/w. 29, 28, 23 (c ) and 27 A of Narcotics Drugs Psychotropic Substances Act. They were convicted and sentenced thereunder to suffer ten years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- for each offence. Challenging the conviction and sentence, the appellants therein have preferred the appeals before this Court and on hearing both sides, this Court has ultimately found that as admitted by P.W.1 Chemical Examiner, the actual percentage of diacetyle-morphine in Ex.P4 has not been mentioned against the samples and hence it was clear that both the evidences of P.W.1 and Ex.P4 Analytical Report did not indicate the actual percentage of purity of the drug Heroin and no confirmatory test was also conducted. It was not known as to what was the proportion of the drug Heroin that was present in the sample packets. As held in the above cited decision, this defect in the prosecution case is vital one as it has bearing proportionate sentence to be passed depending upon the quantity of the Heroin intermediary or commercial. Hence, the appellants were found guilty under Sections 8 (c) r/w. 29, 8 (c) r/w. 21 (b) instead 21 (c) and 8 (c) r/w. 28 and 23 (b) instead 23 (c) of NDPS Act. Ultimately, the quantum of sentence was reduced and the fine amount was also reduced. 14. Mr.T.K.Sampath, the learned counsel for the appellant has also placed reliance upon another Criminal Appeal dated 18.8.2009 made in Crl.A.No.438 of 2009. In this case also, this Court has held that in the absence of the percentage of di-acytyl-morphine being given, it is erroneous to conclude that the seized quantity of the powder contained more than 250 grams of di-acytyl-morphine heroine. The learned counsel for the appellant in support of his contention has also relied on the decisions of the Honourable Supreme Court in Michael Raj Vs. Intelligence Officer, Narcotic Control Bureau reported in (2008 (2) SCC 558) followed by this Court in Rakha Parameswari Vs. Assistant Collector of Customs, Prosecution Cell Preventive Department, Madras reported in 2009 (1) TLNJ (Crl.) 430. Ultimately, this Court has held that the accused is guilty not under Section 21 (c) of the NDPS Act, but under Section 8 (c) r/w.21 (b) of the NDPS Act and she was sentenced to undergo 5 years rigorous imprisonment and to pay a fine of Rs.25,000/- and in default sentenced to undergo 3 months rigorous imprisonment. 15. Referring to the above cited decisions, learned counsel for the petitioner would submit that insofar as this case is concerned, https://hcservices.ecourts.gov.in/hcservices/ the prosecution is not followed the mandate of conducting purity test and if the purity test was conducted then the exact percentage of seized Narcotic Drug would have been found out and the weight would have been brought under intermediary quantity and therefore, the rigorous punishment would have been reduced and the accused would have been found guilty under Section 21 (b) of NDPS Act instead of 8 (c) r/w. 21 (c). 16. The learned Additional Government Pleader has also fairly conceded that purity test was not conducted in this case and the test of purity is a must and he has urged the Court that appropriate decision might be taken. He has also conceded that there is variation in the weight found between the samples drawn and the samples sent to chemical analysis and this fact has also been omitted to be considered by the trial court. 17. The petitioner was arrested on 9.3.2005 and remanded to judicial custody on the same day itself. It is brought to the notice of this Court that from the date of remand ie., from 9.3.2005 onwards he has been languishing in the jail for the past 6 years and 5 months, i.e., nearly 6 ½ years. As observed by the Apex Court in E.Micheal Raj Case reported in (2008) 5 SCC, 161, it is not the total weight of the substances allegedly recovered that is material, but the percentage contained on which the offending drug translated into weight that is relevant. But this fact is not considered in the instant case. 18. Having taken into consideration, the related facts and circumstances and on considering the submissions made by both sides, this Court is of the view that the conviction and sentence imposed on the petitioner under Section 8 (c) r/w. 21 (c) of the NDPS Act is erroneous. Instead, it may be appropriate to bring the culpability of the accused under the amplitude of 8 (c) r/w. 21 (b) of NDPS Act and therefore, the accused is found guilty thereunder and sentenced to suffer 6 years and 5 months and to pay a fine of Rs.25,000/- in default to suffer for a further period of one month. 19. In the result, the Criminal Appeal is partly allowed. The finding, conviction and sentence recorded by the trial court are modified as detailed below: The appellant is found guilty under Section 8 (c) r/w.21 (b) of NDPS Act instead of 8 (c) r/w. Section 21 (c), convicted thereunder and sentenced to suffer 6 years and 5 months and to pay a fine of Rs.25,000/- and in default to suffer for a further period of one month. https://hcservices.ecourts.gov.in/hcservices/ To meet the ends of justice, the default sentence is ordered to run concurrently along with the substantive portion of sentence (the decision of the Apex Court in Balvinder Singh Vs. Assistant Commissioner of Customs and Central Excise reported in 2006 Drugs Cases (Narcotics) 707 followed). Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar(CO) /true copy/ Sub Asst.Registrar aes To 1.The Special Judge (EC Act Cases) at Salem. 2.The Superintendent Central Prison, Vellore. 3.The Inspector of Police, NIB CID, Salem. 4.The Public Prosecutor, High Court, Madras. 5.The Section Officer, Crl.Section, High Court,Madras. GV(CO) km/12.4. Crl.A.No.446 of 2010 and M.P.No.1 of 2011 https://hcservices.ecourts.gov.in/hcservices/