2008 (3) TMI 674 - SC - Customs

Whether the conviction and sentence of the accused-appellant under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the NDPS Act ) was correct? Whether the contravention involved in this case is small intermediate or commercial quantity under Section 21 of the NDPS Act? 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?

Issues Involved:
1. Conviction and sentencing under Section 21(c) of the NDPS Act.
2. Determination of the quantity of narcotic drug for sentencing.
3. Legal interpretation of "commercial quantity" and "small quantity" under the NDPS Act.
4. Consideration of purity of the narcotic substance in sentencing.

Detailed Analysis:

1. Conviction and Sentencing under Section 21(c) of the NDPS Act:

The accused-appellant was convicted and sentenced under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) by the Kerala High Court. The conviction was based on the possession of 4.07 kg of heroin, which was considered a commercial quantity under the NDPS Act. The High Court upheld the conviction and sentence of 10 years rigorous imprisonment and a fine of rupees one lakh.

2. Determination of the Quantity of Narcotic Drug for Sentencing:

The primary contention of the appellant was that the total quantity of heroin in possession should be determined based on its purity. The appellant argued that since the purity of heroin was 1.4% and 1.6% in the samples, the actual quantity of heroin was only 60 grams, which is below the commercial quantity threshold of 250 grams. The court had to decide whether to consider the total weight of the substance or the weight of the pure heroin for sentencing.

3. Legal Interpretation of "Commercial Quantity" and "Small Quantity" under the NDPS Act:

The NDPS Act, as amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, introduced the concepts of "small quantity" and "commercial quantity." According to the Act, "commercial quantity" means any quantity greater than the quantity specified by the Central Government, and "small quantity" means any quantity lesser than the specified amount. For heroin, the small quantity is 5 grams, and the commercial quantity is 250 grams. The court had to interpret whether the entire weight of the substance or only the pure heroin content should be considered for determining the quantity.

4. Consideration of Purity of the Narcotic Substance in Sentencing:

The court examined whether the purity of the heroin should affect the sentencing. It was argued that the intention of the legislature was to base punishment on the content of the narcotic drug in the mixture and not on the total weight of the mixture. The court referred to previous judgments, including the case of Ouseph alias Thankachan v. State of Kerala, which considered the quantity of the narcotic drug in the mixture for sentencing.

Judgment:

The Supreme Court concluded that the intention of the legislature was to punish based on the actual content of the narcotic drug in the mixture. The court held that in cases where a narcotic drug is mixed with neutral substances, the quantity of the neutral substances should not be considered. Only the actual content of the narcotic drug should be relevant for determining whether it constitutes a small quantity or commercial quantity.

In the present case, the narcotic drug found in possession of the appellant was 60 grams of heroin, which is more than the small quantity but less than the commercial quantity. Therefore, the appellant should be punished under Section 21(b) of the NDPS Act, which prescribes a lesser sentence than Section 21(c).

Sentence Reduction:

Considering that the appellant was merely a carrier and not a kingpin, the court reduced the sentence to 6 years rigorous imprisonment with a fine of Rs. 20,000, and in default of payment, rigorous imprisonment for six months. The appellant, having been in jail since 6.3.2001, had already undergone the sentence imposed and was ordered to be set at liberty forthwith if not required in any other case.

Conclusion:

The appeal was disposed of with the reduction in sentence, emphasizing the importance of considering the actual content of the narcotic drug for sentencing under the NDPS Act.

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