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TMI Blog2015 (10) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... as a commercial quantity hence the conviction recorded by the trial court under Section 20 (b) (ii) (C) is absolutely impeccable - Judgment and order of the High Court is set aside and the Respondents are held guilty - Appeal allowed and judgment is modified – Appeal allowed judgement made in favour of the Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... view, the High Court opined that the accused could only be convicted for the offence punishable under Section 8 read with Section 20(b) (ii) (B) of the NDPS Act. The High Court, accordingly, held thus:- "38. The appellants against the above backdrop were to be convicted of offence punishable under section 8 read with section 20 (b) (ii) (B) of the Act and sentenced to the punishment prescribed under section 20 (b) (ii) (B) of the Act and not to the punishment prescribed for the offence involving possession of "commercial quantity" of narcotic drug under section 20 (b) (ii) (c) of the Act. However, the appellants arrested on 5.4.2004 and are in custody for last more than seven years. 39. We therefore, alter the conviction of the appellants to section 20 (b) (ii) (B) of the NDPS Act and sentence the appellants to the imprisonment already undergone and a fine of ₹ 25000/- each. In default of payment of fine the appellants shall suffer rigorous imprisonment for a further period of six months. The Criminal Appeal No. 35/2009 titled Mushtaq Ahmad v/s State and Cr. Appeal No. 36/2009 titled Gulzar Ahmad v/s State are disposed of accordingly." 4. It is submitted by Ms. Sushma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes." 7. Section 20 of the NDPS Act at the relevant time after certain amendments read thus:- "20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,- (a) cultivates any cannabis plant; or (b) produces, manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Act 9 of 2001. Be it stated the said Act rationalized the structure of punishment under the NDPS Act by providing graded sentences linked to the quantity of narcotic product or psychotropic substance in relation to which the offence was committed. The statement of objects and reasons to the Bill declares the intention thus:- "STATEMENT OF OBJECTS AND REASONS Amendment Act 9 of 2001.-The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years' rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all refer to certain pertinent provisions of the NDPS Act. Section 2 (viia) of the NDPS Act defines commercial quantity. It is as follows:- "2. (viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;" 13. Section 2 (xxiiia) of the NDPS Act defines small quantity. It reads as follows:- "2. (xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;" 14. At this juncture, it is appropriate to refer to the definition of cannabis (hemp) as contained in Section 2(iii) of the NDPS Act:- "(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed from the appellant Mushtaq Ahmad Tetra hydrocannabinol (THC) content in the sample was 5.1 percent. In case of sample lifted from one of the five sticks recovered from the appellant Mushtaq Ahmad Tetra hydrocannabinol (THC) content in the sample was found to be 4.9 percent. In the circumstances, if the samples lifted from the substance recovered from the appellants would be 45 gms and 39 gms respectively taking each stick to have average weight of 890 (6.2 Kg-7) and 800 (4.0 Kg-5) gms respectively. However, if, working on the assumption made by learned trial Court that in view of confessional statements of the appellants, the whole substance was to be taken as Charas irrespective of restricted sampling, the Narcotic Drug content in the entire substance recovered from the appellants still would work out to be 316 gms and 196 gms respectively." 17. We have reproduced the aforesaid paragraph to appreciate that the High Court has been guided by presence of "Tetra-hydrocannabinol" (THC) content and on that foundation has proceeded to hold that the seized item from both the accused persons is beyond the small quantity but lesser than the commercial quantity. To arrive at the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term "small quantity" is defined in Section 2(xxiii-a), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending material is "small quantity", "commercial quantity" or something in-between. 15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1 lakh each with the default clause. The appeal preferred by the other accused abated as he expired during the pendency of the appeal and the appeal of the Amarsingh Ramjibhai Barot was dismissed. A contention was canvassed before this Court that the High Court had fallen into error by taking a total quantity of the offending substance recovered from the two accused jointly and holding that the said quantity was more than the commercial quantity, warranting punishment under Section 21(C) of the NDPS Act. This Court addressed in detail to the factum of possession of 920 gms of black liquid and the FSL report that indicated the substance recovered from it was opium containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. The Court referred to definition of opium in Section 2(xv) and 2(xvi) and proceeded to state thus:- "14. There does not appear to be any acceptable evidence that the black substance found with the appellant was "coagulated juice of the opium poppy" and "any mixture, with or without any neutral material, of the coagulated juice of the opium poppy". FSL has given its opinion that it is "opium as described in the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of manufactured drug. The Court concluded and held in para 17 as under: "17. In respect of opium derivatives (at Sl. No. 93) in the said notification, 5 grams is specified as 'small quantity' and 250 grams as 'commercial quantity'. The High Court was, therefore, right in finding that the appellant was guilty of unlawful possession of 'commercial quantity' of a manufactured drug. Consequently, his case would be covered by Clause (c) and not Clause (a) or (b) of Section 21 of the NDPS Act." This Court has, therefore, upheld the imposition of minimum punishment under Section 21(c) of 10 years' rigorous imprisonment with fine of ₹ 1 lakh. 19. On going through Amarsingh case we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance(s). In fact that was not the issue before the Court. The black-coloured liquid substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. A contention was raised before this Court that the opium recovered from the appellant weighing 7.10 kgs. contained 0.8% morphine, that is, 56.96 gms. and hence, the quantity was below the commercial quantity. The two-Judge Bench referred to the pronouncement in E. Micheal Raj (supra) and referred to various Entries in the notification, namely, Entry 77 that deals with morphine, Entry 92 that deals with opium and Entry 93 that deals with opium derivatives. The Court posed the question whether the case would fall under Entry 92 or Entry 93 or any other Entry. The Court referred to the definition of opium under the NDPS Act, the chemical analysis made by the Forensic Science Laboratory, took note of the percentage of morphine, the amendment brought in 2001 and came to hold thus:- "21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS Act. The instant case squarely falls under cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2(xv) of the NDPS Act, that the quantity of morphine contents becomes relevant." 26. Another aspect needs to be noted. The High Court in paragraph 28 has found that the seized article contained more than 50 gms. Tetra hydrocannabinol in respect of both the accused persons. The commercial quantity for the contraband article, namely, Tetra hydrocannabinol (THC) as stated in Entry no. 150 is 50 gms. Even assuming the said percentage is found in the seized item then also the contraband article would go beyond the "intermediate" quantity and fall under the "commercial" quantity. Judged from any score, we do not find the view expressed by the High Court is correct. Therefore, we conclude and hold that the seized item fell under the commercial quantity and hence the conviction recorded by the trial court under Section 20 (b) (ii) (C) is absolutely impeccable. 27. We will be failing in our duty if we do not deal with another submission put forth by the learned counsel for the respondents-accused. It is her submission that the accused persons have already spent more than seven years in custody and, therefore, they should not be incarcerated again. Section 20 (b) (ii) (C) stipulates t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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