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TMI Blog2008 (3) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act ) was confirmed. 2. The relevant facts of the case are that on 5.3.2001, the Intelligence Officer was informed by an informant that two persons with certain drugs would be arriving by a Tamil Nadu Transport Corporation Bus at Thiruvananthapuram Bus Stand. The Officer along with other persons and the informant went to the bus stand and waited for the bus. At about 9.00 a.m., the two accused alighted from the Tamil Nadu Transport Corporation bus. They were identified by the informant. They were intercepted by the officials. The officials disclosed their identity and the accused were searched. When asked about possession of narcotic drugs, it was admitted by the accused that they were carrying 4 kgs. of heroin and they handed over the bag to the Officer. The bag contained two packets wrapped in Tamil newspapers secured with brown adhesive tape in which light grey powder was found. Two samples of 5 gms. each from both the drug packets were packed, sealed and sent for testing to the Laboratory. The accused were arrested, but the second accused escaped while on the way to produce them before the Magistrate. On 26.3.2001, the Customs House Laboratory, Cochin sent a report confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r imposing the punishment under Section 21 of the NDPS Act. The High Court maintained the conviction and sentence awarded by the Special Judge. 4. The only submission made by Shri K.V. Viswanathan, learned counsel for the appellant is confined to the limited issue relating to sentence of the appellant under Section 21 of the NDPS Act. As per the learned counsel, the conviction and sentence of the appellant is contrary to law because the total quantity of contraband seized from him was 4.07 kgs. Since the purity of heroin is 1.4% and 1.6% respectively in two samples, therefore the quantity of heroin in possession is only 60 gms. [(1.4+1.6)/2 = 1.5% of 4.07 kgs. = 60 gms.). Thus, the total quantity of heroin seized is below 250 gms., i.e. below the commercial quantity. It is submitted that it is not the total weight of the substance allegedly recovered that is material, but the percentage content of heroin translated into weight that is relevant. 5. On the other hand, Shri Vikas Sharma, learned counsel appearing for the respondent urged that it is only the weight of the substance found in possession of the appellant and recovered from him ought to be seen, and once the substance te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opoeia or any other Pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) Prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) Diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and (e) All preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine; Section 2 (xi) `Manufactured drug means - (a) All coca derivatives, medicinal connabis, opium derivatives and poppy straw concentrate; (b) Any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Government may, having regard to the availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences. 9. The entry of the Notification under which the substance found in possession of the appellant falls is Entry 56 or Entry 239. The relevant portion of the Notification dated 19.10.2001 issued by the Central Government reads as under: S.O. 1055(E), dated 19-10-2001. In exercise of the powers conferred by clauses (viia) and (xxiiia) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527(E) dated 16th July, 1996, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies the quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug and psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize 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 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire material found in possession irrespective of the content of the offending material has to be taken into consideration while imposing the punishment. In Amarsingh case (supra), two persons, namely, Amarsingh and Danabhai were apprehended. Amarsingh was found carrying a plastic bag which contained a black-coloured liquid substance weighing 920 gms. Similarly, 4.250 kg. of grey-coloured substance was recovered from Danabhai. Samples were sent to the Forensic Science Laboratory (FSL). The FSL report indicated that the sample from Amarsingh was opium as described in the NDPS Act containing 2.8% anhydride morphine apart from pieces of poppy flowers and the sample relating to Danabhai was reported to be opium as described in the NDPS Act having 1.2% anhydride morphine and also containing pieces of poppy flowers. Both the accused were charged and tried under Sections 15, 17 and 18 read with Section 29 of the NDPS Act. The High Court found that the conviction under Sections 17 and 18 read with Section 29 of the NDPS Act was not correct, but convicted Amarsingh under Section 21(c) and also under Section 21(c) read with Section 29 of the NDPS Act, for individually being in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(e) as `opium derivative which requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance/s. Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. 17. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst s report is 60 gms. which is more than 5 gms., i.e. small qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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