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TMI Blog2011 (12) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... as found guilty by the Trial Court for having found in possession of 1.370 Kilograms of heroin. The occurrence was on 07.01.2001. The Trial Court convicted him for the offences under Sections 8(c) r/w Section 29 and Section 8(c) r/w Section 21 of the Narcotic Drugs and Psychotrophic Substances Act, 1985, [hereinafter referred to as the NDPS Act ] and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of ₹ 1,00,000/- in default to undergo simple imprisonment for three months. Challenging the said conviction and sentence, the appellant has filed the above Appeal. 3. When the said Criminal Appeal came up for hearing before Hon'ble Mr.Justice M.SATHYANARAYANAN, an argument was advanced before him that even assuming that the prosecution had proved the charge that the accused was found in possession of 1.370 kg of contraband containing heroin, even then, the accused could be convicted only under Section 21(a) of the NDPS Act and not either under Section 21(b) or under Section 21(c) of the said Act. This argument was based on the fact that out of the total quantity of the powder allegedly seized from the accused, it was not found out as to what wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Ouseph v. State of Kerala reported in 2004 (4) SCC 446. In Ouseph's case, the Hon'ble Supreme Court in Paragraph No.8 has held as follows:- 8. The question to be considered by us is whether the psychotropic substance was in 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 ampoule 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. In Ashif Khan @ Kalu's case, the Hon'ble Supreme Court followed the dictum laid donw in E.Micheal Raj's case and Ouseph's case, cited supra. 6. Relying on these Judgments of the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, this Court is of the view that in the absence of exact quantity/percentage of Diacetyl Morphine (Heroin) in the seized contraband, it should be taken as small quantity and punishment is to be imposed under Section 8(c) read with Section 21(a) of the N.D.P.S.Act. Since the above cited four decisions rendered by this Court took the view that even in the absence of exact percentage/quantity of narcotic drug/psychotropic substance, it should be taken as in between quantity and the punishment is to be imposed under Section 21(b) of the N.D.P.S.Act, this Court is of the opinion that the said issue is to be decided by a Larger Bench of this Court. 8. On the basis of the above conclusion, the learned Judge thought it fit to refer the question to a Division Bench to answer. As per the direction of the Hon'ble The Chief Justice, the said question has been referred to this Bench, and accordingly, we proceed to answer the same. 9. Before coming into force of amending Act 09/01, the quantum of Narcotic Drug/Psychotropic Substance was immaterial for the purpose of deciding the quantum of punishment. The provisions of NDPS Act were amended by amending the Act 09/01 with effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quantity mentioned in column Nos.5 6 of the Table in the notification in relation to the Narcotic Drug and Psychotropic Substance mentioned in the corresponding entry in column Nos.2 to 4 of the said Table as the small quantity and commercial quantity respectively for the purposes of the said clauses of that Section. Entry 56 in the said Table, relates to heroin and Entry 239 relates to mixture or preparation, which state as follows:- Serial No. Name of drug and psychotropic substance Other non -propriety name Chemical name Small quantity [in gm/kg Commercial quantity [in gm] (1) (2) (3) (4) (5) (6) 56 Heroin --- Diacetyl morphine 5 250 gm 239 Any mixture or preparation that of with or without a neutral material, of any of the above drugs. --- --- * ** * Lesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal Raj's, case came to be referred to by the Hon'ble Supreme Court in a subsequent Judgment in State of NCT of Delhi v. Ashif Khan @ Kalu reported in 2009 (3) Scale 429 : AIR 2009 SC 1977, wherein the Hon'ble Supreme Court, after referring to yet another Judgment of the Hon'ble Supreme Court in Ouseph v. State of Kerala reported in 2004 (4) SCC 446, has followed the ratio laid down in E.Micheal Raj's, case. From the above Judgments of the Hon'ble Supreme Court, it is crystal clear that the law has got catalyzed that in order to punish an accused for any offence involving a Narcotic Drug or Psychotropic Substance, as the case may be, it is absolutely necessary for the prosecution to prove the exact quantity of Narcotic Drug or Psychotropic Substance in the total quantity of the contraband seized from the accused so as to punish the accused under the appropriate penal provision. 13. Very recently, in Harjit Singh vs. State of Punjab reported in 2011 (4) SCC 441, the Hon'ble Supreme Court had an occasion to consider the Judgment in E.Micheal Raj's, case. That was a case, where the accused was allegedly found in possession of 7.10 kilograms of opium. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used under the NDPS Act. 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 clause (a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry No.92 becomes totally redundant. 22. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2(xv), determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd falls within the definition of Section 2(xva) of the NDPS Act. 15. In the case of heroin, there can be no doubt that it is a manufactured drug, as defined in Section 2(xi) of the NDPS Act. As per the Notification issued by the Central Government dated 19.10.2001, heroin is found in entry 56. The chemical name of the same, [as per the said notification], is diacetyl morphine . The notification further states that if diacetyl morphine is found to be not more than 5 grams, it is a small quantity and if it is found to be greater than 250 grams, it is a commercial quantity. Entry 239 of the notification deals with any mixture or preparation that of with or without a neutral material of any of the above drugs. 16. From the above definition, it is crystal clear that if the contraband seized is, pure and simple, heroin [diacetyl morphine], falling within entry 56, depending upon the weight of the heroin, it shall be construed either as commercial quantity or as small quantity or intermediate quantity, and accordingly, the accused will be convicted and punished. Only in cases, where the contraband seized is a mixture or preparation, with or without a neutral material, it is necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph No.21 of the said Judgment, the learned Judge has held as follows:- 21. Though originally the charge against the accused was under Sections 8(c) read with 21 of the NDPS Act, after examining all the witnesses and after completion of the prosecution evidence, the charge was amended on 25.11.2002 under Sections 8(c) read with Section 21(c) and the argument was heard after two days. While the trial Court was aware of the specific provision of Section 21(c) of the NDPS Act, and amended the charge against the accused had not taken any steps for sending the contraband for purity test. The prosecution also has not taken any steps pending trial to get a fresh report from the analyst. The prosecution has miserably failed to establish that the contravention involves the commercial quantity, the conviction under Section 21(c) of the NDPS Act is not sustainable. At the same time, this Court is not prepared to hold that the contravention involves only small quantity of 5 grams as per Entry-50 in the table. It is not possible to conclude that the total quantity of 500 grams of brown powder would contain only 5 grams or less than 5 grams of Di-Acetyl- Morphine. In the circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no Purity Test conducted. Similar is the view taken in the Judgment dated 30.03.2010 made in Crl.A.(MD)Nos.1895 of 2003 and 200 of 2004. 22. In Mohammed Umar @ Mohammed Salim and another vs. the Intelligence Officer reported in 2010 (3) MLJ 603, the matter was decided by one of us [Justice S.NAGAMUTHU]. In the said case, the accused was found in possession of 5 kilograms of contraband, which was a mixture. In the said case also, there was no Purity Test conducted. Relying on E.Micheal Raj's case, it was held that in the absence of any Purity Test, the quantity of heroin found in the mixture could not be ascertained. Ultimately, the Court found the accused guilty under Section 21(b) of the Act holding that the mixture contained was intermediate quantity of heroin. In the said case, it was not at all contended by the accused that what was possessed by him was only a small quantity of heroin. Thus, there was no occasion for the Court to go into the question as to whether the quantity was a small quantity or an intermediate quantity. Since the learned counsel himself contended that it was an intermediate quantity, without going into the further details, it was held that the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, the Courts, which have been entrusted with the onerous task of delivering criminal justice, would do well by sending the contrabands in their custody during trial/Appeal for Purity Test, if it is found that the contraband falls within ambit of entry 239 of the notification. In pending appeals, such report can be received as additional evidence under Section 391 of the Code of Criminal Procedure. We would like to state that until the reports of Purity Tests are received, the trial may be postponed. In respect of the pending cases, including appeals, if any such request is made by any Court or Prosecuting Agency for holding Purity Test, the Laboratory concerned shall give top priority for such pending including appeals cases and submit report without any delay. 25. We are conscious of the fact that the Central Government has issued yet another notification dated 18.11.2009, wherein the Central Government has declared that in case of a mixture or preparation with or without a neutral substance, the entire quantity of mixture/preparation shall be decisive as to whether the Narcotic Drug/Psychotropic substance is a small quantity or commercial quantity. As held in Harijit Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by us herein above shall be applicable to offences committed on or before 17.11.2009 alone. 27. With the above answers, we direct the Registry to list the Criminal Appeal (MD).No.256 of 2009 and CRL.O.P.(MD).Nos.9668 of 2011 and 11953 of 2011 before the learned Single Judges of this Court for appropriate orders. NB Note:- Registry is directed to place a copy of this order before My Lord the Hon'ble the Chief Justice for deciding as to whether the above order may be circulated to all the Special Courts for NDPS Act in the State. To 1.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 2.The Intelligence Officer, Narcotic Control Bureau, South Zone Unit, Chennai. 3.The Special District and Sessions Judge for E.C and NDPS Act cases, Madurai. CRIMINAL APPEAL (MD).No.256 of 2009 and CRL.O.P.(MD).Nos.9668 of 2011 and 11953 of 2011 M.JAICHANDREN, J. AND S.NAGAMUTHU, J. These matters are again listed today under the caption For Being Mentioned at the instance of the learned counsel appearing for the respondent in order to correct a typographical error in the order dated 23.12.2011. 2. The learned counsel appearing for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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