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2015 (10) TMI 548
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....iod of custody to the period already undergone, that is, slightly more than seven years and to pay a fine of Rs. 25,000/- each with a modified default clause. 2. The facts which are necessary to be stated are that the accused-respondents were chargesheeted under Section 8 read with Section 20 of the NDPS Act and accordingly, they were sent up for trial. Accused persons denied the accusations and claimed trial. The prosecution to substantiate its stand examined number of witnesses and brought in series of documents in evidence. The learned trial Judge taking note of the fact that Mushtaq Ahmad, the first respondent and Gulzar Ahmad, the second respondent were in possession of 6 kg. 200 gms and 4 kgs. of charas respectively and the prosecution had been able to establish the same, treated the contraband article as commercial quantity and accordingly found them guilty for the offence punishable under Section 20(b) (ii) (C) of the NDPS Act and eventually considering the gravity of the offence and the proliferating and devastating menace the drugs have been able to create in the society and keeping in view the need for eradication, sentenced each of them as has been mentioned hereinab....
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....." 4. It is submitted by Ms. Sushma Manchanda, learned counsel appearing for the State that the High Court has fallen into error by converting the conviction from Section 20(b)(ii) (C) to Section 20(b)(ii) (B) of the NDPS Act relying on the decisions in Amar Singh Ramaji Bhai Barot (supra), Ouseph @ Thankachan v. State of Kerala (2004) 4 SCC 446 and E. Micheal Raj (supra) without taking into consideration the definition of "charas" under the dictionary clause of the NDPS Act and fallaciously dwelt upon the other substance which has no applicability. She has seriously criticized the finding recorded by the Division Bench of the High Court on the ground that neither the definition nor the stipulations in the relevant notification lend support to such a finding and, therefore, the conclusion arrived at by the High Court is vulnerable in law. 5. Ms. Nidhi, learned counsel for the respondent, per contra, submitted that the High Court has rightly converted the offence from Section 20(b)(ii) (C) to Section 8 read with Section 20(b)(ii) (B) of the NDPS Act regard being had to the percentage in the seized contraband article and the sentence imposed being in the upper limit of the sent....
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....ce granted thereunder,- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable - (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that....
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....efore, 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, the addicts 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." 10. Section 41 (1) of the Amending Act 9 of 2001 determined the application or exclusion of the amending provisions. The said provision read as follows:- "41. Application of this Act to pending cases.-(1) Notwithstanding anything contained in sub-section (2) of Section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is other....
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.... 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 designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;" [Emphasis supplied] 15. It is pertinent to reproduce the relevant extract from the notification dated 19th October, 2001 issued under Clause (viia) and (xxiiia) of Section 2 of the NDPS Act. The requisite part of the table is reproduced below:- "Sl. No. Name of Narcotic Drug and Psychotropic Substance [International non-proprietary name (INN)] Other non-proprietary name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm/kg) (1) (2) (3) (4) (5) (6) 23. Cannabis and cannabis resin CHARAS, HASHISH EXTRACTS AND TINCTURES OF CANNABIS 100 1 kg. 150 Tetrahydrocannababinol The following isomers and their stereochemimic al variants:- 7,8,9,10- tetrahydro-6,6,9 - trimethyl-3-pent yl-6H- dibenzo [b,d] pyran-1-o1 (9R,....
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....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 said conclusion, reliance has been placed essentially on Ouseph @ Thankachan (supra) and E. Micheal Raj (supra). 18. We think it appropriate to analyse the ratio of the said decisions. In Ouseph @ Thankachan (supra), the accused was found in possession of 110 ampoules of buprenorphine trade name of which is Tidigesic. The court addressed to the issue whether psychotropic substance was in small quantity and if so, whether it was for personal consumption. In that regard, the Court proceeded to state thus:- "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 no....
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....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 gm 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 in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual conte....
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....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 NDPS Act". That is not binding on the court. 15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to "opium derivative" within the meaning of Section 2(xvi)(e). Clause (a) of Section 2(xi) defines the expression "manufactured drug" as: "2. (xi) 'manufactured drug' means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b)* * *" All "opium derivatives" fall within the expressi....
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....gh 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 the sweep of Section 2(xvi)(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 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....
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....nd 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 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 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 93, so in case of pure opium falling under clause (a) of Section 2(xv), determinat....
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....r 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 that the minimum sentence will be ten years which may extend to twenty years and the minimum fine imposable is one lakhs rupees which may extend to two lakhs rupees. The provision also provides about the default clause which stipulates imposition of fine exceeding two lakh rupees, for the reasons to be recorded by the Court. When a minimum punishment is prescribed, no court can impose lesser punishment. In Narendra Champaklal Trivedi v. State of Gujarat (2012) 7 SCC 80, while a submission was advanced that in exercise of power under Article 142 of the Constitution, this Court can impose a lesser punishment than the prescribed one, this Court ruled that:- "...where the minimum sentence is provided, we think it would n....