IMPORTANT POINT
Recovery of 25 ampoules of Buprenorphine Hydrocholride (a Psychotropic Substances) when proved possessed for self medicinal purposes and thus falling within Rule 66 of NDPS Rules, would not be offence u/s 21 NDPS Act.

JUDGMENT

B.P. Singh, J.-The appellant herein was charged of having committed the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) and was put up for trial before the 1st Additional Sessions Court, Ernakulam. The case of the prosecution was that on 10th October, 1993 at about 7.45 p.m. he was found in possession of 25 ampoules of manufactured drug, namely - Buprenorphine Hydrocholride (Tidigesic) alongwith three syringes when he was apprehended on the road near Blue Tronics Junction, Palluruthy. The learned Additional Sessions Judge by his judgment and order dated 5th March, 1994 acquitted the appellant of the charge levelled against him. On appeal by the State being Criminal Appeal No. 533 of 1994 the acquittal of the appellant was set aside and the appeal preferred by the State was allowed. The appellant was found guilty of the offence punishable under Section 21 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of rupees one lakh, in default to undergo simple imprisonment for one year.

2. The appellant preferred an appeal before this Court being Criminal Appeal No. 1022 of 1997 but the same was dismissed by this Court by judgment and order dated 7th August, 2001. The appellant then filed a review petition being Review Petition (Crl.) No. 1236 of 2001 which was allowed by this Court and the appeal restored to its original number. The appeal has now been placed before us for disposal.

3. While allowing the review petition this Court observed that the appellant should have taken up a plea in the light of the decision of this Court in Hussain vs. State of Kerala : (2000) 8 SCC 139 in which the same article Buprenorphine Hydrocholride (Tidigesic) was found to be a psychotropic substance and the quantity which was found in possession of the accused was within the prescribed limit, being a small quantity. Consequently benefit of the same was granted to the accused in that case and he was acquitted. This Court felt, while allowing the review petition, that the appellant should be permitted to take up that contention in this case in order to prevent a miscarriage of justice. This Court noticed that the total quantity involved is 25 ampoules of Buprenorphine Hydrocholride (Tidigesic) of 2 ml. each. Counsel for the State of Kerala submitted that the limit of small quantity as per the Notification is 1 gm. Thus the total quantity seized from the appellant would fall within the limit of small quantity used for medicinal purposes. The appellant was permitted to file a petition seeking permission to raise additional grounds in the appeal.

4. An application has been filed by the appellant for permission to urge additional grounds in his appeal. We allow the said application.

5. It was not disputed before us by the learned counsel appearing on behalf of the State that the total quantity seized from the appellant would fall within the limit prescribed under Section 27 of small quantity to be used for medicinal purpose, namely - 1 gm. It is also not contended that the quantity seized from the appellant was in excess of the quantity prescribed under Rule 66.

6. Section 21 of the NDPS Act, as it stood at the relevant time provided as follows :-

"21. Punishment for contravention in relation to manufactured drugs and preparations.-Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports inter State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable 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 the court may, for reasons to