Important point
In absence of evidence to suggest that there was abetment and/or conspiracy within meaning of Section 29 of NDPS Act, no such conclusion could be drawn merely because two accused were found together but were carrying individually the contraband substance.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 17, 18, 21 r/w 29—Appellant with other accused (since deceased) alighted from a jeep and were intercepted while going towards hotel—Appellant was in possession of black coloured liquid substance which was 920 grams and was reported to be opium containing 2.8% anhydride morphine—Other accused had 4.250 kgs of grey coloured substance which was found to be opium having 1.2% anhydride morphine—Trial Court held both accused guilty of individually and jointly—Other accused died during appeal before High Court and High Court held appellant guilty u/s 21(c) r/w 29 of the Act for individually being in possession of 920 grams and for being jointly in conspiracy with deceased in possession of 4.250 kgs and awarded 10 years imprisonment with fine Rs. 1 lakh—Appeal—In absence of evidence there was no warrant for conclusion that there was abetment and/or criminal conspiracy u/s 29 of the Act merely because two accused were together—Conviction u/s 21(c) of the Act was justified as recovered substance from appellant was manufactured drug and quantity fell in commercial category.
       Held : In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted. (Para 8)
       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”. The FSL has given its opinion that it is `opium as described in the NDPS Act’. That is not binding on the court. 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:
       “(xi) “manufactured drug” means—
       (a) all coca derivaties, medicinal cannabis, opium derivatives and poppy straw concentrate;
       (b) .........”
       All “opium derivatives” fall within the expression “manufactured drug” as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was “manufactured drug” within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of “manufactured drug”. (Paras 14 and 15)
       The Amending Act of 2001 [The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001)] introduced the concept of “small quantity” and “commercial quantity” for the purpose of imposing punishment. The punishment thereunder is graded according to whether the contravention involved “small quantity”, “commercial quantity” or a quantity in between the two. By reason of Section 41(1) of the Amending Act of 2001, the amended provisions apply to pending cases. Simultaneously, with the Act of 2001 coming into force, by a notification S.O. 1055(E) dated 19.10.2001 issued in exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, the Central Government specified what would amount to “small quantity” and “commercial quantity” respectively, of different substances. In respect of opium derivatives (at sr. 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. (Paras 16 and 17)

Judgment

Srikrishna, J.—Leave granted.

2. This appeal by a special leave petition under Article 136 impugns the judgment of the Division Bench of the High Court of Gujarat upholding the conviction of the appellant under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”).

3. H.K. Chauhan, Police Inspector, C.I.D., Crimes, Narcotics Cell, Ahmedabad received information that on 29.9.1999 a person named Amarsingh and another named Danabhai, having particular physical descriptions, were likely to come from village Dhima to Deesa town through Tharad Cross Roads carrying opium. Chauhan made the necessary entry in the register and gathered a posse of police officers with necessary equipment for interception of the possible carriers of drugs. The raiding party arrived near Tharad Cross Roads, parked their vehicle near Gokul Hotel and maintained a watch. After some time, a jeep coming from village Dhima was sighted. The jeep halted near Tharad Cross Roads. Two persons alighted from the said jeep and were found to have the physical descriptions matching those given by the informant. While the two persons were going towards Gokul Hotel, they were intercepted by the Police. On interrogation, their names were disclosed as (i) Amarsingh Ramji Barot (the appellant), and (ii) Danabhai Virabhai Rabari, the other accused who died during the pendency of his appeal before the High Court. The Police Officer-Incharge of the raiding party, Police Inspector Chauhan, gave an offer to the appellant and deceased Danabhai of being searched in the presence of a Gazetted Officer or a Magistrate. This offer was declined, upon which they were searched. The appellant was found to be carrying a plastic bag. When the plastic bag was opened, it contained a black coloured liquid substance. The black coloured liquid substance was prima facie found to have the smell of opium. The Police Officer weighed the said substance recovered from the appellant and the weight was found to be 920 grams. 4.250 kgs. of a grey coloured substance, suspected to be a drug, was recovered from deceased Danabhai. Out of the 920 grams opium recovered from the appellant, two samples of 10 grams each were drawn, placed in plastic jars, wrapped with paper bearing signatures of panch witnesses and sealed. Similar samples were drawn from the substance recovered from deceased Danabhai. The samples were forwarded to the Forensic Science Laboratory (FSL). The FSL opined that the substance which had been sent as sample A/1, (recovered from the present appellant) was opium as described in the NDPS Act containing 2.8% anhydride morphine, and also pieces of poppy flowers (posedoda). The sample recovered from deceased Danabhai was found to be ‘opium’ as described in NDPS Act having 1.2% anhydride morphine, also containing pieces of poppy flower (posedoda).

4. The appellant and deceased Danabhai Virabhai Rabari were charged with offences punishable under Sections 15, 17 and 18 read with section 29 of the NDPS Act and put up for trial. The trial court held that the prosecution had proved that both the accused were guilty of individually and jointly possessing 920 grams of opium and 4.250 kgs. of opium without any pass or permit and, were, therefore, liable to be convicted for offences punishable under Sections 17 and 18 read with Section 29 of the NDPS Act. Each of the accused, i.e. the appellant and the deceased Danabhai, was awarded with punishment of 5 years rigorous imprisonment together with a fine of Rs. 35000 with a default sentence. With regard to jointly possessing 4.250 kgs. opium without any pass or permit, both the accused i.e. the appellant and Danabhai Virabhai Rabari were awarded with punishment of rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- each, together with a default sentence. Both the punishments were directed to run concurrently.

5. The appellant and the said Danabhai Virabhai Rabari filed separate a

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2005 Supreme(SC) 1208

Important point In absence of evidence to suggest that there was abetment and/or conspiracy within meaning of Section 29 of NDPS Act, no such conclusion could be drawn merely because two accused were found together but were carrying individually the contraband substance.

Important point
In absence of evidence to suggest that there was abetment and/or conspiracy within meaning of Section 29 of NDPS Act, no such conclusion could be drawn merely because two accused were found together but were carrying individually the contraband substance.