The central legal point established is the consideration of the quantity and intended use of a psychotropic substance for personal consumption under Section 27 of the NDPS Act.

( 1 ) LEAVE granted.

( 2 ) THE appellant has been convicted by a Sessions Court for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short ). He was sentenced to RI for ten years and to pay a fine of Rs 1 lakh (in default of payment of fine, he was directed to undergo simple imprisonment for a further period of two years ).

( 3 ) HE filed an appeal challenging the said order of conviction and sentence but the same was dismissed by the High Court of Kerala. He filed special leave petition through jail. We appointed Mr Jayant Bhushan, Advocate, as amicus curiae to argue for him. We heard him and also the learned counsel for the State of Kerala.

( 4 ) THE case against the appellant is that he was found in possession of 110 ampoules of buprenorphine. (Its trade name is Tidigesic.) It is too late in the day for reappreciating the evidence for ascertaining whether as a matter of fact the appellant was not in possession of the aforesaid article.

( 5 ) THOUGH the investigating agency thought that the article recovered from the appellant was a narcotic substance, it is in fact a psychotropic substance. This is clearly discernible from Item 92 of the Schedule of the NDPS Act. If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed. Under Rule 66 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 any person may possess a reasonable quantity of psychotropic substance "as may be necessary for their genuine scientific requirements or genuine medical requirements". This is subject to the limitation contained in the proviso that he is in possession of the said substance for his personal medical use, the quantity thereof shall not exceed one hundred dosage units at a time.

( 6 ) SOME arguments have been advanced before us to show that in the absence of any quantification of a dosage 110 ampoules recovered from the appellant cannot be held to be in excess of the aforesaid limit indicated in rule 66. We would have certainly considered the said arguments seriously if the appellant had thought it fit to adopt such a line of defence in the trial court or before the High Court. Unfortunately, it has not been done.

( 7 ) IN any case we are inclined to consider another argument advanced before us by the learned counsel for the appellant based on Section 27 of the NDPS Act. It says that whoever, in contravention of any provision of this Act,possesses any psychotropic substance, "which is proved to have been intended for his personal consumption and not for sale or distribution" shall be punishable for a term which may extend to six months or with fine or with both [unless the substance is not one falling under clause (a) of Section 27].

( 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 l/10th of the limit of small quantity specified under the notification.

( 9 ) THEN the next question is whether this substance was possessed by him for personal consumption. As the accused had adopted a defence of repudiating the allegation against him, it may look that he cannot rely upon the alternative contention that it was possessed by him for personal consumption. It is too harsh to deny the accused-appellant a right to resort to the a