IMPORTANT POINT
Where alleged recovery of heroin from accused respondents was made in complete violation of provisions of Section 50 of NDPS Act, 1985, their acquittal by High Court was held justified.

JUDGMENT

Aftab Alam, J.—

1. The two respondents Shah Alam and Mazzum Haq were held guilty of illegally possessing 100 grams of heroin each and were accordingly convicted by the trial court under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each and in default to undergo rigorous imprisonment for a further period of six months. They were acquitted of the other charge under Section 8 read with Section 29 of the Act. In appeal, the Allahabad High Court, Lucknow Bench, set aside the judgment and order passed by the trial court and acquitted the respondents of the charge under Section 8/21 of the Act.

2. Against the judgment and order of acquittal passed by the Allahabad High Court the Union of India has come in appeal by special leave.

3. The recovery of heroin from the two respondents was made on August 5, 1994. They were convicted and sentenced by the trial court by judgment and order dated May 11, 2000 and were finally released on being acquitted by the High Court by its judgment and order dated November 22, 2002. On inquiry from the court Mr. S. N. Terdal, learned counsel appearing for the appellant, Union of India, stated that the respondents were not on bail either during trial or after conviction during the pendency of their appeal. This means that the respondents have already served 8 years and 3 months out of the total period of sentence of ten years (plus the default period of six months).

4. The law as it stands today is vastly different from what it was in 1994 when the occurrence took place. Now, 100 grams of heroin is an intermediate quantity between “small quantity” and “commercial quantity” (vide section 2 sub-clause (vii a) and (xxiii a) read with S. O. 1055(E) dated October 19, 2001 at serial no.56). After the amendment of the Act with effect from October 2, 2001 (vide Act 9 of 2001) the punishment for illegal possession of 100 grams of heroin is provided under Section 21 (b) of the Act which reads as under:-

“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,-

(a) ....................

(b) where the contravention 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) ..........”

5. The position was quite different in 1994. At that time the possession of narcotic drug in excess of small quantity for personal consumption (5 milligrams, in case of heroin) attracted the punishment of rigorous imprisonment for a minimum period of ten years as well as fine of not less than rupees one lakh. Section 21 of the Act, as it stood in 1994, is as under:-

“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 be recorded in the judgment, impose a fine exceeding two lakh rupees.”

6. It is, thus, to be seen that the sentence of rigorous imprisonment for ten years and fine