IMPORTANT POINTS
Commercial quantity for the contraband in question, Tetra hydrocannabinol (THC), is 50 gms.
When a minimum sentence is prescribed, no court can impose lesser punishment.

Judgment :

Dipak Misra, J.

In this appeal, by special leave, the State of Jammu and Kashmir has called in question the legal propriety of the judgment and order passed in Criminal Appeal Nos. 35 and 36 of 2009 whereby the High Court has converted the conviction recorded by the learned trial Judge holding the accused respondents guilty of the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, “the NDPS Act”) and sentencing each of them to suffer rigorous imprisonment for a period of 12 years and further to pay a fine of Rs.2 lakhs each and in case of default of payment of fine to undergo rigorous imprisonment for period of one year to one under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act and restricted the period 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 hereinabove.

3. The aforesaid judgment of conviction and order of sentence constrained the respondents-accused to prefer Criminal Appeal Nos. 35 and 36 of 2009 and the Division Bench of the High Court of Jammu and Kashmir at Jammu heard both the appeals together. The Division Bench addressed to various aspects and taking into consideration the law laid down in Amar Singh Ramaji Bhai Barot v. State of Gujarat, (2005) 7 SCC 55 and Samiullah v. Superintendent Narcotic Control Bureau, AIR 2009 SC 1357 and E. Micheal Raj v. Intelligence Officer Narcotic Control Bureau, (2008) 5 SCC 161 came to hold that the narcotic drug proved to have been recovered from the possession of the accused persons was of “intermediate quantity” in terms of Section 2(viia) of the NDPS Act read with S.O. 1055(E) dated 19.1.2001 and the addition of “Note 3” after “Note did not change the complexion of the matter for the reason that the alleged recovery had been made way back on 5.4.2004, that is, more than five years prior to the amendment had come in force and further there was no allegation that there were more than one narcotic drugs or isomers, esters, ethers and salts of the narcotic drug detected in the recovered substance. Being of this view, the High Court opined that the accused could only be convicted for the offence punishable under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act. The High Court, accordingly, held thus:-

“38. The appellants against the above backdrop were to be convicted of offence punishable under section 8 read with section 20(b)(ii)(B) of the Act and sentenced to the punishment prescribed under section 20(b)(ii)(B) of the Act and not to the punishment prescribed for the offence involving possession of “commercial quantity” of narcotic drug under section 20(b)(ii)(c) of the Act. However, the appellants arrested on 5.4.2004 and are in custody for last more than sev