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2009 Supreme(Mad) 3235
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T. SUDANTHIRAM
Syed Mohamed Dawood Thaheer
Versus
Intelligence Officer Narcotics Control Bureau
Criminal Appeal No.306 of 2008
Decided on: 20-08-2009
For the Appellant:R. Rajan, Advocate.
For the Respondent: R. Dhanapal Raj, Special Public Prosecuto, for NCB cases
The main legal point established in the judgment is the interpretation of the quantity of drugs seized and the application of the relevant sections of the NDPS Act for sentencing.
Headnote:
NDPS Act - Drug Trafficking - Sections 8(c) r/w 21(b), 28, 29 - The court discussed the application of Section 21 of the NDPS Act, the quantity of heroin seized, and the interpretation of chemical analysis reports. The appellant's conviction under Section 21(c) was set aside, and he was convicted under Section 21(b) instead. The sentences for all offenses were modified, and it was ordered that the sentences shall run concurrently.
Fact of the Case:
The appellant was convicted for drug trafficking under Sections 8(c) r/w 21(c), 28, 29 of the NDPS Act, based on the seizure of heroin capsules from his body. The prosecution presented evidence of the seizure and chemical analysis reports. The appellant denied his involvement, and no defense witnesses or documents were presented.
Finding of the Court:
The court found that the appellant's conviction under Section 21(c) was incorrect, as the quantity of heroin seized did not meet the criteria for commercial quantity. The appellant was instead convicted under Section 21(b) and had his sentences modified accordingly.
Issues: The main issue was whether the appellant could be sentenced under Section 21(c) of the NDPS Act due to commercial quantity or under Section 21(b) as the quantity of heroin seized was lesser than commercial quantity but greater than the smaller quantity.
Ratio Decidendi: The court relied on the interpretation of chemical analysis reports and previous Supreme Court judgments to determine the appropriate section of the NDPS Act for sentencing.
Final Decision: The appellant's conviction under Section 21(c) was set aside, and he was convicted under Section 21(b) instead. The sentences for all offenses were modified, and it was ordered that the sentences shall run concurrently.
The appellant herein stands convicted by the learned Special Judge, Additional Special Court under NDPS Act, Chennai, in C.C.No.9 of 2004 for the offences under Sections 8 (c) r/w 21(c), 28 and 29 of the NDPS Act, 1985, and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1 lakh in default to undergo six months rigorous imprisonment each and the sentences are ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant herein had preferred this appeal.
2. The case of the prosecution in brief is as follows: On 24.04.2007 at about 2.30p.m., P.W.3 Intelligence Officer received an information about the drug trafficking and at about 2.30p.m., the appellant was intercepted by P.W.3 and other officers at Anna International Airport and he was enquired. The accused admitted that he swallowed 80 capsules containing heroine. On the same day at 5.30p.m he was produced before the IX Metropolitan Magistrate, Saidapet, and on courts direction he was taken to the Adyar Malar Hospital and X-ray was taken on his stomach and he was admitted in the hospital and in the night he ejected 32 capsules 115 grams heroine. Samples were taken from the said heroin and the heroin was seized under mahazar Ex.P.2 and samples S.1 and S.2 were taken On the next day, at about 5.00p.m., the accused ejected another 25 capsules containing 86 grams and samples
S.3 and S.4 were taken from the heroin and the contraband was seized under mahazar Ex.P.43. On the next day on 26.07.2003, again the accused ejected another 12 capsules containing 43 grams of heroin and Samples S.5 and S.6 were taken from that heroin and the contraband was seized under mahazar Ex.P.44. Agaon on the next day on 27.07.2003, at 7.00 hours, the accused ejected another 11 capsules containing 41 grams of heroin and Samples S.7 and S.8 were taken and the contraband was seized under Ex.P.46. On 27.07.2003 at 6.00p.m, the accused was taken to the NCB Office and the statement was taken under Section 67 of the NDPS Act which was recorded by P.W.2, and accused was arrested at 10.00p.m.,. The properties were sent to Court and samples were sent for chemical analysis. P.W.4, the Chemical analyst on analysing the samples gave report Ex.P.21. According to the chemical analysis report, S.1 sample contains 38.1% di-acytyl-morphine, S.3 sample contains 35.2% di-acytyl-morphine, S.5 sample contains 33.1% di-acytyl-morphine and S.7 sample contains 37.4% di-acytyl-morphine. A complaint was also filed against the accused.
3. In order to establish the case, prosecution has examined 9 witnesses, marked 52 exhibits and produced 18 material objects. After examination of witnesses, the accused was questioned under Section 313 Cr.P.C., and he denied his complicity and on the side of the defence, neither any witness was examined nor any document was marked. The trial Court after considering the evidence convicted the accused as stated above.
4. Mr.R.Rajan, learned counsel appearing for the appellant submitted that he is confining his argument only to the question of sentence, since according to the defence, the offences would not fall under Section 21(c) of the NDPS Act, but only under Section 21(b) of the NDPS Act. The learned counsel on record made an endorsement that the arguments is only on the question of sentence based on the quantity of heroin seized. Though the appellant has also filed an application for bail, with the consent of the learned Special Public Prosecutor and the learned counsel for the appellant , the matter is taken up for final disposal, since counsel for the appellant has confined his argument only to the question of sentence.
5. The learned counsel for the appellant submits that the trial Court convicted the accused wrongly under Section 21(c) of the NDPS Act. The total quantity of heroin seized is only 283 grams as per the chemical analyst report Ex.P.21. From the samples, the analyst found by average only 35.95% of di-acytyl-morphi
