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2011 Supreme(Mad) 4863
Madras High Court
M. JAICHANDREN, S. NAGAMUTHU, JJ.
M. Veludurain & Others
Versus
The State, rep by The Superintendent of Customs, Special Narcotic Cell, Nagercoil & Another
Criminal Appeal (MD).No.256 of 2009 & CRL.O.P.(MD).Nos.9668 of 2011 & 11953 of 2011
Decided on : 23-12-2011
For the Appellants:Mrs. V. Jeyarani, T.K. Sampath, Advocates.
For the Respondents: C. Arul Vadivel alias Sekar, Additional Public Prosecutor.
Ratios
a. In a prosecution for an offence under the NDPS Act, when a mixture was seized, in the absence of conducting purity test, it had to be held as small quantity and the benefit of doubt had to be given to the accused.
b. In a prosecution for an offence under the NDPS Act, when pure substance was recovered, purity test was not necessary and the actual weight of the substance recovered would decide the quantum.
c. In a prosecution for an offence under the NDPS Act, in case of seizure of mixture, when a purity test was not conducted, the trial Court or the appellate Court could pass order to conduct such test and receive the report as evidence.
d. In a prosecution for an offence under the NDPS Act, necessity to conduct purity test is not necessary in case of seizure of mixture after 17.11.2009.
Headnote:(A)Narcotic Drugs and Psychotrophic Substances Act, 1985(61 of 1985)-Sec.2(viia), 2(xxiia), 21-Narcotic substance-Heroine-Possession-Prosecution-Purity-Test-Necessity-Failure-Small quantity-Benefit of doubt-Appellant was prosecuted for the possession of large quantity of heroine and was convicted by the trial Court against which he preferred appeal-He contended that purity test was not conducted on the substance recovered from him and so in its absence, it had to be taken as small quantity-As the single judge entertained doubt about the correctness of the ratio laid down in few other judgments of the single judges in few other cases, the single judge referred the matter for decision by a larger bench-While the appellant contended that conducting purity test was mandatory and in case of failure, benefit of doubt had to be given to the accused, State resisted the same-Held, when a mixture was seized, in the absence of conducting purity test, it had to be held as small quantity and the benefit of doubt had to be given to the accused-When pure substance was recovered, purity test was not necessary and the actual weight of the substance recovered would decide the quantum-In case of seizure of mixture, when such a test was not conducted, the trial Court or the appellate Court could pass order to conduct such test and receive the report as evidence-In view of the notification issued by the Central Government, after 17.11.2009, even in case of mixture, such a test was not necessary-Reference was answered accordingly.
(B)Narcotic Drugs and Psychotrophic Substances Act, 1985(61 of 1985)-Sec.2(viia), 2(xxiia), 21-Narcotic substance-Heroine-Possession-Prosecution-Purity-Test-Necessity-Failure-Small quantity-Benefit of doubt- In a prosecution for an offence under the NDPS Act, when a mixture was seized, in the absence of conducting purity test, it had to be held as small quantity and the benefit of doubt had to be given to the accused- In a prosecution for an offence under the NDPS Act, when pure substance was recovered, purity test was not necessary and the actual weight of the substance recovered would decide the quantum- In a prosecution for an offence under the NDPS Act, in case of seizure of mixture, when a purity test was not conducted, the trial Court or the appellate Court could pass order to conduct such test and receive the report as evidence- In a prosecution for an offence under the NDPS Act, necessity to conduct purity test is not necessary in case of seizure of mixture after 17.11.2009.
In the result, we answer the question, referred to us, as follows:-
i). If the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No.239 of the notification dated 19.10.2001 issued in S.O.No.1055(E) of the Central Government, it is absolutely necessary to conduct Purity Test to ascertain the exact quantity of the Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Purity Test, as indicated, the contraband seized shall be construed only as a small quantity and accordingly, the accused shall be liable for punishment.
(ii). In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No.239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need for Purity Test and in such cases, the entire quantity of Narcotic Drug/ Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction.
(iii). In pending cases, including appeals, relating to the substances falling within the sweep of entry No.239, the Courts/Prosecuting Agency, may do well by forwarding the samples taken from the remaining contrabands in the custody of the Courts for Purity Test to estimate the percentage of Narcotic Drug/ Psychotropic Substance in the mixture or preparation. In pending Criminal Appeals, the report of Purity Test may be received as additional evidence under Section 391 of the Code of Criminal Procedure.
(iv). If any such request is made in respect of the pending cases, the Laboratory concerned shall give top priority and submit reports without delay.
(v). We make it clear that the ratio laid down in Michael Raj’s case, regarding Purity Test and the answers given by us herein above shall be applicable to offences committed on or before 17.11.2009 alone.
Para 26
S.NAGAMUTHU, J.
1. "Whether in the absence of exact quantity/percentage of narcotic drug/psychotropic substance found in the seized contraband, the punishment for contravention in relation to manufactured drug and preparations, is to be imposed under Section 21(a) or under Section 21(b) of the Narcotic Drugs and Psychotrophic Substances Act, 1985?". This is the question referred to this Division Bench to answer. The said question came to be referred to by a learned Single Judge in the following circumstances.
2. The appellant in C.A.(MD).No.256 of 2009 was found guilty by the Trial Court for having found in possession of 1.370 Kilograms of heroin. The occurrence was on 07.01.2001. The Trial Court convicted him for the offences under Sections 8(c) r/w Section 29 and Section 8(c) r/w Section 21 of the Narcotic Drugs and Psychotrophic Substances Act, 1985, [hereinafter referred to as "the NDPS Act"] and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-in default to undergo simple imprisonment for three months. Challenging the said conviction and sentence, the appellant has filed the above Appeal.
3. When the said Criminal Appeal came up for hearing before Hon'ble Mr.Justice M.SATHYANARAYANAN, an argument was advanced before him that even assuming that the prosecution had proved the charge that the accused was found in possession of 1.370 kg of contraband containing heroin, even then, the accused could be convicted only under Section 21(a) of the NDPS Act and not either under Section 21(b) or under Section 21(c) of the said Act. This argument was based on the fact that out of the total quantity of the powder allegedly seized from the accused, it was not found out as to what was the exact quantity of heroin [Narcotic Drug] in the mixture. It was, therefore, contended that it should be held that the quantity of Narcotic Drug found in the mixture was only a small quantity, as defined in Section 2[xxiiia] and not a commercial quantity, as defined in Section 2(viia) of the NDPS Act.
4. In order to substantiate the said contention, the learned counsel appearing for the appellant had relied on two Judgments of the Hon'ble Supreme Court. The first one was E.Micheal Raj vs. Narcotic Control Bureau reported in 2008 (5) SCC 161. That was a case, where the accused therein was found in possession of a total quantity of contraband weighing 4.07 Kilograms. A chemical analysis [hereinafter referred to as "the Purity Test"] was conducted and it was found that 1.4% and 1.6% respectively in two samples were found to be heroin. Based on the said percentage, the total quantity of heroin found in the contraband was calculated at 61.05 grams. On the said conclusion, the Hon'ble Supreme Court has held that the possession of 61.05 grams of heroin would fall below the commercial quantity, as defined in Section 2(viia) of the NDPS Act, as notified by the Central Government. The Hon'ble Supreme Court has also concluded that obviously, 61.05 grams of heroin cannot be stated to be a small quantity in view of the notification, [as per the notification issued by the Central Government dated 19.10.2001 in S.O.No.1055(E), up to 5 grams, heroin is a small quantity and more than 250 grams is commercial quantity]. Accordingly, the Hon'ble Supreme Court held that the accused was found in possession of heroin, which was neither a small quantity nor a commercial quantity and it was an intermediate quantity. Accordingly, the Hon'ble Supreme Court convicted the accused under Section 21(b) of the NDPS Act. For the purpose of easy understanding, in this order, the quantity of Narcotic Drug or Psychotropic Substance, which is neither a commercial quantity nor a small quantity, is referred to either as "intermediate quantity" or as an "in between quantity".
5. The other Judgment relied on by the learned counsel for the appellant was State of NCT of Delhi v. Ashif Khan @ Kalu reported in 2009 (3) Scale 429 : AIR 200
