The court confirmed that the entire seized quantity must be evaluated together to determine if it meets commercial standards under narcotics law.

ORDER

The appellants herein are the two accused in S.C.No. 638 of 2011 of the Special Court for NDPS Act cases, Ernakulam (the Additional Sessions Court, Adhoc-I). They faced prosecution on the allegation that at about 6.15 a.m. on 22.9.2011, near the Varappuzha Bridge, they were found jointly possessing a huge quantity of 1940 ampules of buprenorphine injection having a total volume of 3880 ml, carried in two bags when the Police intercepted their motor cycle No. KL-54/B-3493. The offence was detected by the Sub Inspector of Police, Cheranellur during his routine vehicle checking . He saw the first accused as the rider and the second accused as pillion rider, proceeding in high speed carrying two bags. The pillion rider was seen holding a bag in his hands, and the rider was seen carrying a bag hung on his shoulder. Finding the two accused perplexed on interrogation, the Sub Inspector examined the bags carried by the accused. When he opened the bag of the first accused, he saw 958 ampules of buprenorphine injection (Lupigesic) and 36 ampules of Phenergan injection. When he examined the bag in the hands of the second accused, he saw 982 ampules of buprenorphine injection (Lupigesic), and 24 ampules of Phenergan injection. He found on examination that all the injection ampules were of identical nature with identical labels. The accused did not have any explanation or authority for the possession of such huge quantity of psychotropic substance. He arrested the two accused on the spot, and seized the contraband articles including the motor cycle. On the basis of the seizure and arrest, the Sub Inspector registered a crime against the two accused under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The investigation was taken over by the Circle Inspector of Police, Ernakulam North, and after investigation, he submitted final report in court. The properties and the accused were produced without any delay in court by the Circle Inspector.

2. The two accused pleaded not guilty to the charge framed against them under Section 22 (C) of the NDPS Act, and claimed to be tried. The prosecution examined 7 witnesses including the detecting officer, and proved Exts. P1 to P11 documents. During the examination of PW2, Ext.C1 visiting card given to his mother by the learned counsel of the accused in the lower court, was marked. MO 1 to MO 13 properties were also identified during trial.

3. When examined under Section 313 Cr.P.C., both the accused denied the incriminating circumstances, and projected a defence of total denial. In defence, the accused examined one witness as DW1, and also proved Ext.D1 to D6 documents.

4. On an appreciation of the evidence, the trial court found both the accused guilty under Section 22 (c) of the NDPS Act. On conviction, they were sentenced to undergo rigorous imprisonment for 10 years each, and to pay a fine of ₹ 1 lakh each, by judgment dated 20.9.2012. Aggrieved by the said judgment of conviction, the two accused have come up in appeal.

5. When this appeal came up for hearing, the learned counsel for the appellants submitted that their contention is mainly on the actual quantity of the psychotropic substance contained in the contraband articles. The learned counsel submitted that if properly assessed in terms of the actual quantity of the psychotropic substance in each ampule, it will come to below 20 grams, and in such a circumstance, the conviction under Section 22 (c) of the NDPS Act cannot be sustained. Thus, the learned counsel contended that if at all the evidence on facts is acceptable, a conviction is possible only under (b) of the NDPS Act. On the factual aspects regarding arrest and seizure, much arguments were not made by the learned counsel. He also submitted that only a lesser quantity of injection ampules was in fact seized from the possession of the accused, but the Police happened to record the seizure of a huge quantity in the mahazar, including the quantity seize