The court established that when a single quantity of narcotics is identified as a commercial quantity, multiple convictions related to its possession under different sections of the NDPS Act are impermissible.

J U D G M E N T

The appellant herein challenges the conviction and sentence against him under Sections 22 (b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) in S.C.No.45/2013 of the Special Court (for the trial of NDPS Act case), Vadakara.

2. The prosecution case is that at about 6.00 p.m. on 26.05.2013 at the bus waiting shed for men at Sulthan Batheri, the appellant was found possessing 34 ampules of diazepam injection (2ml each), and 30 ampules of Buprenorphine injection (2ml each). The offence was detected by the Sub Inspector of Police, Sulthan Batheri on the basis of reliable secret information. It is alleged that at 6.00 p.m., the Sub Inspector got the information, and after verifying the truth of the information, he proceeded to the bus waiting shed after sending a report to the superior officer under Section 42 of the NDPS Act. At the bus waiting shed, the Sub Inspector saw a person having the descriptions stated in the information received by him. The Sub Inspector interrogated him, and proceeded to search his body. When informed of his right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate, the accused waived his right, and gave consent in writing to be searched by the Sub Inspector himself. Accordingly, the Sub Inspector conducted a search of the body of the accused, but nothing could be seized on body search. Then he seized and opened a plastic bag carried by the accused in his hand. When the Sub Inspector examined the bag, he found 34 ampules of diazepam injection, and 30 ampules of Buprenorphine injection in the said bag. The accused could not show any authority for the possession of such Psychotropic Substances. In such a circumstance, the Sub Inspector arrested the accused, and seized the contraband articles as per a mahazar. The required samples were also collected from the quantity of diazepam and buprenorphine injections. Five ampules each were taken from the two categories, and the samples were properly packed and sealed according to law. The remaining quantity of ampules were also well packed and sealed at the spot of detection itself. Labels containing the signature of the accused and the witnesses were affixed on all the properties. He produced the accused and the properties at the police station where a crime was registered by him under Section 22 (a) of the NDPS Act. Thereafter, he sent a report to the superior officer under Section 57 of the NDPS Act. The accused and the properties were produced in Court. Investigation was taken over by the Circle Inspector of Police, Sulthan Batheri, and after investigation, he submitted final report in Court under (b) of the NDPS Act.

3. The accused appeared before the Special Court, and pleaded not guilty to the charge framed against him under Sections 22 (b) and 22(c) of the NDPS Act. The prosecution examined seven witnesses in the trial court, and proved Exts.P1 to P13 documents. MO1 to MO4 properties were also identified during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that no contraband article was seized from his possession, and that a false case was foisted against him by the Sub Inspector. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty under (b) and 22(c) of the NDPS Act. On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.30,000/- under Section 22 (b) of the NDPS Act, and to undergo another term of rigorous imprisonment for ten years, and to pay a fine of Rs.1,00,000/- under (c) of the NDPS Act by judgment dated 16.02.2015. The said judgment of conviction is under challenge in this appeal.

4. When this appeal came up for hearing, the learned counsel for the appellant submitted that if at all the allegations of the prosecution are true, the offence alleged will come under Section 22