The court clarified the interpretation of drug quantities under the NDPS Act and the applicability of immunity provisions for addicts.

JUDGMENT

This is a jail appeal. When came up for hearing, the learned Counsel appearing for the appellant, as State Brief, submitted before this Court that here is a case where the appellant is behind the bars for about three years. It is submitted that no legal and reliable evidence adduced by the prosecution to prove the case.

2. The facts necessary for consideration of this appeal is as follows:

The accused, on 16.08.2010, at about 7.45 PM on Pallichal road in Thoppumpady in Rameswaram Village, Ernakulam was found in possession of eight ampules of Buprenorphine IP lupigessic, each containing 2 ml and thereby committed the offence under Section 22 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act for short”).

The prosecution altogether examined five witnesses and Exts.P1 to P21 marked. MO1 to MO3 identified. After appreciating the evidence, the court below convicted the accused and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh Only), in default to rigorous imprisonment for a further period of one year.

3. The arguments placed before this Court by the learned Counsel Kumari Adv. Pinku.H Thaliath is that:

a. The Court below failed to understand the dictum laid down by the Hon'ble Apex court in Micheal Raj Vs. Intelligence Officer reported in 2008 (2) KLT 36 (SC). It is submitted that the court should have considered the actual content of seized Buprenorphine. If the content was taken, it can be seen that the quantity involved will be much less than 1gm, that is, only a small quantity, and a prosecution for an offence under Section 22 (b) of NDPS Act will not lie but only under (a) of the NDPS Act alone will lie.

b. The second argument advanced is that, even a prosecution itself is not necessary as the appellant got a specific case from the initial point itself that he was having some ampules which was described by him as “sImÅnIÄ”. The significance of this is that by the Proviso to Rule 66, if the units are less than 100, a prosecution will not lie. In order to substantiate this contention, the learned Counsel brought to the notice of this Court, the decision of the Supreme Court in(2000)8 Supreme Court Cases 139 and also Hussain Vs. State of Kerala Sajan Abraham Vs.

State of Kerala reported in 2004(2) KLT 122 (SC), c. The learned Counsel stressed on her argument that in

2004(2) KLT 122 (SC), Sajan Abraham Vs. State of Kerala , the number of ampules was twenty five, each containing 2 ml, whereas in this case, the allegation of the prosecution is that he was in possession of only eight number of ampules each containing 2 ml. Finally the learned Counsel also submitted before this Court that, even if it is found that he is not entitled for the benefit under Proviso to Rule 66, but the quantity involved being a small quantity, then also he should have considered as a person entitled for a relief under Section 64A of the Act, who is ready for a re-formation and de-addiction.

4. The learned Public Prosecutor Smt. Adv. Maya M.N submitted before this Court that the above arguments will not lie. It is the submission of the learned Counsel that after the above referred decision of the Hon'ble Apex Court, usurping the delegated legislative powers of the executive, by notification, Note 4 to added to the notification specifying small quantity and commercial quantity.

5. By the introduction of the said note, the effect of the earlier Supreme Court decision will become not applicable and as such no illegality committed by the court below to come to the conclusion that the quantity involved is not a small quantity but a medium quantity in between the small quantity and a commercial quantity.

6. In respect of the argument advanced by the learned Counsel for the appellant, in respect of the Proviso of Section 66 of the Rule, the learned Public Prosecutor submitted before this Court that the 100 units mentioned therein is a defence available to the accused and by