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R.P(Crl.)No. 1236 OF 2001

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IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

REVIEW PETITION (Crl.) NO. 1236 OF 2001@@

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IN

CRIMINAL APPEAL No. 1022 of 1997@@

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Sajan Abraham ..... Petitioner

Versus

State of Kerala ..... Respondent

O R D E R@@

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In this case petitioner stands convicted under

Section 21 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as

‘the N.D.P.S. Act’) for possessing 25 ampoules of

Buprenorphine Hydrochloride (Tidigesic). Petitioner

has taken up only the usual defence that Section 50

of the Act has not been complied with and

consequently the High Court convicted him in

reversal of the acquittal order passed by the trial

court and sentenced him to rigorous imprisonment for

10 years and a fine of rupees one lakh, in default

to undergo simple imprisonment for one year.

This court disposed of the appeal when the

counsel for the petitioner again repeated the

argument based on Section 50 of the Act. When the

review petition was filed we have found out that

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petitioner should have taken up a plea in the light

of the decision of this court in Hussain vs. State@@

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of Kerala [ (2000) 8 S.C.C. 139 ]. That is a case@@

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in which the same article Buprenorphine

Hydrochloride (Tidigesic) was found to be a

psychotropic substance and the quantity which was

found in possession of the accused was within the

permitted limit, being a small quantity. Benefit of

the same was granted to the accused in that case and

he was acquitted.

If that contention had been adopted in this

case perhaps the position of this petitioner would

have been different. At any rate that contention

requires to be considered, but the unfortunate

aspect is that even in the review petition the same

has not been raised. Nevertheless, we permit the

petitioner to take up that contention in this case

in order to prevent a miscarriage of justice. We

are told that the total quantity involved in this

case is 25 ampoules of Buprenorphine Hydrochloride

(Tidigesic) of 2 ml. each. Learned counsel for the

State of Kerala submitted that the limit of small

quantity as per the notification is 1 gm. If that

be so the total quantity seized from this petitioner

would fall within the limit of small quantity used

for medicinal purpose.

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It is open to the petitioner to file a petition

for seeking permission to raise additional grounds

in the appeal.

We allow this review petition and the restore

the appeal to its original number.

In the interest of justice we deem it necessary