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2010 DIGILAW 815 (BOM)

Okoke Paul Obi v. R. S. Podar

2010-06-17

V.M.KANADE

body2010
JUDGMENT:- Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of Respondent No.1 - AIU, Union of India. 2. Appellant has been convicted for an offence punishable under section 21 read with sections 8(c) and 29 and section 23 read with sections 8(c) and 28 of the NDPS Act and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs 1,00,000/ and in default of payment of fine to suffer rigorous imprisonment for one year. 3. The only point urged by the learned Counsel appearing on behalf of the appellant is that the Chemical Analyser who was examined by the prosecution did not point out the percentage of heroin in the powder which was recovered from the two bags found with the appellant. It is submitted that the appellant was arrested on 27/5/2003 and has undergone about 7 years of sentence out of 10 years which has been awarded to him. He invited my attention to the evidence of the said witness examined by the prosecution. He relied upon the judgment of the Apex Court in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau [ (2008)5 SCC 161 : (2008 ALL MR (Cri) 1318 (S.C.))]. He invited my attention to the relevant paragraphs of the said judgment where the Apex Court has observed that in the event the prosecution is not in a position to establish the percentage of narcotic substance, the benefit of amendment made in NDPS Act which came into effect on 2/10/2001 in respect of the sentence, should be given to the accused. 4. The learned Counsel appearing on behalf of Respondent No.1 - AID, Union of India submitted that the ratio of the judgment in E. Micheal Raj (2008 ALL MR (Cri) 1318 (S.C.)) (supra) would apply in cases where percentage is not mentioned. 5. In the present case, the prosecution case is that the P.W.1 was on duty at the Airport on 27/05/2003 and he noticed two bags next to the check-in counter of the Kenya Airlines Flight No.KQ201. When those bags were checked, they noticed that the baggage identification tags were of the appellant. These two bags were seized and it resulted in recovery of 995 grams and 955 grams of heroin in each bag. The appellant came to be arrested and was taken into custody. 6. When those bags were checked, they noticed that the baggage identification tags were of the appellant. These two bags were seized and it resulted in recovery of 995 grams and 955 grams of heroin in each bag. The appellant came to be arrested and was taken into custody. 6. The learned Counsel appearing on behalf of the appellant invited my attention to the evidence of P.W.6 who is the Chemical Analyser from DYCC. From the said evidence, it can be seen that he has not ascertained the actual percentage of diacetyl morphine in both the samples which were analyzed by him. He also admitted that the test conducted by him was indicative in nature and not confirmatory test. The learned Counsel for the appellant relied upon the judgment of E. Micheal Raj (2008 ALL MR (Cri) 1318 (S.C.) (supra). The Apex Court in the said judgment while taking into consideration the effect of amendment made o NDPS Act has observed in paragraphs 8 and l5 as under : "8. The provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w .e. f. 2-102001), which rationalized the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried. Thus, by the amending Act, the sentence structure changed drastically. "Small quantity" and "commercial quantity" were defined under Section 2(xxiii-a) and Section 2(vii-a) respectively. New Section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material. As per Entry 56 of the Notification dated 19/10/200 I issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm and commercial quantity has been mentioned as 250 gm. So, the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity under Section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused." "15. So, the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity under Section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused." "15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg. of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content l3y weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. It is only the actual content l3y weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment." The ratio of the aforesaid judgment of the Apex Court, therefore, in my view, would apply to the facts of the present case since evidence of P.W.6 does not disclose the percentage of diacetyl morphine. Therefore, without going into other evidence and particularly since the appellant has already undergone 7 years of sentence out of 10 years awarded to him, the sentence will have to be reduced from 10 years to the sentence which he has already undergone. Since the percentage has not been given, it will have to be held that quantity which was seized by the Respondent No.1 was a non-commercial quantity and the punishment for noncommercial quantity is sentence up to 10 years. Judgment and Order of the Trial Court is confirmed. However sentence is reduced from 10 years to 7 years and sentence for default in payment of fine is also reduced to one month from one year. 7. In the result, the following order is passed :- ORDER Appeal is partly allowed. Judgment and Order of the Trial Court is confirmed. Sentence however is reduced from 10 years to 7 years and sentence for default in payment of fine is also reduced to one month from one year and which period the appellant has already undergone. Appellant be released forthwith unless he is otherwise required in any other case. Passport of the appellant may be returned to him on his release. Appeal is disposed of. Appeal partly allowed.