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REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1294-1295 OF 2015 (@ SLP(Crl) Nos. 8567-8568 of 2015)

State through Intelligence Officer Narcotics Control Bureau ... Appellant

Versus

Mushtaq Ahmad Etc. ... Respondents

J U D G M E N T

Dipak Misra, J.

In this appeal, by special leave, the State of Jammu

and Kashmir has called in question the legal propriety of the

judgment and order passed in Criminal Appeal Nos. 35 and

36  of  2009  whereby  the  High  Court  has  converted  the

conviction recorded by the learned trial Judge holding the

accused respondents guilty of the offence punishable under

Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic

Substances  Act,  1985  (for  brevity,  “the  NDPS  Act”)  and

sentencing each of them to suffer rigorous imprisonment for

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a period of 12 years and further to pay a fine of Rs.2 lakhs

each and in case of default of payment of fine to undergo

rigorous imprisonment for period of one year to one under

Section 8 read with Section 20 (b) (ii) (B) of the NDPS Act

and restricted the period of custody to the period already

undergone, that is, slightly more than seven years and to

pay  a  fine  of  Rs.25,000/-  each  with  a  modified  default

clause.  

2. The facts which are necessary to be stated are that the

accused-respondents  were  chargesheeted under  Section 8

read with Section 20 of the NDPS Act and accordingly, they

were  sent  up  for  trial.   Accused  persons  denied  the

accusations  and  claimed  trial.   The  prosecution  to

substantiate its stand examined number of witnesses and

brought in series of  documents in evidence.  The learned

trial Judge taking note of the fact that Mushtaq Ahmad, the

first respondent and Gulzar Ahmad, the second respondent

were in possession of 6 kg. 200 gms and 4 kgs. of charas

respectively and the prosecution had been able to establish

the  same,  treated  the  contraband  article  as  commercial

quantity and accordingly found them guilty for the offence

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punishable under Section 20(b) (ii) (C) of the NDPS Act and

eventually  considering  the  gravity  of  the  offence  and  the

proliferating and devastating menace the drugs have been

able to create in the society and keeping in view the need for

eradication, sentenced each of them as has been mentioned

hereinabove.  

3. The  aforesaid  judgment  of  conviction  and  order  of

sentence  constrained  the  respondents-accused  to  prefer

Criminal Appeal Nos. 35 and 36 of 2009 and the Division

Bench of the High Court of Jammu and Kashmir at Jammu

heard  both  the  appeals  together.   The  Division  Bench

addressed to various aspects and taking into consideration

the law laid down in  Amar Singh Ramaji Bhai Barot v.

State  of  Gujarat1 and  Samiullah  v.  Superintendent

Narcotic  Control  Bureau2,  and  E.  Micheal  Raj  v.

Intelligence  Officer  Narcotic  Control  Bureau3 came  to

hold that the narcotic drug proved to have been recovered

from  the  possession  of  the  accused  persons  was  of

“intermediate  quantity”  in  terms  of  Section  2(viia)  of  the

NDPS Act read with S.O. 1055(E) dated 19.1.2001 and the 1  (2005) 7 SCC 55 2  AIR 2009 SC 1357 3  (2008) 5 SCC 161

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addition  of  “Note  3”  after  “Note  4

did not change the complexion of the matter for the reason

that  the  alleged  recovery  had  been  made  way  back  on

5.4.2004,  that  is,  more  than  five  years  prior  to  the

amendment  had come in  force  and further  there  was no

allegation that there were more than one narcotic drugs or

isomers,  esters,  ethers  and  salts  of  the  narcotic  drug

detected in the recovered substance.  Being of this view, the

High Court opined that the accused could only be convicted

for the offence punishable under Section 8 read with Section

20(b) (ii) (B) of the NDPS Act.  The High Court, accordingly,

held thus:-

“38. The appellants against the above backdrop were to be convicted of offence punishable under section 8 read with section 20 (b) (ii) (B) of the Act and  sentenced  to  the  punishment  prescribed under section 20 (b) (ii) (B) of the Act and not to the  punishment  prescribed  for  the  offence involving possession of “commercial quantity” of narcotic drug under section 20 (b) (ii) (c) of the Act.   However,  the  appellants  arrested  on 5.4.2004 and are in custody for last more than seven years.  

39. We  therefore,  alter  the  conviction  of  the appellants to section 20 (b) (ii)  (B) of the NDPS Act  and  sentence  the  appellants  to  the imprisonment  already  undergone  and  a  fine  of Rs.25000/- each.  In default of payment of fine

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the appellants shall suffer rigorous imprisonment for a further period of six months.  The Criminal Appeal No. 35/2009 titled Mushtaq Ahmad v/s State and Cr. Appeal No. 36/2009 titled Gulzar Ahmad v/s State are disposed of accordingly.”

4. It  is  submitted by Ms.  Sushma Manchanda,  learned

counsel  appearing  for  the  State  that  the  High Court  has

fallen into error by converting the conviction from Section

20(b)(ii) (C) to Section 20(b)(ii) (B) of the NDPS Act relying on

the decisions in  Amar Singh Ramaji Bhai Barot (supra),

Ouseph  @  Thankachan  v.  State  of  Kerala4 and  E.

Micheal Raj (supra) without taking into consideration the

definition  of  “charas”  under  the  dictionary  clause  of  the

NDPS Act and fallaciously dwelt upon the other substance

which has no applicability. She has seriously criticized the

finding recorded by the Division Bench of the High Court on

the ground that neither the definition nor the stipulations in

the relevant notification lend support to such a finding and,

therefore,  the  conclusion arrived at  by the High Court  is

vulnerable in law.   

5. Ms.  Nidhi,  learned  counsel  for  the  respondent,  per

contra,  submitted that the High Court has rightly converted

4  (2004) 4 SCC 446

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the offence from Section 20(b)(ii) (C) to Section 8 read with

Section 20(b)(ii) (B) of the NDPS Act regard being had to the

percentage  in  the  seized  contraband  article  and  the

sentence imposed being in the upper limit of the sentence

prescribed in the provision, the same does not warrant any

interference by this Court.  It is her further submission that

the  reliance  on the  authorities  placed by  the  High Court

cannot be found fault with.  Additionally, it is contended by

him that the discretion exercised by the High Court cannot

be regarded as injudicious warranting interference by this

Court.   

6. We shall deal with the first aspect first, for our finding

on  that  score  shall  foreclose  other  submissions  as  there

would be no warrant for the same.  There is no dispute over

the  fact  that  the  contraband  articles  were  seized  on

5.4.2004.  Section 8 of the NDPS Act at that time read as

follows:-

“8. Prohibition  of  certain  operations.—No person shall—

(a) cultivate any coca plant or gather any portion of coca plant; or

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(b)  cultivate  the  opium poppy  or  any  cannabis plant; or

(c)  produce,  manufacture,  possess,  sell, purchase,  transport,  warehouse,  use,  consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the  manner  and  to  the  extent  provided  by  the provisions  of  this  Act  or  the  Rules  or  Orders made thereunder and in a case where any such provision,  imposes  any  requirement  by  way  of licence,  permit  or  authorisation  also  in accordance  with  the  terms  and  conditions  of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition  against  the  cultivation  of  the cannabis plant for the production of ganja or the production,  possession,  use,  consumption, purchase,  sale,  transport,  warehousing,  import inter-State and export inter-State of ganja for any purpose  other  than  medical  and  scientific purpose  shall  take  effect  only  from  the  date which  the  Central  Government  may,  by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.”

7. Section 20 of the NDPS Act at the relevant time after

certain amendments read thus:-

“20.  Punishment  for  contravention  in  relation  to cannabis  plant  and  cannabis.—Whoever,  in

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contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—

(a) cultivates any cannabis plant; or

(b)  produces,  manufactures,  possesses,  sells, purchases,  transports,  imports  inter-State, exports  inter-State  or  uses  cannabis,  shall  be punishable –  

(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to  sub-clause (b),--    

(A)  and  involves  small  quantity,  with  rigorous imprisonment  for  a  term  which  may  extend to one year, or with fine, which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity  but  greater  than  small  quantity,  with rigorous  imprisonment  for  a  term  which  may extend  to  ten  years  and  with  fine  which  may extend to one lakh rupees;

(C)  and  involves  commercial  quantity,  with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that  the court  may,  for  reasons to  be recorded  in  the  judgment,  impose  a  fine exceeding two lakh rupees.”

8. Prior to the amendment, Section 20 of the NDPS Act

read as follows:-

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“20.  Punishment  for  contravention  in  relation  to cannabis  plant  and  cannabis.—Whoever,  in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—

(a) cultivates any cannabis plant; or

(b)  produces,  manufactures,  possesses,  sells, purchases,  transports,  imports  inter-State, exports  inter-State  or  uses  cannabis,  shall  be punishable, –  

(i)  where such contravention relates to ganja or the cultivation of  cannabis  plant,  with rigorous imprisonment  for  a  term which  may  extend  to five years and shall also be liable to fine which may extend to fifty thousand rupees;  

(ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that  the court  may,  for  reasons to  be recorded  in  the  judgment,  impose  a  fine exceeding two lakh rupees.”

9. The  legislature  amended  certain  provisions  of  the

NDPS  Act  which  came  into  effect  on  2.10.2001  vide

amending  Act  9  of  2001.   Be  it  stated  the  said  Act

rationalized the structure of  punishment under the NDPS

Act by providing graded sentences linked to the quantity of

narcotic  product  or  psychotropic  substance  in  relation to

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which the offence was committed.  The statement of objects

and reasons to the Bill declares the intention thus:-

“STATEMENT OF OBJECTS AND REASONS

Amendment Act 9 of 2001.—The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent  punishment  for  various  offences relating to illicit trafficking in narcotic drugs and psychotropic  substances.  Most  of  the  offences invite  uniform  punishment  of  minimum  ten years’ rigorous imprisonment which may extend up  to  twenty  years.  While  the  Act  envisages severe  punishments  for  drug  traffickers,  it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not  to invoke the provisions of  the  Act.  The strict  bail  provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as  to  ensure  that  while  drug  traffickers  who traffic  in  significant  quantities  of  drugs  are punished  with  deterrent  sentences,  the  addicts and those who commit less serious offences are sentenced  to  less  severe  punishment.  This requires rationalisation of the sentence structure provided  under  the  Act.  It  is  also  proposed  to restrict the application of strict bail provisions to those offenders who indulge in serious offences.”

10. Section  41  (1)  of  the  Amending  Act  9  of  2001

determined  the  application  or  exclusion  of  the  amending

provisions.  The said provision read as follows:-

“41. Application of this Act to pending cases.—(1) Notwithstanding  anything  contained  in sub-section  (2)  of  Section  1,  all  cases  pending before  the  courts  or  under  investigation  at  the

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commencement of this Act shall be disposed of in accordance with the  provisions of  the  principal Act as amended by this Act and accordingly, any person  found  guilty  of  any  offence  punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence:

Provided  that  nothing  in  this  section  shall apply to cases pending in appeal.”

11. The question arose with regard to the constitutional

validity  of  the  said  provision  inasmuch  as  there  was  a

classification  between  the  accused  facing  trial  and  the

convicts who had already been convicted and their appeals

were pending after 2.10.2001.  This Court in  Basheer v.

State  of  Kerala5,  after  referring  to  certain  authorities

pertaining to classification came to hold as follows:-

“In the result, we are of the view that the proviso to Section 41(1) of the amending Act 9 of 2001 is constitutional  and  is  not  hit  by  Article  14. Consequently,  in  all  cases,  in  which  the  trials had  concluded  and  appeals  were  pending  on 2-10-2001, when amending Act 9 of 2001 came into  force,  the  amendments  introduced  by  the amending Act 9 of 2001 would not be applicable and  they  would  have  to  be  disposed  of  in accordance with the NDPS Act, 1985, as it stood before 2-10-2001.”

5  (2004) 3 SCC 609

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12. In the  case  at  hand,  admittedly  the  occurrence  had

taken place in 2004 and, therefore, 2001 Act applies.  The

‘Notes’ that came to be inserted by way of amendment at a

later date need not be debated upon in this case, for the

simon pure reason the said Notes would not be attracted

regard being had to the factual score in the present case.

Presently,  we shall  refer to certain pertinent provisions of

the  NDPS Act.   Section  2  (viia)  of  the  NDPS Act  defines

commercial quantity.  It is as follows:-

“2.  (viia) “commercial  quantity”,  in  relation  to narcotic  drugs  and  psychotropic  substances, means  any  quantity  greater  than  the  quantity specified  by  the  Central  Government  by notification in the Official Gazette;”

13. Section  2  (xxiiia)  of  the  NDPS  Act  defines  small

quantity.  It reads as follows:-

“2.  (xxiiia) “small  quantity”,  in  relation  to narcotic  drugs  and  psychotropic  substances, means  any  quantity  lesser  than  the  quantity specified  by  the  Central  Government  by notification in the Official Gazette;”

14. At  this  juncture,  it  is  appropriate  to  refer  to  the

definition of cannabis (hemp) as contained in Section 2(iii) of

the NDPS Act:-  

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“(a)  charas,  that  is,  the  separated  resin,  in whatever  form,  whether  crude  or  purified, obtained  from  the  cannabis  plant  and  also includes  concentrated  preparation  and  resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the  cannabis  plant  (excluding  the  seeds  and leaves  when not  accompanied  by  the  tops),  by whatever  name  they  may  be  known  or designated; and (c)  any  mixture,  with  or  without  any  neutral material, of any of the above forms of cannabis or any drink prepared therefrom;”

[Emphasis supplied]

15. It is pertinent to reproduce the relevant extract from

the  notification  dated  19th October,  2001  issued  under

Clause (viia) and (xxiiia) of Section 2 of the NDPS Act.  The

requisite part of the table is reproduced below:-

“Sl.  No.

Name of Narcotic Drug  and Psychotropic  Substance  [International  non-proprietary name (INN)]

Other  non-propriet ary name

Chemical  Name

Small  Quantity  (in gm.)

Commercial  Quantity  (in gm/kg)

(1) (2) (3) (4) (5) (6) 23. Cannabis and

cannabis resin CHARAS,  HASHISH

EXTRACTS  AND  TINCTURES  OF CANNABIS

100 1 kg.

150 Tetrahydrocannababinol The following  isomers and  their  stereochemimic al variants:-  7,8,9,10-  tetrahydro-6,6,9 -  trimethyl-3-pent yl-6H- dibenzo  [b,d] pyran-1-o1 (9R, 10aR)-  8,9,10,10a-  tetrahydro-6,6,9

2 50 gm

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-trimethy1-3-pe ntyl-6H-dibenzo [b,d] pyranl-ol  (6aR, 9R, 10aR)- 6a, 9,10,10a-  tetrahydro-6,6,9 -  trimethyl-3-pent y1 – 6H-  dibenzo [b,d]  pyran-1-o1  (6aR, 10aR)- 6a, 7,10,10a-  tetrahydro-  6,6,9- trimethyl  –  3-penty1-6H-di benzo [b,d]  pyran- 1-ol  6a,7,8,9-  tetrahydro-  6,6,9-trimethyl- 3-pentyl-6H-dib enzo [b,d]  pyran-l-ol (6aR,  10aR)-  6a,7,8,9,10,  10a-  hexahydro-6,  6-dimthyl-I-9-  methylene 3-  pentyl-6H-  dibenzo [b,d]  pyran-1-o]”

[Emphasis supplied]

16. The  learned  trial  Judge  had  treated  the  seized

contraband article falling within the definition of commercial

quantity and accordingly found the accused persons guilty

and imposed the sentence.  He has taken note of the fact

that  the  notification  issued  on  19.10.2001  clearly  shows

that more than one kilogram is commercial quantity.  The

High  Court  while  reversing  the  finding  pertaining  to

commercial quantity has stated thus:-

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“It  needs  to  be  pointed  out  that  the  Chemical Examiner  as  per  the  prosecution  case  did  not only analyze the samples to find out whether it comprised of or contained any Narcotic Drug but went  a  step  further  to  find  out  “percentage  by weight” of the Narcotic Drug in the sample. The Chemical  Examiner  as  per  his  reports  dated 25.04.2004 certified that the sample taken from one  of  the  seven  brownish  stick  shaped substance  tested  positive  for  Charas  and  the Tetra  hydrocannabinol  (THC)  content  in  the sample was 5.1 percent.  In case of sample lifted from one  of  the  five  sticks  recovered  from the appellant  Mushtaq  Ahmad  Tetra hydrocannabinol  (THC)  content  in  the  sample was 5.1 percent.   In case of  sample lifted from one of the five sticks recovered from the appellant Mushtaq  Ahmad  Tetra  hydrocannabinol  (THC) content  in  the  sample  was  found  to  be  4.9 percent.   In  the  circumstances,  if  the  samples lifted  from  the  substance  recovered  from  the appellants  would  be  45  gms  and  39  gms respectively  taking  each  stick  to  have  average weight of 890 (6.2 Kg-7) and 800 (4.0 Kg-5) gms respectively.   However,  if,  working  on  the assumption made by learned trial Court that in view of confessional statements of the appellants, the whole substance was to be taken as Charas irrespective  of  restricted sampling,  the  Narcotic Drug content  in the entire substance recovered from the  appellants  still  would  work out  to  be 316 gms and 196 gms respectively.”

17. We  have  reproduced  the  aforesaid  paragraph  to

appreciate that the High Court has been guided by presence

of  “Tetra-hydrocannabinol”  (THC)  content  and  on  that

foundation has proceeded to hold that the seized item from

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both the accused persons is beyond the small quantity but

lesser than the commercial quantity.  To arrive at the said

conclusion, reliance has been placed essentially on Ouseph

@ Thankachan (supra) and E. Micheal Raj (supra).   

18. We think it appropriate to analyse the ratio of the said

decisions. In  Ouseph  @  Thankachan (supra),  the

accused  was  found  in  possession  of  110  ampoules  of

buprenorphine trade name of which is Tidigesic.  The court

addressed to the issue whether psychotropic substance was

in  small  quantity  and  if  so,  whether  it  was  for  personal

consumption.  In that regard, the Court proceeded to state

thus:-

“The question to be considered by us is whether the  psychotropic  substance  was  in  a  small quantity and if  so,  whether it  was intended for personal  consumption.  The  words  “small quantity”  have  been  specified  by  the  Central Government by the notification dated 23-7-1996. Learned counsel for the State has brought to our notice  that  as  per  the  said  notification  small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the  limit  of  small  quantity  specified  in  the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each ml contains only .3 mg. This means the total quantity found in the possession of the appellant  was  only  66  mg.  This  is  less  than

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1/10th  of  the  limit  of  small  quantity  specified under the notification.”

19. In  E. Micheal Raj  (supra), a two-Judge Bench while

dealing  with  the  determination  of  a  small  or  commercial

quantity  in  relation  to  narcotic  drug  or  psychotropic

substance in a mixture with one or more neutral substance

opined that the quantity of neutral substance is not to be

taken into consideration and it is the only actual content by

weight  of  the  offending  drug  which  is  relevant  for  the

purpose of  determining whether it  would constitute  small

quantity or commercial quantity should be considered.  The

question arose in E. Micheal Raj (supra) under which Entry

of the notification the substance found in possession of the

appellants would fall,  that  is,  whether  Entry 56 or  Entry

239.   After  referring  to  the  Entries,  the  Court  held  as

under:-

“14. As a consequence of the amending Act, the sentence structure underwent a drastic change. The amending Act  for  the  first  time introduced the concept of “commercial quantity” in relation to narcotic drugs or psychotropic substances by adding Clause (vii-a) in Section 2, which defines this term as any quantity greater than a quantity specified  by  the  Central  Government  by notification in the Official  Gazette.  Further,  the

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term  “small  quantity”  is  defined  in  Section 2(xxiii-a), as any quantity lesser than the quantity specified  by  the  Central  Government  by notification  in  the  Official  Gazette.  Under  the rationalised sentence structure, the punishment would vary depending upon whether the quantity of  offending  material  is  “small  quantity”, “commercial quantity” or something in-between.

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%  of  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 gm 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

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drug  or  psychotropic  substance.  It  is  only  the actual  content  by  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.”

20. In the said case, the Court accepted the submission

that purity of heroin was 1.4% and 1.6% respectively and,

therefore, the quantity of heroin in possession was only 60

gms and on that ground treated it as a small quantity.   

21. In Amar Singh Ramaji Bhai Barot (supra) the appellant

was  found  carrying  a  black  packet  which  contained  black

colour liquid substance that smelled like opium.  The police

officer  weighed  the  said  substance  recovered  from  him  and

found the weight to be 920 gms. 4.250 kg of a grey coloured

substance  suspected  to  be  a  drug,  was  recovered  from  the

other  accused  who  had  already  died.   Out  of  the  920  gms

opium recovered from the appellant, samples were sent to the

Forensic  Science  Laboratory  which  opined  that  substance

which had been sent  was opium containing  2.8% anhydride

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morphine and also pieces of poppy flowers (posedoda).  Both

the accused persons faced trial and the trial court found both

of  them guilty for  the offences punishable  under  Section 17

and 18 read with Section 29 of the NDPS Act and sentenced

each of  them to undergo rigorous imprisonment of  10 years

with fine of Rs. 1 lakh each with the default clause.  The appeal

preferred by the other accused abated as he expired during the

pendency  of  the  appeal  and  the  appeal  of  the  Amarsingh

Ramjibhai Barot was dismissed.  A contention was canvassed

before this Court that the High Court had fallen into error by

taking  a  total  quantity  of  the  offending  substance  recovered

from the two accused jointly and holding that the said quantity

was  more  than  the  commercial  quantity,  warranting

punishment under Section 21(C) of the NDPS Act.  This Court

addressed in detail to the factum of  possession of 920 gms of

black liquid and the FSL report that indicated the substance

recovered  from  it  was  opium  containing  2.8%  anhydride

morphine, apart from pieces of poppy (posedoda) flowers found

in the sample.  The Court referred to definition of  opium in

Section 2(xv) and 2(xvi) and proceeded to state thus:-

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“14. There does not appear to be any acceptable evidence that the black substance found with the appellant  was  “coagulated  juice  of  the  opium poppy”  and  “any  mixture,  with  or  without  any neutral  material,  of  the  coagulated juice  of  the opium poppy”. FSL has given its opinion that it is “opium as described in the NDPS Act”.  That  is not binding on the court. 15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d)  of  Section  2(xvi).  The  residuary  clause  (e) would  take  into  its  sweep  all  preparations containing more than 0.2 per cent of morphine. The  FSL  report  proves  that  the  substance recovered  from the  appellant  had  2.8  per  cent anhydride  morphine.  Consequently,  it  would amount to “opium derivative” within the meaning of  Section  2(xvi)(e).  Clause  (a)  of  Section  2(xi) defines the expression “manufactured drug” as:

“2. (xi) ‘manufactured drug’ means— (a)  all  coca  derivatives,  medicinal

cannabis,  opium  derivatives  and  poppy straw concentrate;

(b)* * *” All “opium derivatives” fall within the expression “manufactured drug” as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was “manufactured  drug”  within  the  meaning  of Section 2(xi)  of  the  NDPS Act.  The material  on record,  therefore,  indicates  that  the  offence proved  against  the  appellant  fell  clearly  within Section 21 of the NDPS Act for illicit possession of “manufactured drug”.”

22. Being of this view, this Court concurred with the decision

taken by the High Court that it  was a commercial  quantity.

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The said decision has been distinguished in  E. Micheal Raj

(supra) by opining thus:-

“18. Being  aggrieved,  Amarsingh  approached  this Court. This Court has held in para 14 of the judgment as under:  

“14. There does not appear to be any acceptable evidence that the black substance found with the appellant  was  ‘coagulated  juice  of  the  opium poppy’  and  ‘any  mixture,  with  or  without  any neutral  material,  of  the  coagulated  juice  of  the opium poppy’. FSL has given its opinion that it is ‘opium as described in the NDPS Act’. That is not binding on the court.”

The Court further held that the evidence also does not indicate  that  the  substance  recovered  from  the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi), but residuary Clause (e) would apply and consequently it would amount to opium derivative  as all  opium derivatives fall  within the expression “manufactured drugs”. Thus, the Court arrived  at  the  conclusion  that  what  was  recovered from the  appellant  was  manufactured drug and the offence proved against the appellant fell clearly within Section  21  of  the  NDPS Act  for  illicit  possession  of manufactured drug. The Court concluded and held in para 17 as under:  

“17. In respect of opium derivatives (at Sl. No. 93) in the said notification,  5 grams is specified as ‘small  quantity’  and  250  grams  as  ‘commercial quantity’. The High Court was, therefore, right in finding that the appellant was guilty of unlawful possession  of  ‘commercial  quantity’  of  a manufactured  drug.  Consequently,  his  case would be covered by Clause (c) and not Clause (a) or (b) of Section 21 of the NDPS Act.”

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This  Court  has,  therefore,  upheld  the  imposition  of minimum punishment under Section 21(c) of 10 years’ rigorous imprisonment with fine of Rs 1 lakh.

19. On going through Amarsingh case we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance(s). In fact that was not the issue  before  the  Court.  The  black-coloured  liquid substance was taken as an opium derivative and the FSL  report  to  the  effect  that  it  contained  2.8% anhydride  morphine  was  considered  only  for  the purposes of bringing the substance within the sweep of  Section  2(xvi)(e)  as  “opium  derivative”  which requires  a  minimum  0.2%  morphine.  The  content found  of  2.8%  anhydride  morphine  was  not  at  all considered for  the purposes of  deciding whether  the substance  recovered  was  a  small  or  commercial quantity  and  the  Court  took  into  consideration  the entire substance as an opium derivative which was not mixed with one or more neutral  substance(s).  Thus, Amarsingh case cannot be taken to be an authority for advancing  the  proposition  made  by  the  learned counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are  of  the  view  that  when  any  narcotic  drug  or psychotropic  substance  is  found  mixed  with  one  or more  neutral  substance(s),  for  the  purpose  of imposition  of  punishment  it  is  the  content  of  the narcotic drug or psychotropic substance which shall be taken into consideration.”

23. We  have  referred  to  the  said  decision  as  the  learned

counsel for the State submitted that the said decision applies

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to  the  present  case.   In  our  considered opinion,  the  factual

matrix in the said case was totally different and, in fact, it was

dealing  with  the  manufacturing  and  the  percentage  content

and hence, we need not delve into the same.  

24. In the present case, the contraband article that has been

seized is “charas” and the dictionary clause clearly states that

it can be crude or purified obtained from the cannabis plant

and also includes concentrated preparation and resin known

as hashish oil or liquid hashish.  The definition also indicates

that any mixture with or without any neutral material of any of

the cannabis or any drink prepared therefrom.  The reference

in Section 2(iii)(c)  refers to any mixture which has a further

reference  to  charas,  which  states  crude  or  purified.   The

chemical  name  for  charas  and  hashish  is  “extracts  and

tinctures of cannabis”.  It finds mention at Entry No.23 of the

Notification.  Serial  No.150  of  the  Notification  deals  with

“tetrahydrocannababinol” having a long list.      

24. Regard being had to the aforesaid factual score, reference

to a two-Judge Bench decision in  Harjit Singh v.  State of

Punjab6, would be apt.  In the said case 7.10 kgs. of opium was

6  (2011) 4 SCC 441

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ceased from the accused.  A contention was raised before this

Court that  the opium recovered from the appellant  weighing

7.10 kgs. contained 0.8% morphine, that is, 56.96 gms. and

hence, the quantity was below the commercial quantity.  The

two-Judge Bench referred to the pronouncement in E. Micheal

Raj (supra) and referred to various Entries in the notification,

namely,  Entry  77  that  deals  with  morphine,  Entry  92  that

deals  with  opium  and  Entry  93  that  deals  with  opium

derivatives.  The Court posed the question whether the case

would fall under Entry 92 or Entry 93 or any other Entry.  The

Court referred to the definition of opium under the NDPS Act,

the  chemical  analysis  made  by  the  Forensic  Science

Laboratory,  took  note  of  the  percentage  of  morphine,  the

amendment brought in 2001 and came to hold thus:-

“21. In the instant case, the material  recovered from  the  appellant  was  opium.  It  was  of  a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8  of  the  NDPS  Act  and  was  rightly  convicted under Section 18(b) of the NDPS Act. The instant case  squarely  falls  under  clause  (a)  of  Section 2(xv) of the NDPS Act and clause (b) thereof is not attracted  for  the  simple  reason  that  the substance  recovered  was opium in  the  form of the coagulated juice of the opium poppy. It was

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not a mixture of  opium with any other  neutral substance. There was no preparation to produce any  new  substance  from  the  said  coagulated juice.  For  the  purpose  of  imposition  of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry 92 becomes totally redundant.

22. Thus,  as the case falls  under  clause  (a)  of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry 93, so in case of pure opium falling under  clause  (a)  of  Section 2(xv), determination of the quantity of morphine is not required.  Entry  92  is  exclusively  applicable  for ascertaining whether the quantity of opium falls within  the  category  of  small  quantity  or commercial quantity.”

25. In the said case, the judgment referred in E. Micheal Raj

(supra) was distinguished by stating thus:-  

“The judgment in  E. Micheal Raj has dealt with heroin i.e. diacetylmorphine which is an “opium derivative”  within  the  meaning  of  the  term  as defined  in  Section  2(xvi)  of  the  NDPS  Act  and therefore,  a  “manufactured  drug”  within  the meaning of Section 2(xi)(a)  of the NDPS Act. As such  the  ratio  of  the  said  judgment  is  not relevant to the adjudication of the present case.”

Eventually, in paragraph 25 the Court held thus:-

“The notification applicable herein specifies small and  commercial  quantities  of  various  narcotic drugs  and  psychotropic  substances  for  each contraband material. Entry 56 deals with heroin, Entry  77  deals  with  morphine,  Entry  92  deals with  opium,  Entry  93  deals  with  opium derivatives and so on and so forth. Therefore, the

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notification  also  makes  a  distinction  not  only between opium and morphine but also between opium  and  opium  derivatives.  Undoubtedly, morphine is one of the derivatives of the opium. Thus, the requirement under the law is first to identify and classify the recovered substance and then to find out under what entry it is required to be dealt with. If it is opium as defined in clause (a)  of  Section  2(xv)  then  the  percentage  of morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of  a  mixture  as  specified  in  clause  (b)  of Section 2(xv) of the NDPS Act, that the quantity of morphine contents becomes relevant.”

26. Another  aspect  needs to  be  noted.   The High Court  in

paragraph 28 has found that the seized article contained more

than  50  gms.  Tetra  hydrocannabinol  in  respect  of  both  the

accused persons.  The commercial quantity for the contraband

article, namely, Tetra hydrocannabinol (THC) as stated in Entry

no.  150 is  50  gms.   Even assuming  the  said  percentage  is

found in the seized item then also the contraband article would

go  beyond  the  “intermediate”  quantity  and  fall  under  the

“commercial” quantity.  Judged from any score, we do not find

the view expressed by the High Court is correct.  Therefore, we

conclude  and  hold  that  the  seized  item  fell  under  the

commercial quantity and hence the conviction recorded by the

trial court under Section 20 (b) (ii) (C) is absolutely impeccable.  

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27. We  will  be  failing  in  our  duty  if  we  do  not  deal  with

another submission put forth by the learned counsel for the

respondents-accused.  It is her submission that the accused

persons have already spent more than seven years in custody

and, therefore, they should not be incarcerated again.  Section

20 (b) (ii) (C) stipulates that the minimum sentence will be ten

years which may extend to twenty years and the minimum fine

imposable is one lakhs rupees which may extend to two lakhs

rupees.  The provision also provides about the default clause

which stipulates imposition of fine exceeding two lakh rupees,

for the reasons to be recorded by the Court.  When a minimum

punishment  is  prescribed,  no  court  can  impose  lesser

punishment.   In Narendra Champaklal Trivedi v. State of

Gujarat7, while a submission was advanced that in exercise of

power under  Article  142 of  the  Constitution,  this  Court  can

impose  a  lesser  punishment  than  the  prescribed  one,  this

Court ruled that:-

“...where the minimum sentence is provided, we think  it  would  not  be  at  all  appropriate  to exercise  jurisdiction  under  Article  142  of  the Constitution of India to reduce the sentence on the ground of the so-called mitigating factors as that would tantamount to supplanting statutory

7  (2012) 7  SCC 80

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mandate and further it would amount to ignoring the  substantive  statutory  provision  that prescribes  minimum  sentence  for  a  criminal act...”

28. Yet again, in State of Madhya Pradesh v. Ayub Khan8,

where the High Court had awarded the lesser punishment this

Court while analyzing the position in law has opined thus:-

“The  legislature,  in  its  wisdom,  has  fixed  a mandatory  minimum  sentence  for  certain offences—keeping,  possessing  arms  and ammunition  is  a  serious  offence  for  which sentence shall not be less than three years. The legislature, in its wisdom, felt that there should be  a  mandatory  minimum  sentence  for  such offences having felt the increased need to provide for  more  stringent  punishment  to  curb unauthorised  access  to  arms  and  ammunition, especially in a situation where we are facing with menace  of  terrorism  and  other  anti-national activities.  A  person  who  is  found  to  be  in possession  of  country-made  barrelled  gun with two round bullets and 50 gm explosive without licence,  must  in  the  absence  of  proof  to  the contrary be presumed to be carrying it with the intention of using it when an opportunity arises which  would  be  detrimental  to  the  people  at large. Possibly, taking into consideration all those aspects,  including  the  national  interest  and safety of the fellow citizens, the legislature in its wisdom  has  prescribed  a  minimum  mandatory sentence. Once the accused was found guilty for the offence committed under Section 25(1)(a)  of the Arms Act, he has necessarily to undergo the minimum mandatory sentence, prescribed under the statute.”

8  (2012) 8 SCC 676

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29. In view of the aforesaid analysis, we are unable to sustain

the judgment and order of  the High Court and, accordingly,

unsettle  the  same  and  find  that  the  accused-respondents,

Mushtaq  Ahmad  and  Gulzar  Ahmad,  are  guilty  of  offence

punishable under Section 20(b)(ii)(C) of the NDPS Act and each

of them is sentenced to undergo rigorous imprisonment for ten

years and to pay a fine of Rs.1 lac and, in default of payment of

such fine, to suffer rigorous imprisonment for a further period

of one year.

30. Resultantly,  the  appeals  are  allowed  and  the  judgment

and order passed by the High Court in Criminal Appeal Nos.35

and 36 of 2009, is set aside and that of the learned trial Judge,

as far as the sentence is concerned, stands modified.

...............................J. [Dipak Misra]

...............................J.       [Prafulla C. Pant]

New Delhi October 06, 2015.

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