State vs Fatima
2014 Latest Caselaw 1237 Del

$~R-37
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment Reserved on:04.03.2014
                                  Judgment Delivered on :07.3.2014

+      CRL.A. 134/2006

       STATE                                      ..... Appellant
                         Through       Mr.Navin K. Jha, APP.

                         versus

       FATIMA                                      ..... Respondent
                         Through       Mr.Jetendra        Sethi     and
                                       Mr. Hemendra Jailiya, Advocates.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal has been filed by the State. Vide the impugned

judgment and order of sentence dated 21.9.2005 the appellant Fatima

had been convicted under Section 21(a) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS

Act) and had been sentenced to undergo the period already suffered by

her noting the fact that she had been in custody for 3 years and more

than 1 month.

2 The State is aggrieved by the aforenoted judgment.

3 Admittedly in this case 500 grams heroin was recovered from the

appellant. The drug had been sent to the FSL for examination. The

report of the FSL is dated 05.2.2004. It disclosed that the contraband

recovered from the accused contained 0.32% of diacetylmorphine; it

would translate to 1.60 grams. The court had noted that this is a small

quantity; the actual weight of the content/contraband being taken into

account in view of the judgment of the a Bench of this Court reported in

Dule Hassain Vs. State decided on 02.9.2005. Accordingly, since the

possession of the appellant was of a 'small quantity' his conviction

followed under Section 21(a) of the said Act. The sentence was also

ordered accordingly.

4 On behalf of the appellant, it has been pointed out that the

appellant had admitted his guilt; he had admitted that he was in

possession of 500 grams heroin; and the same was recovered from her

possession. It is pointed out that percentage of the diacetylmorphine as

detected by the FSL of 0.32% was only for the purpose of purity and to

determine the potential of the contraband; the percentage of the

diacetylmorphine would be of no consequence as the whole of the

recovered drug has to be treated as diacetylmorphine and for this

proposition attention has been drawn to the definition of 'opium

derivative' as contained in Section 2(xvi) of the said Act. Attention has

also been drawn to the definition of 'preparation' as contained in

Section 2(xx); submission being that any mixture of a drug with or

without any neutral substance would amount to a preparation. It is

contended that the case of the petitioner clearly falls under Section 21(c)

of the said Act and not 21(a). Learned counsel for the appellant has

while distinguishing the judgment of Dule Hasan (supra) placed reliance

upon an earlier judgment of a Single Judge of this Court reported in

111(2004) DLT 759 Yogesh Tyagi Vs. State; reliance has also been

placed upon 2005Cri L.J.4521 Amarsingh Ramjibhai Barot Vs. State of

Gujarat. Submission being that in this case where there was a recovery

of 920 grams of opium containing 2.8% of anhydride morphine, the

conviction of the appellant in that case was sustained under Section

21(c) of the said Act holding it to be a commercial quantity. It is

pointed out that the impugned judgment is clearly liable to be set aside

and the appellant having been found to be in possession of 500 grams

heroin; her conviction under Section 21(c) of the said Act should have

followed.

5 Arguments have been heard. Record has been perused.

6 The Sessions Judge has convicted the appellant under Section

21(a) of the said Act. He has relied upon the judgment of a Bench of

this Court reported in Dule Hassan (supra) which had been passed on a

bail application preferred by the said petitioner. The court had noted

that the actual weight of the content/contraband has to be taken into

account to determine as to under which head of quantity the contraband

falls i.e. whether under a 'small quantity' or 'commercial quantity'.

This position was reiterated in the case reported as 123(2005) DLT 563

Ansar Ahmed & Ors. Vs. State wherein also it had been held that in a

mixture of a narcotic drug or a psychotropic substance with one or more

neutral substances, the quantity of the neutral substance or substances is

not to be taken while considering whether a small quantity or a

commercial quantity of the narcotic drug or psychotropic is recovered

but the only actual content by weight of the narcotic drugs or

psychotropic substance (as the case may be) is relevant for determining

whether it constitutes a 'small quantity' or a 'commercial quantity'.

7 The ratio of this judgment was also relied upon by the Apex Court

in the case reported as (2008) 2 SCC (Cri) 558 E.Michel Raj Vs.

Intelligence Officer, Narcotic Control Bureau . In this case the total

quantity of the contraband article seized was 4.07 k.g. and the purity of

the heroin was 1.4 % and 1.6% respectively in the two samples and

therefore the quantity of Heroin in his possession was 60 grams; the

Apex Court had noted that the total quantity of heroin seized was below

250 grams i.e. below the commercial quantity noting that it was not the

total eight of the substance allegedly recovered that was material but the

percentage of the content of Heroin translated into weight that was

relevant. The ratio of this judgment was followed by the Apex Court

again in 2009 (1) ACR 990 (SC) State of NCT of Delhi Vs. Ashif Khan

@ Kalu. In this case, the challenge was by the State against the

conviction of the respondent under Section 21(a) and (b) of the NDPS

Act. The quantity of substance recovered from the accused was 310

grams; this was detected to be Heroin; two samples of 5 grams were

taken and sent to the Forensic Science Labotratory for testing. The FSL

gave its report reporting the sample to contain 0.95% of

diacetylmorphine; the percentage contained the weight of heroin of

2.945 grams; the High Court had noted that in a mixture of a narcotic

drugs or a psychotropic substance with one or more neutral substance

the quantity of the neutral substance or substances is not to be taken

while considering whether small quantity or a commercial quantity of

the narcotic drugs or psychotropic substance is recovered but only the

actual content by weight of the narcotic drug or psychotropic substance

as the case may be would be relevant for determining whether it would

constitute a small quantity or a commercial quantity and therefore the

conviction under Section 21(a) was sustained; the appeal of the State

had accordingly been dismissed.

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. 02.10.2001) which rationalized the punishment structure

under the NDPS Act by providing graded sentences linked to the

quantity of narcotic drugs or psychotropic substances carried. It

appears from the statement of object and reasons of thus Amending Act

that the intention of the Legislature to rationalize the sentence structure

was so as to ensure that while drug traffickers who traffic in significant

quantities of drugs are punished with a deterrent sentence, the addict and

those who commit less serious offences are sentenced to a less severe

punishment. Under the rationalized sentence structure, the punishment

would vary depending upon the quantity of offending material.

9 Thus by the amending Act the sentence structure has changed

drastically. 'Small quantity' and 'commercial quantity' are defined

under Section 2(xxiiia) and Section 2(viia) respectively. Section 21 also

provides for proportionate sentence for possessing small, intermediate

and commercial quantities of the contraband. As per Entry 56 of the

Notification dated 19.10.2001 issued by the Central Government which

deals with heroin, small quantity has been mentioned as 5 grams and

commercial quantity has been mentioned as 250 grams. The Supreme

Court in Ashif Khan (supra) has reiterated that the total weight of the

substance is relevant and has clarified that the percentage of Heroin

content translated into weight would be the deciding factor for

ascertaining the quantity recovered from the accused. In fact an earlier

judgment of the Supreme Court reported as (2004) 4 SCC 446 Ouseph

Vs. State of Kerala was also relied upon.

10 From the ratio of the aforenoted judgments, it is clear that it is the

actual content translated into the weight of the offending drug which has

to be taken into account to determine the quantity recovered from the

accused.

11 The Supreme Court as early as in the case of E.Micheal Raj had

clarified this and had reiterated this legal position as under:

"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."

12 In this view of the matter the impugned judgment convicting the

appellant under Section 21(a) of the NDPC Act holding her to be in

possession of contraband falling in 'small quantity' which has been

arrived at keeping in view the actual content translated into weight of

the aforenoted heroin, suffers from no infirmity.

13     State appeal is dismissed.



                                         INDERMEET KAUR, J

MARCH 07, 2014
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