Delhi High Court
Smt.Bulbul vs State on 18 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No.573/2001
Judgment reserved on : 24th October, 2017
Date of decision : 18th December, 2017
SMT.BULBUL ..... Appellant
Through: Mr. Sunil Tiwari, Advocate
versus
STATE ..... Respondent
Through: Mr. Panna Lal Sharma, APP
for State with SI Prakash
Chand, PS Kotwali.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The present appeal was filed by the appellant Smt.Bulbul W/o
Sh. Raju against the impugned judgment dated 29.5.2001 of the then
learned Additional Sessions Judge, Special Court under the NDPS
Act, Delhi in Sessions case No.5/2000 in relation to FIR no.628/99,
Police Station Kotwali under Section 21 of the NDPS Act, 1985
whereby she was convicted for the proved commission of the offence
of possession of 10 grams of Heroin and was thus convicted under
Section 21 of the NDPS Act, 1985.
2. The appellant has assailed the impugned order on sentence
dated 31.5.2001 in the said case whereby she was sentenced to
undergo rigorous imprisonment of 10 years and to pay a fine of
Rs.1,00,000/- and in default of the payment of the said fine she was
further directed to undergo rigorous imprisonment for one year.
3. Written synopsis on behalf of either side were submitted.
However, during the course of the submissions made on 24.10.2017 it
was submitted by the learned counsel for the appellant that the
appellant no more challenges the finding vide the impugned judgment
whereby she was convicted for the commission of an offence
punishable under Section 21 of the NDPS Act having been held to
have been found in possession of 10 gms of Heroin. It was thus
submitted on behalf of the appellant that the appellant now challenges
the sentence for a period of 10 years imposed upon her vide order on
sentence dated 31.5.2001 submitting to the effect that there has been
an amendment in the NDPS Act, 1985, whereby there has been a
rationalization of the punishment structure under the NDPS Act, 1985,
by providing graded sentences limited to the quantity of the narcotic
drugs or psychotropic substance carried.
4. Vide order dated 24.10.2017, the nominal roll of the convict
was called for from the Jail which has since been received. The
nominal roll dated 27.10.2017 received from the Superintendent,
Central Jail No.6 Tihar, New Delhi indicates that the appellant has
undergone a period of 3 years 9 months and 5 days on the date
27.10.2017 and has thus now as on 18.12.2017, the appellant has
undergone 3 years 11 months and 21 days of rigorous imprisonment.
The fine imposed of Rs.1,00,000/- has not yet been deposited by the
convict. The nominal roll indicates that the overall jail conduct of the
appellant is satisfactory as per the jail record and that the appellant is
on bail in FIR No.628/94, Police Station Kotwali under Section 61 for
an offence punishable under the Punjab Excise Act, 1914.
5. In view of the submissions that have been made on behalf of the
appellant and the State, it is essential to observe that the date of
commission of the offence in the instant case when the
appellant/convict was found in possession of 10 gms of Heroin was
27.10.1999. As on the said date Section 21 of the NDPS Act, 1985
read to the effect:
"Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (original)
Whoever, in contravention of any provision of
this Act, or any rule or order made or condition
of licence granted thereunder manufactures,
possesses, sells, purchases, transports, imports
inter-State, exports inter-State or use any
manufactured drug or any preparation
containing any manufactured drug shall be
punishable 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."
6. With effect from 2.10.2001 in view of the NDPS(Amendment)
Act, Section 9 of 2001 Sections 21 as it stands w.e.f. 2.12.2001 is as
under under:
"Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (amended)
21. Punishment for contravention in relation to
manufactured drugs and preparations.--
Whoever, in contravention of any provision of
this Act or any rule or order made or condition
of licence granted thereunder, manufactures,
possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses any
manufactured drug or any preparation
containing any manufactuered drug shall be
punishable,---
(a) where the contravention involves small
quantity, with rigorous imprisonment for a term
which may extend to six months, or with fine
which may extend to ten thousand rupees, or
with both;
(b) where the contravention 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) where the contravention 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. The Statement of Objects and Reasons
concerning the Amending Act of 2001 is as
follows :
"Narcotic Drugs and Psychotropic Substance
Act, 1985 provides deterrent punishment for
various offences relating to the illicit trafficking
in narcotic drugs and psychtropic substances.
Most of the offences invigte uniform punishment
of minimum ten years; rigorous imprisonment
which may extend upto 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.""
7. As observed by the Hon'ble High Court in E Micheal Raj v.
Intelligence Officer, Narcotic Control Bureau; 2008 AIR(SC) 1720
the amending Act which rationalizes the punishment structure under
the NDPS Act provided graded sentences linked to the quantity of the
narcotic drugs or psychotropic substances carried and changed the
sentence structure drastically whereby Section 2(xxiii a) defined
'small quantity' and Section 2(vii a) defined 'commercial quantity' as
follows:
"Section (viia) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (amended)
(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;"
And Section 2(xxiii a) of the NDPS Act, 1985
(Amended) w.e.f. 2.10.2001 reads as follows:
"Small quantity", in relation to narcotic drugs
and psychotropic substances, mean any
quantity lesser than the quantity specified by
the Central Government by notification in the
Official Gazette."
8. As per Entry 56 of the Notification issued vide S.O(E) dated
19.10.2001 issued by the Central Government which deals with
Heroin, small quantity thereof has been mentioned as 5 gms and
commercial quantity thereof has been mentioned as 250 gms.
9. In the instant case, the appellant has been found in possession of
10 gms of Heroin, i.e., 'diacetylmorphine' if grouped in terms of Entry
56 of the notification dated 19.10.2001 issued by the Central
Government. In terms of Section 21 Sub-Clause (b) of the NDPS Act,
1985 as it now stands w.e.f. 2.10.2001 where the contravention
involves quantity lesser than the commercial quantity but greater than
the small quantity, the offence of possession of any manufactured drug
or any preparation containing any manufactured drug is punishable
with rigorous imprisonment for a term which may extend to 10 years
and with a fine which may extend to one lakh rupees.
10. The NDPS Act, 1985 as it stood prior to 2.10.2001 provided
punishment for the offence of illicit trafficking in narcotic drug or
psychotropic substances whereby most of the offences invited uniform
punishment of minimum 10 years of rigorous imprisonment which
could extend upto twenty years.
11. Heroin is a manufactured drug and is an opium derivative as per
Section 2(xvi) (e) of the NDPS Act, 1985 which says that all
preparations containing more than 0.2. per cent of morphine or
containing any diacetylmorphine is an opium derivative. Further
according to Section 2(xi), all opium derivatives fall under the
category of manufactured drug. The possession of the opium
derivative which in the instant case is a manufactured drug is
prohibited under Section 8 of the NDPS Act, 1985, and thus
punishable under Section 21 thereof as observed vide para 11 of the
verdict of the Supreme Court in E. Micheal Raj (supra):
"11. In the present case, the opium derivative
which has been found in possession of the
accused-appellant is prohibited under Section 8
of the NDPS Act and thus punishable under
Section 21 thereof. The question is only with
regard to the quantum of punishment."
12. As observed by the Supreme Court, the intention of the
Legislature for introduction of the Amendment to the NDPS Act, 1985
was to punish the people who committed less serious offences with
less serious punishment and those who committed trafficking with
more severe punishment. In the case of E.Micheal Raj (supra), the
appellant therein as per the analyst report was found in possession of
60 gms that is more than the small quantity but less than 250 gms i..e.,
the commercial quantity and thus vide paragraph 17 and 18 of the
verdict of the Supreme Court, it was observed as under:
"17. In the present case, the narcotic drug
which was found in possession of the appellant
as per the Analyst's report is 60 gms. which is
more than 5 gms., i.e. small quantity, but less
than 250 gms., i.e. commercial quantity. The
quantity of 60 gms. is lesser than the
commercial quantity, but greater than the small
quantity and, thus, the appellant would be
punishable under Section 21(b) of the NDPS
Act. Further, it is evident that the appellant is
merely a carrier and is not a kingpin.
18. In these circumstances, the ends of justice
would be subserved if we reduce the sentence of
the accused-appellant to 6 years rigorous
imprisonment with fine of Rs. 20,000/- and in
default of payment of fine rigorous
imprisonment for six months. We order
accordingly.",
thus upholding the appellant to be punishable under Section 21(b) of
the NDPS Act, 1985 i.e., for the intermediate quantity and in the facts
and circumstances of that case, the sentence of the appellant therein
which was of 10 years of rigorous imprisonment plus a fine of
Rs.1,00,000/- was reduced to a sentence of six years of rigorous
imprisonment with a fine of Rs.20,000/- and in default of the payment
of the fine to rigorous imprisonment for a period of six months.
13. It is essential to observe that the commission of the offence
under Section 21 of the NDPS Act, 1985, in the instant case was on
the date 27.10.1999, i.e., prior to the date 2.10.2001 when the
amendment was introduced to the NDPS Act, 1985 defining
commercial quantity and small quantity of the narcotic drug or
psychotropic substance and creating punishments therefor.
14. As a consequence, qua the retrospective application of the
amendment so made whereby graded punishment has been provided
for commission of the offence punishable under the Section 21 of the
said enactment, it was submitted on behalf of the appellant and
conceded on behalf of the State that in view of the verdict in E
Micheal Raj (supra), the Amendment Act No.9 of 2001 though in
operation w.e.f. 2.10.2001 was in substance retrospectively applicable
in view of the verdict of the Supreme Court in E.Micheal Raj (supra)
wherein the accused therein was found in possession of the narcotic
drugs on the dated 5.3.2001 i.e. prior to the date 2.10.2001.
15. Thus, as it is apparent that the verdict of the Supreme Court in
E. Micheal Raj (supra) relates to the commission of an offence on the
date 2.3.2001 on which date the amendment Act had yet to take effect.
16. Notification NO.SO-1055(E) dated 19.10.01 issued by the
Central Government is as follows:
NOTIFICATION SPECIFYING
SMALL QUANTITY AND COMMERCIAL QUANTITY
In exercise of the powers conferred by clauses (viia) and (xxiiia) of section 2 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in
supersession of Ministry of Finance, Department of Revenue Notification S.O. 527
(E) dated 16th July, 1996, except as respects things done or omitted to be done
before such supersession, the Central Government hereby specifies the quantity
mentioned in columns 5 and 6 of the Table below, in relation to teh narcotic drug
or psychotropic substance mentioned in the corresponding entry in columns 2 to 4
of the said Table, as the small quantity and commercial quantity respectively for the
purposes of the said clause of that section.
17. TABLE
18. [See sub-clause vii(a) and xxiii(a) of section 2 of the Act]
Sl No. Name of Narcotic Drug and Other non- Chemical Name Small Quantity Commercial
Psychotropic Substance proprietary name (in gm.) Quantity (in
(International non-proprietary name gm./kg.
(INN)
. ................. ................. ................. ................. .................
. ................. ................. ................. ................. .................
. ................. ................. ................. ................. .................
.
................. ................. ................. ................. .................
.
. ................. ................. ................. ................. .................
. ................. ................. ................. ................. .................
. ................. ................. ................. ................. .................
. ................. ................. ................. .................
.................
56. Heroin Diacetylmorphine 5 250 gm.
. ........... ................. ................. ................. .................
. .............. ................. ................. ................. .................
. ........... ................. ................. ................ .................
. ........... ................. ................. ................. .................
. ........... ................. ................. .................. .................
239 Any mixture or preparation that of ................. * Lesser of the
with or without a neutral material, small quantity
of any of the above drugs. between the
quantities
given against
the respective
narcotic drugs
or psychotropic
substances
mentioned
above forming
part of the
mixture.
** Lesser of
the
Commercial
quantity
between the
quantities
given against
the respective
narcotic drugs
or psychotropic
substances
mentioned
above forming
part of the
mixture.
19. As per Clause (vii a) and clause (xxiii a) of Section 2 of the
NDPS Act, 1985, Heroin, a narcotic drug was held to be in a small
quantity upto 5 gms and to be a commercial quantity if it exceeded
250 gms.
20. Thus in the instant case also, where the appellant was found in
possession of 10 gms of Heroin which is a much lesser then 250 gms
of Heroin, it is considered appropriate to allow the prayer made by the
appellant seeking reduction of the period of sentence and thus the
appellant who has been sentenced to 10 years of rigorous
imprisonment and a fine of Rs.1,00,000/- and has been in custody now
for 3 years 11 months and 21 days with satisfactory jail record is
allowed to be released on the period of detention already undergone
by her and to a fine of Rs.10,000/- and in default of payment of the
fine to rigorous imprisonment for a period of two months.
21. A copy of this judgment be sent to the Superintendent, Jail,
Delhi and be supplied to the appellant through Superintendent Jail,
Delhi.
ANU MALHOTRA, J.
DECEMBER 18, 2017/SV
