[Cites 13, Cited by 0]

Punjab-Haryana High Court

Sonu vs Ut Chandigarh on 10 March, 2026

                               IN THE HIGH COURT OF PUNJAB & HARYANA
                                           AT CHANDIGARH
           795
                                                          CRA-S-1970
                                                                  1970-2019 (O&M)
                                                          Date of decision: 10.03.2026

           Sonu                                                                     ...Appellant
                                                     VERSUS
           U.T. Chandigarh                                                        ...Respondent
           CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ

           Present :-           Mr. Robin Hooda, Advocate for the appellant.

                                Mr. Anil Kumar Lamdharia, Additional Public Prosecutor,
                                for respondent-U.T. Chandigarh.

                                                       *****

           VINOD S. BHARDWAJ,
                    BHARDWAJ J. (Oral)

CRM-19658-2023

Allowed, as prayed for, subject to all just exceptions.

Main case

The present appeal has been preferred against the judgment of

conviction and order of sentence dated 31.05.2019 passed by the Judge,

Special Court, Chandigarh in case arising from FIR No.146 dated

02.07.2018 registered under Section 22 of the Narcotic Drugs and

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

1985) at Police Station Maloya, Chandigarh whereby the petitioner was

convicted for the above offence and sentenced to undergo rigorous

imprisonment for a period of 10 years and to pay a fine in the sum of

Rs.1,00,000/- and in default thereof to further undergo rigorous

imprisonment of 02 years.

2. Succinctly stated, the facts giving rise to registration of the

795 CRA-S-1970-2019 (O&M)

present FIR are that on 02.07.2018, a police party comprising SI Ashok

Kumar, HC Sanjay Kumar, HC Rajesh Kumar, Senior Constable Mangat

and LC Manpreet Kaur was on routine patrolling duty in the area near

Shahpur Light Point, Chandigarh. While so patrolling, the police party

reached near the aforesaid location at about 7:55 p.m. At that juncture, a

man was noticed approaching from the side of DMC. Upon noticing the

presence of the police party, the said person turned back and began to move

away in a hurried manner, which aroused suspicion. Acting on such

suspicion that the said individual might be carrying stolen property or could

be involved in some form of criminal activity, the police party apprehended

him. Upon inquiry, the apprehended person disclosed his name as Sonu (the

appellant herein). A search of his person was thereafter conducted, during

which a polythene bag was found in his possession. Upon examination, the

said bag was found to contain 24 injections, namely 12 injections of

Buprenorphine of 2 ml each and 12 injections of Pheniramine Maleate of 10

ml each. It was further noticed that the batch numbers of the said injections

had been erased with a black ink. The accused was asked to produce any

valid licence, permit or authorization for possessing the aforesaid injections;

however, he failed to produce any such document to justify the possession of

the recovered contraband. Consequently, the above FIR came to be

registered.

3. Proceedings under Section 52-A of the Act were thereafter

conducted before Judicial Magistrate First Class, Chandigarh and the

recovered parcel containing 12 injections of Buprenorphine (2 ml each) and

12 injections of Pheniramine Maleate (10 ml each) was forwarded to the

795 CRA-S-1970-2019 (O&M)

Central Forensic Science Laboratory (CFSL), Chandigarh for chemical

examination. The CFSL report confirmed the presence of Buprenorphine

and Pheniramine salts in the said injections.

4. During the course of investigation, statements of the witnesses

were recorded under Section 161 of the Code of Criminal Procedure, 1973

(hereinafter referred to as Cr.P.C.) and upon completion of the usual

formalities, a report under Section 173 Cr.P.C. was presented before the

Court. Thereafter, compliance of Section 207 Cr.P.C. was effected by

supplying copies of the challan and the documents relied upon by the

prosecution to the accused, free of cost.

5. Upon consideration of the material placed on record and finding

that a prima facie case was made out, the Trial Court framed charges against

the appellant under Section 22 of the Act of 1985, on 13.07.2018, to which,

he pleaded not guilty and claimed trial

6. Prosecution examined as many as 07 witnesses to prove the

recovery from the petitioner. The same are briefed as under:-

a. PW-1, MMHC Head Constable Sanjiv Kumar, deposed

regarding the link evidence, stating that on 02.07.2018,

Inspector/SHO Baldev Kumar, vide entry No. 320, deposited one

sealed parcel containing 24 injections (12 Buprenorphine and 12

Pheniramine Maleate) bearing seals 'S' and 'BK', along with the

sample seal, in the Malkhana. He further stated that on 03.07.2018,

the parcel was produced before Ms. Nazneen Singh, JMIC,

Chandigarh by SI Dalip Singh, where it was opened for inventory,

verification, and photography, and thereafter re-sealed with the seal

795 CRA-S-1970-2019 (O&M)

'NS', with a sample seal of 'NS' prepared by the Court, and

deposited again in the Malkhana in intact condition. He further

proved that on 11.07.2018, the parcel sealed with 'NS' was handed

over to Constable Mangat for deposit at CFSL, who returned the

receipt the same day, and also proved the relevant Malkhana entry

in Register No. 19 (Ex. P1).

b. PW-2, Senior Constable Mangat Singh, proved the link evidence

regarding the deposit of the sample parcel with CFSL, Chandigarh.

He deposed that on 11.07.2018, AMMHC Surinder Kumar handed

over to him one parcel sealed with the seal 'NS', along with the

relevant documents and sample seal, vide RC No. 50/2018, for

deposit at CFSL. He further stated that he deposited the parcel at

CFSL in intact condition and thereafter returned the receipt to

AMMHC Surinder Kumar on the same day.

c. PW-3, SI Dalip Singh, the Investigating Officer, deposed that on

02.07.2018 at about 9:38 p.m., he received information from MHC,

PS Maloya directing him to reach near Karan Taxi Stand, DMC,

Chandigarh, where SI Ashok Kumar along with other police

officials had apprehended the accused Sonu with 24 injections (12

Buprenorphine and 12 Pheniramine). Upon reaching the spot at

about 9:50 p.m., SI Ashok Kumar handed over to him the accused,

one sealed parcel bearing the seal 'S', the sample seal, test memo

(Ex. P-2A), and recovery memo (Ex. P-3). The accused was

interrogated and formally arrested and his personal search was

conducted vide memos Ex. P-4 and Ex. P-5. Meanwhile, Constable

795 CRA-S-1970-2019 (O&M)

Mangat Singh returned to the spot with the ruqa (Ex. P-6) and copy

of the FIR (Ex. P-7). The witness thereafter inspected the place of

occurrence and prepared the rough site plan (Ex. P-8). After

completing the proceedings at the spot, he produced the accused

and case property before Inspector/SHO Baldev Kumar at PS

Maloya, who verified the recovery and affixed his seal 'BK' on the

parcel and sample seal, after which the case property was deposited

with the MMHC. He further deposed that on 03.07.2018, the sealed

parcel and sample seal were produced before Ms. Nazmeen Singh,

JMIC, Chandigarh, for certification of inventory, whereupon the

Magistrate prepared and sealed the parcel with seal 'NS', and the

proceedings were documented through applications and inventory

(Ex. P-9, Ex. P-10), court order (Ex. P-11) and photographs (Ex. P-

12 and Ex. P-13). The sealed parcel was thereafter sent to CFSL

through Constable Mangat Singh on 11.07.2018 and the CFSL

report (Ex. P-2) was received during investigation. He further

stated that the statements of witnesses were recorded, and upon

completion of investigation, the challan was prepared by Inspector

Baldev Kumar, whose signatures he identified.

d. PW-4, SI Ashok Kumar, deposed that on 02.07.2018, while he

along with HC Sanjay Kumar, HC Rajesh Kumar, Senior

Constable Mangat Singh, and LC Manpreet Kaur was on patrolling

duty near Karan Taxi Stand/Shahpur Light Point, Chandigarh, the

accused Sonu was noticed coming from the side of DMC and, upon

seeing the police party, attempted to retreat hurriedly, which

795 CRA-S-1970-2019 (O&M)

aroused suspicion. The accused was apprehended and, upon search,

a polythene bag containing a blue carry bag was recovered from his

possession, which was found to contain 24 injections (12

Buprenorphine 2 ml each and 12 Pheniramine Maleate 10 ml each),

with their batch numbers erased with black ink. As the accused

failed to produce any valid licence or permit, the injections were

seized, sealed with the seal 'S', and taken into possession vide

seizure memo (Ex. P-14), with a sample seal and test memo (Ex. P-

2A) prepared at the spot. Thereafter, the ruqa (Ex. P-6) was sent

through Senior Constable Mangat Singh for registration of the FIR

and information was conveyed to the police station for deputing the

second Investigating Officer. SI Dalip Singh subsequently reached

the spot, to whom the accused, case property and documents were

handed over vide memo (Ex. P-3); the site plan (Ex. P-8) was

prepared, the accused was arrested (Ex. P-4) and personally

searched (Ex. P-5). After completion of proceedings at the spot, the

police party produced the accused and sealed parcel before

Inspector/SHO Baldev Kumar, who verified the recovery, affixed

his seal 'BK' on the parcel and sample seal and deposited the case

property with the MMHC for further proceedings.

e. PW-5, Constable Surinder Kumar, proved the link evidence

relating to the transmission of the sample parcel. He deposed that

on 11.07.2018, on the instructions of the Investigating Officer, he

handed over one parcel sealed with the seal 'NS', containing the

injections, to Constable Mangat Singh vide RC No. 50/18 for

795 CRA-S-1970-2019 (O&M)

deposit at CFSL. He further produced and proved the relevant entry

in Register No. 19 (Ex. P-1) and stated that after depositing the

parcel at CFSL, Constable Mangat Singh returned the receipt to

him on the same day.

f. PW-6 Head Constable Rajesh Kumar corroborated version of

prosecution in his testimony being recovery witness and deposed

on the lines of PW-3 and PW-4.

g. PW-7, Inspector Baldev Kumar, deposed that on 02.07.2018 at

about 11:54 p.m., SI Dalip Singh produced the accused Sonu,

along with police officials and a sealed parcel bearing seal 'S' at

two places, containing 12 injections of Buprenorphine (2 ml each)

and 12 injections of Pheniramine (10 ml each). He stated that after

verifying the facts of recovery, he affixed his seal 'BK' on the

parcel and the sample seal and thereafter deposited the case

property along with the sample seal in the Malkhana with MMHC

Sanjeev Kumar.

7. The learned Public Prosecutor tendered in evidence the CFSL

report (Ex. P-2), the same being admissible under Section 293 of the Code of

Criminal Procedure, and thereafter closed the prosecution evidence.

8. Upon the closure of the prosecution evidence, the statement of

the appellant-accused under Section 313 of Cr.P.C. was recorded, wherein

all the incriminating circumstances appearing in the prosecution evidence

were put to him. The appellant-accused denied the said allegations, claiming

that he had been falsely implicated and that no contraband was recovered

from his possession. He further asserted that the alleged recovery had been

795 CRA-S-1970-2019 (O&M)

falsely planted and that a fabricated case had been set up against him by

creating false evidence. The appellant-accused, however, did not lead any

evidence in defence.

9. Upon appreciation of the evidence on record and consideration

of the submissions advanced on behalf of the parties, the Trial Court held the

appellant guilty, having found him to be in conscious possession of 12

injections of Buprenorphine without any valid licence or permit.

Consequently, he was convicted for the offence punishable under Section 22

of the Act of 1985 and vide order dated 31.05.2019 sentenced to undergo

rigorous imprisonment for a period of 10 years and to pay a fine of

Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous

imprisonment for a period of two years. Aggrieved thereby, the present

appeal has been preferred.

10. Learned counsel for the appellant submits that the appellant has

been falsely implicated in the present case and that there are numerous

discrepancies in the testimonies of the prosecution witnesses. It is further

contended that although certain Buprenorphine injections were allegedly

recovered, the CFSL report does not specify the percentage of

Buprenorphine in the mixture and therefore the entire quantity seized would

not automatically be treated as a prohibited contraband. Counsel further

submits that the appellant was then a young man but a drug addict and that

Buprenorphine had been prescribed to him by medical practitioners, a fact

which also stood reflected during the medical examination conducted at the

time of his admission to prison after his conviction. It is also contended that

during that period, several minor criminal cases had been registered against

795 CRA-S-1970-2019 (O&M)

the appellant, primarily arising out of his drug dependency. Learned counsel

submits that subsequent to his conviction in the present case, the appellant

has undergone de-addiction therapy and intends to re-integrate into the main

frame of the society. He has since married and is presently blessed with two

children.

11. On an earlier date of hearing before this Court i.e. 25.02.2026,

counsel for the appellant had made a reference to the substitution therapy

programme, which the appellant had been undergoing since 12.09.2014, i.e.,

prior to the registration of the present FIR. As per the OST File, the

appellant had been regularly prescribed Buprenorphine tablets; however, he

remained absent from the programme with effect from 07.10.2015,

reportedly on account of convulsions and withdrawal symptoms. It is

contended that, being a heroin addict, the appellant experienced severe

withdrawal symptoms and was consequently advised Buprenorphine

injections. Counsel further submits that even after his admission to prison,

the appellant continued to receive treatment for de-addiction and was

prescribed opioids.

12. Noticing the above argument, the counsel for respondent-U.T.

Chandigarh was directed to verify the said aspect and to file the medical

report of the appellant herein.

13. In compliance with the aforesaid direction, the medical report

along with the medical history of the appellant was placed on record by the

respondent. The relevant extract thereof reads as under:

"Subject: Regarding medical report of convicted prisoner Sonu s/o Ramesh confined in Model Jail, Chandigarh.

795 CRA-S-1970-2019 (O&M)

It is submitted that convicted prisoner Sonu s/o Ramesh admitted in Model Jail, Chandigarh on 06.10.2022 in case FIR No. 129 dated 05.10.2022 under section 21 NDPS ACT, P.S., Maloya, Chandigarh. During health screening of prisoner at the time of admission, he disclosed that he was a known a case of heroine addict. As per record, he disclosed to visiting Psychiatrist from GMCH, Sector-32, Chandigarh that he was taking intravenous injections before his admission in jail. Now he is inside the jail more than three years. He complained of alleged intake of Tablet Adnok/Opoid Derivative and body pains/withdrawls to visiting Psychiatrist. He was diagnosed as a case of F 60 with IDU for which he was advised treatment i.e., Tablet Clonidine 0.1 mg. Tablet Olanazpine 5 mg, tablet Tapantadol Tablet Diclofenac and Tablet Carbamazepine 200 mg for one week on 30.10.2024. On 08.11.2024, he was again examined by the visiting Psychiatrist from GMCH. Sector-32, Chandigarh who advised Tablet Olanazpine 5mg, Tablet Carbamazepine 200 mg and Tablet Clonidine 0.1 mg to continue along with Tablet B Complex and Tablet Vitamin C which was provided to him from the jail dispensary.

Thereafter he never complained regarding drug intake body pain and he never showed himself to the visiting Psychiatrist. He was tested negative for HIV, Hepatitis B & C viruses. He was released on 28 days parole from 28.01.2026 to till date. He was also counseled by the Clinical Psychologist posted in jail. He was doing well in jail and there was no loss of appetite/weight loss/ drug withdrawls or jaundice. It is further submitted that the jail administration is committed to ensuring the well-being of all individuals in our custody and is adhering to all necessary medical protocols. Photo copy of the medical record is enclosed. This is for your information and further necessary action please."

14. It is evident from a perusal of the aforesaid report that the

795 CRA-S-1970-2019 (O&M)

respondent-U.T. Chandigarh has not disputed that the appellant was a heroin

addict at the time of commission of the alleged offence and that prior to his

admission to jail, the appellant had disclosed a history of intravenous drug

use, including the use of injections. The report submitted by the jail

authorities also indicates that the appellant is presently stable and doing well

in custody, with no reported loss of appetite, weight loss, drug withdrawal

symptoms, or jaundice, and that his overall health and well-being have been

adequately monitored and attended to by the prison medical staff, with the

assistance of appropriate medical treatment. It is further evident from the

medical material placed on record that during the course of treatment, the

appellant was placed on substitution therapy, wherein opioid derivative

tablets were administered in place of the Buprenorphine injections which he

had earlier been consuming intravenously. The medical record thus lends

support to the argument that the appellant was suffering from drug

dependence and was undergoing treatment for the same. In the light of the

aforesaid circumstances and having regard to the medical history of the

appellant as well as the nature of the material placed on record, the

submission advanced on behalf of the appellant that he was not engaged in

drug trafficking or smuggling but was, in fact, a drug-dependent individual

and that his case ought appropriately to have been considered under Section

27 of the Act of 1985, which specifically deals with punishment for

consumption of narcotic drugs or psychotropic substances for personal use,

merits due consideration.

15. Per contra, learned Additional Public Prosecutor submits that a

recovery of 12 injections of Buprenorphine had been effected from the

795 CRA-S-1970-2019 (O&M)

appellant. He, however, fairly does not dispute the medical report placed on

record, establishes that the appellant was a heroin addict at the time of his

admission to jail and that he has since undergone treatment while in custody.

It has further been reported that the withdrawal symptoms have now

subsided, and that the appellant has successfully undergone de-addiction and

seeks to reintegrate into society. It is also not disputed that the appellant has

already undergone an actual sentence of more than 04 years and 05 months.

16. I have heard counsel appearing on behalf of the respective

parties and have gone through the documents appended alongwith the

present appeal.

17. It is evident from the additional document i.e. the medical

report pertaining to the appellant herein, which has been filed by the

respondent-U.T. Chandigarh, that the appellant was indeed suffering from

drug dependence and was a heroin addict at the time of his arrest in the

present case and also including around the period of his conviction.

Additionally, it also transpires that the appellant had been undergoing de-

addiction treatment, during which opioid derivatives were administered to

him as part of substitution therapy. It is significant to note that

Buprenorphine itself is an opioid derivative, widely used in opioid

substitution therapy for the treatment of heroin addiction. The same is used

to treat for opioid use disorder as it reduces withdrawal symptoms and

cravings while Buprenorphine is safer than other opioids, it is still addictive

and can cause withdrawals if stopped abruptly. The photocopy of the

medical record produced by the respondent-U.T. Chandigarh, which is taken

on record as Mark 'X', pertains to the year 2015, i.e., prior to the registration

795 CRA-S-1970-2019 (O&M)

of the FIR in the present case, and clearly indicates that the appellant had

been prescribed Buprenorphine on a daily dosage basis as a part of his

medical treatment. The said document thus lends considerable and credible

support to the factual position that the appellant had been undergoing

treatment for drug dependence even prior to the recovery in the present case.

In the said circumstances, the version put forth by the appellant that the

appellant was not a drug peddler or a participant in the illicit trade of

narcotic or psychotropic substances and was rather a drug-dependent

individual consuming such substances owing to his addiction, hence his case

ought to be dealt under Section 27 of the Act of 1985, seems to be plausible.

The medical history produced before this Court indicates that the appellant

was himself a victim of drug abuse and that the substance recovered from

him was consistent with the medication prescribed for the management of

opioid dependence.

18. A crucial question which now arises is as to whether the

document placed on record by the prosecution itself should be taken into

consideration or not?

19. In this regard reference may be made to Section 391 of Cr.P.C.

The same reads thus:

"391. Appellate Court may take further evidence or direct it to be taken.--

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of

795 CRA-S-1970-2019 (O&M)

Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

20. It is evident from the above that the above section empowers

Appellate Court to take further evidence at an additional stage if that

evidence is necessary. The guiding principle always has been the interest of

justice so that no travesty is caused. Section 391 Cr.P.C. does not impose

any restriction as to when additional evidence is to be taken. The use of

expression 'necessary' does not connote existence of an exigency as would

render judgment impossible but even when there is likelihood of failure of

justice, if additional evidence is not accepted. Where only a formal proof of

a document is required and the evidence, available on record, is likely to

have a material impact on the rights of the accused, lapses by the counsel,

should not stand in the way of justice. The object behind the provision is to

sub-serve interest of justice.

21. This Court, while considering the above document, is also

conscious of the fact that even though the provision is not meant to fill in a

lacunae in prosecution but it certainly can be invoked where lack of a proper

defence by the defence counsel is apparent. Some premium needs to be

extended to such addicts who belong to marginalized and socio-

economically disadvantaged sections of society, as they often lack access to

a quality legal assistance. Given the limited resources at their command,

cause of justice is one likely to be sacrificed as it gets negligible priority by

795 CRA-S-1970-2019 (O&M)

even the defence counsel.

22. Since the documentary evidence i.e. the status report has been

filed by the prosecuting agency itself, hence, there is no reason not to allow

such evidence.

23. Even otherwise, it is least expected of an investigating agency

to have investigated the above aspect, when documents clearly suggested of

the appellant as an addicted consumer and to have suitably filed the final

report, as per thorough and comprehensive investigation and not just an

incarcerating final report carrying maximum sentence.

24. The role of the police is not just that of a punishing/prosecuting

agency but is that of a responsible agency for administration of justice.

Hence, even as a prosecuting agency, its role is pursuit of justice.

25. The medical record produced by the respondent-U.T.

Chandigarh, corroborates the arguments that the appellant was a consumer

suffering from opioid addiction and was undergoing treatment for the same,

rather than being a person engaged in trafficking, sale or distribution of

psychotropic substances.

26. It would now be apposite to refer to the relevant provisions of

the Act of 1985, that have a bearing on the controversy involved in the

present case. The same are extracted as under:

"22. Punishment for contravention in relation to psychotropic substances.--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 psychotropic substance shall be punishable,--

(a) where the contravention involves small quantity, with

795 CRA-S-1970-2019 (O&M)

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) 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.

xxxxxxxx xxxxxxx xxxxxxx

27. Punishment for consumption of any narcotic drug or psychotropic substance.--Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,--

(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and

(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both."

27. Section 22 of the Act of 1985 is primarily attracted where a

person is found to be in possession of the psychotropic substances for illicit

trafficking and trade. It thus prescribes punishment based upon the quantity

795 CRA-S-1970-2019 (O&M)

in possession.

28. The said legislative intendment flows from a harmonious and

meaningful construction of Section 22 and 27 of the Act of 1985.

'Possession' is a pre-condition for commission of offence under Section 22

and a necessary pre-requisite for consumption, as conceived under Section

27 of the Act of 1985. Significantly, Section 27 of the Act of 1985 does not

specify sentencing on quantification but on the class of drug abuse. The

legislative focus, for a drug addict, was not punitive but reformative. Hence,

despite prescribing a quantity based punishment structure for offence under

Section 22 of the Act of 1985, it refrained from imposing any such quantity

based structural punishment under Section 27 of the Act of 1985. The

legislature was undoubtedly conscious that there ought to be possession even

for consumption, yet, carved out a separate class of offence for the addicts.

Hence, for a harmonious construction and interpretation of Section 22 and

27 of the Act of 1985, a person who is an addict and hence in possession of

the contraband ought to be excluded from Section 22 as this is a specific

class of offenders as compared to the general term "possession". The

distinction thus has to be on the basis of purpose behind possession. When

the same is for own consumption it is to be tried as offence under Section 27

of the Act of 1985 otherwise under Section 22 of the Act of 1985.

29. Although the provision expressly penalizes 'consumption' and

does not employ the phrase "possession for personal consumption," it would

be neither logical nor legally sound to interpret the provision in a manner

divorced from the practical realities of drug use. Consumption of a narcotic

or psychotropic substance necessarily presupposes temporary possession of

795 CRA-S-1970-2019 (O&M)

the substance by the consumer prior to its use. Therefore, the provisions of

the Act must be interpreted harmoniously so as to give effect to the

legislative intent underlying both Sections 22 and 27 of the Act of 1985.

30. Under circumstances where the possession is attributable to

personal use by a drug-dependent individual and the surrounding facts

indicate consumption rather than trafficking, the matter would more

appropriately fall within the scope of Section 27 of the Act of 1985. To hold

otherwise would lead to an anomalous situation where a drug-dependent

individual apprehended with a substance intended for his own consumption

would automatically be subjected to the more stringent provisions of Section

22, merely because such possession is a pre-requisite for consumption. Such

an interpretation would defeat the legislative scheme which consciously

distinguishes between drug traffickers and drug addicts, the latter category

being treated with a comparatively reformative approach under the statute.

31. Accordingly, in the facts and circumstances of the present case,

where the material on record indicates that the appellant was a drug-

dependent person and the possession was linked to personal consumption

rather than illicit trafficking, the case deserves to be considered within the

framework of Section 27 of the Act of 1985 rather than under Section 22 of

the Act of 1985 thereof.

32. The Supreme Court in the case of Ouseph vs State of Kerala

reported as (2004) 4 SCC 446 has held that merely because an accused has

primarily contested the charge framed against him under Section 22 of the

Act of 1985, he is not precluded from subsequently invoking the benefit of

Section 27 of the Act, if the material on record indicates that the substance

795 CRA-S-1970-2019 (O&M)

was possessed for personal consumption rather than for trafficking or illicit

trade. The relevant extract thereof reads as under:

"9. Then the next question is whether this substance was possessed by him for personal consumption. As the accused had adopted a defence of repudiating the allegation against him, it may look that he cannot rely upon the alternative contention that it was possessed by him for personal consumption. It is too harsh to deny the accused-appellant a right to resort to the alternative contention. Merely because on legal advice, he has chosen one line of defence he cannot be precluded from reaching other defence available to him, particularly since the consequences visiting him are very serious. If the fact situation is sufficient for the court to satisfy that the small quantity in his possession was for personal consumption, he should not be denied the benefit of Section 27 of the NDPS Act."

33. The report submitted by the jail authorities further indicates that

the appellant has successfully undergone de-addiction and has now

completely withdrawn from the use of drugs. In the given circumstances and

established facts from the additional evidence, I am of the opinion that the

order of conviction needs to be modified. Accordingly, the conviction of the

appellant under Section 22 of the Act of 1985 is set aside for want of

necessary ingredients. Instead, the appellant is held guilty and convicted for

the offence punishable under Section 27 of the Act of 1985 and he is

sentenced to undergo the sentence for one year under Section 27(a) of the

Act of 1985.

34. Having held so, it is noticed that the sentence already undergone

by the appellant exceeds the sentence as above, hence, he is ordered to be