Raju Kandan Mudaliar v. The Intelligence Officer Directorate of Revenue Intelligence Chennai Zonal Unit, T.Nagar, Chennai – 17

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.04.2009 CORAM:THE HONOURABLE MR. JUSTICE S.TAMILVANANCRIMINAL APPEAL No.120 of 2007and M.P.No.1 of 2007Raju Kandan Mudaliar ... AppellantVs.State by:The Intelligence OfficerDirectorate of Revenue IntelligenceChennai Zonal Unit, T.Nagar,Chennai – 17R.R.No.2 of 2003.. RespondentCriminal Appeal filed under Section 374 (2) of the CriminalProcedure Code against the judgment dated 06.08.2004 made inC.C.No.155 of 2003 on the file of learned Principal Special Judge,Special Court under E.C. and NDPS, Chennai.For Appellant : Mr. T.K.Sampath, forM/s. T.K.Sampath AssociatesFor Respondent : Mr. N.P.Kumar, Spl.P.P., DRI CasesJ U D G M E N TThe above Criminal Appeal has been preferred against thejudgment of conviction and sentence, dated 06.08.2004, made inC.C.No.155 of 2003, on the file of the learned Principal SpecialJudge, Special Court under E.C. and NDPS Act, Chennai.2. The appellant herein is the accused in the case before thetrial court and after the trial, he was convicted under Sections 8(c) read with 21 and 29 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (61 of 1985) (hereinafter referred to as "theNDPS Act") and sentenced to undergo ten years RigorousImprisonment and to pay a fine of Rs.1 lakh and in default ofpayment of fine amount, he shall undergo a further period of sixmonths Rigorous Imprisonment. Aggrieved by which, the convictedaccused has preferred this appeal. https://hcservices.ecourts.gov.in/hcservices/

3. Heard both sides.4. Mr. T.K.Sampath learned counsel appearing for theappellant submitted that though the alleged seized contraband isstated as a commercial quantity by the respondent, as per thechemical analysis report, in the light of the decisions renderedby the Hon 'ble Apex Court, the same weighing 54 grams, could beconstrued only less than the commercial quantity as per the NDPSAct, but the same was not legally considered by the Court below.Learned counsel further contended that there was a non-complianceof the provisions of Section 42 (2) of the NDPS Act. According tothe learned counsel, the information received by the Officer wasnot recorded and submitted to his immediate superior Officer;though the Intelligence Report-Ex.P-1 was the basis for theinterception, search of the appellant and recovery of contraband,on account of the infirmities found in it, the same could not havebeen relied upon by the Court below; similarly, the inventory ofthe article or clothings found in the bag, in which contraband wasalleged to have been kept, was not taken to show that the bagbelongs to the appellant and further the independent witnesses whowere examined on the side of the prosecution did not support theprosecution case and therefore the testimonies of officialwitnesses cannot be relied upon for want of independentcorroboration to convict the accused; similarly the test of thesample packet sent for chemical analysis cannot be relied uponbecause of the difference in weight of the samples taken andsamples tested in the laboratory; with the aforesaid grounds thelearned counsel for the appellant pleaded that the appellant /accused could have been acquitted by giving the benefit of doubtand also on the ground of non-compliance of mandatory provisionsof the NDPS Act.5. Per contra, the learned Special Public Prosecutor for DRICases appearing for the respondent submitted that the prosecutionhas proved and established the case against the appellant /accused only as per the law. As per the prosecution case, based onan information, the accused was intercepted at Perambur RailwayStation while he alighted from Mumbai – Chennai Express at CoachNo.S-3 and on search of the black colour Zipper Bag with a brandname "Polo Santa Roberta", which was found in possession of theaccused, it was brought to light that it contained 1.500 kgs ofbrown colour powder suspected to be heroin, a narcotic drug; thesaid 1.500 kgs were found in two packets weighing about 1.00 kgand 500 gms powder respectively wrapped and concealed in a towel.However, the sample drawn from the packet weighing about 500 gmswas found to be a non-heroin substance and from the pocketweighing about 1.00 kg sample, on analysis, it was found that itcontained Diacetyl Morphine (Heroin) for which a case underSections 8 (c) read with 21 and 29 of the NDPS Act was registered. https://hcservices.ecourts.gov.in/hcservices/

6. In order to establish the prosecution case, 10 witnesseswere examined on the side of the prosecution apart from marking 27exhibits and 5 MOs. Considering the evidence available on recordand the arguments advanced by the learned counsel on both sides,the Court found the appellant / accused guilty punishable underSections 8(c) read with 21 and 29 of the NDPS Act and accordingly,convicted and sentenced the appellant to undergo ten yearsRigorous Imprisonment for each count and to pay a fine of Rs.1lakh each and in default of paying the fine amount, to undergofurther period of six months Rigorous Imprisonment under eachSections. 7. P.W.1, i.e., the Intelligence Officer, Directorate ofRevenue Intelligence, Chennai, on the information gathered came toknow that the appellant / accused was carrying heroin, a narcoticdrug, accompanied by his wife with an infant and another maleperson to Chennai, in Mumbai – Chennai Express on the date ofoccurrence in Coach No.S-3 and would alight at Perambur RailwayStation, recorded the said information and the same was sent toP.W.8-the Assistant Director of DRI, Chennai. P.W.8-the AssistantDirector, also corroborated the evidence adduced by P.W.1 withregard to the information being reduced into writing and sent tohim for perusal and therefore the arguments advanced by thelearned counsel appearing for the appellant that the mandatoryprovisions under Section 42 (2) of the NDPS Act was not compliedwith, cannot be accepted.8. After ascertaining the arrival of Mumbai–Chennai Express,which was delayed by two hours, the Officers including P.W.1 andothers, went to Perambur Railway Station and requested P.W.9, whowas the station Master of the Peramblur Railway Station, and oneother independent witness for the proposed seizure of contrabandfrom the appellant / accused. As per the evidence available onrecord, while the appellant / accused alighted from Coach No.S-3of Mumbai – Chennai Express at about 16.30 hours, accompanied byhis wife with an infant and a male person, they were interceptedand enquired as to whether they were carrying narcotic drugs, thereply was in the negative. On a request the accused produced theJourney cum Reservation Ticket dated 18.01.2003 for Train No.6011Bombay – Chennai Express and he was carrying a jute carry bag anda black colour Zipper Bag with brand name "Polo Santa Roberta", onexamination it was found that the jute carry bag contained someeatables and personal clothings and on examination of the blackcolour Zipper Bag with brand name Polo Santa Roberta, the same wasfound containing personal belongings and toilet soaps, whileremoving the same, one turkey towel wrapped bundle was found whichcontained a packet of heroin powder. P.Ws.2 and 3 who wereIntelligence Officers of DRI also accompanied P.W.1 to Perambur https://hcservices.ecourts.gov.in/hcservices/ Railway Station and they deposed evidence on the same line ofevidence given by P.W.1 about intercepting and seizure of thecontraband. The evidence of P.Ws.2 and 3 corroborates the evidenceof P.W.1 with regard to the occurrence and seizure of thecontraband. As per the evidence, the prosecution has establishedthat the contraband was seized from the appellant / accusedproperly in the presence of witnesses as contemplated under theNDPS Act.9. P.W.4, who was the Assistant Chemical Examiner, CentralRevenue Laboratory, Customs House, Chennai, analysed the samples,which were received by him with a covering letter. According tohim, the samples had been received by him with seals intact in aproper condition and the sample packets were registered in thelaboratory in Lab No. 345 and Lab No.346; the sample packet of P-1and S-1, Lab No.345, weighing 2.560 gms and P-2 S-1, Lab No.346weighing 1.640 gms were returned by him after the chemicalanalysis. As per the evidence of P.W.4, the brown powder found inthe sample packets were analysed, as per the procedurecontemplated and as per the recommended methods, for testingheroin by National Narcotics Laboratory, United Nations.Accordingly, the sample packet P-1 S-1 Lab No.345 answeredpositive for heroin and another sample packet P-2 S-1 Lab No.346not answered as positive for heroin.10. In the cross examination, P.W.4 has categorically statedthat he has stated in the analytical report-Ex.P-13 that thepercentage of the heroin found was only 5.4 and hence, for theseized contraband, the contents of Diacetyl Morphine (Heroin)would be 54 gms. The substance found in the other sample, P-1 S-1Lab No.345 was not heroin, as per Ex.P.13, as contended by thelearned counsel appearing for the appellant. Hence, it is clearthat the contraband recovered from the appellant could beconstrued only as 54 gms of heroin, though the seized contrabandwas 1.5 Kgs.11. As per Section 21 (b) of NDPS Act, if the seized quantityof the contraband is less than the commercial quantity, thepunishment imposed shall be up to ten years and with a fine up toRs.1 lakh and therefore there is no minimum mandatory sentence, asit is less than the commercial quantity as contended by thelearned counsel appearing for the appellant. The seized quantityof heroin was 54 gms as per the evidence of P.W.4 and the chemicalanalysis report-Ex.P-13, hence, the same has to be construed bythis Court, only less than the commercial quantity.12. However, considering the evidence of the prosecutionwitnesses and the documents marked on the side of the prosecution,I am of the view that the guilt of the appellant / accused has https://hcservices.ecourts.gov.in/hcservices/ been proved, though the quantity of the contraband, as per law isonly 54 grams of heroin, which is less than commercial quantity,as contemplated under Section 21(b) of NDPS Act. Hence, I couldfind no error or infirmity in the conviction made by the Courtbelow in convicting the appellant / accused. Learned counselappearing for the appellant / accused submitted that the sentenceimposed on the appellant is disproportionately on the higher side.13. Learned counsel appearing for the appellant has alsoadvanced his arguments mainly with reference to the question ofsentence imposed on the appellant / accused. According to thelearned counsel, even if the Court holds that the guilt of theaccused is proved by the prosecution beyond reasonable doubt, thepunishment imposed on the appellant is disproportionate, in viewof the various judgments rendered by the Hon 'ble Apex Court. Insupport of his contention, the learned counsel relied upon thefollowing decisions of the Hon'ble Apex Court:-(i) State of NCT of Delhi vs Ashif Khan, 2009 (3) Scale 429and(ii) E.MICHEAL RAJ v. NARCOTIC CONTROL BUREAU, (2008) 5 SCC161 .14. In the decision reported in 2009 (3) Scale 429 (referredto supra) the Hon 'ble Supreme Court has held that in a mixture ofa narcotic drug or a psychotropic substance with one or moreneutral substance or the substances, the quantity of the neutralsubstance or substances shall not be taken into account, whileconsidering whether small quantity or a commercial quantity of thenarcotic drug or psychotropic substance is recovered but only theactual contents by weight of the narcotic drug or psychotropicsubstance as the case may be relevant for terminating whether itwould constitute a small quantity or commercial quantity andaccordingly upheld the decision of the High Court holding that itwas a small quantity and it would come under Section 21 (a) ofNDPS Act, and accordingly the appeal preferred by the State wasdismissed by the Apex Court.15. It is not in dispute that as per the Notification issuedby the Government of India, which deals with heroin, smallquantity has been mentioned as 5 gms and commercial quantity hasbeen mentioned as 250 gms. So the basic question for the decisionherein is whether the contravention involved in the instant caseis small, intermediate or commercial quantity, under Section 21 ofthe NDPS Act and whether the total weight of the substance isrelevant or percentage of heroin content translated into weight isrelevant for ascertaining the quantity recovered from the accused.16. The quantity of the contraband seized from the accused isa relevant factor in imposing punishment under the NDPS Act. When https://hcservices.ecourts.gov.in/hcservices/ it is a commercial quantity, the law stipulates that the sentenceshall be not less than 10 years RI with the fine not less thanRs.1 lakh, however, the same is not applicable to less thancommercial quantity.17. In the decision reported in (2008) 5 Supreme Court Cases161 (referred to supra) the Hon 'ble Apex Court has ruled bytaking a similar view, wherein, though a huge quantity was seized,as per the analysis report, the contraband seized was found about60 gms of heroin and therefore it was held as less than thecommercial quantity. The Hon'ble Apex Court has further held thatends of justice would be subserved if the sentence of theappellant-accused is reduced to six years Rigorous Imprisonmentwith a fine of Rs.20,000/- and in default of payment of fine toundergo six months Rigorous Imprisonment as the appellant /accused therein had undergone the sentence imposed on him andbased on the verdixt, he was directed to be set at libertyforthwith.18. In the instant case, as per the chemical analysis report,it has been proved that the quantity of the contraband seized isonly 54 gms of Diacetyl morhpine (heroin), in view of the Judgmentrendered by the Hon'ble Apex Court, in E.Micheal Raj's casereported in (2008) 5 SCC 161 (referred to supra). In the aforesaidcase, the seized contraband, as per the analysts report was about60 gms. In the instant case, the same is only 54 gms, however,which is more than 5 gms, classified as small quantity, but lessthan 250 gms, which is a commercial quantity and therefore, thesentence has to be imposed on the appellant / accused only underSection 21 (b) of NDPS Act. 19. In the case on hand, as per the chemical analysis reportthe seized contraband was only 54 gms and as submitted by thelearned counsel appearing for the appellant, the appellant /accused is in prison from the date of arrest i.e., 19.01.2003,which is more than six years and three months and therefore, thedecision rendered by the Hon 'ble Apex Court reported in E.MichealRaj's case reported in (2008) 5 SCC 161 (referred to supra) issquarely applicable to the facts of the case on hand.20. In the light of the aforesaid decision, I find itreasonable to hold that the sentence imposed on the appellant /accused is disproportionately on the higher side and to meet theends of justice, the same has to be reduced as per the ruling ofthe Hon'ble Apex Court referred to above. Accordingly, theCriminal Appeal is partly allowed and being modified onlyregarding the sentence imposed on the appellant. The the appellant/ accused has already undergone imprisonment of more than sixyears and three months Rigorous Imprisonment. Hence, considering https://hcservices.ecourts.gov.in/hcservices/ the facts and circumstances of the case, in the light of thedecisions of the Hon'ble Apex Court, the appellant / accused issentenced to undergo only six years Rigorous Imprisonment and topay a fine of Rs.20,000/- and in default to undergo a furtherperiod of 3 months RI, under Section 21 (b) of NDPS Act. As he hasalready undergone the period of sentence, the appellant / accusedis hereby directed to be set at liberty forthwith, if he is notrequired in any other case. The connected MP is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsrk / tsvnTo1. The Principal Special Judge Special Court under E.C. and NDPS, Chennai.2. The Intelligence Officer, Directorate of Revenue Intelligence Chennai Zonal Unit, T.Nagar, Chennai – 173. The SuperintendentCentral Prison, Puzhal, Chennai(In duplicate communication to the detenue)4. Mr.N.P. Kumar, Special Public Prosecutor (D.R.I Cases)High Court, Madras1 cc to Mr.T.K. Sampath, Advocate, SR. 19265C.A.No.120 of 2007 & M.P.No.1 of 2007 TM (CO)kk 12/5