Syed Mohamed Dawood Thaheer v. Intelligence Officer Narcotics Control Bureau South Zonal Unit Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 20.08.2009CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCriminal Appeal No.306 of 2008Syed Mohamed Dawood Thaheer..Appellant/AccusedVersusIntelligence OfficerNarcotics Control BureauSouth Zonal UnitChennai...Respondent/ComplainantCriminal Appeal filed against Judgment and sentence made inC.C.No.9 of 2004 dated 29.02.2008 by the Court of Special Judge,Additional Special Court under NDPS Act, Chennai, sentencing theappellant to undergo 10 years rigorous imprisonment under Sections8(c) r/w 21(c), 28 and 29 of the NDPS Act, 1985 and to pay a fineof Rs.1 lakh in default to undergo six months rigorous imprisonmenteach and the sentences are ordered to run concurrentlyFor Appellant : Mr.R.Rajan For Respondent : Mr.R.Dhanapal Raj Special Public Prosecutor for NCB casesJUDGMENTThe appellant herein stands convicted by the learned SpecialJudge, Additional Special Court under NDPS Act, Chennai, inC.C.No.9 of 2004 for the offences under Sections 8(c) r/w 21(c),28 and 29 of the NDPS Act, 1985, and sentenced to undergo 10 yearsrigorous imprisonment and to pay a fine of Rs.1 lakh in default toundergo six months rigorous imprisonment each and the sentences areordered to run concurrently. Aggrieved by the said conviction andsentence, the appellant herein had preferred this appeal.2. The case of the prosecution in brief is as follows:On 24.04.2007 at about 2.30p.m., P.W.3 Intelligence Officerreceived an information about the drug trafficking and at about2.30p.m., the appellant was intercepted by P.W.3 and other officers https://hcservices.ecourts.gov.in/hcservices/ at Anna International Airport and he was enquired. The accusedadmitted that he swallowed 80 capsules containing heroine. On thesame day at 5.30p.m he was produced before the IX MetropolitanMagistrate, Saidapet, and on court's direction he was taken to theAdyar Malar Hospital and X-ray was taken on his stomach and he wasadmitted in the hospital and in the night he ejected 32 capsules115 grams heroine. Samples were taken from the said heroin and theheroin was seized under mahazar Ex.P.2 and samples S.1 and S.2were taken On the next day, at about 5.00p.m., the accusedejected another 25 capsules containing 86 grams and samples S.3and S.4 were taken from the heroin and the contraband was seizedunder mahazar Ex.P.43. On the next day on 26.07.2003, again theaccused ejected another 12 capsules containing 43 grams of heroinand Samples S.5 and S.6 were taken from that heroin and thecontraband was seized under mahazar Ex.P.44. Agaon on the next dayon 27.07.2003, at 7.00 hours, the accused ejected another 11capsules containing 41 grams of heroin and Samples S.7 and S.8 weretaken and the contraband was seized under Ex.P.46. On 27.07.2003at 6.00p.m, the accused was taken to the NCB Office and thestatement was taken under Section 67 of the NDPS Act which wasrecorded by P.W.2, and accused was arrested at 10.00p.m.,. Theproperties were sent to Court and samples were sent for chemicalanalysis. P.W.4, the Chemical analyst on analysing the samplesgave report Ex.P.21. According to the chemical analysis report,S.1 sample contains 38.1% di-acytyl-morphine, S.3 sample contains35.2% di-acytyl-morphine, S.5 sample contains 33.1% di-acytyl-morphine and S.7 sample contains 37.4% di-acytyl-morphine. Acomplaint was also filed against the accused.3. In order to establish the case, prosecution has examined 9witnesses, marked 52 exhibits and produced 18 material objects.After examination of witnesses, the accused was questioned underSection 313 Cr.P.C., and he denied his complicity and on the sideof the defence, neither any witness was examined nor any documentwas marked. The trial Court after considering the evidence,convicted the accused as stated above.4. Mr.R.Rajan, learned counsel appearing for the appellantsubmitted that he is confining his argument only to the question ofsentence, since according to the defence, the offences would notfall under Section 21(c) of the NDPS Act, but only under Section 21(b) of the NDPS Act. The learned counsel on record made anendorsement that the arguments is only on the question of sentencebased on the quantity of heroin seized. Though the appellant hasalso filed an application for bail, with the consent of the learnedSpecial Public Prosecutor and the learned counsel for the appellant, the matter is taken up for final disposal, since counsel for theappellant has confined his argument only to the question ofsentence. https://hcservices.ecourts.gov.in/hcservices/

5. The learned counsel for the appellant submits that thetrial Court convicted the accused wrongly under Section 21(c) ofthe NDPS Act. The total quantity of heroin seized is only 283grams as per the chemical analyst report Ex.P.21. From thesamples, the analyst found by average only 35.95% of di-acytyl-morphine. As such in the total quantity of 283 grams seized,presence of di-acytyl-morphine comes only to 101.74 grams whichdoes not come under the category of commercial quantity as perSerial No.56 in the table given in the NDPS Act.6. The learned counsel for the appellant in support of hiscontention relied on the decisions of the Honourable Supreme Courtreported in 2008(2) SCC (Crl.) 558 (Michel Raj v. IntelligenceOfficer, Narcotic Control Bureau) and 2009(3) SCALE 429(State ofNCT of Delhi v. Ashif Khan @ Kalu)7. Per contra, Mr.Dhanapal Raj, learned Special PublicProsecutor submitted that the entire substance which was seizedweighing 283 grams was heroin and the samples taken from thecontraband on analysing were found to contain the substane of di-acytyl-morphine which is also called as heroin. The learnedSpecial Public Prosecutor further submits that even if the offenceis converted under Section 21(b) of the NDPS Act, the sentence ofimprisonment of ten years awarded by the trial Court could beimposed for the offence under Section 21(b) of the NDPS Act.8. This Court considered the submissions made by both sidesand perused the records. Though the learned counsel for theappellant did not challenge the seizure of contraband, this Courtperused the evidence and also the Judgment of the trial Court.Several contentions were raised by the trial court in respect ofthe seizure of the contraband and the trial Court discussed aboutit. This Court is satisfied with the reasons given by the trialCourt regarding the seizure of the contraband from the accused.9. The point for consideration is that whether the accusedcould be sentenced under Section 21(c) of the NDPS Act as thecontravention involves commercial quantity or under Section 21(b)of the NDPS Act, as the contravention involves 101.74 Grams ofheroin which is lesser than the commercial quantity but greaterthan the smaller quantity.10. The Honourable Supreme Court in the decision reported in2008(2) SCC 558 (Micheal Raj v. Intelligence Officer, NarcoticControl Bureau), had observed as follows:"19.On going through Amarsingh case(2005 S.C.C.(Crl.) 1704) we do not find that the Court wasconsidering the question of mixture of a narcotic drugor psychotropic substance with one or more neutral https://hcservices.ecourts.gov.in/hcservices/ substance(s). In fact that was not the issue beforethe Court. The black-coloured liquid substance wastaken as an opium derivative and the FSL report to theeffect that it contained 2.8% anhydride morphine wasconsidered only for the purposes of bringing thesubstance 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 morphinewas not at all considered for the purposes of decidingwhether the substance recovered was a small orcommercial quantity and the Court took intoconsideration the entire substance as an opiumderivative which was not mixed with one or more neutralsubstance(s). Thus, Amarsingh case cannot be taken tobe an authority for advancing the proposition made bythe learned counsel for the respondent that the entiresubstance recovered and seized irrespective of thecontent of the narcotic drug or psychotropic substancein it would be considered for application of Section 21of the NDPS Act for the purpose of imposition ofpunishment. We are of the view that when any narcoticdrug or psychotropic substance is found mixed with oneor more neutral substance(s), for the purpose ofimposition of punishment it is the content of thenarcotic drug or psychotropic substance which shall betaken into consideration."The said Judgment also has been followed by this Court reported in2009(1) TLNJ (Crl.) 43 (Rekha Parameswari v. Assistant Collectorof Customs, Prosecution Cell Preventive Department, Madras).11. In this case, as per the Chemical Analyst Report, onanalysing four samples, purity test has been conducted so as toestablish the quantity of di-acytyl-morphine in the whole mixure.According to the Chemical Analyst, S.1 sample contained 38.1% di-acytyl-morphine, S.3 sample contained 35.2% di-acytyl-morphine, S.5sample contained 33.1% di-acytyl-morphine and S.7 sample contained37.4% di-acytyl-morphine. The four samples of 20 grams containedonly an average of 35.95% of di-acytyl-morphine and as such thetotal quantity of 283 grams would contain only 101.74 grams of di-acytyl-morphine. From the result of the chemical analyst report,it is only established that the total quantity of heroin seizedfrom the accused is only lesser than commercial quantity. 12. For the above said reasons, the circumstances of thecase, the conviction and sentence imposed on the of the accusedunder Section 8(c) r/w 21(c) of the NDPS Act is set aside, insteadhe is convicted under Section 8(c) r/w 21(b) of the NDPS Act. Theaccused is sentenced to undergo five years rigorous imprisonmentand to pay a fine of Rs.25,000/- and in default to undergo threemonths rigorous imprisonment. The conviction on the accused by https://hcservices.ecourts.gov.in/hcservices/ trial Court under Section 28 and 29 of the NDPS Act is confirmed,but the sentence is modified for each offence as the accused toundergo 5 years rigorous imprisonment and to pay a fine amount ofRs.25,000/- and in default of payment of fine to undergo 3 monthsrigorous imprisonment. The sentences of imprisonment imposed forall the offences shall run concurrently.13. As it is reported by the learned Counsel that theappellant has been in prison for more than six years, the jailauthority may verify and if the appellant has already undergone thesentence of imprisonment and the default sentence of imprisonmentfor non-payment of fine, the appellant shall be releasedforthwith, if not required in any other case.14. The appeal is partly allowed, with the above modification.KsrSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Special Judge, Additional Special Court under NDPS Act,Chennai.104.2.The Intelligence Officer, Narcotics Control BureauSouth Zonal Unit, Chennai.3.The Public Prosecutor, High Court, Chennai.4.The Superintendent, Central Prison, Puzhal, Chennai.5.The IX Metropolitan Magistrate, Chennai.6.Do through The Chief Metropolitan Magistrate, Egmore, Chennai 8.Copy toThe Section Officer, Criminal Section,High Court, Madras.+ 1 cc to Mr.R.Rajan, Advocate SR No.40321KA(CO)SR/15.9.2009 Criminal Appeal No.306 of 2008