Rekhaparameswari v. Assistant Collector of CustomsProsecution CellPreventive DepartmentCustoms House, Madras 600001

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 22.04.2009CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCriminal Appeal No.202 of 2003Rekhaparameswari ..Appellant/AccusedD/o.GovindarajVersusAssistant Collector of CustomsProsecution CellPreventive DepartmentCustoms House, Madras 600001..Respondent/ComplainantCriminal Appeal filed under section 374 of Crl.P.C. against theconviction and sentence passed by the Principal Sessions Judge,Special Court under E.C. and N.D.P.S Act, Chennai 600104, inC.C.No.54 of 1994 by order dated 04.12.2002.For Appellant : Mr.B.Kumar Senior Counsel for R.Loganathan For Respondent: Mr.R.Dhanapal Raj Special Public Prosecutor for DRI casesJUDGMENTThe appellant herein stands convicted by the learned PrincipalSpecial Judge, under NDPS Act, Chennai in C.C.No.54 of 1994 for theoffences under Section 8(c) r/w 21(c) of the NDPS Act, 1985,sentenced to undergo 15 years rigorous imprisonment and to pay afine of Rs.1 lakh in default to undergo 2 years rigorousimprisonment; under Section 23 r/w 28 of the NDPS Act sentenced toundergo 15 years Rigorous imprisonment and to pay a fine of Rs.1lakh in default to undergo 2 years rigorous imprisonment and alsounder Section 135(A) of the Indian Customs Act and sentenced toundergo 2 years rigorous imprisonment and the sentence ofimprisonment to run concurrently. Aggrieved by the said convictionand sentence, the appellant herein had preferred this appeal. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the prosecution in brief is as follows:P.W.1 Usharani, who was the Security Officer at MadrasMeenambakkam Airport, was on duty on 20.02.1989 at 6.30a.m., and shewas searching the female passengers who were bound to go in theFlight IC-573 to Coloumbu. The Sub Inspector of Police oneMr.Pachimuthu, at 6.45a.m., instructed P.W.1 to search one passengerby name Gnanambigai Muthiah, who is the appellant herein. P.W.1searched her with handhold metal detector. As the metal detectorstruck, P.W.1 touched with hands and she felt some soft powdersubstance being kept inside. When P.W.1 enquired the accused, asthere was no reply, she produced her before the Inspector of policewho directed P.W.1 to search her in a separate place in the presenceof two witnesses. Two female witnesses were brought and the accusedwas searched by P.W.1 in the presence of those two witnesses in themake-up room of the security officers. The dresses exceptundergarment of the accused were removed and searched and nothingwas found concealed in the dress. P.W.1 asked the accused to removeher Jetty which she was wearing. On verification, it was found thattwo jetties were stitched together and in between a polythene packetwas concealed. P.W.1 while enquired about it, was informed by theaccused that it was brown sugar. The accused was produced beforethe Inspector of Police and the Inspector of Police instructed herto produce the accused before the Customs Officers. On weighing thepacket, it was found to contain 500 grams of brown sugar. Thecontraband and two jetties, passport and other articles wererecovered under Ex.P.1. Three packets of samples weighing 5 gramswere also taken and the sample packets were sealed. P.W.1 took theaccused along with the seized articles and mahazar to P.W.2, PrisyArogiyasamy, Superintendent of Customs Department.3. P.W.2 on receiving M.O.1 contrabands and samples M.O.2 seriesand jetties M.O.4, Air ticket Ex.P.2, Boarding Card Ex.P.3 and otherarticles enquired the accused. The accused gave a statement beforeP.W.2 and it was recorded. Ex.P.9 is the statement which waswritten by the accused herself. As per the statement, the accusedrevealed her original name as Rekha Parameswari. She signedtwice, one in the name of Rekha Parameswari and another one in thename of Gnanambigai. P.W.2 brought the accused from the Airport tothe Customs Office and was produced before the Superintendent ofPolice Vasudevan. The Customs Officer one Thirumani arrested theaccused. The accused was produced before the learned Magistrate forremand by the Customs Officer. 4. P.W.4 Viswanathan who was working as Assistant ChemicalExaminer of Customs on receiving the sealed packet along with thetest memo analysed the samples in the packet and found that itcontained Di-Acetyl-Morphine known as heroin. After analysing the https://hcservices.ecourts.gov.in/hcservices/ samples, the remnants were packed in the same packets and it washanded over to the Security Officer Antony Xavier. The chemicalanalyst report issued by him is Ex.P.12.5. P.W.3 Mr.Rajagopal was the Preventing Officer in the Customsdepartment, Prosecution Wing. He sent the mahazar, statement andchemical analysis report and other documents to the CustomsAdditional Collector, Gopinath. The said Officer issued sanctionfor prosecution on 31.03.1989. Ex.P.11 is the sanction forprosecution. As Mr.Gopinath, Additional Collector died, P.W.5identified his signature in Ex.P.11. 6. In order to establish the case, the prosecution has examined4 witnesses, marked 13 exhibits and produced 4 material objects.When the accused was questioned under Section 313 Cr.P.C with regardto the incriminating circumstances, the accused denied hercomplicity and stated that as far as Ex.P.9 statement concerned, itwas obtained by coercion and threat. She further stated that she hadgiven statement before P.W.1, Usharani stating that she did notknow, but suppressing that statement P.W.s.1 and 2 obtained hersignature in white papers. The accused had not examined anydefence witness.7. The learned Judge after analysing the evidence convicted theaccused as already stated above.8. Mr.B.Kumar, learned Senior Counsel appearing for theappellant submitted that the occurrence relates to the year 1989 andthe appellant was originally released on bail. The complaint wasfiled in the year 1994 and the trial commenced only on 17.09.1997.On 30.09.1997 the accused had absconded and she was rearrested on24.09.2000. The Judgment was delivered in this case on 14.12.2002.The accused is continuously in prison from the date of rearrest,i.e., on 24.09.2000 and she is in jail for more than eight years.In such circumstances, the learned Senior Counsel confined hisarguments only to the question of sentence, since according to thedefence, the offence would not fall under Section 21(c) of the Act,but under Section 21(b) of the NDPS Act. The learned counsel onrecord also made an endorsement that the argument is confined onlyon the question of sentence based on the quantity of the heroinseized.9. The learned Senior Counsel further submitted that Section 21of the NDPS Act was amended, by the Act 9 of 2001 with effect from02.10.2001. The petitioner was charged as per the old provisions ofSection 21 of the NDPS Act, but pending trial, the amendment hascome into effect and the said amendment was also made applicable toall the cases pending trial with a retrospective effect. Theamendment was brought to the principal Act to rationalize sentences https://hcservices.ecourts.gov.in/hcservices/ prescribed in respect of offences relating to manufacturing drugsand preparation containing manufactured drugs, Psychotropicsubstances, illegal import or export of Narcotic drugs andpsychotropic substances. Prior to the amendment, the punishment forpossession, in a small quantity for personal consumption of Narcoticdrugs and also psychotropic substances was prescribed under Section27 of the NDPS Act and punishment not covered under Section 27 ofthe NDPS Act was prescribed under Section 21 of the NDPS Act withminimum sentence of 10 years rigorous imprisonment and maximumsentence of 20 years and also with the minimum sentence of fine ofRs.1 lakh with maximum fine of Rs.2 lakhs. As per the amendedprovision of the Section 21 of the NDPS Act, the punishment isdivided into three categories, as to where (a) Contraventioninvolving small quantity (b) Contravention involving quantity lesserthan commercial quantity, but greater than small quantity and (c)Contravention involving commercial quantity.10. The learned Senior counsel further submitted that the trialCourt had convicted the accused wrongly under Section 21(c) of theNDPS Act. The total quantity of the powder seized is only 500grams. At the most the prosecution had established throughchemical analyst report, Ex.P.12 only the presence of Di-Acetyl-Morphine in it. To bring the offence under Section 21(c) of theNDPS Act, the prosecution is to establish that the contrabandcontained 250 grams of Di-Acetyl-Morphine to bring it under thecommercial quantity as per the Serial No.56 in the table given inexercise of the power conferred by clause (vii a) and (xxiii a) ofSection 2 of the NDPS Act 1984. In the absence of percentage ofDi-Acetyl-Morphine present being given, it is erroneous to concludethe seized quantity of the powder contained more than 250 grams ofDi-Acetyl-Morphine or heroin.11. The learned Senior Counsel in support of his contention,relied on the decision of the Honourable Supreme Court reported in2008(2) SCC (Crl.) 558 (Michel Raj v. Intelligence Officer, NarcoticControl Bureau)12. Per contra, Mr.Dhanapal Raj, learned Special PublicProsecutor submitted that the entire substance which was seizedweighing 500 grams was brown sugar and the sample taken from thatcontraband on analysing by the chemical analyst, proved that it is asubstance of Di-Acetyl-Morphine which is also called heroin. It isnot the report of the analyst that some other substance also wasmixed with it and therefore it is not a mixure, and as such thewhole substance should be taken as heroin weighing to 500 gramswhich is a commercial quantity. 13. This Court considered the submission of both sides andperused the records. Though the learned Senior Counsel did not https://hcservices.ecourts.gov.in/hcservices/ argue challenging the seizure of the contraband, this Court perusedthe evidence and also the judgment of the trial Court. Severalcontentions were raised before the trial Court challenging theseizure of the contraband and the trial Court has discussed aboutit. Though this Court is not giving in detail about the findings,this Court is satisfied with the reasons given by the trial Courtfor accepting the evidence regarding the seizure of the contrabandfrom accused/appellant herein.14. The point for consideration now is that whether the accusedshould be sentenced under Section 21(c) of the NDPS Act 1985 as thecontravention involves commercial quantity or Section 21(b) of theNDPS Act as the contravention involves 150 grams lesser thancommercial quantity but greater than small quantity or whether thecontravention involves only small quantity. 15. Section 21 of the NDPS Act before amendment was as follows:"21.Punishment for Contravention in relation tomanufactured drugs and preparation:- Whoever, incontravention of any provision of this Act, or any ruleor order made or condition of licence grantedthereunder, manufactures, possess, sells, purchases,transports, imports inter-State, exports inter-State, oruses any manufactured drug or any preparation containingany manufactured drug shall be punishable with rigorousimprisonment for a term which shall not be less than tenyears but which may extend to twenty years and shallalso be liable to fine which shall not be less than onelakh rupees but which may extend to two lakh rupees.Provided that the Court may, for reasons to berecorded in the judgment, impose a fine exceeding twolakh rupees."16. Section 21 of the NDPS Act after amendment is as follows:"21.Punishment for contravention in relation tomanufactured drugs and preparation:- "Whoever, in contravention of any provision of this Actor any rule or order made or condition of licence grantedthereunder, manufactures, possesses, sells, purchases,transports, imports inter-state, exports inter-State oruses any manufactured drug or any preparation containingany manufactured drug shall be punishable,--(a) where the contravention involves smallquantity, with rigorous imprisonment for a term which mayextend to six months, or with fine which may extend toten thousand rupees, or with both;(b) where the contravention involves quantity, https://hcservices.ecourts.gov.in/hcservices/ lesser than commercial quantity but greater than smallquantity, with rigorous imprisonment for a term which mayextend to ten years, and with fine which may extend toone lakh rupees;(c) where the contravention involves commercialquantity, with rigorous imprisonment for a term whichshall not be less than ten years but which may extend totwenty years, and shall also be liable to fine whichshall not be less than one lakh rupees but which mayextend to two lakh rupees;Provided that the Court may, for reasons to berecorded in the Judgment, impose a fine exceeding twolakh rupees.17. As per mahazar Ex.P.1, the polythene packet containedsuspected brown sugar in the form of brown colour powder weighing500grams and the samples were taken from the said brown colourpowder. As per Ex.P.12 analyst report issued by the AssistantChemical Examiner P.W.4, the sample was in the form of brown powder.It answered test for the presence of Di-Acetyl-Morphine in it.P.W.4 also had given evidence only to that effect. P.W.4 has notgiven any evidence as to whether the whole sample powder which wasin brown colour was only Di-Acetyl-Morphine or a part of it was Di-Acetyl-Morphine. It is only stated by him that the brown powderanswered the test for the presence of Di-Acetyl-Morphine, but thepercentage of the Di-Acetyl-Morphine in the powder is not given. 18. 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 drug orpsychotropic substance with one or more neutral substance(s). In fact that was not the issue before the Court.The black-coloured liquid substance was taken as an opiumderivative and the FSL report to the effect that itcontained 2.8% anhydride morphine was considered only forthe purposes of bringing the substance within the sweepof Section 2(xvi)(e) as "opium derivative" which requiresa minimum 0.2% morphine. The content found of 2.8%anhydride morphine was not at all considered for thepurposes of deciding whether the substance recovered wasa small or commercial quantity and the Court took intoconsideration the entire substance as an opium derivativewhich was not mixed with one or more neutral substance(s). Thus, Amarsingh case cannot be taken to be anauthority for advancing the proposition made by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the respondent that the entiresubstance recovered and seized irrespective of thecontent of the narcotic drug or psychotropic substance init would be considered for application of Section 21 ofthe NDPS Act for the purpose of imposition of punishment.We are of the view that when any narcotic drug orpsychotropic substance is found mixed with one or moreneutral substance(s), for the purpose of imposition ofpunishment it is the content of the narcotic drug orpsychotropic substance which shall be taken intoconsideration."19. The said Judgment also has been followed by the HonourableSupreme Court reported in 2009(3) SCALE 429(State of NCT of Delhi v.Ashif Khan @ Kalu)20. In this case, though the test was conducted from the samplesfor the presence of the heroin, the purity test has not beenconducted so as to establish the quantity of the Di-Acetyl-Morphinein the whole mixure. Merely because the powder was in brown colour,it can not be said that the total quantity of the powder is only Di-Acetyl-Morphine. No adverse inference can be drawn against theaccused in the absence of any specific evidence or any othermaterial to draw such an inference. Certainly, it is the duty ofthe prosecution to establish that the contravention involves acommercial quantity in order to bring the offence under Section 21(c) of the NDPS Act.21. Though originally the charge against the accused was underSection 8(c) r/w 21 of the NDPS Act, after examining all thewitnesses and after completion of the prosecution evidence, thecharge was amended on 25.11.2002 under Section 8(c) r/w Section 21(c) and the argument was heard after two days. While the trialCourt was aware of the specific provision of Section 21(c) of theNDPS Act, and amended the charge against the accused had not takenany steps for sending the contraband for purity test. Theprosecution also has not taken any steps pending trial to get afresh report from the analyst. The prosecution has miserably failedto establish that the contravention involves the commercialquantity, the conviction under Section 21(c) of the NDPS Act is notsustainable. At the same time, this Court is not prepared to holdthat the contravention involves only small quantity of 5 grams asper Entry-50 in the table. It is not possible to conclude that thetotal quantity of 500 grams of brown powder would contain only 5grams or less than 5 grams of Di-Acetyl-Morphine. In thecircumstances of the case, it is safe to conclude that thecontravention by the accused involves quantity less than commercialquantity, but greater than small quantity, which is punishable underSection 21(b) of the NDPS Act. https://hcservices.ecourts.gov.in/hcservices/

22. This Court therefore holds that the accused is guilty notunder Section 21(c) of the NDPS Act, but under Section 8(c) r/w 21(b) of the NDPS Act and she is sentenced to undergo 8 years rigorousimprisonment and a fine of Rs.25,000/- is imposed and in defaultsentenced to undergo 3 months rigorous imprisonment. The convictionby trial Court under Section 23 r/w 28 of the NDPS Act is confirmedand the sentence is modified to undergo 8 years rigorousimprisonment and a fine amount of Rs.25,000/- is imposed indefault sentenced to undergo 3 months rigorous imprisonment. Theconviction by trial Court under Section 125-A of the Customs Act andthe sentence of 2 years imprisonment are confirmed. The sentencesof imprisonment are to run concurrently.23. As it is reported by the learned Senior Counsel that thepetitioner has been in prison for more than 8 years and 6 months,the jail authority may verify and if the petitioner has alreadyundergone the sentence of imprisonment and the default sentence ofimprisonment for non-payment of fine, the appellant shall bereleased forthwith, if not required in any other case.24. The appeal is partly allowed, with the above modification.Sd/Asst.Registrar/true copy/Sub Asst.Registrar ksrTo1.The Special Judge,Special Court for E.C. & NDPS Act Cases,City Civil Court Buildings, Chennai-104.2.The Assistant Collector or Customs,Prosecution Cell, Preventive Department,Customs House, Madras -1. https://hcservices.ecourts.gov.in/hcservices/

3.The Superintendent,Special Prison for Women, Vellore.4.The Special Public Prosecutor for DRI Cases.RSM(CO)km/4.5. Criminal Appeal No.202 of 2003