PR. COMMISSIONER OF INCOME TAX, DELHI-2 vs. M/S BOSE CORPORATION (INDIA) PVT. L TO.

This appeal assails judgment, dated 3rd August, 2015, as well as order, dated 4th August, 2015, whereby the learned Additional Sessions Judge (hereinafter referred to as ―the learned ASJ‖) has convicted the appellant for having committed the offences punishable under Section 21(c), and Section 23(c) read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ―the NDPS Act‖). The appellant stands sentenced to 10 years‘ rigorous imprisonment (RI) and a fine of ₹ 1 lakh, with default sentence of 6 months‘ simple imprisonment (SI), for the offence under Section 21(c), and to 10 years‘ RI and a fine of ₹ 1 lakh, with 6 months‘ SI as default sentence, for the offence under Section 23(c) read with Section 28, of the NDPS Act, both the sentences having been directed to run concurrently.

The charge against the appellant, which stands confirmed by the impugned judgment of the learned ASJ, is of attempting to export, out of India, 460 grams diacetylmorphine (heroin), by courier, by presenting the said consignment at M/s Alliance Overseas Logistics (hereinafter referred to as ―AOL‖), Ludhiana, on 29th March, 2010. The consignment, it is alleged, was intended for delivery to Louis Galo, Barcelona, Spain. According to the prosecution, the consignment was to be exported, out of India, by M/s Aramex India Pvt. Ltd, Mahipalpur, New Delhi (hereinafter referred to as ―Aramex‖), to whom the consignment was sent by M/s Overseas Logistics Pvt. Ltd., Bhikaji Cama Place (hereinafter referred to as ―Overseas Logistics‖) who, in turn, received the consignment from AOL, Ludhiana.

The respondent-Central Bureau of Narcotics (hereinafter referred to as ―CBN‖) alleged, before the learned ASJ, that, pursuant to receipt of intelligence, a team of its officers visited the office of Aramex, where the package was produced, at their instructions, by Harihar Thakur (PW-7) and Devender Negi (PW-8), employees of Aramex, and that the package, on being opened, was found to contain, inter alia, eight pairs of ladies slippers, with one small polythene packet of heroin concealed in the sole and two small polythene packets of heroin concealed in the heel, of each slipper. As a result, sixteen packets of heroin were recovered, in total, from the soles and thirty-two packets of heroin were recovered from the heels of the said slippers, working out to a total of forty-eight packets. The gross weight of the packets was found to be 500 grams, with the weight of

Finding the case of the CBN, against the petitioner, to contain substance, the impugned judgment, the learned ASJ, convicts and sentences the appellant, in the terms already set out in para 1 supra.

In convicting the appellant, and sentencing him, the learned ASJ has proceeded on the following reasoning: (i) The CRCL report, as proved by PW-2 A.K. Maurya, the Chemical Examiner of the CRCL, confirmed the recovery of heroin. The manner in which the raid had been conducted, and the heroin had been recovered, also stood proved by the statements of the various witnesses of the raiding team as well as the employees of Aramex, which corroborated each other. Production of the case property before the empowered officer, in compliance with Sections 52 and 55 of the NDPS Act also stood proved by PW-1 M.K. Gupta, who also made an entry, in this effect, in the Malkhana register (Ex. PW-1/F).

Before proceeding to reconnoiter the evidence, it would be advantageous to examine the evidentiary value, and relevance, of statements recorded under Section 67 of the NDPS Act. Section 67 reads thus:

Section 53A(1) of the NDPS Act, which deals with relevancy of statements, in prosecutions, reads as under:

In view of Section 53A of the NDPS Act supra, it is clear that statements, recorded under Section 67 of the said Act, would, ipso facto and proprio vigore, be relevant for proving the truth of the contents of such statements. The protection, which is afforded, to statements recorded under Section 161 Cr.P.C., by Section 162 thereof, and the protection afforded by Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as ―the Evidence Act‖), stand, therefore, statutorily foreclosed, in the case of statements recorded under Section 67 of the NDPS Act. The Supreme Court, in Kanhaiyalal v. Union of India, (2008) 4 SCC 668, enunciated this principle, in the following words (in para 47 of the report):

One may also refer, profitably, to the following passages, from Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347, which relied upon Kanhaiyalal (supra): ―14. From what has been observed above, the officers vested with the powers of investigation under the Act are not police officers and, therefore, the confessions recorded by such officers are admissible in evidence. Therefore, the question posed at the outset is answered in the affirmative and it is held that officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and, hence, confessions made before them are admissible in evidence. In view of the aforesaid there is no escape from the conclusion that the confessions made by the appellant before PW 6 Jagdish Mawal and PW 8 Mahaveer Singh are admissible in evidence and cannot be thrown out of consideration.

Now we proceed to consider the second question set out at the outset and in order to answer that we deem it appropriate to reproduce Section 24 of the Evidence Act which reads as follows:

A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the court requires some corroboration but as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.

In our opinion, when an accused is made aware of the confession made by him and he does not make

These decisions hold, therefore, that an officer, conferred with the power of the Police Officer under Section 53 of the NDPS Act did not become, merely by virtue of that fact, ipso facto, a police officer, for the purposes of Section 25 of the Evidence Act and that, therefore, the statement recorded by such officer was admissible in evidence, so long as it was not found to have been extracted by coercion or by adopting unlawful methods.

Another Bench of two Hon'ble judges of the Supreme Court, however, departed from this view in Noor Aga v. State of Punjab, (2008) 16 SCC 417, holding that the statement, recorded under Section 67 of the Act, would attract Section 25 of the Evidence Act, and would not be admissible in evidence.

In Nirmal Singh Pehlwan Alias Nimma v. Inspector, Customs, Customs House, Punjab (2011) 12 SCC 298, Noor Aga (supra) was

In view of this difference in view, a later bench of the Supreme Court, speaking through A.K. Sikri, J. held, in Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31, that the matter deserved to be referred to a Larger Bench - which still remains to be constituted.

Tofan Singh (supra) was also noted in a very recent decision of the Supreme Court, speaking through Uday Umesh Lalit, J., in Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, (2018) 8 SCC 271.

Clearly, therefore, the position, in law, regarding the admissibility of a statement, recorded by an officer of the CBN, under Section 67 of the NDPS Act, the relevancy of such statement, the issue of whether such an officer would be treated as a ―police officer‖,

In this context, it is also relevant to note the judgment of the Supreme Court in U.O.I. v. Bal Mukund, (2009) 12 SCC 161, which holds that there was a presumption, in the case of recording of the statement under Section 67 of the Act in the office of the Narcotics Control Bureau (hereafter referred to as ―NCB‖), that the statement was not voluntary. This principle, it may easily be surmised, would apply with even greater force where the statement is recorded by officers of the CNB, or the Narcotics Control Bureau, within the confines of a Police Station.

To the extent it is relevant, the evidence that emerged, during the proceedings before the learned ASJ, may be reconnoitered, thus.

The manner in which search, and seizure of the heroin, before it could be exported out of India, took place, stands set out, in detail, in the testimonies of PW-1 M. K. Gupta, Superintendent, Preventive PW-4 Inspector S. K. Sachdev and PW-5 SI Rakesh Verma, of the CBN, and there statements corroborate each other. According to the depositions of the said three witnesses, pursuant to receipt of secret information regarding the possible export of heroin by courier via Aramex, they reached the office of Aramex at 11:50 PM on 30th March, 2010, where they met PW-7 Harihar Thakur and PW-8

The above witnesses further deposed that, on inquiry with the office of the Director of Income Tax (Systems), the CBN officials were informed, orally, that, by way of proof of address, for obtaining the aforesaid PAN Card, stated to have been presented by the appellant at the courier counter of AOL at Ludhiana, proof of the applicant residing at House No 243-A, Old Pole No. 46, Village Navada, Uttam Nagar, was produced. Acting on the basis thereof, the raiding team proceeded, on 2nd April, 2010, to House No 243-A, where they met the owner of the said premises, Jai Kishan (PW-10). Jai Kishan disclaimed all knowledge of the appellant, and stated, vide his statement Ex. PW-1/K that the appellant had never been his tenant.

The raiding team proceeded, thereafter, to the office of AOL at Ludhiana. There, they met the owner of the said premises, Ramandeep Singh (PW-6), who identified the PAN card of the appellant, and verified the fact that the appellant had presented the said PAN Card as proof of identity, at the time of booking the aforesaid parcel. He, however, acknowledged that, on the date of booking of the parcel, i.e. 29th March, 2010, he was out of Ludhiana, and the parcel had, therefore, being accepted by his employee Ravinder Maurya @ Ravi (PW-23). Ravi (PW-23), on being asked, acknowledged having

To the same effect were the depositions of PW-4 Inspector S.K. Sachdev, PW-5 SI Rakesh Verma, PW-7 Harihar Thakur of Aramex, PW-8 Devender Negi of Aramex, PW-12 Manoj Gupta of Overseas Logistics and of Ravinder Maurya @ Ravi of AOL, Ludhiana, deposing as PW-23.

PW-1 M.K. Gupta deposed, further, that the appellant was arrested on 12th April, 2010, and was, subsequently, identified by PW- 4 Inspector S.K. Sachdev. He testified, further, that the statement of the appellant was recorded by PW-4, wherein he admitted booking of the aforesaid parcel, on 29th March, 2010, at AOL, Ludhiana, consigned to Spain, and of concealing, therein, heroin in the heels and soles of the slippers fact in the parcel. He further identified the documents submitted by him at the time of booking of the parcel at AOL, and also admitted having concealed heroin into earlier parcels by him for Slovakia and one earlier parcel booked by him for Spain. PW-1 correctly identified the appellant in Court. He also deposed that the appellant had been identified, in the Police Station at Ludhiana, by PW-23 Ravi.

A perusal of the statement of the appellant, under Section 67 of the Act, and exhibited as Ex. PW-4/C, discloses that the appellant had, in fact, admitted the allegations against him, in the manner stated by PW-1. It has to be borne in mind, however, that the statement was recorded within the confines of the Police Station. Applying the law laid down in Bal Mukund (supra), therefore, it may not be possible to found a conviction solely on the basis of the said statement.

Ramandeep Singh and Ravi, of AOL, Ludhiana, deposing as PW-6 and PW-23, respectively, testified that the appellant had, indeed, booked the offending parcel, on 29th March, 2010. Ramandeep Singh deposed that, though he was not present in Ludhiana on the date of booking of the parcel, no parcel was accepted, by AOL, unless it

Vinda Mahadik, Divisional Manager, M/s UTI Technology Services Ltd., deposing as PW-11, testified that she had submitted the documents, given to her by the appellant, for having the PAN card issued in his name, vide her letter Ex. PW-1/M, which included the electricity bills and rent receipt of House No. 243, Nawada, as well as the matriculation certificate of the appellant, issued by the Punjab

It is in the backdrop of the above evidence that the justifiability, of the impugned judgment and order, passed by the learned ASJ, convicting and sentencing the appellant, has to be examined and analysed.

Appearing on behalf of the appellant, Mr. Akshay Bhandari advanced the following submissions: (i) There was no compliance with Section 42(2) of the NDPS Act, as there was no evidence that PW-1 had forwarded the information received by him to his immediate superior.

Mr. Ripu Daman Bhardwaj, learned APP submitted, per contra, that the identity of the appellant had been established from the PAN card submitted at the time of booking of the parcel at AOL which was admitted, by the appellant, to be his, in his statement under Section 313, Cr.P.C. Moreover, the PAN card bore his photograph as well as his signatures. The appellant had also been identified, by PW-23, during trial. Apropos the admissibility of the statement, of the appellant, under Section 67 of the NDPS Act, it was submitted that, in the absence of any evidence of pressure/coercion, in the recording of the said statement, despite cross-examination of the prosecution witnesses, the statements were admissible and relevant in evidence. In any event, even de hors the statement, of the appellant, under Section 67 of the NDPS Act, learned APP would submit that the evidence was more than sufficient to justify the conviction and sentence of the appellant.

In the above circumstances, this Court is, in the present case, called upon to determine, essentially, (i) whether the seizure of heroin,

The fact that the parcel, seized by the CBN team at the premises of Aramex on 30th March, 2010, contained slippers, in the soles and heels of which heroin was concealed, cannot be doubted, in view of the report of the CRCL (Ex. PW-2/C), which confirmed that the powder was found to be heroin of purity 1.4% W/W. The said report was proved by the Chemical Examiner of the CRCL A.K. Maurya (PW-2), who testified, during trial, stating that testing of the sample had been done using colour test and TLC. The credibility of the said position remained undisturbed in cross-examination. PW-2 A.K. Maurya also identified the remnant sample, when shown to him in Court.

Equally, the fact that the parcel containing the slippers, in which the heroin was concealed, had been booked at AOL, from where it had been forwarded to the office of Overseas Logistics in Delhi and, further, to Aramex, for onward export to Spain, can also not be denied, as the relevant documents were all exhibited, supported by the statements of Ramandeep Singh, the owner of AOL (PW-6), Manoj Gupta of Overseas Logistics (PW-12) and Harihar Thakur and

It was sought to be contended, by Mr. Bhandari, that there had been fatal infraction, on the part of the CBN, of Section 42(2) of the NDPS Act, as there was no evidence to indicate that the information, received by PW-1 M. K. Gupta had been forwarded to his immediate superintendent within 72 hours. In this context, I may reproduce Sections 41 and 42 of the NDPS Act, thus: ―41. Power to issue warrant and authorisation. – (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or control substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or

Power of entry, search, seizure and arrest without warrant or authorisation. – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Departments of Central Excise, Narcotics,

That apart, apropos Sections 41 and 42 of the NDPS Act, the Supreme Court has, in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449, held thus (in para 41 of the report): ―Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub- section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub- section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his

In para 42 of the report in Ritesh Chakravarti v. State of M.P.,MANU/DE/2281/2014 the Supreme Court holds that the officer

In the context of Section 42(2) of the NDPS Act, the following passages, from Karnail Singh v. State of Haryana, (2009) 8 SCC 539, too, merit reproduction: ―32. Under Section 42(2) as it stood prior to the amendment, such empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total

Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] had been decided on 1-2-2000 but thereafter Section 42 has been amended with effect from 2-10-2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non- compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused.‖

Except for contending that there had been non-compliance with the provisions of Section 42(2) of the NDPS Act, Mr. Bhandari has been unable to demonstrate any prejudice that has resulted to the appellant, as a consequence thereof. Even on this score, therefore, this ground of challenge has necessarily to fail.

Mr. Bhandari further voiced a complaint that the raiding team had visited the premises of Aramex after sunset and before sunrise, without a search warrant, and without recording any reason for doing

Mr. Bhandari also expressed misgivings regarding the manner in which sampling of the alleged contraband heroin had taken place in the present case. However, a perusal of the depositions of PW-1, PW- 4 and PW-5, over the members of the raiding party, do not disclose any stark inconsistency in the manner in which sampling took place. These depositions corroborate each other in testifying that the heroin contained in all sixteen slippers was consolidated into one lot, out of which two samples were withdrawn and sealed. Though Mr. Bhandari also drew my attention to the deposition of PW-8 Devender Negi, where he referred to the total quantity of powder found as 4 kg 6 grams, this one inconsistency, in my view, does not detract from the sum total of the evidence, which makes it clear that the total quantity of powder found in the parcel was 460 grams, with the gross weight of the parcel being 500 grams.

All that remains to be considered is, therefore, whether the appellant had, in fact, booked the aforesaid consignment, containing the slippers, in which heroin was concealed, at AOL, Ludhiana.

The findings of the learned ASJ on this aspect of the matter, as set out in para 5 (supra), in my view, eminently merit acceptance. As has been rightly found by the learned ASJ in the impugned judgment, the photograph of the appellant was reflected on the PAN card, which was tendered at the time of booking of the parcel at the AOL office at Ludhiana. The appellant, when questioned on this aspect, during the recording of his statement under Section 313 of the Cr.P.C., deposed thus: ―I have nothing to say with respect to the afore- mentioned facts as I had never applied at any office for the issuance of the pan card. I however state that the copy of application form Ex. PW11/A shown to me today has my photograph affixed on it and also bears my signature. The photocopy of the matriculation certificate, Ex. PW11/B is the copy of my matriculation certificate only. … I further wish to state that the Ex. PW 11/A was got signed by me from one person called Resham who was an agent who used to help people to go abroad.‖

The contention, of Mr. Bhandari, that the case was founded solely on the statement of Ravi (PW-23) cannot, therefore, be said to be correct. There is ample evidence, including and excluding the said statement, to link the appellant to the parcel, which was seized at the Aramex office at Delhi, and found to contain heroin concealed in slippers.

The sequitur, of the above discussion has, necessarily and inevitably, to be the confirmation of the decision, of the learned ASJ, to convict the appellant of having committed the offences under Section 21 and 23, read with Section 28 of the NDPS Act.

However, in the opinion of this Court, the learned ASJ has erred in invoking sub- section (c) of the said Sections 21 and 23; rather, as the discussion hereinafter would disclose, the opinion of this Court is that the appellant would require, instead, to be indicted under clause (b) of either Section. This, necessarily, would also entail interference with the sentence awarded, to the appellant, by the learned ASJ.

Section 32B of the NDPS Act reads thus:

In its recent decision in Rafiq Qureshi v. Narcotic Control Bureau Eastern Zonal Unit, 2019 SCC Online SC 666, the Supreme Court observes that Section 32B is a provision which was enacted in order to rationalize the sentencing structure under the NDPS Act. In view of the use of the words ―as it deems fit‖, found in Section 32B (supra), the Supreme Court has held that the court, sentencing the accused under the NDPS Act, is ordinarily required to limit the term of imprisonment to the minimum as prescribed under the relevant provision of the said Act, but possesses, nevertheless the latitude to incarcerate the accused for longer periods, for reasons to be recorded. These reasons may include one, or more, of the exigencies contemplated in clauses (a) to (f) of Section 32B but are not limited thereto. By way of an example, of a situation in which a court could award more than the minimum sentence prescribed under the NDPS

In the absence, however, of any justification, to award, to an unsuccessful accused, under the NDPS Act, more than the minimum sentence prescribed for the offence committed by her/him, the court is bound to award only the minimum prescribed sentence.

No doubt, Section 32B of the NDPS Act may not, stricto sensu, applying the present case, as no minimum period of incarceration the stipulated, either in clause (b) of Section 21, or in clause (b) of Section 23 of the said Act. Even so, if the offence committed by the appellant is to be relatable to clause (b) of these Sections, applying the raison d’ etre guiding the judgment of the Supreme Court in Rafiq Qureshi (supra), the Court would, ordinarily, not impose, on the accused, the maximum punishment impossible under the said clauses, unless and until there are compelling circumstances justifying such imposition.

It still remains to be examined, however, whether the invocation, by the learned ASJ, of clause (c), of Section 21 and Section 23 of the NDPS Act read with Section 28 thereof, was, or was not, justified.

Before examining this issue, however, it would be appropriate to briefly allude to Sections 21, 23 and 28 of the NDPS Act.

Section 21 deals with manufacturing, possessing, selling, purchasing, transporting, importing inter-state, exporting inter-state and using of any manufactured drug or any preparation containing any manufactured drug. Heroin is, undoubtedly, a manufactured drug.

The expression ―to export inter-state‖ and to ―import inter- state‖ are defined, in clauses (xxvii) and (xxiv) of Section 2 of the NDPS Act, in the following terms: ―(xxvii) ―to export inter-State‖ means to take out of a State or Union territory in India to another State or Union territory in India;

Section 21 could, therefore, be invoked against the appellant, to the extent it deals with ―possessing‖ and ―exporting inter-state‖ of heroin, as the charge against the appellant included the allegation of his having booked the consignment at Ludhiana, for onward transportation to Delhi, which would involve ―export inter-state‖ within the meaning of clause (xxvii) and (xxiv) of Section 2 of the NDPS Act.

Section 23 deals with ―import into India‖, ―export from India‖ and ―transshipment‖ of narcotic drugs or psychotropic substance. Obviously, the facts of the present case do not involve either import

The expression ―export from India‖, however, stands defined, in clause (xxvii) of Section 2 of the NDPS Act, thus: ―(xxvii) ―to export inter-State‖ means to take out of a State or Union territory in India to another State or Union territory in India;‖

The allegation against the appellant – which has been found, by me, to be substantiated by the material on record – is not that the appellant exported heroin from India, but that he had attempted to export heroin, as the heroin was intercepted and seized before it could leave India.

The appellant could not, therefore, directly be convicted under Section 23 of the NDPS Act. The act of attempting to export a narcotic drug from India would, however, be punishable under Section 23 read with Section 28 of the NDPS Act, inasmuch as Section 28 covers punishment for attempts to commit offences, and reads as under: ―28. Punishment for attempts to commit offences.- Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.‖

I have concurred, with the learned Single Judge insofar as the impugned judgment holds that the appellant had, in fact, booked the heroin, at AOL, Ludhiana, for export to Spain, from the office of

That brings the discussion to the point of determining whether the learned ASJ has correctly invoked clause (c) of Section 21 and Section 23 of the NDPS Act.

Sentences, under the NDPS Act, have been made dependent on the quantity of narcotics drug/psychotropic substance, with which the accused has been found to be dealing. Separate sentences have been prescribed for dealing with ―small quantity‖ as compared with ―commercial quantity‖ of the narcotics drug/psychotropic substance in question, or with any quantity in between – generally referred to as ―intermediate‖ quantity.

The learned ASJ has, in the present case, awarded the appellant the sentence of 10 years‘ RI, which is the minimum sentence prescribed for dealing with contraband heroin, of commercial quantity, as per Section 21 (c) of the NDPS Act. He has proceeded on the premise that the appellant was found involved in illegal export of 450 grams heroin.

This, however, is an incorrect finding, as the heroin, on testing by the CRCL, was found to be of only 1.4 %, purity w/w. 1.4 % of 460 grams works out approximately to 6.44 gm., which is less than the

Assuming the charge against him to be sustainable, the appellant would have been guilty of attempting to export heroin which was, therefore, greater than ―small‖ but less than ―commercial‖ quantity. This would, therefore, expose him to punishment not under clause (c) but under clause (b) of Section 21 of the NDPS Act, for which, though a maximum period of 10 years‘ incarceration is stipulated, there is no minimum period of incarceration. The present case would not, in the opinion of this Court, justify awarding, to the accused, the maximum punishment of 10 years‘ RI, imposable for the offence committed by him.

There is a litany of authorities to the effect that, while punishing a person under the NDPS Act for dealing in heroin, the actual quantity of heroin contained in the goods found with the person/ with which he is dealing.

One of the most oft-cited decisions, on this aspect, is E. Micheal Raj v. Intelligence Officer, NCB, (2008) 5 SCC 161.

In the said case, two persons – one of whom happened to be E. Micheal Raj – were arrested on the ground that they were carrying 4.07 kg of heroin. Two samples, of 5 grams each, were retrieved from the said quantity and subjected to test. The purities of heroin in the said two samples were found to be 1.4 and 1.6 %.

E. Micheal Raj was charged with, and convicted, for having committed the offence contemplated by Section 8(c) read with Sections 21 and 29 of the NDPS Act. Having failed in appeal before the High Court of Kerala, E. Micheal Raj moved the Supreme Court.

The only contention advanced, on behalf of E. Micheal Raj before the Supreme Court, was that the courts below had erred in treating the quantity of heroin, being carried by him, as 4.07 kg. Drawing a mention to the fact that the purity of the two samples of heroin drawn out of the drug found in his possession was only 1.4 % and 1.6 %, E. Micheal Raj contended that the total quantity worked out to only 60 grams, which was less than the stipulated commercial quantity of 250 grams.

The issue arising before it for consideration was delineated, in para 8 of its judgment, by the Supreme Court, thus: ―8. The provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2-10- 2001), which rationalised the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried. Thus, by the aending Act, the sentence structure changed drastically. ―Small quantity‖ and ―commercial

Paras 15 and 20 of the judgment in E. Micheal Raj (supra) sets out the law enunciated therein, and read thus: ―15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small

In the present case, the narcotic drug which was found in possession of the appellant as per the analyst's report is 60 gm which is more than 5 gm i.e. small quantity, but less than 250 gm i.e. commercial quantity. The quantity of 60 gm 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.‖

In this case, as in the present, 500 grams of heroin was recovered from the appellant, and test of two samples, of 5 grams each therefrom, confirmed the presence of powder. However, the percentage of diacetylmorphine (heroin) was reported as 0.2 percent.

Following earlier decisions, the single Bench of this Court, comprising Badar Durrez Ahmed, J. (as his lordship then was), observed thus: ―12. It is, therefore, Entry 56 which shall apply. The quantities of heroin (diacetylmorphine) specified therein are by weight. Keeping in mind that the object of introducing this classification was to rationalise the sentencing 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‖, it does appear to me that what has to be seen is the content of heroin by weight in the mixture and not the weight of the mixture as such. Otherwise, anomalous consequences would follow. While a recovery of 4 grams of heroin would amount to a small quantity, the same 4 grams mixed up with say 250 grams of powdered sugar would be quantified as a ―commercial quantity‖! And, where would this absurdity stop? Suppose one were to throw a pinch of heroin (say 0.5 gram) into a polythene bag containing small steel ball bearings having a total weight of 1kg: would the steel ball bearings be also weighed in and it be declared that a commercial quantity (1000.5 grams) of heroin was recovered! Surely, it is only the content of heroin (0.5 gram) in the ―mixture‖ of heroin and steel ball bearings that is relevant? Clearly, then, it would qualify as a small quantity. Therefore, in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a “small quantity” or a “commercial quantity”.” (Emphasis supplied)

Having observed, and after referring to various other decisions on the point, this Court held, in para 20 of the report, as under: ―....I reiterate that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken while considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a “small quantity” or a “commercial quantity‖.‖

In Ravinder Kumar (supra), the following question arose, for consideration and determination by this Court: ―Whether the percentage of morphine in a sample of opium can by itself be determinative of the purity of the sample and whether such test is relevant or necessary for the purpose of considering the grant of bail or of awarding of sentence in terms of Section 18 read with Section 37 of the NDPS?‖

In this case, 5 kg of opium was recovered from the appellant, which was found to contain 0.24% morphine. The appellant contended that, determined on the basis of the morphine contained thereof, the weight of the opium recovered from him would be only 12 grams, which was a ―small quantity‖.

The matter reached the Division Bench of this Court consequent on a reference made by a learned Single Bench, wherein it was noticed that, on the question of relevance of the percentage of morphine, in opium recovered under the NDPS Act, divergent views had been expressed, by two single Benches of this Court, in Mohd. Irfan v. State (Crl.A. 460/2005) and Rajender Kumar v. State (Crl.A. 436/2007).

The learned Single Judge also noticed the judgment of the Supreme Court in E. Micheal Raj (supra) as well as of this Court in Ansar Ahmed (supra), and observed that these decisions would not be applicable to the case before him, as he was dealing with opium, whereas the allegedly contraband narcotic, recovered in E.Micheal Raj (supra) and Ansar Ahmed (supra), was heroin.

The Division Bench, adjudicating the said reference in Ravinder Kumar (supra), observed that this distinction, as drawn by the learned Single Judge, between the situation which obtained in E.Micheal Raj (supra) and Ansar Ahmed (supra), vis-à-vis that which obtained in Ravinder Kumar (supra) was apt. Having so noticed, the Division Bench proceeded to decide the matter, observing that the contraband seized, in the case before it, was not morphine, but opium. The ―small‖ and ―commercial‖ quantities which found place in the table annexed to the relevant notification, it was observed, were in the context of opium and not morphine. As such, the Division Bench held, in Ravinder Kumar (supra), that the percentage of morphine

The ultimate decision in Ravinder Kumar (supra) is not of significance, so far as the present case is concerned; however, the distinction drawn, between the situation that obtained in E.Micheal Raj (supra) and Ansar Ahmed (supra), vis-à-vis that which obtained in Ravinder Kumar (supra), is undoubtedly significant, as well as relevant, for the present controversy.

The judgment in Abdul Mateen (supra), which was also rendered by a Division Bench of this Court, sought quashing of notification dated 18th November, 2009, issued by the Department of Revenue, specifically with respect to the amendment, effected by the said notification, to the earlier notification dated 19th October, 2001, by insertion of Note (IV) after the Table in the later notification. Prior to the said amendment, there were, below the Table in the notification dated 19th October, 2001, the following three Notes: ―Note. – 1. The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific chemical designation, the esters, ethers and salts of these drugs, including salts of esters, ethers and isomers; whenever existence of such substance is possible.

The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparations of substances of note 1 above.

―Small quantity‖ and ―Commercial Quantity‖ with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.‖

The notification dated 18th November, 2009, which Abdul Mateen sought to challenge, added, below Note 3 (supra), the following note: ―In the Table at the end after Note 3, the following Note shall be inserted, namely:-

The Division Bench of this Court, speaking through Badar Durrez Ahmed, J. (as his lordship then was) noted, at the outset, that the judgment of the Supreme Court in E. Micheal Raj (supra) had settled the legal possession prior to the issuance of the notification dated 18th November, 2009 (supra), by holding that when any narcotic drug or psychotropic substance was found mixed with one or more neutral substance(s), then, for imposition of punishment, it was only

The Division Bench held that the Central Government acted, within the power, conferred on it, by Section 21 of the NDPS Act, in inserting Note 4 below Note 3 in notification dated 19th October, 2001 (supra) was, therefore, upheld.

The judgment of the Supreme Court in Hira Singh (supra) was in an appeal against the judgment of this Court in Abdul Mateen (supra). The Supreme Court noticed the law, as enunciated in E. Micheal Raj (supra) in the following words: ―8. The principle stated in this decision is that the rate of purity of the drug is decisive for determining the quantum of sentence—for ―small‖, ―intermediary‖ or ―commercial‖ quantity. The punishment must be based on the volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such. In other words, the quantity of the neutral substance is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic

The judgment, however, after quoting the Notification dated 19-10-2001 took note of the purpose for which Amendment Act of 2001 was brought into force and then proceeded to hold that to achieve the said purpose of rationalisation of the sentence structure, the purity of the narcotic drug from the recovery or seizure made from the offender would be a decisive factor. In other words, the actual content or weight of the narcotic drug or psychotropic substance alone should be reckoned.‖

Though the case was referred to a larger Bench, for authoritative determination, the two-Judge Bench, adjudicating Hira Singh (supra), held that the judgment in E. Micheal Raj (supra) had interpreted Section 21 of the NDPS Act and that, therefore, the said interpretation would bind the Supreme Court. No decision of the Larger Bench, consequent to the reference made, thereto, in Hira Singh (supra), it may be noted, has been rendered as yet. The reference continues to pend.

Once the Supreme Court, in Hira Singh (supra), held that the interpretation, placed on Section 21 of the NDPS, by its earlier decision in E. Micheal Raj (supra) would bind it, it is obvious that the said decision would also bind this Court, adjudicating the present case.

The position that obtains, in view of Hira Singh (supra), is therefore, that it is the actual quantity of heroin, in which the accused

The appellant Prahlad Meena, in this appeal, was convicted under Section 21 (C) of the NDPS Act, on the ground of being found to be in unlawful possession of 1.7 kg of heroin, which was found to contain 3.2% of diacetylmorphine and 1.2% phenobarbital.

It was observed, by this Court, that the incident pertained to 16th June, 2009, prior to the promulgation of Notification, dated 18th November, 2009, whereby the entire weight of the substance, in question, recovered from the accused, was required to be taken into account in determining whether the quantity was small or commercial, and not merely the pure drug contained therein. This Notification, it was noticed, effectively neutralized the law enunciated in E. Micheal Raj (supra) and Ansar Ahmed (supra). Observing that, being in the nature of a legislation, the notification dated 18th November, 2009, could not apply to the case of the appellant, which related to 16th June, 2009 this Court held, following E. Micheal Raj (supra), that the learned trial court had erroneously treated the quantity recovered from the appellant Prahlad Meena as ―commercial‖ whereas it was actually ―intermediate‖, i.e., between ―small‖ and ―commercial‖.

The sentence of ten years incarceration awarded to the appellant in that case was, therefore, reduced to five years.

Six packets, containing heroin, were, in this case, recovered from Rafiq Qureshi, the convicted petitioner before the High Court. The gross weight of the powder was found to be 8.175 kgs. Two samples, 5 grams each, from each of the said six bags, of which one sample from each bag was tested. The six samples thus tested disclosed presence of heroin, with percentage purities of 6.1%, 5.4%, 5.8%, 4.9%, 10.4 % and 26.8%. The learned trial court convicted the appellant Rafiq Qureshi under Section 21(c) of the NDPS Act and sentenced him to 18 years‘ RI apart from fine of ₹ 2 lakh with 12 months SI stipulated as the default sentence.

Before the High Court in appeal, one of the contentions advanced by Rafiq Qureshi was that the total quantity of heroin carried by/recovered from him, was 609.6 grams and not 8.175 kg, as wrongly held by the court below.

Holding that the quantity of heroin contained in the powder seized from the accused Rafiq Qureshi was far in excess of the maximum stipulated commercial quantity of 250 grams, the Division Bench of the High Court of Calcutta held that E. Micheal Raj (supra) could not come to the rescue of the petitioner, and that his case has rightly been brought under Section 21 (c) of the NDPS Act. Following

The above judgment of the High Court of Calcutta was carried in appeal to the Supreme Court.

The Supreme Court, vide its judgment in Rafiq Qureshi (supra), concurring with the view of the High Court, held, in the concluding para 24 of its judgment, thus: “In the present case, the High Court held that although gross quantity of 8.175 Kg. of Heroin was alleged to have been recovered from the appellant but actual quantity of Heroin which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found in possession of Narcotic Drugs as per the analysis report to 609.6 gm. which is much higher than the commercial quantity, punishment higher than the minimum is justified. The High Court reduced the punishment from 18 years to 16 years. We, thus, uphold the judgment of the trial court and the High Court awarding the punishment higher than the minimum, however, looking to all the facts and circumstances of the present case including the fact that it was found by the High Court that the appellant was only a carrier, we find that the ends of justice will be sub-served in reducing the sentence from 16 years to 12 years. Thus, while maintaining the conviction of the appellant the appellant is sentenced to undergo 12 years rigorous imprisonment with fine of Rs. 2 lakh and in default of payment of such fine the appellant shall further undergo for a simple imprisonment for six months. The appeal is partly allowed to the extent as indicated above.”

Applying, to the facts of the present case, the ratio that emerges from the reading of the above decisions, the substance in question being heroin, the law as enunciated in E. Micheal Raj (supra), as concretized in the recent decision of the Supreme Court in Hira Singh (supra), would stand attracted. Applying the said law, the quantity of heroin recovered from the appellant, in the present case, would be 1.4 % of 460 grams i.e. 6.44 grams and not 460 grams as the learned ASJ has held. This is only marginally in excess of 5 grams, which has been notified as the quantity which would be liable to be treated as ―small‖, for the purpose of applicability of, inter alia, Sections 21 and 23 of the NDPS Act, vide Notification S. O. 1055 (E) dated 19th October, 2001, issued by the Department of Revenue, Ministry of Finance.

The finding of the learned ASJ, on this aspect, is, therefore, necessarily liable to be faulted both factually as well as legally. The corollary emerging from this factual position, applying the extant law in respect thereof, would be that the appellant would be liable only to the minimum sentence which could be awarded to a person dealing with heroin which was more than the ―small‖ but less than ―commercial‖ quantity, as stipulated in the Notification dated 19th October, 2001.

Dealing in heroin of small quantity attracts a maximum punishment of 1 year (at the relevant time) RI, whereas dealing with heroin of commercial quantity, or more, attracts a minimum of 10 years‘ RI. Intermediate quantity, i.e., between the stipulated ―small‖ and ―commercial‖ quantities, would, therefore, attract punishment

As per the Nominal Roll provided by the jail authorities, the appellant has already suffered incarceration of seven years and eight months.

In the opinion of this Court, the punishment suffered by the appellant is, therefore, more than adequate, for the offence with which he had been charged and of which he had been convicted.

In the above circumstances, the impugned judgment, dated 3rd August, 2015, and the order on sentence, dated 4th August, 2015, stand modified by upholding the conviction of the appellant, but under (i) clause (b) of Section 21 and (ii) clause (b) of Section 23 read with Section 28 of the NDPS Act, rather than clause (c) of the said Sections, whereunder the learned ASJ has convicted the appellant. The sentence awarded to the appellant shall stand reduced to the period of incarceration already undergone by him.

The appeal is allowed to the above extent. The appellant would be entitled to be released forthwith, unless his incarceration is required for any other reason.

Trial Court record be returned forthwith.