Suresh Vs. State of Kerala
EmailAppeal: Criminal Appeal No. 303 of 1996
Petitioner: Suresh
Respondent: State of Kerala
Apeal: Criminal Appeal No. 303 of 1996
Judges: U.C. Banerjee & Shivaraj V. Patil, JJ.
Date of Judgment: Aug 21, 2002
Head Note:
CRIMINAL LAW
Narcotic Drugs and Psychotropic Substances Act, 1985
Sections 21, 27 with notification no. S.O. 527 (E) dated 16.7.1996 – Punishment – Recovery of 3.5 gms of heroin (di-acetyl morphine) – Provisions of section 27 modified by notification – Accused already suffered imprisonment for 4½ years – Terminal illness, due to which bail granted – No defence of self-use, but also no evidence if drug was meant for sale. Held that under peculiar circumstances and facts of case, imprisonment already suffered suffice. However, not to be treated as precedent or guidelines. (Paras 4, 5)
JUDGEMENT:
ORDER
1. The appellant before this Court in this appeal, upon grant of special leave under Article 136, has been convicted under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of rupees one lakh, and in default, to undergo rigorous imprisonment for another one year. In appeal against the order and judgment of the court of session, the High Court came to a similar conclusion and did not feel it expedient to interfere with the conviction and sentence as directed by the learned sessions judge.
2. During the course of hearing the learned counsel appearing in support of the appeal drew our attention to notification no. S.O. 527 (E), dated July 16, 1996, which specifies and defines the expression “small quantity” for the purpose of clause (b) of section 27 of the Narcotic Drugs and Psychotropic Substance Act, 1995 and the quantity in grams has been fixed at 5 grams. The concerned narcotic drug involved, is di-acetyl morphine (heroin). Admittedly the seizure, in the contextual facts, depicts a total quantity of 3.5 grams, as such much below the quantity as prescribed in terms of the notification and thus a ‘small quantity’ in terms of the notification. Section 27, however, has not been taken recourse to either by the learned sessions judge or by the High Court and the conviction has been under section 21 which prescribes a punishment of imprisonment for 10 years with fine.
3. Incidentally, the seizure memo itself records that 3.5 grams of di-acetyl morphine (heroin) was recovered from the body of the accused person being tied on to his wearing apparel. There is no evidence available on record that the same was meant for sale or there was ever any attempt even to sell the same. While it is true that the provisions under the Act of 1985 are rather strict, but in the event of there being a ‘small quantity’ as mentioned in the notification and in the event of compliance of the provisions of section 27, the punishment, as prescribed by the legislature, is one year and six months respectively.
4. Be it noted, however, that the defence of personal use and consumption is not available anywhere in the pleadings or in the evidence as tendered before the Court. But the fact remains that the accused person has in fact suffered an imprisonment for a period of four years prior to the grant of bail by this Court on the ground of his terminal illness and was released for a period of six months for medical purposes. The accused person, however, surrendered immediately before the expiry of the period so granted and he was in custody for a further period of six months and it is only then that this Court thought it prudent, upon consideration of the factum of his terminal illness, to grant him bail.
5. Having regard to the seizure of small quantity and by reason of the fact that the legislature itself, though at later date, thought it fit to amend the provisions of section 27 of the Act and by reason of the fact that the accused person is under severe mental stress due to his terminal illness, we do feel it expedient to pass an order to the effect that the period already served should be a sufficient punishment in the contextual facts. We, however, wish to put on record that this order is passed in the special facts of the matter under consideration having due regard to the quantum of narcotic drug seized (viz. 3.5 grams) and the admitted terminal illness of the appellant herein. The order, thus, would not be treated as a precedent at any point of time neither it be treated as a guideline.
6. The appeal is, thus, disposed of with a direction that the order of the High Court stands modified to the effect that the period already undergone shall be sufficient punishment for the offence charged.
7. Since the accused is on bail, his bail bonds shall stand discharged.
1. The appellant before this Court in this appeal, upon grant of special leave under Article 136, has been convicted under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of rupees one lakh, and in default, to undergo rigorous imprisonment for another one year. In appeal against the order and judgment of the court of session, the High Court came to a similar conclusion and did not feel it expedient to interfere with the conviction and sentence as directed by the learned sessions judge.
2. During the course of hearing the learned counsel appearing in support of the appeal drew our attention to notification no. S.O. 527 (E), dated July 16, 1996, which specifies and defines the expression “small quantity” for the purpose of clause (b) of section 27 of the Narcotic Drugs and Psychotropic Substance Act, 1995 and the quantity in grams has been fixed at 5 grams. The concerned narcotic drug involved, is di-acetyl morphine (heroin). Admittedly the seizure, in the contextual facts, depicts a total quantity of 3.5 grams, as such much below the quantity as prescribed in terms of the notification and thus a ‘small quantity’ in terms of the notification. Section 27, however, has not been taken recourse to either by the learned sessions judge or by the High Court and the conviction has been under section 21 which prescribes a punishment of imprisonment for 10 years with fine.
3. Incidentally, the seizure memo itself records that 3.5 grams of di-acetyl morphine (heroin) was recovered from the body of the accused person being tied on to his wearing apparel. There is no evidence available on record that the same was meant for sale or there was ever any attempt even to sell the same. While it is true that the provisions under the Act of 1985 are rather strict, but in the event of there being a ‘small quantity’ as mentioned in the notification and in the event of compliance of the provisions of section 27, the punishment, as prescribed by the legislature, is one year and six months respectively.
4. Be it noted, however, that the defence of personal use and consumption is not available anywhere in the pleadings or in the evidence as tendered before the Court. But the fact remains that the accused person has in fact suffered an imprisonment for a period of four years prior to the grant of bail by this Court on the ground of his terminal illness and was released for a period of six months for medical purposes. The accused person, however, surrendered immediately before the expiry of the period so granted and he was in custody for a further period of six months and it is only then that this Court thought it prudent, upon consideration of the factum of his terminal illness, to grant him bail.
5. Having regard to the seizure of small quantity and by reason of the fact that the legislature itself, though at later date, thought it fit to amend the provisions of section 27 of the Act and by reason of the fact that the accused person is under severe mental stress due to his terminal illness, we do feel it expedient to pass an order to the effect that the period already served should be a sufficient punishment in the contextual facts. We, however, wish to put on record that this order is passed in the special facts of the matter under consideration having due regard to the quantum of narcotic drug seized (viz. 3.5 grams) and the admitted terminal illness of the appellant herein. The order, thus, would not be treated as a precedent at any point of time neither it be treated as a guideline.
6. The appeal is, thus, disposed of with a direction that the order of the High Court stands modified to the effect that the period already undergone shall be sufficient punishment for the offence charged.
7. Since the accused is on bail, his bail bonds shall stand discharged.
