Holding

Only 4.570 g of charas was positively proved, which is within the "small quantity" under Section 27, so the appellant is liable only under Section 27 and not under Section 20(b)(ii).

Summary

The appellant, a German tourist, was arrested in Goa with two cylindrical pieces of charas weighing 7 g and 5 g. Only the piece weighing less than 5 g was sent for chemical analysis, which confirmed it contained charas; the other piece was not tested. The trial court convicted him under Section 20(b)(ii) of the NDPS Act and sentenced him to ten years' rigorous imprisonment. On appeal, the Supreme Court held that the prosecution had positively proved only 4.570 g of charas, which falls within the "small quantity" (≤5 g) specified by the Central Government under Section 27 of the NDPS Act. The Court also observed that the circumstances – possession of a chillum, smoking material, and the appellant’s own statement – indicated personal consumption, satisfying the burden of proof under Section 27. Consequently, the conviction under Section 20(b)(ii) was set aside and the appellant was convicted under Section 27, with a sentence of six months' rigorous imprisonment and a fine of Rs 1 lakh.

Issues considered

Whether the prosecution must prove that all seized pieces are narcotic drug or can infer from analysis of one piece.
Whether the quantity of charas positively proved is less than 5 g, qualifying as "small quantity" under Section 27 of the NDPS Act.
Who bears the burden of proving that the seized substance was intended for personal consumption under Section 27.
Whether the conviction under Section 20(b)(ii) is appropriate given the proven quantity.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii), s. 27, s. 50, s. 8

Subjects

Narcotic DrugsCharasSmall quantitySection 27 NDPS ActBurden of proofChemical analysisPersonal consumptionForeign nationalSentencing

Judgment

GAUNTER EDWIN KIRCHER A
__,,,... v.
STATE OF GOA, SECRETARIAT, PANAJI, GOA

MARCH 16, 1993

(K. JAYACHANDRA REDDY AND G.N. RAY, JJ.] B
.-'4_
Narcotic Dntgs and Psychotropic Substances Ac~ 1985 :

Section 27-Benefit of-When could be extended to the accused-Two
pieces of cltaras seized from accused-Only one piece weighing less than 5 c
gms. sent for chemical examinati01r--Laboratory report confimiing the piece
to be containing charas-Accused pleading that it was meant for personal
_,_ consumpti01t-Whether entitled to benefit of lesser pwiishment-f'rocedure
for sending substance for chemical analysis indicated.

The appellant, a foreign national, was convicted by the trial court D
under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substan-
ces Act, 1985 and sentenced to undergo ten years' rigorous imprisonment
and to pay a fine of one lakh rupees, and in default, to further undergo
rigorous imprisonment for six months.
E
According to the prosecution, two cylindrical pieces of charas, .
~· weighing 7 gms. and 5 gms. respectively, were seized from the appellant by
a Police Patrol Party and on chemical analysis of one of the pieces, it was
found that the substance contained charas.

- The trial court, relying· on the evidence of PW 1, Junior Scientific
Officer of the Director of Health Services, who examined the substance,
F

PW 2, a panch witness and PW 3, the Police Inspector, who was heading
·~ the Patrol Party, convicted the appellant. The High Court dismissed the
appellant's appeal.

In the appeal before this Court, on behalf of the appellant it wa• G
contended that both the courts below had erred in holding that the
accused was found in possession of 12 gms. of Charas; since only a small
. -.>--- quantity i.e.. fess than 5 gms. had been sent for analysis the remaining part
of the substance, which had not been sent for analysis, could not be held
., to be also Charas and, therefore, tl1e quantity proved to have been in the H
.l 337
338 SUPREME COUR'F REPORTS [1993) 2 S.C.R.

A possession of the accused would be small quantity, as provided nnder
Section 27 of the Act and the accnsed sbonld have been given the benefit
of that Section.

On behalf of the State, it was submitted that there was no need to
send the entire quantity for chemical analysis, and the fact that one of the
B pieces which was sent for analysis had been found to contain Charas, the
necessary inference would be that the other piece also contained Charas
and that, at any rate, since the accused had totally denied, he.could not
get the benefit of Section 27, as he had not discharged the necessary
bnrden as required under the section.
c Disposing of the appeal, this Court,

HELD: 1.1. .Io the absence of positive proof that both the pieces -
recovered from the accused contained Charas only, it is not safe to hold ..... -
that 12 gms. of Charas was recovered from the accus.ed. In view of the
D evidence of P.W. 1, the prosecution has proved positively that Charas
weighing about 4.570 gms. was recovered from the accused. [342C)

1.2. In general, possession of any narcotic drug or psychotropic
substance has been prohilJited by Section 8 of the Narcotic Drugs and
Psychotropic Substances Act and any person found in possession of the
E same contrary to the provisions of the Act or any rule or order made or
permit issued thereunder is liable to be punished as provided thereunder
to imprisonment for a term not less than 10 years and a fine not less than
Rs. 1 lakh. However, Section 27 is an exception, whereby lesser punish·

F
ment is provided for illegally possessing any 'smaller quantity' for per·
sooal consumption of any narcotic drug or psxchotropic substance. By -
virtue of the notification issned on 14.11.85 under Explanation (1) of the
Section, 5 gms or less quantity of Charas has been specified by the.Central
Government to be the small quantity. [343E-F, 3448)

1.3. lo the instance case;the prosecution has proved that the quan-
G ·tity seized from the accused was less than 5 gms. Therefore, it is wit.bin the
meaning of :'small quantity" for the purpose of Section 27. [344C]

1.4. No doubt, as Section 27 lays down, the .burden is on the appel-
lut to prove that the substance was intended for bis personal coosump-
H doa. As to the nature of burden of proof that has to be discharged
'

•
GAUNTER EDWIN v. STATE OF.GOA 339

depends upon the facts and circumstances of each case. Whether the A
substance was intended for personal consumption or not has to be ex-
amined in the context in which this exception is made. [344D]

1.5. The accused though in general has taken a plea of denial, but
his examination under Section 313 Cr. P.C. by the Magistrate reveals that
there was a plea that it was meant for his personal consumption. The trial B
court has also noted in its judgment. that the accused had .made an
application stating that the piece said to have been recovered from him
was less than 5 gms., and not 12 gms. as alleged. The prosecution case
itself shows that he was having this substance in a pouch alongwith a
chillum (smoking pipe) and smoking material. The averments made by the c
appellant in the application and as extracted by the trial court would
themselves show that it was meant for his personal consumption. The
surrounding circumstances under which it was seized also confirm the
same. [344E-GI

1.6. The appellant is a foreigner and as a tourist appears to have D
carried this substance for his personal consnmption. No doubt, the
menace of trafficking in narcotic drugs and psychotropic substance has to
be dealt with severely, but in view of the provisious of Section 27, it cannot
be held that the small quantity found with the appellant was not meant for
his personal consumption. Therefore, the appellant is liable to be E
punished as provided under Section 27 of the Act. [344G-H, 345A]

1.7. Accordingly, the conviction of the appellant under Section
20(b)(ii) of the Act and sentence of 10 years' R.I. are set aside, and he is
convicted under Section 27 of the Act and sentenced to undergo 6 months'
R.I. and .to pay a fine of Rs. 1 lakh, in default of payment of which to F
furhter undergo 6 months' R.I. [345C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
642 of 1991.
G
From the Judgment and Order dated 25.4.1991 of the Bombay Higb
Court in Criminal Appeal No. 25 of 1990.

Lalit Chari, Peter D' Souza and Mukul Mudgal for the Appellant.

J.S. Wad, and Ms. A. Subhashini for the Respondent. H
SUPREME COURT REPORTS [1993] 2 S.C.R.

A The Judgment of the Court was delivered by

K. JAVA.CHANDRA REDDY, J. The appellant, a German National,
has been convicted by the trial court under Section 20(b)(ii) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 ('Act' for short) and sen-
B tenced to undergo 10 years R.I. and to pay a fine of Rs. 1 lakh, in default
of payment of which to further undergo six months' R.I. The appeal filed
by the appellant was. dismissed by the High Court. Hence the present
appeal.

In brief the prosecution case is that on 29.9.89 the Police Sub
C Inspector Gaonkar, P.W.3 alongwith a police party was patrolling at Calan-
gute Beach near Panjim and they came across the accused who was sitting
on a wooden log. On suspicion they went near him and noticed a chillum
(smoking pipe) in front of him lying on the log. He secured. the presence
of panch witnesses and searched the accused and recovered a polythene
D pouch from his pY.iama pocket in which there were tobacco, on€ cigarette
paper packet and two cylindrical pi~ces of 'Charas". The two pieces of
Charas wereweighed and found to be 7 gms. and 5 gms:respectively. They
were seized under a panchnama and ~ere separately sealed in two different
envelopes. One of the pieces weighing less than 5 gms. was · sent for
chemical analysis and the other piece weighing 7 gms. was not sent nor part
E of it by way of sample was sent for chemical analysis. Maria Caldeira,
P.W.1, the Junior Scientific Officer in. the Directorate of Health Services
carried out the chemical analysis of the substance weighing 4.570 gms.
consisting of three cylindrical pieces sticking together and she deposed that
the substance which was examined by her was found to have contained
F Charas.. P.W.2, a panch witness supported the prosecution case. The
accused when examined under Section 313 Cr. P.C. denied being in pos-
session of any Charas and said that he had only a pouch containing tobacco
and that he was taken to Calangute Police Station and was falsely impli-
cated.

G The trial court relying on the evidence of P.Ws 1 to 3 convicted the
accused. The submissions on behalf of the accused before the trial court
as well as the High Court have been that the search conducted on the
person of the accused was in contravention of Section 50 of the Act and
that there have been contradictions between the evidence of P.Ws 2 and 3
H . and that at any rate even if the prosecution case is to be accepted, the
GAUNTER EDWIN v. STATE OF GOA [REDDY, J.] 341

accused can be, at the most, held to be in possession of less than 5 gms. A
--~ of Charas which is a small quantity and, therefore, is entitled to the benefit
of Section 27.

Before us more or less the same submissions are made. So far as the
contentions in respect of seizure and drafting of panchnama and weight
are concerned, the question is whether the accused has been told that if B
'
-'4. he so desires he would be taken to a Magistrate before the search, as
provided under Section 50. Whether this has been complied with or not
mostly depends on the evidence and they 2-e only questions of fact. Both
the courts below have considered the entire evidence and have rejected
these submissions. Though these are questions of fact, yet we have also c
considered the relevant evidence on these aspects and we agree with the
findings of the courts below.

--)-
The next and most important submission of Shri Lalit Chari, the
leaned senior counsel appearing for the appellant is that both the courts D
below have erred in holding that the accused was found in possession of
12 gms. of Charas. According to the learned counsel, only a small quantity
i.e. less than 5 gms. has been sent for analysis and the evidence of P.W.1,
the Junior Scientific Officer Would at the most establish that only that much
of quantity which was less than 5 gms. of Charas is alleged to have been

- ...,,..
found with the accused. The remaining part of the substance which has not E
been sent for analysis can not be held to be also Charas in the absence of
any expert evidence and the same could be any other material like tobacco
or other intoxicating type which are not covered by the Act. Therefore the

....... submission of the learned counsel is that the quantity proved to have been
in the possession of the accused would be small quantity as provided under F

-
Section 27 of the Act and the accused should have been given the benefit
of that Section. Shri Wad, learned senior counsel appearing for the State
submitted that the other piece of 7 gn;s. also was recovered from the
possession of the accussed and there was no need to send the entire
quantity for chemical analysis and the fact that one of the pieces which was
sent for analysis has been found to contain Charas, the necessary inference G
would be that the other piece also contained Charas and that at any rate
since the accused has totally denied, he can not get the benefit of Section
·-r 27 as he has not discharged the necessary burden as required under the
said Section. Before examining the scope of this provision, we shall first
consider whether the prosecution has established beyond all reasonable H
'342 SUPREME COURT REPORTS [1993] 2 S.C.R.

A doubt that the accused had in his possession two pieces of Charas weighing
7 gms. and 5 gms. respectively. As already mentioned only one piece was
sent for chemical analysis and P.W.l, the Junior Scientific Officer who
examined the same found it to contain Charas but it was less than 5 gms.
From this ·report alone it can not be presumed. or inferred that the
substance in the other piece weighing 7 gms. also contained Charas. It has
B to be borne in mind that the Act applies to certain narcotic drugs and
psychotropic substances and not to all other kind• of intoxicating substan-
ces. In any event in the absence of positive proof that both the pieces
recovered from the accused contained Charas only, it is not safe to hold
that 12 gms. of Ch.aras was recovered from the accused. In view of the
C _evidence of P.W.1 it must be held that the prosecution has proved posi-
tively that Charas weighing about 4.570 gms. was recovered from the
accused. Ti)e failure to send the other piece has given rise to this inference.
We have to observe that to obviate this difficulty, the concerned authorities '
would do better if they send the entire quantity seized for chemical analysis
D so that there may not be any dispute of this nature regarding the quantity
seized. If it is not practicable, in a given case, to send the entire quantity
then sufficienr quantity by way of SU11ples from each of the packets or
pieces recovered should be sent for cliemical examination under a regular
jiancbnama iutd as per the provisions of law.

E Secion 27 of the Act reads thus:

'27. Punishment for illegal possession in small quantity for
personal consumption of any narcotic drug or psychotro-

F
pic substa!lce or consumption of such drug or substance-
whoever, in contravention of any provision of this Act, or
any rule or order made or permit issued thereunder,
possesses in a small quantity any narcotic drug or psycho-
-
tropic substance, which is proved t<? have been intended
for .his pers.;mal ·consumption and not for sale or distribu-
tion, or consumes any narcotic drug or psychotropic sub-
G stance, shall, notwithstanding anything contained in this
Chapter, be punishable-

(a) Where the narcotic drug or psychotropic substance
possessed or consumed is cocaine, morphine, diacetyl-
H morphine or any other narcotic drug or any psychotropic
GAUNTER EDWIN v. STATE OF GOA [REDDY, J.] '343

substance as may be specified in this behalf by the Central A
Government, by notification in the Official Gazette, with
imprisonment for a term which may extend to one year or
with fine or with both; and

(b) Where the narcotic drug or psychotropic substance
possessed or consumed is other than those specified in or B
under clause (a) with imprisonment for a term which may
extend to six months or with fine or with both

Explanation • (1) For the purposes of this section "small
quantity'' means such quantity as may be specified by the
Central Government by the notification in the Official
c
Gazette.

(2) Where a person is shown to have been in possession
of a small quantity of a narcotic drug or psychotropic
substance, the burden of proving that it was intended for D
the personal consumption of such person and not for sale
or distribution, shall lie on such person."·

In general possession of any narcotic drug or psychotropic substance
has been prohibited by Section 8 of the Act and any person found in
possession of the same contrary to the provisions of the Act or any rule or E
order made or permit issued thereunder is liable to be punished as
provided thereunder to imprisonment for a term which shall not be less

- than.10 years and shall also be fined which shall not be less.than Rs . .1 lakh.
Section 27 of the Act, however, is an eception whereby lesser punishment
is provided for illegally possessing any "smaller quantity" for personal
consumption of any narcotic drug or psychotropic substance. Under this
F

section the following jngredient should be fulfilled:

"(a) The person has been found in possession of any
narcotic dru~ or. psychotropic substance in "small quan-
~ G
(b) Such possession should be in contravention of any
provision of the Act or any rule of order made or permit
issued thereunder; and

(c) The· said possession of any narcotic drug or psycho- H
SUPREME COURT REPORTS (1993] 2 S.C.R.

A tropic substance was intended for his personal consump-
tion and not for sale or distribution."

The first explanation to this Section lays down that the small quantity
means such quantity as may be specified by the Central Government by a
notification. By virtue of the notification issued on 14.11.85 for the purpose
B of this Act 5 gms. or less quantity of Charas shall be the small quantity.
Explanation 2 further lays down that the burden of proof that the substance
was intended for the personal consumption and not for sale or distribution,
lies on such person from whose possession the same was recovered. As
held above in the instant case the prosecution has proved that the quantity
c seized from the accused was less than 5 gms. Therefore, it is within the
meaning of "small quantity" for the purpose of Section 27.

Then ·the other ingredient that has to be satisfied is whether the
substance found in possession of the appellant was intended for his per-
D sonal consumption and not for sale or distribution. No doubt as the Section
lays down the burden is on the appellant to prove that the substance was
intended for his personal consumption. As to the nature of burden of proof
that has to be discharged depends upon the facts and circumstances of
each case. Whether the substance was intended for personal consumption
o·r not has to be examined in the context in which this exception is made.
E In the instant case the accused though in general has taken a plea of denial
but his examination under Section 313 Cr. P.C. by the Magistrate reveals
that there was such a plea namely that it was meant for his personal

-
consumption. In the judgment of the trial court it is noted that the accused
made an application on 23.3.90 stating that the piece said to have been
F recovered from him was less than 5 gms. and not 12 gms. as alleged and
that the application was written and signed by the appellant himself. The
prosecution case itself shows that he was having this substance in a pouch
alongwith a chillum (smoking pipe) and smoking material. The averments
made by the appellant in the application and as extracted by the trial court
would themselves show that it was meant for his personal consumption.
G The above surrounding circumstances under which it was seized also
confirm the same. The appellant is a foreigner and as a tourist appears to
have carried this substance for his personal consumption. We are aware
that the menace of trafficking in narcotic drugs and psychotropic substance
has to be .dealt with •everely but in view of the provisions of Section 27, we
H are unable to hold that the small quantity found with the appellant was not
-1

GAUNTER EDWIN v. STATE Of GOA (REDDY, J.] 345

meant for his personal consumption and that on the other hand it was A
meant for sale ·or distribution. Therefore, the appellant is liable to be
punished as pro.vided under Section 27 of the Act.
-
From ·the records it appears that the appellant has been in jail for
more than three years but that may not be relevant since the sentence
prescribed u~der Section "27 is only six months. We are only just mentioning B
it as a fact.

In the re~ult the conviction of the appellant under Section 20{b)(ii)
of the Act and sentence of 10 years R.l. are set aside. Instead he is
convicted under. Section 27 of the Act and is sentenced to undergo 6
monghs' R.I. and to p~y a fine of Rs. 1 lac in default of payment of which C
to further undergo 6 months' R.l. Subject to the above modifications, the
appeal is disposed of.

N.P.V. Appeal disposed of.

-