SAJAN ABRAHAMversusSTATE OF KERALA

                             SAJAN ABRAHAM                                          A
                                    v.
                            STATE OF KERALA

                           FEBRUARY 26, 2004

              [N. SANTOSH HEGDE AND B.P. SINGH, JJ.]                                B


       Narcotic Drugs and Psychotropic Substances ict, 1985-Section 21-
Narcotic Drugs and Psychotropic Substances Rules, 1985-Rule 66-Person
found in possession ofpsychotropic substance--Conviction under-Justification        C
 of~Held: Quantity of psychotropic substance seized falls within the limit of
small quantity used for personal medicinal purpose thus, entitled to benefit
 under the Rule and no offence under Section made out-Hence conviction not
justified-Also no separate permit required to claim benefit.

      According to the prosecution, appellant was found in possession of 25         D
ampoules of manufactured drug-Buprenorphine Hydrocholride (Tidigesic)
alongwith three syringes. He was charged for having committing the offence
punishable under Section 21 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. Triai Court acquitted the appellant of the charge.
However, High Court set aside the acquittal. Appellant filed an appeal before
this Court but the same was dismissed. He then filed a review petition which        E
was allowed by this Court. Hence the present appeal. Respondent-State
contended that unless the appellant held a permit granted under Rule 66 of
the NDPS Rules, he cannot claim benefit under the provisions of that Rule.

      Allowing the appeal, the Court
                                                                                    F
      HELD: I. I. Under Section 21 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 possession, sale, purchase etc. of the drugs and
preparations mentioned therein in contravention of any provision of the Act
or any rule or order made or condition of licence granted thereunder is made
punishable. Therefore, if any rule permits a person to possess any psychotropic     G
substance within the limits specified under the rule and subject to such
conditions as the rule may prescribe, such a person cannot be held guilty of
the offence under Section 21 of the Act if it is shown that his possession is not
in contravention of such rule. Rule 66 sub-rule (2) cif the Narcotic Drugs and
Psychotropic Substances Rules, 1985 permits a person to keep in his possession
                                      653                                           H
     654                     SUPREME COURT REPORTS                    [2004] 2 S.C.R.
A     for his personal medicinal use the psychotropic substance upto one hundred
    . dosage units at a time. (656-F-G; 657-El                            ·

            1.2. In the instant case, deposition of the Investigating Officer·as well
     as the deposition of appellant's mother indicates that the appellant used the
     said drug. Moreover, three syringes were also recovered from the appellant
B    is indicative of the fact that the psychotropic substance recovered from him
     was for his personal consumption and not for trading purposes. Therefore,
     having regard to the provisions of Rule 66 of the NDPS Rules read with
     Section 21 of the NDPS Act, the psychotropic substance Buprenorphine
     Hydrocholride (Tidigesic) found in possession of the appellant was not in
C    breach of Rule 66 of the .NDPS Rules and having regard to the fact that the
     same was for his personal consumption, no offence under Section 21 of the
     NDPS Act is made out. (657-F; 658-D-E]

           Hussain v. State of Kera/a, 12000) 8 SCC 139, relied on.

           Ouseph@ Thankachan y. State of Kera/a, [2004) 4 SCC 446, referred to.
D
           1.3. Having regard to the provisions of Section 9 of the NDPS Act under
     which the Rules have been framed, the Central Government is empowered
     by Rules ~o permit and regulate the matters mentioned therein. Rule 66 itself
     permits possession of psychotropic substance below a specified quantity and
E    subject to the conditions stated therein. Thus ifthe possession of psychotropic
     substance is justified under the said Rule, no separate permit is required to
     be issued to the person possessing such psychotropic substance because the
     Rule itself permits possession of such psychotropic substance to the extent
     mentioned in the Rule and subject to the conditions laid down therein.
                                                                           (658-B-C)
F
          CRIMINAL APPEJ,.LA TE JURISDICTION : Crminal Appeal No.
     1022 of 1997.

           From the Judgment and Order dated 2.9.1997 of the Kerala High Court
     in Crl. A .. No. 533 of 1994:
G
           R. Sathish, for the Appellant.

           Ramesh Babu M.R. for the Respond~nt.

           The Juclgment of the Court was delivered by
H
            SA.JAN ABRAHAM v. STATE OF KERALA [SINGH . .I.]               655
      B.P. SINGH, J. The appellant herein was charged of having committed        A
the offence punishable under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS
Act') and was put up for trial befo.re the Ist Additional Sessions Court,
Ernakulam. The case of the prosecution was that on l 0th October, 1993 at
about 7.45 p.m. he was found in possession of 25 ampoules of manufactured        B
drug, namely - Buprenorphine Hydrocholride (Tidigesic) alongwith three
syringes when he was apprehended on the road near Blue Tronics Junction,
Palluruthy. The learned Additional Sessions Judge by his judgment and order
dated 5th March, 1994 acquitted the appellant of the charge levelled against
him. On appeal by the State being Criminal Appeal No. 533 of 1994 the
acquittal of the appellant was set aside and the appeal preferred by the State   C
was allowed. The appellant was found guilty of the offence punishable under
Section 21 of the NDPS Act and was sentenced to undergo rigorous
imprisonment for 10 years and to pay a fine of rupees one lakh, in default
to undergo simple imprisonment for one year.

       The ·appellant preferred an appeal before this Court being Criminal       D
Appeal No. 1022 of 1997 but the same was dismissed by this Court by
judgment and order dated 7th August, 2001. The appellant then filed a review
petition being Review Petition (Cr!.) No.1236 of 2001 which was allowed by
this Court and the appeal restored to its original number. The appeal has now
been placed before us for disposal.
                                                                                 E
      While allowing the review petition this Court observed that the appellant
should have taken up a plea in the light of the decision of this Court in
Hussain v. State of Kera/a, [2000] 8 SCC 139 in which the same article
Buprenorphine Hydrocholride (Tidigesic) was found to be a psychotropic
substarice and the quantity which was found in possession of the accused was p
within the prescribed limit, being a small quantity. Consequently benefit of
the same was granted to the accused in that case and he was acquitted. This
Court felt, while allowing the review petition, that the appellant should be
permitted to take up that contention ·in this case in order to prevent a
miscarriage of justice. This Court noticed that the total quantity involved is·
25 ampoules of Buprenorphine Hydrocholride (Titidigesic) of 2 ml. each. G
Counsel for the State of Kerala submitted that the limit of small quantity as
per the Notification is 1 gm. Thus the total quantity seized from the appellant
would fall within the limit of smail quantity used for medicinal purposes. The
appellant was permitted to file a petition seeking permission to raise additional
grounds in the appeal.                                                            H
    656                     SUPREME COURT REPORTS                   (2004] 2 S.C.R.

A         An application has been filed by the appellant for permission to urge
    additional grounds in his appeal. We allow the said application.

          It was not disputed before us by the learned aotmsel appearing on
    behalf ofthe State that the total quantity seized from the appellant would fall
    within the limit prescribed under Section 27 of small quantity to be used for
B   medicinal purpose, namely - 1 gm. It is also not contended that the quantity
    seized from the appellant was in excess of the quantity prescribed under Rule
    66.

          Section 21 of the NDPS Act, as it stood at the relevant time provided
C as follows :-
                "21. Punishment for contravention in relation to manufactured
            drugs and preparations. - Whoever, in. contravention of any provision
            of this Act, or any rule or order made or condition of licence, granted
            thereunder manufactures, possesses, sells, purchases, transports,
            imports inter State, export~J.nter-State or uses any manufactured drug
D
            or any preparation containing any manufactured drug shall- be
            punishable with rigorous imprisonment for a term which shall not be
            less than ten years but which may extend to twenty years and shall
            also be liable to fine which shall not be less than one lakh rupees but
            which may extend to two lakh rupees ;
E
                Provided that the court may, for reasons to be recorded in the
            judgment, impose a fine exceeding two lakh rupees."

          It is thus apparent that what is made punishable under Section 21 is, -
    possession, sale, purchase' etc. of the drugs and preparations mentioned therein
F   in contravention of any provision of the Act or any rule or order mad~ or
    condition of licence granted thereunder. Obviously, therefore, if any rule
    permits a person to possess any psychotropic substance within the limits
    specified under the rule and subject to such conditions as the. rule may
    prescribes, such a person cannot be held guilty of the offence under Section
    21 of the Act if it is shown that his possession is hot in contravention of such
G   rule.

         Rule 66 of the Narcotic Drugs and Psychotropic Substances Rules,
    1985 (hereinafter referred to as 'the NDPS Rules') provides as follows :-

            "66. Possession, etc. of psychotropic substances. - (l) No person
H           shall possess any psychotropic substance for any of the purpose
            SA.JAN ABRAHAM v. STATE OF KERALA [SINGH,.1.J                    657

        covered by the 1945 Rules, unless he is lawfully authorized to possess       A
        such substance for any of the said purposes under these Rules.

            (2) Notwithstanding anything contained in sub-rule (I), any
        research institution, or a hospital or dispensary maintained or supported
        by Government or local body or by charity or voluntary subscription,
        which is not authorized to possess any psychotropic substance under          B
        the 1945 Rules, or any person who is not so authorized under the
        1945 Rules, may possess a reasonable quantity of such substance as
        may be necessary for their genuine scientific requirements or genuine
        medical requirements, or both for such period as is deemed necessary
        by the said research institution or, as the case may be, the said hospital   C
        or dispensary or person :

            Provided that where such psychotropic substance is in possession
        of an individual for his personal medical use the quantity thereof
        shall not exceed one hundred dosage units at a time.

            (3) The research institution, hospital and dispensary referred to in     D
        sub-rule (2) shall maintain proper accounts and records in relation to
        the purchase and consumption of the psychotropic substance in their
        possession."

      Sub-rule (2) therefore pennits a person to keep in his possession for his      E
personal medicinal use the psychotropic substance upto one hundred dosage
units at a time.

      In the instant case there is evidence on record which indicates that the
appellant used the said drug and this is obvious from the deposition of the
Investigating Officer, PW-3 as well as the deposition of his mother, OW. I.          F
Moreover three syringes were also recovered from the appellant which also
is indicative of the fact that the psychotropic substance recovered from him
was for his personal consumption and not for trading purposes.

      In similar circumstances this Court in Ouseph @ Thankachan v. State
of Kera/a. (Criminal Appeal No. 1256 of2001 disposed of on 6th December,             G
200 I) drew such an inference. There also the accused was found to possess
110 ampoules of the same psychotropic substance together with two syringes.

      In Hussain v. State of Kera/a, (supra) the appellant was found to possess
6 ampoules of the same psychotropic substance. This Court allowed the
appeal preferred by the accused giving him the benefit of Rule 66 of the             H
    658                     SUPREME COURT REPORTS                   [2004] 2 S.C.R.

A   NDPS Rules which permitted the appellant to keep in his possession for his
    personal medicinal.use the psychotropic substance upto 100 dosage units at
    a time.

          Learned counsel for the State submitted that unless the appellant held
    a permit granted under Rule 66 of the NDPS Rules, he cannot claim benefit
B   under the provisions of that Rule. We find no substance in the argument
    because having regard to the provisions of Section 9 of the NDPS Act under
    which the Rules have been framed, the Central Government is empowered by
    Rules to permit and regulate the matters mentioned therein. Rule 66 itself
    permits possession of psychotropic substance below a specified quantity and
C   subject to the conditions stated therein. Thus if the possession of psychotropic
    substance is justified under the said Rule, no separate permit is required to
    be issued to the person possessing such psychotropic substance because the
    Rule itself permits possession of such psychotropic substance to the extent
    mentioned in the Rule and subject to the conditions laid down therein. Thus
    following the principle laid down in Hussain v. State of Kera/a, (supra) and
D   having regard to the provisions of Rule 66 of the NDPS Rules read with
    Section 21 of the NDPS Act, we are satisfied that the psychotropic substance
    namely, - Buprenorphine Hydrocholride (Tidigesic) found in possession of
    the appellant was not in breach.of Rule 66 of the NDPS Rules and having
    regard to the fact that the same was for his personal consumption, no offence
E   under Section 21 of the NDPS Act is made out.

          In the result this appeal is allowed and the appellant is acquitted of the
    charge levelled against him. The appellant is on bail. His bail bonds are
    discharged.

    N.J.                                                          Appeal allowed.