Supreme Court of India
STATE THROUGH INTELLIGENCE OFFICER NARCOTICS CONTROL BUREAUversusMUSHTAQ AHMAD ETC.
- Citation
- 2015 INSC 719
- Decided
- 6 October 2015
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The seized charas is a commercial quantity and the conviction under s.20(b)(ii)(C) with the mandatory minimum ten‑year imprisonment is proper, so the High Court’s alteration of the conviction is set aside.
Summary
The State, through an Intelligence Officer of the Narcotics Control Bureau, charged Mushtaq Ahmad and Guizar Ahmad with possession of large amounts of charas (6.2 kg and 4.0 kg respectively) seized on 5 April 2004. The trial court held that the seized charas constituted a "commercial quantity" under the NDPS Act and convicted the accused under s.20(b)(ii)(C), imposing a minimum ten‑year rigorous imprisonment. The High Court, relying on the THC content and treating the quantity as "intermediate", altered the conviction to s.20(b)(ii)(B) and reduced the sentence. On appeal, the Supreme Court examined whether the 2001 amendment to the NDPS Act applied, the correct interpretation of "commercial quantity" for charas, and whether a minimum mandatory sentence could be lowered. The Court held that the amendment was applicable, the charas fell within the commercial quantity definition (the THC threshold of 50 g exceeded), and the statutory minimum sentence could not be reduced. Consequently, the High Court’s order was set aside and the original conviction and sentence under s.20(b)(ii)(C) were restored.
Issues considered
- Whether the 2001 NDPS Amendment Act and its Section 41(1) apply to offences committed in 2004.
- Whether the seized charas constitutes a "commercial quantity" under the NDPS Act and the relevant notification.
- Whether the THC content of the seized material is relevant for determining the applicable quantity category.
- Whether the High Court erred in converting the conviction from s.20(b)(ii)(C) to s.20(b)(ii)(B).
- Whether a court can impose a sentence lower than the statutory minimum prescribed under s.20(b)(ii)(C).
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii)(B), s. 20(b)(ii)(C), s. 2(iii), s. 2(viia), s. 2(xxiiia), s. 41(1), s. 8
- Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001s. 41(1)
Subjects
NDPS Actcommercial quantityminimum mandatory sentencecharasTHC content2001 amendmentSection 41(1)drug traffickingsentencing
Judgment
[2015] 15S.C.R.452
A STATE THROUGH INTELLIGENCE OFFICER NARCOTICS
CONTROL BUREAU
v.
MUSHTAQ AHMAD ETC.
B (CriminalAppeal Nos.1294-1295of2015)
OCTOBER 06, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985
C - s.20(b)(ii)(C) and s.2 (viia) - Narcotic Drugs and
Psychotropic Substances (Amendment) Act, 2001 (Act No.
9 of 2001) - s.41(1) - Seized contraband article within
definition of commercial quantity- Trial Court taking note of
the fact that the first respondent and the second respondent
D were in possession of 6 kg. 200 gms and 4 kgs. of charas
respectively and the prosecution had been able to establish
the same, treated the contraband article as commercial
quantity and accordingly convicted them u!s.20(b)(ii)(C) of
the NDPS Act and sentenced each of them to Rf for 12 years
E - High Court, however, held that the narcotic drug proved to
have been recovered from the possession of the accused
persons was of"intermediate quantity" in terms of s.2(viia) of
the NDPS Act read with S.O. 1055(E) dated 19.1.2001 and
the addition of "Note 3" after "Note 4 did not change the
F complexion of the matter for the reason that the alleged
recovery had been made way back on 5.4.2004 -
Accordingly, the High Court altered the conviction of
accused-respondents to one u/s.8 rlw s.20(b)(ii)(B) of the
NDPS Act and restricted the period of custody to the period
G already undergone - On appeal, held: s.41(1) of the
Amending Act 9 of 2001 determined the application or
exclusion of the amending provisions - In the case at hand,
the occurrence too place in 2004 and, therefore, the
Amending Act of 2001 was applicable - s. 2 (viia) of the NDPS
H
452
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 453
BUREAU v. MUSHTAQ AHMAD
Act defines commercial quantity - Trial Court took note of A '
the fact that the notification issued on 19.10.2001 clearly
shows that more than one kilogram is commercial quantity-
The High Court reversed the finding pertaining to commercial
quantity being guided by presence of "Tetra-hydrocannabinol"
(THC) content:.... ft found that the seized article contained more B
than 50 gms. Tetra hydrocannabinol in respect of both the
accused persons - In the present case, the contraband
article that has been seized is "charas" - The chemical
name for charas and hashish is "extracts. and tinctures
of cannabis" - It finds mention at Entry No.23 of the c
Notification - Serial No. 150 of the Notification deals with
'Yetrahydrocannababino/" having a long list- The commercial
quantity for the contraband article, namely, Tetra
hydrocannabino/ (THC) as stated in Entry no. 150 is 50 gms
- Even assuming the said percentage is found in the seized o
item then also the contraband article would go beyond the
"intermediate" quantity and fall under the "commercial"
quantity- Judged from any score, the view expressed by the
High Court is not correct - Therefore, the seized item fell
under the commercial quantity and hence the conviction E
recorded by the trial court u/s. 20 (b) (ii) (C) is absolutely
impeccable - s.20(b)(ii)(C) stipulates that the minimum
sentence will be ten years which may extend to twenty years
- On facts, accused-respondents found guilty of offence
punishable u/s.20(b)(ii)(C) of the NDPSAct and each of them F
sentenced to undergo RI for ten years and to pay a fine of
Rs. 1 lakh.
Sentence I Sentencing - Minimum mandatory
sentence - Effect - Held: When a minimum punishment is
prescribed, no court can impose lesser punishment . G
Narendra Champak/a/ Trivedi v. State of Gujarat
(2012) 7 SCC 80: 2012 (6) SCR 165; and State
of Madhya Pradesh v. Ayub Khan (2012) 8 SCC
676: _2012 (7) SCR 427 - relied on.
H
454 SUPREME COURT REPORTS [2015] 15 S.C.R.
A Amar Singh Ramaji Bhai Barot v. State of Gujarat
(2005) 7 SCC 55; Samiu/lah v. Superintendent
Narcotic Control Bureau AIR 2009 SC 1357 : 2008
(15) SCR 626; E. Micheal Raj v. Intelligence
Officer Narcotic Control Bureau (2008) 5 SCC
B 161: 2008 (4) SCR 644; Ouseph@ Thankachan
v. State of Kera/a (2004) 4 SCC 446; Basheer v.
State of Kera/a (2004) 3 SCC 609 : 2004 (2) SCR
224; Harjit Singh v. State of Punjab (2011) 4 SCC
441-: 20.11 (5) SCR 691 - referred to.
c Case Law Reference
(2005) 1 sec 55 referred to Para 3
2008 (15) SCR 626 referred to Para 3
D
2008 (4) SCR 644 referred to Para 3
(2004) 4 sec 446 referred to Para 4
2004 (2) SCR 224 referred to Para 11
E
2011 (5) SCR 691 referred to Para 24
2012 (6) SCR 165 relied on Para 27
F 2012 (7) SCR 427 relied on Para 28
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 1294-1295 of 2015.
From the Judgment and Order dated 03.06.2011 of the
G High Court of Jam mu and Kashmir at Jammu in Crl. Appeals
Nos. 35 and 36 of 2009.
Ms. Sushma Manchanda, M. Khairati, B. Krishna Prasad,
YoshakAdhyaru, Advs. for the Appellant.
Ms. Nidhi, Adv. for the Respondents.
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 455
BUREAU v. MUSHTAQ AHMAD
The Judgment of the Court was delivered by A
DIPAK MISRA, J. 1. In tliis appeal, by special leave, the
State of Jammu and Kashmir has called in question the legal
propriety of the judgment and order passed in Criminal Appeal
Nos. 35 and 36 of 2009 whereby the High Court has converted 8
the conviction recorded by the learned trial Judge holding the
accused respondents guilty of the offence punishable under
Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for brevity, "the NDPS Act") and
sentencing each of them to suffer rigorous imprisonment for a C
period of 12 years and further to pay a fine of Rs.2 lakhs each
and in case of default of payment of fine to undergo rigorous
imprisonment for period of one year to one under Section 8
read with Section 20 (b) (ii) (B) of the NDPSAct and restricted
the period of custody tG the period already undergone, that is, 0
slightly more than seven years and to pay a fine of Rs.25,000/
- each with a modified default clause.
2. The facts which are necessary to be stated are that
the accused-respondents were chargesheeted under Section
8 read with Section 20 of the NDPS Act and accordingly, they E
were sent up for trial. Accused persons denied the accusations
and claimed trial. The prosecution to substantiate its stand
examined number of witnesses and brought in series of
documents in evidence. The learned trial Judge taking note
of the fact that Mushtaq Ahmad, the first respondent and Guizar F
Ahmad, the second respondent were in possession of 6 kg.
200 gms and 4 kgs. of charas respectively and the prosecution
had been able to establish the same, treated the contraband
article as commercial quantity and accordingly found them
guilty for the offence punishable under Section 20(b) (ii) (C) of G
the NDPS Act and eventually considering the gravity of the
offence and the proliferating and devastating menace the drugs
have been able to create in the society and keeping in view
H
456 SUPREME COURT REPORTS [2015) 15 S.C.R.
A the need for eradication, sentenced each of them as has been
mentioned hereinabove.
3. The aforesaid judgment of conviction and order of
sentence constrained the respondents-accused to prefer
Criminal Appeal Nos. 35 and 36 of 2009 and the Division
B Bench of the High Court of Jammu and Kashmir at Jammu
heard both the appeals together. The Division Bench
addressed to various aspects and taking into consideration
the law laid down in Amar Singh Ramaji Bhai.Barot v. State
of Gujarat1 and Samiullah v. Superintendent Narcotic
C Control Bureau2 , and E. Micheal Raj v. Intelligence Officer
Narcotic Control Bureau3 came to hold that the narcotic drug
proved to have been recovered from the possession of the
accused persons was of "intermediate quantity" in terms of
Section 2(viia) of the NDPSAct read with S.O. 1055(E) dated
D 19.1.2001 and the addition of "Note 3',. after "Note 4 did not·
change the complexion of the matter for the reason that the
alleged recovery had been made way back on 5.4.2004, that
is, more than five years prior to the amendment had come in
force and further there was no allegation that there were more
E than one narcotic drugs or isomers, esters, ethers and salts of
the narcotic drug detected in the recovered substance. Being
of this view, the High Court opined that the accused could only
be convicted for the offence punishable under Section 8 read
with Section 20(b) (ii) (B) of the NDPSAct. TheHigh Court,
F accordingly, held thus:-
"38. The appellants against the above backdrop
were to be convicted of offence punishable under
section 8 read with section 20 (b) (ii) (B) of the Act
and sentenced to the punishment prescribed under
G
section 20 (b) (ii) (B) of the Act and not to the
punishment prescribed for the offence involving
1
(2005) 7 sec 55
2
AIR 2009 SC 1357
H '(200BJ 5 sec 161
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 457
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
possession of "commercial quantity" of narcotic A
drug under section 20 {b) (ii) (c) of the Act.
However, the appellants arrested on 5.42004 and
are in custody for last more than seven years.
39. We therefore, alter the conviction of the
appellants to section 20 (b) (ii) (B) of the NDPS B
Act and sentence the appellants to the
imprisonment already undergone and a fine of
Rs.25000/- each. In default of payment of fine the
appellants shall suffer rigorous imprisonment for a
further period of six months. The Criminal Appeal c
No. 35/2009 titled Mushtaq Ahmad vis State and
Cr. Appeal No. 36/2009 titled Guizar Ahmad v/s
State are disposed of accordingly."
4. It is submitted by Ms. Sushma Manchanda, learned 0
counsel appearing for the State that the High Court has fallen
into error by converting the conviction from Section 20(b)(ii)
(C) to Section 20(b)(ii) (B) of the NDPS Act relying on the
decisions in Amar Singh Ramaji Bhai Barot (supra);
Ouseph @ Thankachan v. State of Kera/a 4 and E. Micheal E
Raj (supra) without taking into consideration the definition of
"charas" under the dictionary clause of the NDPS Act and
fallaciously dwelt upon the other substance which has no
applicability. She has seriously criticized the finding recorded
by the Division Bench of the High Court on the ground that F
neither the definition nor the stipulations in the relevant
notification lend support to such a finding and, therefore, the
conclusion arrived at by the High Court is vulnerable in law.
5. Ms. Nidhi, learned counsel for the respondent, per
contra, submitted that the High Court has rightly converted the G
offence from Section 20(b)(ii) (C) to Section 8 read with
Section 20(b)(ii) (B) of the NDPS Act regard being had to the
percentage in the seized contraband article and the sentence
• (2004J 4 sec 446
H
458 SUPREME COURT REPORTS [2015] 15 S.C.R.
A imposed being in the upper limit of the sentence prescribed in
the provision, the same does not warrant any interference by
this Court. It is her further submission that the reliance on the
authorities placed by the High Court cannot be found fault with.
Additionally, it is contended by him that the discretion exercised
B by the High Court cannot be regarded as injudicious warranting
interference by this Court.
6. We shall deal with the first aspect first, for our finding
on that score shall foreclose other submissions as there would
be no warrant for the same. There is no dispute over the fact
C that the contraband articles were seized on 5.4.2004. Section
8 of the NDPS Act at that time read as follows:-
"8. Prohibition of certain operations.-No
person shall-
D (a) cultivate any coca plant or gather any portion of
coca plant; or
. (b) cultivate the opium poppy or any cannabis plant;
or
E (c) produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import inter-
state, export inter-State, import into India, export
from India or tranship any narcotic drug or
psychotropic substance,
F except for medical or scientific purposes and in the
manner and to the extent provided by the provisions
of this Act or the Rules or Orders made thereunder
and in a case where any such provision, imposes
any requirement by way of licence, permit or
G authorisation also in accordance with the terms and
conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions
of this Act and the Rules made thereunder, the
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 459
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
prohibition against the cultivation of the cannabis A
plant for the production of ganja or the production,
possession, use, consumption, purchase, sale,
transport, warehousing, import inter-State and
export inter-State of ganja for any purpose other
than medical and scientific purpose shall take effect B
only from the date which the Central Government
may, by notification in the Official Gazette, specify
in this behalf:
Provided further that nothing in this section shall
apply to the export of poppy straw for decorative c
purposes."
7. Section 20 of the NDPS Act at the relevant time after
certain amendments read thus:-
"20. Punishment for contravention in relation to D
cannabis plant and cannabis.-Whoever, in
contravention of any provision of this Act or any rule
or order made or condition of licence granted
thereunder,-
(a) cultivates any cannabis plant; or E
(b) produces, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports
inter-State or uses cannabis, shall be punishable-
(i) where such contravention relates to clause (a) F
with rigorous imprisonment for a term which may
extend to ten years and shall also be liable to fine
which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause
(b),- G
(A) and involves small quantity, with rigorous
imprisonment for a term which may extend to one
year, or with fine, which may extend to ten thousand
rupees, or with both; H
460 SUPREME COURT REPORTS [2015] 15S.C.R.
A (B) and involves quantity lesser than commercial
quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten
years and with fine which may extend to one lakh
rupees;
B (C) and involves commercial quantity, with rigorous
imprisonment for a tenn 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
c lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding
two lakh rupees."
D 8. Prior to the amendment, Section 20 of the NDPS Act
read as follows:-
"20. Punishment for contravention in relation to
cannabis plant and cannabis.-Whoever, in
contravention of any provision of this Act or any rule
E or order made or condition of licence granted
thereunder,-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells,
F purchases, transports, imports inter-State, exports
inter-State or uses cannabis, shall be punishable, -
(i) where such contravention relates to ganja or the
cultivation of cannabis plant, with rigorous
imprisonment for a term which may extend to five
G
years and shall also be liable to fine which may
extend to fifty thousand rupees;
(ii) where such contravention relates to cannabis
other than ganja, with rigorous imprisonment for a
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 461
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
term which shall not be less than ten years but which A
may extend to twenty years and shall also be liable
to fine which shall not be less than one lakh rupees
and which may extend to two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding B
two lakh rupees."
9. The legislature amended certain provisions of the
NDPS Act which came into effect on 2.10.2001 vide amending
Act 9 of 2001. Be it stated the said Act rationalized the structure c
of punishment under the NDPS Act by providing graded
sentences linked to the quantity of narcotic product or
psychotropic substance in relation to which the offence was
committed. The statement of objects and reasons to the Bill
declares the intention thus:- D
"STATEMENT OF OBJECTS AND REASONS
Amendment Act 9 of 2001.-The Narcotic Drugs
and Psychotropic Substances Act, 1985 provides
deterrent punishment for various offences relating
to illicit trafficking in narcotic drugs and E
psychotropic substances. Most of the offences
invite uniform punishment of minimum ten years'
rigorous imprisonment which may extend up to
twenty years. While the Act envisages severe
punishments for drug traffickers, it envisages F
reformative approach towards addicts. In view of
the general delay in trial it has been found that the
addicts prefer not to invoke the provisions of the
Act. The strict bail provisions under the Act add to
their misery. Therefore, it is proposed to rationalise G
the sentence 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
H
462 SUPREME COURT REPORTS [2015] 15S.C.R.
A offences are sentenced to less severe punishment.
This requires rationalisation of the sentence
structure provided under the Act. It is also proposed
to restrict the application of strict bail provisions to
those offenders who indulge in serious offences."
B 10. Section 41 (1) of the Amending Act 9 of 2001
determined the application or exclusion of the amending
provisions. The said provision read as follows:- ·
"41. Application of this Actto pending cases.-(1)
c Notwithstanding anything contained in sub-section
(2) of Section 1, all cases pending before the courts
or under investigation at the commencement of this
Act shall be disposed of in accordance with the
provisions of the principal Act as amended by this
D Act and accordingly, any person found guilty of any
offence punishable under the principal Act, as it
stood immediately before such commencement,
shall be liable for a punishment which is lesser than
the punishment for which he is otherwise liable at
the date of the commission of such offence:
E
Provided that nothing in this section shall apply
to cases pending in appeal."
11: The question arose with regard to the constitutional
validity of the said provision inasmuch as there was a
F classification between the accused facing trial and the convicts
who had already b&un convicted and their appeals were
pending after 2.10.2001. This Court in Basheer v. State of
Kerala 5 , after referring to certain authorities pertaining to
classification came to hold as follows:-
G
"ln the result, we are of the view that the proviso to
·section 41 (1) of the amending Act 9 of 2001 is
constitutional and is not hit by Article 14.
Consequently, in all cases, in which the trials had
H s (2004) 3 sec so9
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 463
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
concluded and appeals were pending on 2-10- A
2001, when amending Act 9 of 2001 came into force,
the amendments introduced by the amending Act
9 of 2001 would not be applicable and they would
have to be disposed of in accordance with the
NDPS Act, 1985, as it stood before 2-10-2001." B
12. In the case at hand, admittedly the occurrence had
taken place in 2004 and, therefore, 2001 Act applies. The
'Notes' that came to be inserted by way of amendment at a
later date need not be debated upon in this case, for the simon
pure reason the said Notes would not be attracted regard being C
had to the factual score in the present case. Presently, we
shall refer to certain pertinent provisions of the NDPS Act.
Section 2 (viia) of the NDPS Act defines commercial quantity.
It is as follows:-
"2. (viia) "commercial quantity", in relation to narcotic D
drugs and psychotropic substances, means any
quantity greater than the quantity specified by the
Central Government by notification in the Official
Gazette;"
13. Section 2 (xxiiia) of the NDPS Act defines small E
quantity. It reads as follows:-
"2. (xxiiia) "small quantity", in relation to narcotic
drugs and psychotropic substances, means any
quantity lesser than the quantity specified by the
F
Central Government by notification in the Official
Gazette;"
14. At this juncture, it is appropriate to refer to the
definition of cannabis (hemp) as contained in Section 2(iii) of
the NDPSAct:- G
"(a) charas, that is, the separated resin, in whatever
form, whether crude or purified, obtained from the
cannabis plant and also includes concentrated
preparation and resin known as hashish oil or liquid
hashish; H
464 SUPREME COURT REPORTS [2015] 15 S.C.R.
A (b) ganja, that is, the flowering or fruiting tops of the
cannabis plant (excluding the seeds and leaves
when not accompanied by the tops), by whatever
name they may be known or designated; and
(c) any mixture, with or without any neutral material,
B of any of the above forms:-of cannabis or any drink
prepared therefrom;"
[Emphasis supplied]
15. It is pertinent to reproduce the relevant extract from
C the notification dated 19th October, 2001 issued under Clause
(viia) and (xxiiia) of Section 2 of the NDPS Act. The requisite
part of the table is reproduced below:-
"SI. Name of N arcctic other -- - -chemical-sma1-1 -commercial
No. Drug and non- Name Quantity Quantity
Ps~hotropic proprietary (in gm.) (in gm/kg)
D Subs1ance name
[International
non-proprietary
name (INNll
11) 12) 13) (4) ( 5\ 16\
23. Cannabis and CHARAS, EXTRAC 100 1.Js.g.
cainabis resin HASHISH TS AND
E TINCTUR
ESOF
CANN AB I
s
150 Tetra'lydrocanna The l
babinol following
F isomers
and their
stereoche
mimical
variants:-
7,8,9,10-
tetrahydro-
G 6,6,~
trimelhyl-3
pentyl-BH-
dibenzo
[b,d] pyran,
1-o1 (9R,
10aR)-
H 8,9, 10, 10a
STATE THR: INTEL. OFFCR. NARCOTICS CONTROL 465
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
tetrahydro- A
6,6.9-
trimethy1-3-
pentyl-6H-
di benzo[b,d]
pyranl-ol
B
(6aR, 9R,
10aR)- 6a,
9, 10, 10a-
tetrahydro-
6,6,9-
trimethyl-3- c
penty1 -6H·
dibenzo [b,d]
pyran-1-o1
(6aR, 10aR}
6a, 7,10,10a
tetrahydro- D
6,6,9-
trimethyl - 3-
penty1-6H-
dibenzo [b,d]
pyran- 1-ol
6a,7,8,9- E
tetrahydro-
6,6,9-
trimethyl-3-
pentyl-6H-
dibenzo [b,d]
pyran-1-ol
F
(6aR, 10aR}
6a,7,8,9, 10,
10a-
hexahydro-6
6-dimthyl-1-9
G
methylene 3
pentyl-6H-
dibenzo [b,d]
pyran-1-o]"
[Emphasis supplied] H
466 SUPREME COURT REPORTS [2015) 15 S.C.R.
A 16. The learned trial Judge had treated the seized
contraband article falling within the definition of commercial
quantity and accordingly found the accused persons guilty and
imposed the sentence. He has taken note of the fact that the
notification issued on 19.10.2001 clearly shows that more than
B one kilogram is commercial quantity. The High Court while
reversing the finding pertaining to commercial quantity has
stated thus:-
"lt needs to be pointed out that the Chemical
Examiner as per the prosecution case did not only
c analyze the samples to find out whether it
comprised of or contained any Narcotic Drug but
went a step further to find out "percentage by weighf'
of the Narcotic Drug in the sample. The Chemical
Examiner as per his reports dated 25.04.2004
D certified that the sample taken from· one of the seven
brownish stick shaped substance tested positive
for Charas and the Tetra hydrocannabinol (THC)
content in the sample was 5.1 percent. In case of
sample lifted from one of the five sticks recovered
E from the appellant Mushtaq Ahmad Tetra
hydrocannabinol (THC) content in the sample was
5.1 percent. In case of sample lifted from one of
the five sticks recovered from the appellant Mushtaq
Ahmad Tetra hydrocannabinol (THC) content in the
F sample was found to ~e 4.9 percent. In the
circumstances, if the samples lifted from the
substance recovered from the appellants would be
45 gms and 39 gms respectively taking each stick
to have average weight of 890 (6.2 Kg-7) and 800
G (4.0Kg-5) gms respectively. However, if, working
on the assumption made by learned trial Court that
in view of confessional statements of the appellants,
the whole substance was to be taken as Charas
irrespective of restricted sampling, the Narcotic
H
•. STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 467
BUREAU v. MUSHTAQ AHMAD [Of PAK MISRA, J.]
Drug content in the entire substance recovered from A
the appellants still would work out to be 316 gms
and 196 gms respectively."
17. We have reproduced the aforesaid paragraph to
appreciate that the High Court has been guid~d by presence
of "Tetra-hydrocannabinol" (THC) content and on that B
foundation has proceeded to hold that the seized item from
both the accused persons is beyond the small quantity but
lesser than the commercial quantity. To arrive at the said
conclusion, reliance has been placed essentially on Ouseph
@ Thankachan (supra) and E. Micheal Raj (supra). C
18. We think it appropriate to analyse the ratio of the
said decisions. In Ouseph @ Thankachan (supra), the
accused was found in possession of 110 ampoules of
buprenorphine trade name of which is Tidigesic. The court 0
addressed to the issue whether psychotropic substance was
in small quantity and if so, whether it was for personal
consumption. In that regard, the Court proceeded to state thus:-
"The question to be considered by us is whether
the psychotropic substance was in a small quantity E
and if so, whether it was intended for personal
consumption. The words "small quantity'' have been
specified by the Central Government by the
notification dated 23..,7-1996. Learned counsel for
the State has brought to our notice that as per the F
said notification small quantity has been specified
as 1 gram. If so, the quantity recovered from the
appellant is far below the limit of small quantity
specified in the notification issued by the Central
Government. It is admitted that each ampoule G
contained only 2 ml and each ml contains only .3
mg. This means the total quantity found in the
possession of the appellant was only 66 mg. This
is less than 1/10th of the limit of small quantity
specified under the notification." H
468 SUPREME COURT REPORTS [2015] 15 S.C.R. •
A 19. In E. Micheal Raj (supra), a two-Judge Bench while
dealing with the determination of a small or commercial quantity
in relation to narcotic drug or psychotropic substance in a
mixture with one or more neutral substance opined that the
quantity of neutral substance is not to be taken into
B consideration and it is the only actual content by weight of the
offending drug which is relevant forthe purpose of determining
whether it would constitute small quantity or commercial
quantity should be considered. The question arose in E.
Micheal Raj (supra) under which Entry of the notification the
c substance found in possession of the appellants would fall,
that is, whether Entry 56 or Entry 239. After referring to the
Entries, the Court held as under:-
"14. As a consequence of the amending Act, the
sentence structure underwent a drastic change. The
D amending Act for the first time introduced the
concept of "commercial quantity" in relation to
narcotic drugs or psychotropic substances by
adding Clause (vii-a) in Section 2, which defines
this term as any quantity greater than a quantity
E specified by the Central Government by notification
in the Official Gazette. Further, the term "small
quantity" is defined in Section 2(xxiii-a), as any
quantity lesser than the quantity specified by the
Central Government by notification in the Official
F Gazette. Under the rationalised sentence structure,
the punishment would vary depending upon whether
the quantity of offending material is "small quantity'',
"commercial quantity" or something in-between.
15. It appears from the Statement of Objects and
G
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
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 469
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
addicts and those who commit less serious A
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 B
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 c
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 D
accused, it would amount to a small quantity, but
when the same 4 gm is mixed with 50 kg of
powdered sugar, it would be quantified as a
commercial quantity. In the mixture of a narcotic drug
or a psychotropic substance with one or more E
neutral substance(s), the quantity of the neutral
substance(s) is not to be taken into consideration
while determining the small quantity or commercial
quantity of a narcotic drug or psychotropic
substance. It is only the actual content by weight of F
the narcotic drug which is relevant for the purposes
of determining whether it would constitute small
quantity or commercial quantity. The intention of the
legislature for introduction of the amendment as it
appears to us is to punish the people who commit
G
less serious offences with less severe punishment
and those who commit grave crimes, such as
trafficking in significant quantities, with more severe
punishment."
H
470 SUPREME COURT REPORTS [2015] 15S.C.R.
A 20. In the said case, the Court accepted the submission
that purity of heroin was 1.4% and 1.6% respectively and,
therefore, the quantity of heroin in possession was only 60 gms
and on that ground treated it as a small quantity.
21. In Amar Singh Ramaji Bhai Barot (supra) the
B appellant was found carrying a black packet which contained
black colour liquid substance that smelled like opium. The
police officer weighed the said substance recovered from him
and found the weight to be 920 gms. 4.250 kg of a grey coloured
substance suspected to be a drug, was recovered from the
C other accused who had already died. Out of the 920 gms
opium recovered from the appellant, samples were sent to the
Forensic Science Laboratory which opined that substance
which had been sent was opium containing 2.8% anhydride
morphine and also pieces of poppy flowers (posedoda). Both
D the accused persons faced trial and the trial court found both
of them guilty for the offences punishable under Section 17
and 18 read with Section 29 of the NDPS Act and sentenced
each of them to undergo rigorous imprisonment of 1Oyears
with fine of Rs. 1 lakh each with the default clause. The appeal
E preferred by the other accused abated as he expired during
the pendency of the appeal and the appeal of the Amarsingh
Ramjibhai Barot was dismissed. A contention was canvassed
before this Court that the High Court had fallen into error by
taking a total quantity of the offending substance recovered
F from the two accused jointly and holding that the said quantity
was more than the commercial quantity, warranting punishment
under Section 21 (C) of the NDPSAct. This Court addressed
in detail to the factum of possession of 920 gms of black liquid
and the FSL report that indicated the substance recovered
G from it was opium containing 2.8% anhydride morphine, apart
from pieces of poppy (posedoda) flowers found in the sample.
The Court referred to definition of opium in Section 2(xv) and
2(xvi) and proceeded to state thus:-
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 471
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
"14. There does not appear to be any acceptable A
evidence that the black substance found with the
appellant was "coagulated juice of the opium poppy"
and "any mixture, with or without any neutral
material, of the coagulated juice of the opium
poppy". FSL has given- its opinion that it is "opium B
as described in the NDPSAct". That is not binding
on the court.
15. The evidence also does not indicate that the
substance recovered from the appellant wourd fall
within the meaning of sub-clauses (a), (b), (c) or (d) c
of Section 2(xvi). The residuary clause (e) would
take into its sweep all preparations containing more
· than 0.2 per cent of morphine. The FSL report
proves that the substance recovered from the
appellant had 2.8 per cent anhydride morphine. D
Consequently, it would amount to "opium derivative"
within the meaning of Section 2(xvi)(e). Clause (a)
of Section 2(xi) defines the expression
"manufactured drug" as:
E
"2. (x1) 'manufactured drug' means-
(a) all coca derivatives, medicinal cannabis,
opium derivatives and poppy straw concentrate;
(b) * * *"
F
All "opium derivatives" fall within the expression
"manufactured drug" as defined in Section 2(xi) of
the NDPS Act. Thus, we arrive at the conclusion
that what was recovered from the appellant was
"manufactured drug" within the meaning of Section G
2(xi) of the NDPS Act. The material on record,
therefore, indicates that the offence proved against
the appellant fell clearly within Section 21 of the
NDPS Act for illicit possession of "manufactured
drug"."
H
472 SUPREME COURT REPORTS [2015] 15 S.C.R.
A 22. Being of this view, this Court concurred with the
decision taken by the High Court that it was a commercial
quantity. The said decision has been distinguished in E.
Micheal Raj (supra) by opining thus:-
"18. Being aggrieved, Amarsingh approached this
B Court. This Court has held in para 14 of the
judgment as under:
"14. There does not appear to be any acceptable
evidence that the black substance found with the
c appellant was 'coagulated juice of the opium
poppy' and 'any mixture, with or without any
neutral material, of the coagulated juice of the
opium poppy'. FSL has given its opinion that it
is 'opium as described in the NDPS Act'. That
is not binding on the court."
D
The Court further held that the evidence also does
not indicate that the substance recovered from the
appellant would fall within the meaning of sub-
clauses (a), (b), (c) or (d) of Section 2(xvi), but
E residuary Clause (e) would apply and consequently
it would amount to opium derivative as all opium
derivatives fall within the expression "manufactured
drugs". Thus. the Court arrived at the conclusion
that what was recovered from the appellant was
F manufactured drug and the offence proved against
the appellant fell clearly within Section 21 of the
NDPS Act for illicit possession of manufactured
drug. The Court concluded and held in para 17 as
under:
G "17. In respect of opium derivatives (at SI. No.
93) in the said notification, 5 grams is specified
as 'small quantity' and 250 grams as
'commercial quantity'. The High Court was,
therefore, right in finding that the appellant was
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 473
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
guilty of unlawful possession of 'commercial A
quantity' of a manufactured drug. Consequently,
his case would be covered by Clause (c) and
not Clause (a) or (b) of Section 21 of the NDPS
Act."
This Court has, therefore, upheld the imposition of B
minimum punishment under Section 21(c) of 10
years' rigorous imprisonment with fine of Rs 1 lakh.
19. On going through Amarsingh case we do not
find that the Court was considering the question of c
mixture of a narcotic drug or psychotropic
substance with one or more neutral substance(s).
In fact that was not the issue before the Court. The
black-coloured liquid substance was taken as an
opium derivative and the FSL report to the effect
D
that it contained 2.8% anhydride morphine was
considered only for the purposes of bringing the
substance within the sweep of Section 2(xvi)(e) as
"opium derivative" which requires a minimum 0.2%
morphine. The content found of 2.8% anhydride
E
morphine was not at all considered forthe purposes
of deciding whether the substance recovered was
a small or commercial quantity and the Court took
into consideration the entire substance as an opium
derivative which was not mixed with one or more
F
neutral substance(s). Thus, Amarsingh case cannot
be taken to be an authority for advancing the
proposition made by the learned counsel for the
respondent that the entire substance recovered and
seized irrespective of ~he content of the narcotic
drug or psychotropic substance in it would be
G
considered for application of Section 21 bf the
NDPS Act for the. purpose of imposition of
punishment. We are of the view that when any
H
474 SUPREME COURT REPORTS [2015] 15 S.C.R.
A narcotic drug or psychotropic substance is found
mixed with one or more neutral substance(s), for
the purpose of imposition of punishment it is the
content of the narcotic drug or psychotropic
substance which shall be taken into consideration."
B 23. We have referred to the said decision as the learned
counsel for the State submitted that the said decision applies
to the present case. In our considered opinion, the factual
matrix in the said case was totally different and, in fact, it was
dealing with the manufacturing and the percentage content and
C hence, we need not delve into the same.
24. In the present case, the contraband article that has
been seized is "charas" and the dictionary clause clearly states
that it can be crude or purified obtained from the cannabis
0 plant and also includes concentrated preparation and resin
known as hashish oil or liquid hashish. The definition also
indicates that any mixture with or without any neutral material
of any of the cannabis or any drink prepared therefrom. The
reference in Section 2(iii)(c) refers to any mixture which has a
E further reference to charas, which states crude or purified. The
chemical name for charas and hashish is "extracts and tinctures
of cannabis". It finds mention at Entry No. 23 of the
Notification. Serial No.150 of the Notification deals with
"tetrahydrocannababinol" having a long list.
F 25. Regard being had to the aforesaid factual score,
• reference to a two-Judge Bench decision in Harjit Singh v.
State of Punjab6 , would be apt. In the said case 7.1 Okgs. of
opium was ceased from the accused. A contention was raised
before this Court that the opium recovered from the appellant
G weighing 7.10 kgs. contained-0.8% morphine, that is, 56.96
gms. and hence, the quantity was below the commercial
quantity. The two-Judge Bench referred to the pronouncement
in E. Micheal Raj (supra) and referred to various Entries in
H '(2011)4SCC441
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 475
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
the notification, namely, Entry 77 that deals with morphine, Entry A
92 that deals with opium and Entry 93 that deals with opium
derivatives. The Court posed the question whether the case
would fall under Entry 92 or Entry 93 or any other Entry. The
Court referred to the definition of opium under the NDPS Act, .
the chemical analysis made by the Forensic Science B
Laboratory, took note of the percentage of morphine, the
amendment brought in 2001 and came to hold thus:-
"21. In the instant case, the material recovered from
the appellant was opium. It was of a commercial
quantity and could ·not have been for personal c
consumption of the appellant. Thus the appellant
being in possession of the contraband substance
had violated the provisions of Section 8 of the
NDPS Act and was rightly convicted 1,mder Section
18(b) of the NDPS Act. The instant case squarely D
falls under clause (a) of Section 2(xv) of the NDPS
Act and clause (b) thereof is not attracted for the
simple reason that the substance recovered was
opium in the form of the coagulated juice of the
opium poppy. It was not a mixture of opium with E
any other neutral substance. There was no
preparation to produce any new substance from the
said coagulated juice. For the purpose of
imposition of punishment if the quantity of morphine
in ·opium is taken as a decisive factor, Entry 92 F
becomes totally redundant.
22. Thus, as the case falls under clause (a) of
Section 2(xv), no further consideration is required
on the issue. More so, opium derivatives have to
be dealt with under Entry 93, so in case of pure G
opium falling under clause (a) of Section 2(xv),
determination of the quantity of morphine is not
required. Entry 92 is exclusively applicable for
H
476 SUPREME COURT REPORTS [2015] 15 $.C.R.
A ascertaining whether the quantity of opium falls
within the category of small quantity or commercial
quantity."
26. In the said case, the judgment referred in E. Micheal
Raj (supra) was distinguished by stating thus:-
8
"The judgment in E. Micheal Raj has dealt with
heroin i.e. diacetylmorphine which is an "opium
derivative" within the meaning of the term as defined
In Secti0ri 2(xvi) of the NDPS Act and therefore, a
c ·manufactured drug" within the meaning of Section
2(xi)(a) of the NDPS Act. As such the ratio of the
said judgment is not relevant to the adjudication of
the present case."
Eventually, in paragraph 25 the Court held thus:-
D "The notification applicable herein specifies small
and commercial quantities of various narcotic drugs
and psychotropic substances for each contraband
material. Entry 56 deals with heroin, Entry 77 deals
with morphine. Entry 92 deals with opium, Entry 93
E deals with opium derivatives and so on and so forth.
Therefore, the notification also makes a distinction
not only between opium and morphine but also
between opium and opium derivatives.
Undoubtedly, morphine is one of the derivatives of
F the opium. Thus, the requirement under the law is
first to identify and classify the recovered substance
and then to find out under what entry it is required
to be dealt with. If it is opium as defined in clause
(a) of Section 2(xv) then the percentage of
G morphine contents would be totally irrelevant. It is
only if the offending substance is found in the form
of a mixture as specified in clause (b) of Section
2(xv) of the NDPS Act, that the quantity of morphine
contents becomes relevant."
H
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 477
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
27. Another aspect needs to be noted. The High Court A
in paragraph 28 has found that the seized article contained
more than 50 gms. Tetra hydrocannabinol in respect of both
the accused persons. The commercial quantity for the
contraband article, namely, Tetra hydrocannabinol (THC) as
stated in Entry no. 150 is 50 gms. Even assuming the said B
percentage is found in the seized item then also the contraband
article would go beyond the "intermediate" quantity and fall
under the "commercial" quantity. Judged from any score, we
do not find the view expressed by the High· Court is correct.
Therefore, we conclude and hold that the seized item fell under c
the commercial quantity and hence the conviction recorded
by the trial court under Section 20 (b) (ii) (C) is absolutely
impeccable.
28. We will be failing in our duty if we do not deal with
another submission put forth by the learned counsel for the D
respondents-accused. It is her submission that the accused
persons have ~!ready spent more than seven years in custody
and, therefore, they should not be incarcerated again. Section
20 (b) (ii) (C) stipulates that the minimum sentence will be ten
years which may extend to twenty years and the minimum fine E
imposable is one lakhs rupees which may extend to two lakhs
rupees. The provision also provides about the default clause
which stipulates imposition of fine exceeding two lakh rupees,
for the reasons to be recorded by the Court. When a minimum
punishment is prescribed, no court can impose lesser F
punishment. In Narendra Champaklal Trivedi v. State of
Gujarat7, while a submission was advanced that in exercise
of power under Article 142 of the Constitution, this Court can
impose a lesser punishment than the prescribed one, this Court
ruled that:- G
"... where the minimum sentence is provided, we
think it would not be at all appropriate to exercise
jurisdiction under Article 142 of the Constitution of
1 (2012) 7 sec ao
H
478 SUPREME COURT REPORTS [2015] 15 S.C.R.
A India to reduce the sentence on the ground of the
so-called mitigating factors as that would
tantamount to supplanting statutory mandate and
further it would amount to ignoring the substantive
statutory provision that prescribes minimum
B sentence for a criminal act..."
29. Yet again, in State of Madhya Pradesh v. Ayub
Khan 8 , where the High Court had awarded the lesser
punishment this Court while analyzing the position in law has
opined thus:-
c "The legislature, in its wisdom, has fixed a
mandatory minimum sentence for certain
offences-keeping, possessing arms and
ammunition is a serious offence for which sentence
shall not be less than three years. The legislature,
D in its wisdom, felt that there should be a mandatory
minimum sentence for such offences having felt the
increased need to provide for. more stringent
punishment to curb unauthorised access to arms
and ammunition, especially in a situation where we
E are facing with menace of terrorism and other anti-
national activities. A person who is found to be in
possession of country-made barrelled gun with two
round bullets and 50 gm explosive without licence,
must in the absence of proof to the contrary be
F presumed to be carrying it with the intention of using
it when an opportunity arises which would be
detrimental to the people at large. Possibly, taking
into consideration all those aspects, including the
national interest and safety of the fellow citizens,
G the !egislature in its wisdom has prescribed a
minimum mandatory sentence. Once the accused
was found guilty for the offence committed under
Section 25(1)(a)oftheArmsAct, he has necessarily
H • (2012) a sec 676
STATE THR. INTEL. OFFCR. NARCOTICS CONTROL 479
BUREAU v. MUSHTAQ AHMAD [DIPAK MISRA, J.]
to undergo the minimum mandatory sentence, A
prescribed under the statute."
30. In view of the aforesaid analysis, we are unable to
sustain the judgment and order of the High Court and,
accordingly, unsettle the same and find that the accused-
respondents, Mushtaq Ahmad and Guizar Ahmad, are guilty B
of offence punishable under Section 20(b )(ii)(C) of the NDPS
Act and each of them is sentenced to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.1 lac and, in
default of payment of such fine, to suffer rigorous imprisonment
for a further period of one year. C
31. Resultantly, the appeals are allowed and the judgment
and order passed by the High Court in Criminal Appeal Nos.35
and 36 of 2009, is set aside and that of the learned trial Judge,
as far as the sentence is concerned, stands modified. D
Bibhuti Bhushan Bose Appeals allowed.
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