NDPS Act | Quantity Of Both Offending Drug & Neutral Substance Must Be Considered To Determine 'Small Or Commercial' Quantity: Chhattisgarh HC

The Chhattisgarh High Court has observed that while considering the mixture of narcotic drugs or psychotropic substances to determine whether it would constitute a 'small quantity or commercial quantity', not only the quantity of the 'offending drug' but the quantity of 'neutral substance' mixed should also be taken into consideration. A bench of Chief Justice Ramesh Sinha and Justice Ravindra Kumar Agrawal observed thus while relying upon the Supreme Court's three-judge bench ruling in the case of Hira Singh & Anr. v. Union of India & Anr. 2020. The division bench thus affirmed the conviction of two individuals found guilty of committing offence under Section 21 (c) of the NDPS Act. However, their sentence of 12 years of rigorous imprisonment was reduced to 10 years of rigorous imprisonment. Essentially, the two appellants were convicted by the trial court for being found in possession of a total of 236 psychotropic substance syrups in which a substance called Codeine Phosphate was mixed. Challenging their conviction, they moved the HC wherein the counsel for convict no. 1 (Ambika Vishwakarma) argued that the trial court committed an error in holding that the quantity of the Narcotic Drugs was a commercial quantity, which, in fact, was the intermediate quantity. The counsel specifically argued that since 4 mg of Codeine Phosphate was available in a 100 ml bottle of the drug Codeine, only the actual quantity contained in the bottle should have been considered, not the entire 100 ml. It was further submitted that if the whole quantity of Codeine is excluded from the total number of bottles seized, it would fall within the intermediate quantity, not the commercial quantity. Counsel for convict no. 2 (Narayan Das) argued that the prosecution had failed to prove the case beyond a reasonable doubt because two independent seizure witnesses did not support the prosecution's case and turned hostile. It was further submitted that the provision of Section 50 of the NDPS Act has not been complied with as the appellants-accused were not apprised of their right to get searched by the Gazetted Officer or by the Magistrate. Lastly, both the counsels also submitted that the trial Court has assigned no special reason for awarding a punishment/sentence of more than 10 years. Refuting the arguments of the counsels for the appellants-accused, the state counsel defended the judgment of the trial court by inter alia arguing that in view of the Judgment of in the Case of Hira Singh (supra), it is apparent that the quantity so seized would fall in the category of commercial quantity. It was also argued that though the independent witnesses did not remain firm, they admitted their signatures in the seizure documents, and the entire seizure of contraband had been proved from reliable, coherent evidence of the Investigating Officer who effected the seizure. It was next submitted that regarding compliance with Section 50 of the NDPS Act, it had come out during the trial that the accused were given notice under Section 50 of the NDPS Act regarding their right. Only upon their consent were they searched by the Police Officer. Against this backdrop, the Court, relying upon the Top Court's Hira Singh (supra) judgment, concluded that the quantity so seized from the possession of the accused/ appellants would fall under the category of commercial quantity. Further, considering the facts and circumstances of the case and the submissions advanced by the counsel for the parties, the material available on record and also considering the evidence of IO and in the light of Hira Singh (supra) judgment, the court concluded that the prosecution had proved its case beyond a reasonable doubt. The Court, however, reduced the sentence of 12 Year RI to 10 Year RI in light of Section 32B of the NDPS Act as it noted that the trial court had failed to give any specific or any special reason for awarding a sentence higher than the minimum to the appellants for having committed offence under Section 21(c) of the NDPS Act. Case title - Ambika Vishwakarma vs. State of Chhattisgarh and a connected matter Case citation: Click here ToRead/Download Order

NDPS Act | Quantity Of Both Offending Drug & Neutral Substance Must Be Considered To Determine 'Small Or Commercial' Quantity: Chhattisgarh HC

Sparsh Upadhyay

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