Criminal Appeal No.373 of 2002

12th November, 2002

Cases Cited:
Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, 1993(3) SCC 145 [Para 5]

JUDGMENT

JUDGMENT :- The appellant and another were convicted by the Special Judge (N.D.P.S. Cases), Jhalawar in Sessions Case No.177/1997 for an offence punishable under Section 8/21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (1985 Act). While the learned Sessions Judge gave benefit of Probation of Offenders Act to the co-accused and released him on probation, the appellant was sentenced to undergo rigorous imprisonment for a period of 10 years with a fine of Rs. one lac and in default of payment of fine to further undergo rigorous imprisonment for one year.

2. His appeal before the High Court of Judicature at Rajasthan having failed, the appellant has preferred this appeal from Jail.

3. The prosecution case briefly is that the appellant and his co-accused were intercepted on 24th February, 1997 at abut 9.25 a.m. by P.W. 7, Ramdeo, SHO, Bhawani Mandi and after fulfilling the statutory formalities on search was found carrying two cigarettes containing 500 m. gms. each which on analysis was found to contain Heroin, a narcotic substance prohibited under the 1985 Act. Though before the trial Court and the High Court the appellant had challenged the seizure on the ground that the same is violative of the mandatory requirement under Section 50 of the 1985 Act, the same was not urged before us.

4. Mr. Sudhir Nandrajog, learned amicus curiae contended that even based on the prosecution case itself it is to be seen that the quantity of Heroin found in the possession of the appellant being such a small quantity and based on the other material available on record there is sufficient evidence to show that the said quantity was possessed by the appellant for his personal consumption, therefore, in view of Section 27 of the 1985 Act, the same should be construed as having been kept by the appellant for his self consumption. Hence, he could be sentenced only for an offence under Section 27 as it stood then, for a period not exceeding one year R.I. Learned amicus curiae has also pointed out that the appellant has already served more than five years imprisonment consequent to the sentence imposed by the Courts below.

5. Learned amicus curiae, in support of his argument, has placed reliance in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, 1993(3) SCC 145 wherein, on similar facts situation, this Court held:

"7. Then the other ingredient that has to be satisfied is whether the sub-stance found in possession of the appellant was intended for his personal 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 or not has to be examined in the context in which this exception is made. 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 March 23, 1990 stating that the piece said to have been 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 along with 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. 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 substances has to be dealt with severely but in view of the provisions of Section 27, we are unable to hold that the small quantity found with the appellant was not meant for his personal consumption and that on the other hand it was meant for sale or distribution. Therefore, the appellant is liable to be punished as provided under Section 27 of the Act."

6. Having considered the above ratio laid down by this Court in the case of Gaunter Edwin Kircher and having taken into consideration the facts of this case, we notice even according to the prosecution that the Heroin seized was only 500 m. gms. that too in the form of two cigarettes, it can be inferred that the same was possessed by the appellant for his personal consumption. Therefore, we think that the conviction imposed on the appellant by the Courts below under Section 8 read with 21 of the 1985 Act cannot be sustained.

7. In the said view of the matter, we allow this appeal partly and modify the conviction and sentence to one under Section 27 of the 1985 Act and impose one year's RI. There is no need to impose any further fine because of the fact that the appellant has already undergone RI for five years consequent to the judgments of the Courts below.

8. For the above reasons, the appeal is partly allowed by modifying the sentence as stated above. Since the appellant has served the sentence imposed on him, he is entitled to be released forthwith unless required in any other case.

9. The appeal is partly allowed accordingly.

10. We place on record our appreciation for the assistance rendered by Mr. Sodhir Nandrajog, learned amicus curiae. The fee of learned amicus curiae is fixed at Rs.750/-.

Order accordingly.