Full Judgment Text
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PETITIONER:
RAJU @ SALAM
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT: 05/05/1999
BENCH:
G.T. Nanavati & S.N. Phukan
JUDGMENT:
Nanavati, J.
The appellant has been convicted under Section 21 of
the Narcotic Drugs and Psychotropic Substances Act and
sentenced to suffer rigorous imprisonment for 10 years and
to pay afine of Rs.l lakh. His conviction by the trial
court has been confirmed by the High Court. He has,
therefore, filed this appeal.
The facts as found by the trial court are that on
27.12.83, the appellant was found in possession of 100 mgs.
of brown sugar. It was at about 1.25 p.m. when he was
passing on a road. Though it 1s not very clear as to what
exactly was the explanation given him to them, it appears
from cross-examination of the witnesses and the statement
recorded under Section 313 Cr.P.C. that he had purchased
the said quantity from one Mattancharry Rafeeque for a sum
of Rs,25/- for his personal consumption. Though the
quantity found was ’small quantity’, the Trial Court refused
to give benefit of Section 27 of the Act to the appellant on
the ground that he had failed to establish that It was for
his personal consumption. The Trial Court proceeded on the
basis that the appellant possessed the same for sale and
convicted him under Section 21 of the Act. The High Court
also adopted the saroe line of reasoning and confirmed the
finding recorded by the Trial Court.
What 1s contended by the learned counsel for the
appellant 1s that the courts below have not properly
considered the defence raised by the appellant. He
submitted that even though he had raised the plea that the
quantity of 100 mgs. was ’small quantity’ and it was kept
for his personal consumption, the trial court rejected the
said plea on the ground that no evidence was led by the
appellant to prove his defence and that if the appellant was
an addict to brown sugar, one would havs found withdrawal
symptoms in him but no sJch tendencies were exhibited by the
appellant at any stage of trial.
The prosecution had led no evidence to show that he
was an addict or that he was regularly taking brown sugar.
Therefore, it was not proper to reject the defence of the
appellant on the ground that during the trial the appellant
was in custody and could not have consumed brown sugar and
yet he did not exhibit withdrawal symptoms. It is also not
in dispute that the quantity which he was carrying was
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’small quantity’. The value of it was only Rs.25/-. It is,
therefore, doubtful if such a small quantity was purchased
by him for sale and make any profit out of it. In any case,
there is no evidence on the basis of which such an inference
can be drawn. These aspects have not been considered by the
trial court and the High Court. We are of the opinion that
this appeal deserves to be allowed and the conviction of the
appellant deserves to be altered from Section 21 to Section
27 of the NDPS Act.
We accordingly allow this appeal and alter the
conviction of the appellant from under Section 21 to one
under Section 27 of the NDPS Act and also alter the sentence
of 10 years rigorous imprisonment and a fine of Rs. 1 lakh
to rigorous imprisonment for one year and a fine of
Rs.5,000/-. In default of payment of fine, the appellant
shall suffer further imprisonment for a period of three
months.
The appeal is allowed accordingly.