HUSSAIN versus STATE OF KERALA

Citation: [1999] SUPP. 4 S.C.R. 189 · Decided: 27-10-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

HUSSAIN 
A 
v. 
ST A TE OF KERALA 
OCTOBER 27, 1999 
[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] 
B 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
Sections 2(xi), 8,9, 20(b)(i), 21 and 27-Appellant found in possession 
of 6 ampoules of "Buprenorphine tidigesic"a psychotropic substance-Trial C 
court convicted him for an offence under Section 20(b)(i) of the Act-
However, the proviso to sub-rule (2) of Rule 66 falling under Chapter VII of 
the Rules framed under Section 9, a person was permitted to keep in his 
possession for his personal medical use the psychotropic substance upto one 
hundred dosage at a time-This point was not put forward before the trial D 
court-Held, conviction and sentence imposed on appellant were without the 
sanction of law-Appellant was unlawfally deprived of his personal liberty 
for a long period of 5 years on account of over looking the facts and legal 
position-Liberty granted to the appellant to seek appropriate remedy for 
compensation-Constitution of India Articles 21 and 22. 
Appellant was found in possession of 6 ampoules of "Buprenorphine 
tidigesic", a psychotropic substance, each containing 2.1-ml. The appellant 
during the trial did not dispute that he did possess this drug but took the view 
that he had been using the drug under medical advice. Appellant examined 
DW 1, his doctor, to say that he advised him to take the aforesaid substance 
E 
as a medical formulation. Trial court after completing prosecution and defence F 
evidence had proceeded to examine the District Medical Officer as Court 
Witness No. 1 in order to ascertain whether the quantity of substance 
recovered from the appellant would fall within the limit of "small quantity" 
envisaged in Section 27 of the Narcotic Drugs and Psychotropic Substances 
Act, 1985. Having found that the quantity exceeded the limit of "small G 
quantity'', convicted the appellant under Section 20(b )(i) read with Section 8 
of the Act and sentenced him to undergo rigorous imprisonment for 10 years 
and a fine of Rs. 1,00,000. However, trial court did not notice proviso to sub-
rule (2) of Rule 66 falling under Chapter VII of the Rules framed under 
Section 9 of the Act wherein it was evident that a person was permitted to 
189 
H 
190 
SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R. 
A keep in his possession for his personal medical use the psychotropic substance 
upto one hundred dosage at a time, wherein he was found to possess only 6 
ampoules, which was much less than what was authorised under the Act. 
Hence this appeal. 
B 
Allowing the appeal, the Court 
HELD: 1. If "Buprenorphine tidigesic" was 'psychotropic substance' 
possession of the same would amount to an offence only if it was in 
contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances 
Act, 1985. That Section shows that no person shall possess any Psychotropic 
C substance 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. [192-H; 193-B] 
2.1. Section 9 of the Act empowers the Central Government to permit, 
control and regulate the cultivation, production, possession etc., of psycho-
D tropic substances. Rules have been formulated by the Central Government 
under that power. The proviso to sub-rule (2) of Rule 66 falling under Chapter 
VII of the Rules is very evident that a person is permitted to keep in his 
possession for his personal medical use the psychotropic substance upto one 
hundred dosage at a time. It is not disposed to think that 6 ampoules would 
cross the above limit and there is no attempt made either through DW-1 
E (Doctor) or through Court Witness No.1 (District Medical Officer) that 100 
dosage would be below the 6 ampoules recovered from him. 
[193-C; 194-A, BJ 
2.2. It is unfortunate that the aforesaid points have not been put forward 
F 
before the trial court or t.he High Court. Thus the conviction and sentence 
imposed on the appellant were without the sanction of law. Appellant is 
unlawfully deprived of his personal liberty for such a long period of 5 years 
on account of overlooking the aforesaid facts and the legal position. The 
appellant is acquitted. As regards compensation the appellant is free to resort 
G to his remedies under law. (194-C, DJ 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
780 of 1998. 
From the Judgment and Order dated 25.9.97 of the Kerala High Court 
H in Crl. A.No. 137of1995. 
HU

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