LexSTATE THROUGH INTELLIGENCE OFFICER NARCOTICS CONTROL BUREAU versus MUSHTAQ AHMAD ETC.
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[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 . 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. G 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 referr
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