V.K. Tahilramani, J.
1. The appellant-original accused has impugned the judgment and order dated 7.8.2007 passed by the learned Special Judge, (NDPS) for Greater Bombay, in Special Case No. 36 of 2003. By the said judgment and order, the learned Special Judge convicted the appellant for the offence under Section 8(c) punishable under Section 21(c), for the offence under Section 8(c) punishable under Section 23 read with Section 28, and for the offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act'). Under each head, the appellant has been sentenced to RI for ten years and fine of Rs. 1 lakh in default RI for three months. The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently.
2. It is the prosecution case that on 8.3.2003 the complainant NCB Department received information that the accused would be leaving from Mumbai to Lagos by Ethiopian Airline flight No.ET-661 carrying about 5 kgs of heroin with her by concealing it in her baggage. Hence, a trap came to be arranged and the accused came to be intercepted at the Airport. In one of the baggages of the accused, 5 kgs. 700 gms. of heroin came to be found. Accused came to be arrested. Samples came to be taken which were sent to the Chemical Analyser. The C.A. report (Exh.37) shows that the samples contained 2% of heroin.
3. Charge came to be framed against the accused for the offence under Sections 8(c) r.w. 21(c) punishable under Section 29 r.w. 23(c), for the offence under Section 8(c) r.w. Section 21(c) and for the offence under Section 8(c) r.w. 21 punishable under Section 28 r.w. 23(c) of NDPS Act. The accused pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial. After going through the evidence adduced by the prosecution, the learned Special Judge convicted the accused and sentenced the appellant as stated in para above. Hence, this appeal.
4. I have heard the learned advocate for the appellant-original accused and the learned Counsel for the respondent No. 1-N.C.B. I have perused the impugned judgment and order as well as the evidence adduced in the present case. After carefully considering the matter, I am of the opinion that this appeal deserves to be allowed partly.
5. Mr. Sarpande stated that he is not arguing for acquittal and he is only praying that the sentence may be reduced in view of the fact that admittedly, the appellant who is a lady, has breast cancer and that the quantity of heroin does not fall in commercial quantity but it falls under intermediate category. Mr. Sarpande submitted that according to prosecution, 5.7 kgs. heroin was found in possession of the appellant. The C.A. report shows that percentage of heroin was 2 % hence, actual heroin found would be 114.6 gms. In support of his contention, Mr. Sarpande has placed reliance on the decision of the Supreme Court in the case of K. Micheal Raj v. Intelligence Officer, N.C.B. reported in AIR 2008 SCW 2365. In the said judgment, 4.07 kgs. of heroin was found with the accused. As per the CA report, percentage of heroin was 1.5%. The Supreme Court observed that if the percentage of heroin is 1.5% then taking into consideration the total quantity of 4.07 kgs. the actual content of heroin would be 60 gms. The Supreme Court further observed that 'supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity.' The Supreme Court further observed that 'We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance's for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst's report is 60 gms. which is more than 5 gms. i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act'.
6. Looking to these facts, in the said case, the sentence of the appellant came to be reduced to six years RI with fine of Rs. 25,000/- in default RI for six months.
7. In the present case, the opium derivative which has been found in possession of the accused-appellant is prohibited under Section 8 of the NDPS Act and thus punishable under Section 21 thereof. The question which arises for consideration is whether it would fall under small quantity, commercial quantity or intermediate quantity and if it falls under intermediate quantity what should be the quantum of punishment. As per the prosecution case, 5 kgs. 700 gms. of heroin was found in the baggage of the appellant. As per the CA report, samples contained 2% of heroin. On applying the calculation in the case of Michael Raj, the actual quantity of heroin would be 114.6 gms. which falls in between small quantity and commercial quantity.
8. As the consequence of the Amending Act 2001, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding Clause (viia) in Section 2 which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further the term 'small quantity' is defined in Section 2, Clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending materials is 'small quantity', 'commercial quantity' or something in between.
9. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, it is difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. The intention of the legislature for introduction of the amendment as it appears to me is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.
10. In the present case, as per the CA report (Exh.37) it is seen that heroin which was found in possession of the appellant, is 114.6 gms. which is more than 5 gms i.e. small quantity but less than 250 gms. i.e. commercial quantity. It is clear that the quantity is lesser than the commercial quantity. Thus, the appellant cannot be said to be punishable under Section 25(c) of the NDPS Act and the appellant would be punishable under Section 21(b) of the NDPS Act. Furthermore, from the evidence, it is clear that the appellant is merely a carrier and is not a kingpin.
11. In these circumstances, the end of justice would be subserved if the sentence of the appellant is reduced to five years 4 months RI and the fine under each count is reduced to Rs. 10,000/- each (and in default of payment of fine RI for 1 month on each count.)
12. In the result, the conviction of the appellant by the learned Special Judge, (N.D.P.S. Act), by judgment and order dated 7.8.2007 in Special Sessions Case No. 36 of 2003 for the offence under Section 8(c) punishable under Section 23 r.w. Section 28 and under Section 8(c) read with Section 29 of the N.D.P.S. Act is maintained. The conviction and sentence for the offence under Section 8(c) punishable under Section 21(c) is set aside. Instead the appellant is convicted for the offence under Section 8(c) punishable under Section 21(b) of the NDPS Act. The substantive sentences of imprisonment under each of the three counts, is reduced to 5 years 4 months RI. All the substantive sentences of imprisonment shall run concurrently. The fine amount is reduced to Rs. 10,000/- under each head in default RI for one month under each head.
13. Appeal is partly allowed.