HUSSAIN Vs. STATE OF KERALA

JUDGEMENT

(1.) This seems to be a very unfortunate case in which the appellant by his fatality, had languished in jail already for a long period of 5 years, when as a matter of law he should have been moving about as a free citizen. Appellant in this case was charged by the Sessions Court with an offence under Section 20 (b) (i) read with Section 8 of the Narcotic Drugs and psychotropic Substances Act, 1985 (for short 'the Act'). He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/. He filed an appeal before the High court and a learned Single Judge who heard the appeal, confirmed the conviction and sentence and dismissed his appeal. He filed this appeal by special leave from jail.

(2.) The misfortune hovering around him continued to persist as the Counsel appointed as amicus curiae to argue for him did not turn up and we had to remove him as A. C. We appointed another Counsel (Mr. Bimal Roy Jad) as amicus curiae. On 11.8.1999 we heard him and the learned Counsel for the State in detail and reserved the judgment. Thereafter, we felt that the appeal should be reheard as certain new features have emerged while contemplating the factual position in this case. We, therefore, re-posted the matter. Today we are assisted by Shri Altaf Ahmad, learned additional Solicitor General, who argued for the State of Kerala, though Mr. Bimal roy Jad has not turned up to argue for the appellant, nor did he made any representation.

(3.) The factual matrix as revealed in the judgment of the trial court and the High court is this: On 25.6.1994, appellant was found in possession of 6 ampoules of "buprenorphine tidigesic" each containing 2 ml. He was also found in possession of 2 syringes each of 5 ml. capacity. It is pertinent to point out that appellant, unusually, did not dispute that the aforesaid substance had been recovered from him. On the contrary, he said that he was regularly using it under medical advice. He examined a Doctor as D. W. 1 to say that a prescription was administered by him to the appellant for using the aforesaid substance as a medical formulation. The trial court after completing prosecution evidence and the defence evidence, has 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 Act. Having found that the quantity recovered from the appellant has exceeded the limit of 'small quantity' the trial court proceeded to consider whether the offence charged against him was made out.