STATE Vs. MUSHTAQ AHMAD ORS.

JUDGEMENT

(1.) IN this appeal, by special leave, the State of Jammu and Kashmir has called in question the legal propriety of the judgment and order passed in Criminal Appeal Nos. 35 and 36 of 2009 whereby the High Court has converted the conviction recorded by the learned trial Judge holding the accused Respondents guilty of the offence punishable Under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, "the NDPS Act") and sentencing each of them to suffer rigorous imprisonment for a period of 12 years and further to pay a fine of Rs. 2 lakhs each and in case of default of payment of fine to undergo rigorous imprisonment for period of one year to one Under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act and restricted the period of custody to the period already undergone, that is, slightly more than seven years and to pay a fine of Rs. 25,000/ - each with a modified default clause.

(2.) THE facts which are necessary to be stated are that the accused -Respondents were charge sheeted Under Section 8 read with Section 20 of the NDPS Act and accordingly, they were sent up for trial. Accused persons denied the accusations and claimed trial. The prosecution to substantiate its stand examined number of witnesses and brought in series of documents in evidence. The learned trial Judge taking note of the fact that Mushtaq Ahmad, the first Respondent and Gulzar Ahmad, the second Respondent 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 found them guilty for the offence punishable Under Section 20(b)(ii)(C) of the NDPS Act and eventually considering the gravity of the offence and the proliferating and devastating menace the drugs have been able to create in the society and keeping in view the need for eradication, sentenced each of them as has been mentioned hereinabove.

(3.) IT is submitted by Ms. Sushma Manchanda, learned Counsel appearing for the State that the High Court has fallen into error by converting the conviction from Section 20(b)(ii)(C) to Section 20(b)(ii)(B) of the NDPS Act relying on the decisions in Amar Singh Ramaji Bhai Barot (supra), Ouseph @ Thankachan v. State of Kerala, (2004) 4 SCC 446 and E. Micheal Raj (supra) without taking into consideration the definition of "charas" under the dictionary clause of the NDPS Act and fallaciously dwelt upon the other substance which has no applicability. She has seriously criticized the finding recorded by the Division Bench of the High Court on the ground that neither the definition nor the stipulations in the relevant notification lend support to such a finding and, therefore, the conclusion arrived at by the High Court is vulnerable in law.