RAVEEN KUMARversusSTATE OF HIMACHAL PRADESH

1044                      [2020]REPORTS
                SUPREME COURT   8 S.C.R. 1044              [2020] 8 S.C.R.


 A                             RAVEEN KUMAR
                                        v.
                      STATE OF HIMACHAL PRADESH
                    (Criminal Appeal Nos. 2187-2188 of 2011)
 B                            OCTOBER 26, 2020
                    [N. V. RAMANA, SURYA KANT AND
                           HRISHIKESH ROY, JJ.]
              Criminal Law – Appeal against acquittal – Appellant acquitted
       u/s.20, NDPS Act – Acquittal reversed by High Court – On appeal,
 C
       held: Appellant’s acquittal was primarily based upon the finding
       that the case was not one of ‘chance recovery’ – Trial Court reached
       such finding on the basis of certain averments made in a written
       reply submitted by prosecution in opposition to appellant’s bail
       application – No opportunity to controvert this reply document was
 D     given to the prosecution, nor was PW5 confronted with it – Further,
       PW1’s statement (sole independent witness, though declared hostile
       by prosecution) corroborates and strengthens the seizure of
       contraband substance (charas) from the possession of appellant –
       Testimonies of star police-witnesses, PW2 and PW5 are not
       contradictory – On facts, two years’ rigorous imprisonment and
 E
       fine of Rs.50,000/- awarded by High Court is not disturbed –
       Narcotics, Drugs and Psychotropic Substances Act, 1985 – s.20 –
       Code of Criminal Procedure, 1973 – s.161 – Constitution of India
       –Art.136.
             Evidence – Court records – Veracity of – Held: No legal
 F
       presumption can be extended to the veracity of the contents of Court
       records emanating during trial.
             Witness – Lack of independent witnesses – Duty of Courts –
       Discussed – Criminal Trial.
 G            Narcotics, Drugs and Psychotropic Substances Act, 1985 –
       s.20(ii)(C) – Minimum mandatory sentence – Discussed – Narcotics,
       Drugs and Psychotropic Substances (Amendment) Act, 2001.
              Dismissing the appeals, the Court
             HELD: 1. There is no difference of power, scope,
 H     jurisdiction or limitation under the CrPC between appeals against
                                     1044
    RAVEEN KUMAR v. STATE OF HIMACHAL PRADESH                             1045


judgments of conviction or of acquittal. An appellate Court is free       A
to re-consider questions of both law and fact, and re-appreciate
the entirety of evidence on record. There is, nonetheless, a self-
restraint on the exercise of such power, considering the interests
of justice and the fundamental principle of presumption of
innocence. [Para 11][1051-C-D]
                                                                          B
      Ramabhupala Reddy v. State of Andhra Pradesh (1970)
      3 SCC 474; State of UP v. Banne (2009) 4 SCC 271;
      Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
      SCR 1039; Ram Jag v. State of UP (1974) 4 SCC 201 :
      [1974] 3 SCR 9 – relied on.
                                                                          C
      2.1 The appellant’s acquittal was primarily based upon the
finding that the case was not one of ‘chance recovery’. The trial
Court reached such finding solely on the basis of certain
averments made in a written reply submitted by the prosecution
in opposition to the appellant’s bail application. A Court should
be over-cautious to place reliance on a piece of evidence with            D
which the concerned witness has not been confronted despite an
opportunity to do so. Although there is no need to separately
prove the court records emanating during trial but no legal
presumption can be extended to the veracity of the contents of
such documents. The reply filed in court proceedings, at best,            E
can be treated as an admission; which must not only be proved,
but also the opposite party must be confronted with it at the stage
of cross examination. [Paras 15, 16][1052-G; 1053-A-C]
      Sita Ram Bhau Patil v. Ramchandra Nago Patil (1977)
      2 SCC 49 : [1977] 2 SCR 671 – relied on.                            F
       2.2 No opportunity to controvert this reply document was
given to the prosecution, nor was PW5 confronted with it.
Moreover, no weight can be accorded to such reply when the
trial Court itself, while rejecting bail, had interpreted the same
to conclude that the police “was not having a prior information           G
that the petitioner was carrying Charas in his Maruti Van, though,
it appears, that there was a general information against the petitioner
indulging in such activities.” Since irrelevant material was
impermissibly relied upon by the trial Court to arrive at an
acquittal, the High Court was adequately justified to interfere
with and reverse the findings. [Paras 17, 18][1053-G; 1054-A-B]           H
1046           SUPREME COURT REPORTS                      [2020] 8 S.C.R.


 A           3. Lack of independent witnesses are not fatal to the
       prosecution case. However, such omissions cast an added duty
       on Courts to adopt a greater-degree of care while scrutinising
       the testimonies of the police officers, which if found reliable can
       form the basis of a successful conviction. The trial Court held
       that no independent witness supported the prosecution case and
 B
       that the testimonies of the star police-witnesses, namely, PW2
       and PW5, were contradictory. Both these observations are
       unreasoned and unsubstantiated by the evidence on record.
       Although declared hostile by the prosecution, PW1(alleged
       hostile independent witness) admits to being literate and having
 C     signed his statement on the spot. His statement broadly
       corroborates and strengthens the seizure of contraband substance
       from the possession of the appellant.[Paras 19-21][1054-C-E]
              4. After having given a very generous consideration to the
       appellant’s age and circumstances, as well as the delay in trial
 D     and appeal, the interests of justice would be served to simply not
       disturb the sentence of two years’ rigorous imprisonment and a
       fine of Rs.50,000 awarded by the High Court. The law on minimum
       mandatory sentence, both at the time of commission of the offence
       and at the stage of appeal, prohibits any imprisonment lower than
       a term of ten years. Section 20(ii) of the NDPS Act, as it stood
 E     before the amendment of 2001, specified that where contravention
       relates to cannabis in a form other than ganja, then the same
       shall be punishable with “rigorous imprisonment which shall not
       be less than ten years but which may extend to twenty years and
       shall also be liable to fine which shall not be less than one lakh
 F     rupees and which may extend to two lakh rupees”. Section 20(ii)(C)
       of the NDPS Act, as it stands post the amendment of 2001,
       specifies the same minimum mandatory punishment of ten years
       for possession of ‘commercial quantity’ of cannabis. The High
       Court, as the law was being misconstrued at that time, relied
       upon the quantity of pure resin content of 424 gms. Instead, as
 G     now stands clarified by a co-ordinate Bench of this Court inHira
       Singh v. Union of India the total quantity of the mixture, which
       includes the neutral substance, ought to be relevant for purposes
       of sentencing. This total quantity in the instant case is 1 kg 230
       gms, which exceeds the definition of ‘commercial quantity’. Thus,
 H
    RAVEEN KUMAR v. STATE OF HIMACHAL PRADESH                                1047


the sentence accorded by the High Court is clearly already far               A
too charitable.[Paras 23-25][1055-C-G; 1056-A]
      Hira Singh v. Union of India (2020) SCC OnLine SC
      382; Kalpnath Rai v. State AIR 1998 SC 201 – relied
      on.
                        Case Law Reference                                   B

(1970) 3 SCC 474                  relied on                Para 11
(2009) 4 SCC 271                  relied on                Para 12
[2010] 9 SCR 1039                 relied on                Para 12
                                                                             C
[1974] 3 SCR 9                    relied on                Para 13
[1977] 2 SCR 671                  relied on                Para 16
AIR 1998 SC 201                   relied on                Para 19
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 2187-2188 of 2011.                                                      D

      From the Judgment dated 23.04.2010 and the order dated
18.05.2010 of the High Court of Himachal Pradesh at Shimla in Criminal
Appeal No. 261 of 1996.
      Abhinav Mukerji, AAG, M. C. Dhingra, Mrs. Bihu Sharma,                 E
Ms. Pratishtha Vij, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      SURYA KANT, J.
      1. These Criminal Appeals have been heard over video-
                                                                             F
conferencing.
       2. The appellant, Raveen Kumar, challenges the judgment dated
23.04.2010 and the order dated 18.05.2010 passed by a Division Bench
of the High Court of Himachal Pradesh, whereby his acquittal under
Section 20 of the Narcotics, Drugs and Psychotropic Substances Act,
1985 (“NDPS Act”) was reversed and a sentence of two-years rigorous          G
imprisonment with a fine of Rs.50,000 was instead imposed.
      FACTS
      3. Briefly put, the prosecution case is that on 01.11.1994 at around
3:30 P.M., a police party while conducting traffic checks for suspected      H
1048            SUPREME COURT REPORTS                           [2020] 8 S.C.R.


 A     ammunition near the HP-J&K border at Surangani, stopped a Maruti
       van which was being driven by the appellant. The police in the course of
       rummaging found that the van was loaded with tins of ghee, a bag of
       maize, 20 bottles of honey, rajmah, angithi, thermos, stepney and some
       other miscellaneous articles. A polythene bag underneath the driver’s
       seat was also discovered. Suspecting it to contain narcotics, the police
 B
       summoned two local shopkeepers (including Nam Singh, PW1) as
       independent witnesses. The appellant was informed of his statutory right
       to be searched in the presence of a magistrate or gazetted officer but he
       consented to being searched by the police party itself. The contents of
       the bag were then examined and charas, in the form of dhoopbati and
 C     balls was found. It was weighed using scales obtained from a nearby
       shop and was found to be 1 kg and 230 gms. After a 10 gm sample of
       the contraband was extracted, the charas was sealed and seized, and
       other procedural formalities were completed. The appellant was arrested
       and statement of one of the two independent witnesses – Nam Singh
       (PW1) was recorded. The sample was sent for chemical analysis where
 D
       it was confirmed to be charas with a resin content of 34.5%. The
       prosecution, accordingly, charged the appellant for offence under Section
       20 of the NDPS Act.
              4. Over the course of trial, five witnesses were examined by the
       prosecution and various documents including PW1’s statement, appellant’s
 E     written consent for search, recovery memo, arrest memo, seals and site
       plan were adduced in evidence. PW1 was declared hostile by the
       prosecution as he denied having personally witnessed seizure of the
       charas, but nevertheless he broadly supported the prosecution case as
       regards procedural compliances, sealing of the recovered narcotics and
 F     presence of the appellant. PW2 to PW5, being police witnesses,
       corroborated the prosecution version regarding search, seizure, and other
       statutory compliances under the NDPS Act. The appellant, in his defence,
       denied possession of any prohibited substance and claimed that the
       charges were fabricated by the police given his earlier refusal to
       contribute money towards a sports meet organised by the jurisdictional
 G     police. No defence evidence, however, was led and the appellant instead
       focused on highlighting contradictions between statements of the police
       witnesses.
              5. The learned Special Judge vide his judgment dated 10.07.1995,
       acquitted the appellant observing that possession of a prohibited substance
 H
    RAVEEN KUMAR v. STATE OF HIMACHAL PRADESH                                 1049
                 [SURYA KANT, J.]

had not been proved beyond reasonable doubt. In reaching such                 A
conclusion, the Court placed heavy reliance on an earlier reply dated
09.11.1994 - given by the prosecution to oppose appellant’s prayer for
bail, wherein the police claimed that the appellant “roams in the area in
the vehicle in the guise of a contractor and usually deals in
Contraband articles. Earlier also on 27.10.94, reliable secret
                                                                              B
information was received that he was carrying charas 7 kgs in the
same vehicle. He was chased … but he could not be nabbed … He
has been under observation for a long time.” In the opinion of the
trial Court, this unambiguously negated PW2 and PW5’s depositions
that they did not know or previously engage with the appellant. It also
became the sole factor to conclude that the police, in fact, had previous     C
information of the alleged smuggling and the chance recovery was nothing
but a deliberately crafted narrative to circumvent the legal safeguards
under the NDPS Act, which consequently weakened the very foundations
of the case. The Special Judge also noted that there was a contradiction
in the statements of PW2 and PW5, and that the only independent witness
                                                                              D
had not supported the prosecution version.
       6. The respondent-State appealed before the High Court, which
through judgment dated 23.04.2010 held that the reasoning of the trial
Court was totally fallacious. The High Court upon re-appreciating the
entire evidence on record, observed that first, the trial Court had wrongly
discarded the statement of PW1, for he had corroborated major parts of        E
the prosecution version and had merely pleaded ignorance to recovery
of the polythene bag. Second, the conviction was possible even in the
absence of any independent witness. Third, it was shown how the version
of PW2 and PW5 could be reconciled and any possible contradiction
would be remote and immaterial. Fourth and most crucially, PW5                F
(Investigating Officer) had not been confronted with the prosecution’s
earlier reply to the bail application and thus the same could not be relied
upon to doubt the prosecution version. The High Court further opined
that the alternate theory propounded by the defence was selectively not
suggested to PW5. Given these two facts, there was nothing to infer
that there was any prior information and the case was clearly one of          G
chance recovery, thus ameliorating the requirements to comply with
Section 42 of the NDPS Act.
       7. The High Court thereafter heard the appellant on the quantum
of sentence and passed a separate order of sentencing dated 18.05.2010,
                                                                              H
1050             SUPREME COURT REPORTS                            [2020] 8 S.C.R.


 A     observing that although the quantity of the seized charas was 1 kg 230
       gms but the pure resin content was only 424 gms, which was not a
       ‘commercial quantity’. Further, giving due weight to the appellant’s
       dependants and the over 15 years delay in trial, the High Court awarded
       a lenient sentence of two years rigorous imprisonment and a fine of Rs
       50,000 (or further one-year imprisonment in lieu thereof).
 B
              CONTENTIONS OF P ARTIES
              8. The aggrieved appellant has challenged the reversal of his
       acquittal, asserting that the High Court exceeded its jurisdiction in setting-
       aside the trial Court’s reasoned order. It was vehemently contended by
 C     his learned counsel that once the sole independent witness had disowned
       the prosecution case, it would be unjustified to convict the appellant by
       trusting the police version. The contents of the reply dated 09.11.1994
       were re-agitated with a view to prove that the case was not of chance
       recovery and in case of two possible views on the same set of evidence,
       the one favouring acquittal ought to be taken. It was contended that the
 D     reply, being a court record, was not required to be proved like a statement
       recorded under Section 161 of the Code of Criminal Procedure, 1973
       (“CrPC”). Additionally, leniency was sought sighting the now-advanced
       age of the appellant and the low quantity of the narcotics recovered.
              9. These pleas for acquittal and leniency have been ably
 E     controverted by learned State counsel who supports the judgment and
       order of the High Court. He urged that the conviction can be well
       sustained in such like cases solely on the strength of testimonies of official
       witnesses and despite non-corroboration by an independent witness. He
       further demonstrated how the trial Court had impermissibly relied upon
 F     the reply document when the same had not been brought forth at the
       stage of PW5’s cross-examination. It was also submitted that more than
       adequate leniency has already been shown at the sentencing stage as
       the High Court had imposed punishment for only the pure resin content,
       whereasthe entire weight of the mixture, including its neutral substance,
       ought to have been considered.
 G
              ANALYSIS
             10. Having heard learned counsel for the parties and on perusal
       of the record, we find that these appeals raise the following three
       questions of law: (A) What isthe scope and essence of the High Court’s
       appellate jurisdiction against a judgment of acquittal?; (B) What is the
 H
     RAVEEN KUMAR v. STATE OF HIMACHAL PRADESH                                  1051
                  [SURYA KANT, J.]

extent of reliance upon a document with which the other side was not            A
confronted with during cross-examination?; and (C) Whethernon-
examination of independent witnesses vitiates the prosecution case?
Additionally, considering that the question of sentencing arose for the
first time before the High Court, the possibility of taking a lenient view in
the present circumstances also requires consideration.
                                                                                B
       A) Scope of appeal in cases of acquittal
       11. The appellant’s contention that the High Court could not have
set aside a finding of acquittal, is legally unfounded. It has been settled
through a catena of decisions that there is no difference of power, scope,
jurisdiction or limitation under the CrPC between appeals against               C
judgments of conviction or of acquittal. An appellate Court is free to re-
consider questions of both law and fact, and re-appreciate the entirety
of evidence on record. There is, nonetheless, a self-restraint on the
exercise of such power, considering the interests of justice and the
fundamental principle of presumption of innocence. Thus, in practice,
appellate Courts are reluctant to interfere with orders of acquittal,           D
especially when two reasonable conclusions are possible on the same
material.1
       12. This Court has very illustratively, in State of UP v. Banne2,
listed circumstances were interference of an appellate Court against
acquittal would be justified. These would include patent errors of law,         E
grave miscarriage of justice, or perverse findings of fact. In turn, Babu
v. State of Kerala3, clarified that “findings of fact recorded by a court
can be held to be perverse if the findings have been arrived at by
ignoring or excluding relevant material or by taking into
consideration irrelevant/inadmissible material” or if they are ‘against         F
the weight of evidence’ or if they suffer from the ‘vice of irrationality’.
      13. Further, this Court in exercise of its powers under Article 136,
would ordinarily only examine whether the High Court has failed to
correctly apply these principles governing appeals against acquittal. It
would be aptly beneficial to quote what this Court has observed in Ram          G
Jag v. State of UP4:

1
  Ramabhupala Reddy v. State of Andhra Pradesh, (1970) 3 SCC 474.
2
  (2009) 4 SCC 271, 28.
3
  (2010) 9 SCC 189, 20.
4
  (1974) 4 SCC 201.                                                             H
1052             SUPREME COURT REPORTS                           [2020] 8 S.C.R.


 A           “14. If after applying these principles, not by their mechanical
             recitation in the judgment, the High Court has reached the
             conclusion that the order of acquittal ought to be reversed,
             this Court will not reappraise evidence in appeals brought
             before it under Article 136 of the Constitution. In such appeals,
             only such examination of the evidence would ordinarily be
 B
             necessary as is required to see whether the High Court has
             applied the principles correctly. The High Court is the final
             Court of facts and the reserve jurisdiction of this Court under
             Article 136, though couched in wide terms, is by long practice
             exercised in exceptional cases where the High Court has
 C           disregarded the guidelines set by this Court for deciding
             appeals against acquittal or “by disregard to the forms of
             legal process or some violation of the principles of natural
             justice or otherwise, substantial and grave injustice has been
             done” or where the finding is such that it shocks the conscience
             of the Court. … A finding reached by the application of correct
 D
             principles cannot shock judicial conscience and this Court
             does not permit its conscience to be projected save where
             known and recognised tests of testimonial assessment are
             totally disregarded; otherwise, conscience can become an
             unruly customer.”
 E            14. There is, therefore, no legal necessity for us to re-appreciate
       the entire evidence merely on the premise that the High Court has
       convicted the appellant for the first time in exercise of its appellate
       jurisdiction. Instead, the scope of the present appeals ought to be
       restricted to test whether the trial Court’s order was indeed perverse
 F     and whether the High Court’s re-appreciation of evidence and consequent
       conviction was founded on cogent evidence.
             B) Reliance on prosecution’s reply to bail application
              15. It is apparent that the appellant’s acquittal was primarily based
       upon the finding that the case was not one of ‘chance recovery’. The
 G     trial Court reached such finding solely on the basis of certain averments
       made in a written reply submitted on 09.11.1994 by the prosecution in
       opposition to the appellant’s bail application.
              16. Learned counsel for the appellant could not fairly dispute the
       distinction between ‘replies’ submitted to the Court in some pending
 H
        RAVEEN KUMAR v. STATE OF HIMACHAL PRADESH                                  1053
                     [SURYA KANT, J.]

proceedings, as compared to the statements recorded by the police under            A
Section 161 of CrPC. Nevertheless, a Court should be over-cautious to
place reliance on a piece of evidence with which the concerned witness
has not been confronted despite an opportunity to do so. Although there
is no need to separately prove the court records emanating during trial
but no legal presumption can be extended to the veracity of the contents
                                                                                   B
of such documents. The reply filed in court proceedings, at best, can be
treated as an admission; which as held by this Court in Sita Ram Bhau
Patil v. Ramchandra Nago Patil5, must not only be proved, but also
the opposite party must be confronted with it at the stage of cross
examination. It would be apposite to extract the cited judgment to the
following effect:                                                                  C
          “17. If admission is proved and if it is thereafter to be used against
          the party who has made it the question comes within the provisions
          of Section 145 of the Evidence Act. The provisions in the Indian
          Evidence Act that “admission is not conclusive proof” are to
          be considered in regard to two features of evidence. First, what         D
          weight is to be attached to an admission? In order to attach weight
          it has to be found out whether the admission is clear, unambiguous
          and is a relevant piece of evidence. Second, even if the admission
          is proved in accordance with the provisions of the Evidence
          Act and if it is to be used against the party who has made it,
          “it is sound that if a witness is under cross-examination on             E
          oath, he should be given an opportunity, if the documents
          are to be used against him, to tender his explanation and to
          clear up the point of ambiguity or dispute. This is a general
          salutary and intelligible rule” … Therefore, a mere proof of
          admission, after the person whose admission it is alleged                F
          to be has concluded his evidence, will be of no avail and
          cannot be utilised against him.”
                                                        [emphasis supplied]
      17. The High Court has correctly noted in the present case that
no opportunity to controvert this reply document was given to the                  G
prosecution, nor was PW5 confronted with it. Moreover, no weight can
be accorded to such reply when the trial Court itself, while rejecting bail
on 17.11.1994, had interpreted the same to conclude that the police “was

5
    (1977) 2 SCC 49.                                                               H
1054                SUPREME COURT REPORTS                         [2020] 8 S.C.R.


 A     not having a prior information that the petitioner was carrying
       Charas in his Maruti Van, though, it appears, that there was a
       general information against the petitioner indulging in such
       activities.”
              18. Since irrelevant material was impermissibly relied upon by the
 B     trial Court to arrive at an acquittal, the High Court was adequately justified
       to interfere with and reverse the findings.
              C) Need for independent witnesses
              19. It would be gainsaid that lack of independent witnesses are
       not fatal to the prosecution case.6 However, such omissions cast an
 C     added duty on Courts to adopt a greater-degree of care while scrutinising
       the testimonies of the police officers, which if found reliable can form
       the basis of a successful conviction.
              20. The trial Court held that no independent witness supported
       the prosecution case and that the testimonies of the star police-witnesses,
       namely, PW2 and PW5, were contradictory. Both these observations
 D     are unreasoned and unsubstantiated by the evidence on record. The
       High Court, on the contrary, has given cogent and lucid reasons as to
       how the testimony of PW1 (alleged hostile independent witness) also
       substantially supports the prosecution case.
              21. Although declared hostile by the prosecution, Nam Singh
 E     (PW1), admits to being literate and having signed his statement on the
       spot. During cross-examination he admits to having duly perused the
       contents of these documents before having signed them, and of not being
       under any form of police pressure, thus, seriously undermining any oral
       statement to the contrary. His deposition independently establishes that
       the Maruti van of the appellant had indeed been stopped, the appellant’s
 F
       consent was taken, a search had been conducted, certain items were
       seized and some substance had been weighed and sealed. Although PW1
       claimed not to have specifically witnessed seizure of the charas, but he
       has not denied so either. He submits that he had gone back to his shop to
       attend to some customers at that stage of the search. However, he admits
 G     to having been shown the extracted sample of charas, which he identified
       before the trial Court. Thus, far from undermining the prosecution version,
       PW1’s statement broadly corroborates and strengthens the seizure of
       contraband substance from the possession of the appellant.

       6
           Kalpnath Rai v. State, (1998) AIR SC 201, 9.
 H
       RAVEEN KUMAR v. STATE OF HIMACHAL PRADESH                               1055
                    [SURYA KANT, J.]

       22. As regards the question of contradiction between PW2 and            A
PW5’s statements, we find that the High Court’s observations are
unimpeachable. It would indeed be patently wrong to suggest that PW5
deposed that the independent witnesses were called after the suspected
contraband had already been recovered from underneath the driver’s
seat. In fact, both PW2 and PW5 unequivocally state that the polythene
                                                                               B
bag was inspected only after the independent witnesses had arrived.
There might be some confusion over the timing of removal of the other
substances, being the tins of ghee, honey, maize etc., but such trivialities
are not material.
          D) Leniency in sentencing
                                                                               C
       23. After having given a very generous consideration to the
appellant’s age and circumstances, as well as the delay in trial and appeal,
we feel that it would serve the interests of justice to simply not disturb
the sentence of two years’ rigorous imprisonment and a fine of Rs.50,000
which has been awarded by the High Court.
                                                                               D
      24. We say so for the reason that the law on minimum mandatory
sentence, both at the time of commission of the offence and at the stage
of appeal, prohibits any imprisonment lower than a term of ten years.
Section 20(ii) of the NDPS Act, as it stood before the amendment of
20017, specified that where contravention relates to cannabis in a form
other than ganja, then the same shall be punishable with “rigorous             E
imprisonment which shall not be less than ten years but which may
extend to twenty years and shall also be liable to fine which shall
not be less than one lakh rupees and which may extend to two lakh
rupees”.
       25. Similarly, Section 20(ii)(C) of the NDPS Act, as it stands post     F
the amendment of 2001, specifies the same minimum mandatory
punishment of ten years for possession of ‘commercial quantity’ of
cannabis. The High Court, as the law was being misconstrued at that
time, relied upon the quantity of pure resin content of 424 gms. Instead,
as now stands clarified by a co-ordinate Bench of this Court in Hira           G
Singh v. Union of India8 the total quantity of the mixture, which includes
the neutral substance, ought to be relevant for purposes of sentencing.
This total quantity in the instant case is 1 kg 230 gms, which exceeds the
7
    Section 7, Act 9 of 2001.
8
    2020 SCC OnLine SC 382, 10(II).                                            H
1056             SUPREME COURT REPORTS                            [2020] 8 S.C.R.


 A     definition of ‘commercial quantity’ as specified at Sl. No. 23 in Notification
       S.O. 1055 (E), dated 19.10.2001. Thus, the sentence accorded by the
       High Court is clearly already far too charitable.
              CONCLUSION
             26. For the afore-stated reasons, the appeals are dismissed. The
 B     appellant’s bail bonds are cancelled and the respondent-State is directed
       to take the appellant into custody to serve the remainder of his two
       years’ sentence.


 C     Divya Pandey                                                 Appeals dismissed.




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