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Ouseph Alias Thankachan v. State Of Kerala .
Factual and Procedural Background
The appellant was apprehended with 110 ampoules of buprenorphine (trade name “Tidigesic”) and two syringes. The Sessions Court convicted him under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him to rigorous imprisonment for ten years with a fine of ₹1 lakh (two additional years’ simple imprisonment in default). His appeal to the Kerala High Court was dismissed. He then filed a special leave petition from jail before the Supreme Court, which appointed an amicus curiae to represent him.
Legal Issues Presented
- Whether buprenorphine is a “psychotropic substance” rather than a “narcotic drug,” and if so, whether its possession attracts Section 22 or another provision of the NDPS Act.
- If classified as a psychotropic substance, whether the quantity (66 mg) exceeded the statutory “small quantity” threshold fixed by the Central Government notification dated 23-7-1996 (1 gram).
- Whether the possession was for personal consumption, thereby bringing the case within Section 27 of the NDPS Act, which prescribes a lesser penalty.
Arguments of the Parties
Appellant’s Arguments
- The recovered substance, being buprenorphine, falls under Item 92 of the Schedule to the NDPS Act and is therefore a psychotropic substance, not a narcotic drug.
- Under Rule 66 of the NDPS Rules, possession of a psychotropic substance is an offence only if it exceeds reasonable personal or medical requirements; the prosecution failed to establish contravention.
- In the alternative, even if an offence is made out, Section 27 applies because the quantity (66 mg) is far below the “small quantity” limit of 1 gram and was intended for personal consumption, evidenced by the presence of two syringes.
State’s Arguments
- Relied on the Central Government notification of 23-7-1996 to show that “small quantity” for buprenorphine is 1 gram, thereby acknowledging the amount seized (66 mg) is well below that limit.
- Maintained the correctness of the initial conviction under Section 22, contending the appellant’s earlier defence strategy precluded a new plea at the Supreme Court stage.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court first confirmed that buprenorphine is expressly listed as a psychotropic substance (Item 92 of the Schedule), not a narcotic drug. Possession of a psychotropic substance constitutes an offence only when it violates the NDPS Rules. Under Rule 66, quantities for personal medical use are allowed up to 100 dosage units.
Although the appellant had not raised a Rule 66 defence in earlier courts, the Court entertained an alternative argument under Section 27. It examined two elements:
- Quantity: Each ampoule contained 0.3 mg/ml and 2 ml, totalling 66 mg—much less than the 1 gram threshold for “small quantity.”
- Purpose of possession: The recovery of two syringes alongside the ampoules created a preponderance of probability that the substance was meant for personal consumption rather than sale or distribution.
Invoking the principle that an accused may advance alternative defences—even belatedly—the Court held that denying such a plea would be unduly harsh given the severe consequences under Section 22. The prosecution’s burden is to prove guilt beyond reasonable doubt; conversely, the appellant need only establish personal consumption on a balance of probabilities, which the Court found satisfied.
Holding and Implications
The conviction is altered from Section 22 to Section 27(b) of the NDPS Act, and the appellant is sentenced to six months’ imprisonment—the maximum under that provision. Having already served nearly six years, the appellant has overshot the revised sentence; the Court therefore ordered his immediate release unless required in any other case.
Implications are limited to the parties: the appellant gains immediate freedom, and the decision underscores judicial willingness to re-classify charges where statutory provisions on “small quantity” and personal consumption apply. The judgment does not set out new legal principles but reaffirms the differentiated treatment for small-quantity, personal-use cases under the NDPS Act.
Order
1. Leave granted.
2. The appellant has been convicted by a Sessions Court for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). He was sentenced to RI for ten years and to pay a fine of Rs. 1 lakh (in default of payment of fine, he was directed to undergo simple imprisonment for a further period of two years).
3. He filed an appeal challenging the said order of conviction and sentence but the same was dismissed by the High Court of Kerala. He filed special leave petition through jail. We appointed Mr Jayant Bhushan, Advocate, as amicus curiae to argue for him. We heard him and also the learned counsel for the State of Kerala.
4. The case against the appellant is that he was found in possession of 110 ampoules of buprenorphine. (Its trade name is Tidigesic.) It is too late in the day for reappreciating the evidence for ascertaining whether as a matter of fact the appellant was not in possession of the aforesaid article.
5. Though the investigating agency thought that the article recovered from the appellant was a narcotic substance, it is in fact a psychotropic substance. This is clearly discernible from Item 92 of the Schedule of the NDPS Act. If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed. Under Rule 66 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 any person may possess a reasonable quantity of psychotropic substance “as may be necessary for their genuine scientific requirements or genuine medical requirements”. This is subject to the limitation contained in the proviso that he is in possession of the said substance for his personal medical use, the quantity thereof shall not exceed one hundred dosage units at a time.
6. Some arguments have been advanced before us to show that in the absence of any quantification of a dosage 110 ampoules recovered from the appellant cannot be held to be in excess of the aforesaid limit indicated in Rule 66. We would have certainly considered the said arguments seriously if the appellant had thought it fit to adopt such a line of defence in the trial court or before the High Court. Unfortunately, it has not been done.
7. In any case we are inclined to consider another argument advanced before us by the learned counsel for the appellant based on Section 27 of the NDPS Act. It says that whoever, in contravention of any provision of this Act, possesses any psychotropic substance, “which is proved to have been intended for his personal consumption and not for sale or distribution” shall be punishable for a term which may extend to six months or with fine or with both [unless the substance is not one falling under clause (a) of Section 27].
8. The question to be considered by us is whether the psychotropic substance was in a small quantity and if so, whether it was intended for personal consumption. The words “small quantity” have been specified by the Central Government by the notification dated 23-7-1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each ml contains only .3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification.
9. Then the next question is whether this substance was possessed by him for personal consumption. As the accused had adopted a defence of repudiating the allegation against him, it may look that he cannot rely upon the alternative contention that it was possessed by him for personal consumption. It is too harsh to deny the accused-appellant a right to resort to the alternative contention. Merely because on legal advice, he has chosen one line of defence he cannot be precluded from reaching other defence available to him, particularly since the consequences visiting him are very serious. If the fact situation is sufficient for the court to satisfy that the small quantity in his possession was for personal consumption, he should not be denied the benefit of Section 27 of the NDPS Act.
10. In the aforesaid context we notice a significant factual aspect that along with the small quantity of psychotropic substance recovered, two syringes were also recovered from him by the police. That aspect reflects that he only wanted to use buprenorphine (Tidigesic) for his personal consumption and not for trading purposes. The burden on the accused in this respect need not be discharged in the (sic this) manner and the prosecution is to prove the case beyond a reasonable doubt. It is enough that he satisfies the judicial mind by a preponderance of probability.
11. On account of the aforesaid fact situation, we are inclined to believe that the small quantity of buprenorphine (Tidigesic) was in the possession of the appellant for his personal consumption and, therefore, the offence committed by him would fall under Section 27 of the NDPS Act.
12. We, therefore, alter the conviction of the appellant to Section 27 of the Act. We sentence him to the maximum provided under Section 27(b) of the NDPS Act, which is imprisonment for six months. He is already in jail for nearly six years by now. It is not necessary for us to say that he has been in jail far beyond the sentence imposed by us. We, therefore, direct the jail authorities to release him from jail forthwith unless required in any other case. The appeal is disposed of in the abovesaid terms.
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