Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 428 OF 2009
(Arising out of SLP (Crl.) No. 848 of 2007)
State of NCT of Delhi .Appellant
Versus
Ashif Khan @ Kalu ..Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge
of the Delhi High Court dismissing the appeal filed by the State against the
judgment of the trial Court whereby the respondent had been convicted
under Section 21(a) and (b) of Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short the ‘NDPS Act’). The quantity of substance recovered
from the accused was 310 gms. which was prima facie detected to be heroin.
Two samples of five grams were taken and those were sent for Forensic
Science Laboratory for testing. After testing the said samples the Laboratory
gave a report on 5.2.2004. The report revealed that samples were found to
contain 0.95 % diacetylmorphine. In view of the percentage contained the
weight of heroin came to be 2.945 gms. of heroin. It was observed by the
High Court that in a mixture of a narcotic drug or a psychotropic substance
with one or more neutral substance the quantity of the neutral substance or
substances is not to be taken while considering whether small quantity or a
commercial quantity of the narcotic drug or psychotropic substance is
recovered but only the actual contents by weight of the narcotic drug or
psychotropic substance as the case may be relevant for determining whether
it would constitute a small quantity or commercial quantity. The High
Court therefore held that the quantity seized was a small quantity and,
therefore, the conviction would be under Section 21(a). The appeal was
accordingly dismissed by upholding the conclusions of the trial Court.
3. The order of the High Court is challenged in this appeal.
4. In E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau
(2008 (5) SCC 161), it was held as follows:
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(1) The provisions of the NDPS Act were amended by
the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001 (Act 9 of 2001) (w.e.f.
2.10.2001), which rationalized the punishment structure
under the NDPS Act by providing graded sentences
linked to the quantity of narcotic drugs or psychotropic
substances carried.
(2) Thus, by the amending Act, the sentence structure
changed drastically. “Small quantity” and “commercial
quantity” were defined under Section 2(xxiii-a) and
Section 2(vii-a) respectively. New section 21 also
provides for proportionate sentence for possessing small,
intermediate and commercial quantities of offending
material.
(3) As per Entry 56 of the Notification dated
19.10.2001 issued by the Central Government which
deals with heroin, small quantity has been mentioned as
5 gm and commercial quantity has been mentioned as
250 gms.
(4) So the basic question for decision is whether the
contravention involved in this case is small, intermediate
or commercial quantity under Section 21 of the NDPS
Act, and whether the total weight of the substance is
relevant or percentage of heroin content translated into
weight is relevant for ascertaining the quantity recovered
from the accused.
5. It was held that the percentage of heroin content translated into
weight is relevant. Reference was made to an earlier judgment and observed
in para 16 as follows:
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“16. In Ouseph v. State of Kerala (2004 (4) SCC
446), this Court in para 8 has held as under: (SCC p.447)
“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
sample 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.
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This is less than 1/10 of the limit of small
quantity specified under the notification.”
From the aforesaid decision, we find that the Court has
taken the quantity of the narcotic drug or psychotropic
substance found in the mixture, relevant for the purpose
of imposition of punishment.”
6. In view of what has been stated in the said case the appeal deserves to
be dismissed which we direct.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
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(ASOK KUMAR GANGULY)
New Delhi,
March 03, 2009
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