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. This  is  less  than  1/10th 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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