Decided on November 30,2007

Veer Pal @ Veeru @ Rahisuddin Appellant
STATE (NCT OF DELHI) Respondents


Sudershan Kumar Misra, J. - (1.) THIS is an appeal preferred by Veer Pal @ Veeru @ Rahisuddin against his conviction and sentence by the Special Judge, Delhi under Section 21(c) of the NDPS Act to rigorous imprisonment for 12 years and a fine of Rs. 1,20,000/ - and in default of payment of fine, to further undergo simple imprisonment for 1 year two months. In the memorandum of appeal presented before this Court, the appellant has assailed his conviction on a number of grounds. However, Mr. Khatana, learned counsel for the appellant has confined his appeal to one ground alone. He says that the sentence awarded to the appellant by the impugned judgment is based on the conclusion reached by the Learned Trial Court that the quantity of the diacetylmorphine (heroin) seized from his client constituted a "commercial quantity" which in turn entailed a minimum sentence of rigorous imprisonment for a term not less than 10 years along with fine not less than 1.00 lac of rupees in terms of Section 21(c) of the NDPS Act. He submits that the Trial Court was in error in concluding that merely because the entire quantity of the substance seized from his client weighed 1 kg., therefore the requirement of Item 56 of the relevant notification of the Central Government, which specifies the commercial quantity of diacetylmorphine (heroin) to be 250 grams, was satisfied. He submits that, in fact, keeping in view the ratio of the judgment of this Court in the case of Ansar Ahmed v. State : (2005) (3) JCC (Nar) 193, the Learned Trial Court ought to have rested its decision on the point of sentencing on the actual quantity by weight of diacetylmorphine (heroin) that was determined to be present within the substance seized after analysis by the CFSL. He submits that had this been done, the actual quantity of diacetylmorphine (heroin) in the substance seized from his client would have actually amounted to 24 grams, which is much less than the quantity designated as a, "commercial quantity", as notified under Section 2(vii -a) of the NDPS Act. In Ansar Ahmed's case (supra), Badar Durrez Ahmed, J. of this Court has taken the view that while applying the provisions of Section 21 of the NDPS Act for awarding punishment, what must be seen is the extent of the substance, in this case diacetylmorphine (heroin), by weight in the mixture. The judgment, inter alia, states as follows: It does appear to me that what has to be seen is the content of heroin by weight in the mixture and not the weight of the mixture as such. Otherwise, anomalous consequences would follow. While a recovery of 4 grams of heroin would amount to a small quantity, the same 4 grams mixed up with say 250 grams of powdered sugar would be quantified as a "commercial quantity"! And, where would this absurdity stop ? Suppose one were to throw a pinch of heroin (say 0.5 gram) into a polythene bag containing small steel ball bearings having a total weight of 1 kg.; would the steel ball bearings be also weighed in and it be declared that a commercial quantity (1000.5 grams) of heroin was recovered ! Surely, it is only the content of heroin (0.5 gram) in the "mixture" of heroin and steel ball bearings that is relevant? Clearly, then, it would qualify as a small quantity. Therefore, in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a "small quantity" or a "commercial quantity"
(2.) THAT judgment also goes on to examine other cases including the case of Mohd. Sayed v. Customs : : 2002 (2) JCC 1293 where a similar question had arisen with regard to the psychotropic substance "buprenorphine" which was to be found in ampoules of "temgesic injections" and it was held that; it could only be the actual quantity/value of buprenorphine as found present in each ampoule......... and not the total quantity.......... that may be taken for the purposes of framing of charge against the petitioner.......... Similarly in the case of Masoom Ali @ Ashu v. State (Crl. Rev. Petition 195/2004) decided on 07.04.2004, R.S. Sodhi, J. of this Court, while disagreeing with the reasoning to the contrary of the Court below, held that; ................ where in a large quantity of powder recovered the percentage of the narcotic substance is very small then proportionate reduction in the recovery would have to be made in order to ascertain whether the offence falls within the categories mentioned in the NDPS Act.
(3.) THE Supreme Court of India in Ouseph v. State of Kerala : (2004) 4 SCC 446, while deciding whether the substance in question amounted to a "small quantity" also took into consideration only the actual extent of the psychotropic substance present within the substance seized. My attention has also been drawn to two other decisions of this Court on the same point being Sagar Singh v. State : (2006) 2 JCC 103 and Rashid Mohd. v. State, (2006) 2 JCC 101.;

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