Decided on February 19,2007

STATE Respondents


J.M. MALIK, J. - (1.) The appellant was convicted and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine in the sum of Rs.1,00,000/-, failing which she was to further undergo Rigorous Imprisonment for two years for possessing heroin weighing 322 grams on 07.07.2002. Aggrieved by that order, the appellant has preferred the instant appeal.
(2.) At the very outset, learned counsel for the appellant has drawn my attention towards CFSL report. The first report is dated 08.10.2002 which does not describe the percentage of heroin. Thereafter, application was moved by the appellant and the second sample was sent for examination by CFSL. The second report Ex.DX dated 29.04.2004 goes to show : - "(i) On chemical examination, exhibit '1' gave positive tests for the presence diacetylmorphine. (ii) On Gas Chromatography examination, exhibit '1' was found to contain diacetylmorphine '4.25' percent."
(3.) This is an indisputable fact that as per this report, the appellant was found in possession of 13.6 grams of heroin. My attention was drawn towards a judgment passed by this Court in case Ansar Ahmed v. State (Government of N.C.T. of Delhi), 2005 JCC (3) (Narcotics) Page 193, wherein it was held :- "In the case Mohd. Sayed v. Customs : 2002 (2) JCC 1293 a similar question arose. The accused in the case was allegedly found to be in possession of 3215 Tidigesic Injections (Buprenorphine) of 2 ml each. Buprenorphine is a psychotropic substance and the question that was posed was whether the actual quantity of Buprenorphine found to be present in the ampoules or the total quantity of these ampoules was to be taken for framing of the charge. It was also noted in the said decision that as per the said notification of 19th October, 2001; the small quantity and commercial quantity of Buprenorphine had been specified at 1 gram and 20 grams respecitvely. In this factual position, a learned single judge (K.S. Gupta, J.) of this Court held as under :- "In my view, in this case it could only be the actual quantity/value of Buprenorphine as found present in each ampoule i.e. 0.18 ml and not the total quantity of 2 ml that may be taken for the purposes of framing of charge against the petitioner. So calculated, the aggregate Buprenorphine in 3215 ampoules would come to 0.578 gm which is a small quantity." Masoom Ali @ Ashu v. State (Crl. Rev. P.195/2004) decided on 07.04.2004 was a decision of another learned single judge (R.S. Sodhi, J.) of this Court. In that case, the petitioiner had filed a revision petition being aggrieved by the order of the Additional Sessions Judge rejecting the petitioner's application to have the sample re-examined by the Central Forensic Science Laboratory to determine the percentage of diacetymorphine. In this background, the Court held : - "The reasoning given by the learned judge for dismissing the application is that the percentage in the total quantity of recovery is immaterial for the purpose of determining the offence. The reasoning does not appeal to me. I am of the view 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." In Ouseph v. State of Kerala, 2004 4 SCC 446, the case against the appellant therein was that he was found in possession of 110 ampoules of buprenorphine (under the trade name Tidigesic) which is a psychotropic substance. The question to be considered by the Supreme Court was whether the said psychotropic substance was a "small quantity". The Court held (at page 447) :- "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 2ml and each ml contains only .3 gm. 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." The recovery was of 110 ampoules of 2ml each. However, the Supreme Court took into consideration only the actual content of Buprenorphine (i.e. 0.3 mg per ml) for the purposes of deciding whether the recovery was of a small quantity of Buprenorphine or not. It found that each ampoule contained 0.6 mg (03.x2) of Buprenorphine and, since, 110 ampoules were recovered, the total quantity of Buprenorphine recovered would amount to 66 mg (0.6x110). Accordingly, the Supreme Court held that the recovery was of a small quantity, being less than 1 gram (1000 mg.).";

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