E MICHEAL RAJ Vs. INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU

JUDGEMENT

(1.) THIS appeal by special leave is directed against the judgment and order dated 25. 8. 2004 of the Kerala High Court in Criminal appeal No. 185 of 2004 whereby the conviction and sentence of the accused-appellant under Section 21 (c) of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter referred to as 'the ndps Act") was confirmed.

(2.) THE relevant facts of the case are that on 5. 3. 2001, the intelligence Officer was informed by an informant that two persons with certain drugs would be arriving by a Tamil Nadu Transport corporation Bus at Thiruvananthapuram Bus Stand. The Officer along with other persons and the informant went to the bus stand and waited for the bus. At about 9. 00 a. m. , the two accused alighted from the Tamil Nadu Transport Corporation bus. They were identified by the informant. They were intercepted by the officials. The officials disclosed their identity and the accused were searched. When asked about possession of narcotic drugs, it was admitted by the accused that they were carrying 4 kgs. of heroin and they handed over the bag to the Officer. The bag contained two packets wrapped in Tamil newspapers secured with brown adhesive tape in which light grey powder was found. Two samples of 5 gms. each from both the drug packets were packed, sealed and sent for testing to the Laboratory. The accused were arrested, but the second accused escaped while on the way to produce them before the Magistrate. On 26. 3. 2001, the Customs House Laboratory, Cochin sent a report confirming the samples as answering to the test of crude heroin, a narcotic drug covered under the NDPS Act. The report further said that the laboratory was not equipped to conduct a quantitative test. Thus, the samples were sent for quantitative test. On 22. 2. 2002, a quantitative test was done in the Customs Laboratory, Chennai where the purity was tested and the quantitative test report indicated as follows : <FRM>JUDGEMENT_466_TLPRE0_2008Html1.htm</FRM>

(3.) ON the other hand, Shri Vikas Sharma, learned counsel appearing for the respondent urged that it is only the weight of the substance found in possession of the appellant and recovered from him ought to be seen, and once the substance tested positive for heroin, its percentage content in the substance was irrelevant, the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a 'small quantity' or a 'commercial quantity'.