Sagar Singh vs The State (Govt. Of Nct)
2006 Latest Caselaw 946 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This is an appeal against the judgment dated 31.3.2005 and the order on sentence dated 8.4.2005. By virtue of the impugned judgment and order on sentence, the appellant has been convicted under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and has been sentenced to undergo imprisonment for 10 years with a fine of Rs.1 lac.

2. At this stage, the learned Counsel for the appellant confined his arguments to the question of the appropriate provision under which the appellant could be convicted and consequently the sentence that could be imposed. However, he submitted that he has a good case on merits also but he is not going into that aspect of the matter because the petitioner would be entitled to be released even on the basis of the factual findings of the trial court. The learned Counsel for the appellant pointed out that the appellant has been convicted for the possession of 350 grams of a brown coloured powder said to contain diacetylmorphine. He submitted that on the basis of the decision of this Court in the case of Ansar Ahmed v. State 123 (2005) DLT 563, the quantity of diacetylmorphine (heroin) actually recovered from the petitioner would come to only 3.29 grams based upon the FSL report that the sample was found to contain 0.94% diacetylmorphine. He submitted that in the case of Ansar Ahmed (supra) it was held that 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 considered for determining whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. In the said decision, it was also held that 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". Relying upon that said decision, the learned Counsel for the appellant submitted that the actual weight of diacetylmorphine in the substance recovered from the appellant would come to 3.29 grams only which would fall within the category of "small quantity" as notified by the Central Government vide Notification No. SO No 1055 (E) dated 19th October, 2001 under Section 2(vii-a) and 2(xxiii-a) of the NDPS Act.

3. I have heard the learned Counsel for the parties. It is indeed correct that in view of the decision in the case of Ansar Ahmed (supra), only the actual weight of diacetylmorphine (heroin) in the recovered substance is to be considered. The actual weight comes to, in the present case, 3.29 grams. The small quantity specified for diacetylmorphine (heroin) under the said notification, by virtue of Serial No. 56, is less than 5 grams. The actual quantity recovered in the present case is only 3.29 grams and therefore, it comes fall within the category of "small quantity". Accordingly, the conviction of the petitioner would have to be under Section 21(a) of the NDPS Act which has relation to "small quantity". The sentence that can be awarded under Section 21(a) of the NDPS Act is a maximum of six months with fine of up to Rs.10,000/-. In the present case, the sentence awarded is imprisonment for 10 years and fine of Rs.1 lac. The conviction of the petitioner is converted from one under Section 21(c) of the NDPS Act to one under Section 21(a) of the NDPS Act. The sentence of the petitioner is reduced to six months with a fine of Rs.10,000/-, i.e., the maximum that can be awarded under Section 21(a) of the NDPS Act. Since the appellant had already undergone the period of sentence, he is entitled to be released forthwith.

4. Insofar as the sentence with regard to fine is concerned, the appellant has already undergone the sentence of four years and eight months and therefore, this period would clearly cover the sentence of imprisonment in default for non-payment of fine. Therefore, the appellant is not required to deposit any further sum. He is directed to be released immediately.

This appeal stands disposed of.