Javed vs State
2009 Latest Caselaw 1568 Del

                                      UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     DATE OF DECISION: April 21, 2009

+                         CRL.A. 322/2005

      JAVED                                        ..... Appellant
                                Through: Mr.Ghanshyam Sharma, Advocate.
                       versus
      STATE                                         ..... Respondent
                                Through: Mr.Manoj Ohri, APP for State with IO SI
                                         Bhagwan Singh.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?


:     REVA KHETRAPAL, J. (Oral)

1. This appeal is directed against the judgment of the Special Judge,

NDPS, Delhi dated 14th January, 2005 convicting the appellant for the offence

under Sections 21/61/85 under the Narcotic Drugs Psychotropic Substances

Act, 1985 (NDPS Act) and the order on sentence dated 20 th January, 2005

sentencing the appellant to undergo rigorous imprisonment for a term of 10

years along with a fine of Rs.1,00,000/- (Rupees One Lakh Only), and in

default of payment of fine to undergo six months further rigorous

imprisonment.

2. The aforesaid judgment and order on sentence were passed against the

appellant for having been found to be in possession of four polythene packets

each containing 250 gms of heroin, thus totalling 1 kg.

3. During the pendency of the present appeal, the learned counsel for the

appellant relying on the judgment of this Court in Ansar Ahmed vs. State 123

(2005) DLT 563 submitted that the sealed sample of the heroin recovered be

sent to the Forensic Science Laboratory (FSL) for a quantitative test to

ascertain the percentage of diacetylmorphine. He further submitted that similar

orders had been passed by this Court on 13th February, 2008 in Crl. A.

No.657/04 titled Gulrej Mian vs. State.

4. In Ansar Ahmed's case (supra), this Court had held that the question

whether the psychotropic substance falls within the description of 'small

quantity' or 'intermediary quantity' or 'commercial quantity' would depend on

the percentage of the psychotropic substance in the total quantity recovered

from the accused person. It is not in dispute that in the case of heroin, the

Central Government by Notification in the Official Gazette has specified in

Entry No.56 'small quantity' as lesser than 5 gms and 'commercial quantity' as

greater than 250 gms of diacetylmorphine. There being no dispute in the

instant case that while the report of the FSL confirms the presence of

diacetylmorphine in the sample it did not indicate the percentage, this Court by

order dated 2nd May, 2008 directed the trial court to arrange to have the sealed

sample of heroin allegedly recovered from the appellant sent to the FSL for a

quantitative test to determine the percentage of diacetylmorphine.

5. Pursuant to the aforesaid order, the FSL has submitted its report dated

28th May, 2008 to this Court in which the results of examination/opinion are as

follows:

"RESULTS OF EXAMINATION/OPINION

(i) On Chemical, TLC & G.C examination, exhibit 'D' was found to contain Paracetamol, Caffeine, Acetylcodeine, Monoacetylmorphine, Diacetylmorphine & Morphine.

(ii) However, on Gas Chromatography examination, exhibit 'D' was found to contain Diacetylmorphine and Morphine - 0.5% & 2.6% respectively."

6. On the strength of the aforesaid report, Mr. Ghanshyam Sharma, the

learned counsel for the appellant submitted that the sample of heroin (Exhibit

'D') being 50 gms with polythene on examination was found to contain

diacetylmorphine and morphine in the ratio of 0.5% and 2.6% respectively.

He further submitted that applying the judgment of Ansar Ahmed (supra), this

means at the most the appellant was in possession of 5 gms. of

diacetylmorphine, which is only slightly more than 'small quantity', since

'small quantity' is lesser than 5 gms [Section 2 xxiii(a)]. He also submitted

that even assuming the percentage of diacetylmorphine and morphine deducted

in the sample analysed are taken cumulatively, i.e., 0.5% plus 2.6%, the

appellant can at worst be said to be in possession of 31 gms. of contraband for

which the maximum sentence is up to 10 years. Thirty one grams indisputably

falls in intermediary quantity and the appellant having already suffered

incarceration for 7 years (approximately), the appellant deserves to be released

on the sentence already undergone by him.

7. In my considered opinion, there can be no manner of doubt that the

punishment awarded to the appellant for possession of the aforesaid quantity of

heroin, viz., 10 years rigorous imprisonment along with a fine of Rs.1,00,000/-

(Rupees One Lakh Only), and in default of payment of fine to undergo 6

months further rigorous imprisonment, is excessive. Therefore, the sentence

awarded to the appellant is reduced to the period already undergone by the

appellant and the fine amount is waived. The order on sentence of the Special

Judge, NDPS, Delhi dated 20th January, 2005 stands modified accordingly.

The appellant shall be released forthwith by the jail authorities on receipt of a

copy of this order, if not required in any other case.

8. The appeal is disposed of in the above terms.

An attested copy of the order be sent to the Superintendent Jail for

compliance and a copy be also given 'dasti' to the counsel for the appellant.

REVA KHETRAPAL, J.

APRIL 21, 2009 km