Nct of Delhi Vs. Ashif Khan @ Kalu  INSC 471 (3 March 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 428
OF 2009 (Arising out of SLP (Crl.) No. 848 of 2007) State of NCT of Delhi
.Appellant Versus Ashif Khan @ Kalu ..Respondent
ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a learned Single
Judge of the Delhi High Court dismissing the appeal filed by the State against
the judgment of the trial Court whereby the respondent had been convicted under
Section 21(a) and (b) of Narcotic Drugs and Psychotropic Substances Act, 1985
(in short the `NDPS Act'). The quantity of substance recovered from the accused
was 310 gms. which was prima facie detected to be heroin.
samples of five grams were taken and those were sent for Forensic Science Laboratory
for testing. After testing the said samples the Laboratory gave a report on
5.2.2004. The report revealed that samples were found to contain 0.95 %
diacetylmorphine. In view of the percentage contained the weight of heroin came
to be 2.945 gms. of heroin. It was observed by the High Court that in a mixture
of a narcotic drug or a psychotropic substance with one or more neutral
substance the quantity of the neutral substance or substances is not to be
taken while considering whether small quantity or a commercial quantity of the
narcotic drug or psychotropic substance is recovered but only the actual
contents by weight of the narcotic drug or psychotropic substance as the case
may be relevant for determining whether it would constitute a small quantity or
commercial quantity. The High Court therefore held that the quantity seized was
a small quantity and, therefore, the conviction would be under Section 21(a).
The appeal was accordingly dismissed by upholding the conclusions of the trial
The order of the High Court is challenged in this appeal.
In E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau
(2008 (5) SCC 161), it was held as follows:
2 (1) The
provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic
Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2.10.2001), which
rationalized the punishment structure under the NDPS Act by providing graded
sentences linked to the quantity of narcotic drugs or psychotropic substances
by the amending Act, the sentence structure changed drastically. "Small
quantity" and "commercial quantity" were defined under Section
2(xxiii-a) and Section 2(vii-a) respectively. New section 21 also provides for
proportionate sentence for possessing small, intermediate and commercial
quantities of offending material.
per Entry 56 of the Notification dated 19.10.2001 issued by the Central
Government which deals with heroin, small quantity has been mentioned as 5 gm
and commercial quantity has been mentioned as 250 gms.
the basic question for decision is whether the contravention involved in this
case is small, intermediate or commercial quantity under Section 21 of the NDPS
Act, and whether the total weight of the substance is relevant or percentage of
heroin content translated into weight is relevant for ascertaining the quantity
recovered from the accused.
It was held that the percentage of heroin content translated into
weight is relevant. Reference was made to an earlier judgment and observed in
para 16 as follows:
"16. In Ouseph v. State of Kerala (2004 (4) SCC 446), this Court in para 8
has held as under: (SCC p.447) "8. The question to be considered by us is
whether the psychotropic substance was in a small quantity and if so, whether
it was intended for personal consumption. 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
sample contained only 2 ml and each ml contains only .3 mg. This means the
total quantity found in the possession of the appellant was only 66 mg.
less than 1/10th of the limit of small quantity specified under the
aforesaid decision, we find that the Court has taken the quantity of the
narcotic drug or psychotropic substance found in the mixture, relevant for the
purpose of imposition of punishment."
In view of what has been stated in the said case the appeal
deserves to be dismissed which we direct.
........................................J. (Dr. ARIJIT PASAYAT)