STATE OF NCT OF DELHIversusASHIF KHAN @ KALU

                         [2009) 3 S.C.R. 940


A                    STATE OF NCT OF DELHI
                                  v.
                                                                         .,
                       ASHIF KHAN @ KALU
                 (Criminal Appeal No. 428 of 2009)
                          MARCH 3, 2009
B
                [DR. ARIJIT PASAYAT AND ASOK
                     KUMAR GANGULY, JJ.]

        Narcotic Drugs and Psychotropic Substances Act, 1985
c - s. 21 - Substance recovered quantified at 310 gms - Found
  to be containing 2.945 gms of 'heroin' - Sentence structure
  under the Act linked to quantity of narcotic drugs/psychotropic
  substances carried - Dispute as to whether the offending
  material was of small, intermediate or commercial quantity -
                                                                     ,   "
D Held: Total weight of the entire substance was not relevant-
  Only the actual content by weight of 'heroin' was relevant- The
  High Court rightly held that the quantity seized was small
  quantity - Narcotic Drugs and Psychotropic Substances
  (Amendment) Act, 2001.
E
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 428 of 2009.

        From the Judgment and Order dated 16.05.06 of the High
    Court of Delhi at New Delhi in Criminal Appeal No. 99 of 2006.
F
         A. Sharan, ASG, Brijinder Chabar, Subhash Kaushik, Anil
    Katiyar and D.S. Mahra for the Appellants.
                                                                         -
        K. Sarada Devi for the Respondent.

G       The Judgment of the Court was delivered by

        DR. ARIJIT PASAYAT, J. 1. Leave granted.

      2. Challenge in this appeal is to the judgment of a learned
  Single Judge of the Delhi High Court dismissing the appeal
H                               940
          STATE OF NCT OF DELHI v. ASHIF KHAN@ KALU                 941
                     [DR. ARIJIT PASAYAT, J.]

         filed by the State against the judgment of the trial Court A
         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. Two samples of five grams were B
         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         c
        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 01· a commercial quantity of the narcotic drug or D
        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 E
        21(a). The appeal was accordingly dismissed by upholding the
        conclusions of the trial Court.

            3. The order of the High Court is challenged in this appeal.
                                                                           F
            4. In E. Micheal Raj v. Intelligence Officer, Narcotic
        Control Bureau (2008 (5) SCC 161 ), it was held as follows:

            (1) The provisions of the NDPS Act wf}re amended by the
            Narcotic Drugs and Psychotropic Substances
            (Amendment) Act, 2001 (Act 9 of 2001) (w.e. f. 2.10.2001 ). G
            which rationalized the punishment structure under the
            NDPS Act by providing graded sentences linked to the
            quantity of narcotic drugs or psychotropic substances
            carried.
                                                                           H
    942        SUPREME COURT REPORTS                (2009] 3 S.C.R.


A         (2) Thus, 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
B         and commercial quantities of offending material.

          (3) As 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.
c
          (4) So 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
                                                                                 '
D         or percentage of heroin content translated into weight is
          relevant for ascertaining the quantity recovered from the
          accused.

          5. It was held that the percentage of heroin content
    t~anslated into weight is relevant. Reference was made to an
E
    earlier judgment and observed in para 16 as follows:

                "16. In Ouseph v. State of Kera/a (2004 (4) SCC
          446), this Court in para 8 has held as under: (SCC p.447)

F               "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
G         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
H
 STATE OF NCT OF DELHI v. ASHIF KHAN@ KALU               943
            [DR. ARIJIT PASAYAT, J.]

    ml contains only .3 mg. This means the total quantity found A
    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."

    From the aforesaid decision, we find that the Court has 8
    taken the quantity of the narcotic drug or psychotropic
    substance found in the mixture, relevant for the purpose of
    imposition of punishment."

    6. In view of what has been stated in the said case the
appeal deserves to be dismissed which we direct.            C

B.B.B.                                   Appeal dismissed.