STATE OF NCT OF DELHI Vs. ASHIF KHAN

JUDGEMENT

(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 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. Two 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 Court.

(3.) The order of the High Court is challenged in this appeal.