STATE Vs. KULDEEP SAXENA

JUDGEMENT

(1.) This appeal has been filed by the State. Vide the impugned judgment and order of sentence dated 20.9.2005 the appellant Kuldeep Saxena had been convicted under Section 21(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and had been sentenced to undergo the period already suffered by him noting the fact that he had been in custody for 1 year and 9 months. The State is aggrieved by the aforenoted judgment.

(2.) Admittedly in this case 750 gram heroin was recovered from the appellant. The drag had been sent to the FSL for examination. The report of the FSL is dated 24.5.2004. It disclosed that the contraband recovered from the accused contained 0.05% of diacetylmorphine; it would translate to 3.75 grams. The court had noted that this is a small quantity; the actual weight of the content/contraband being taken into account in view of the judgment of the a Bench of this Court reported in Dule Hassain vs. State decided on 02.9.2005. Accordingly, since the possession of the appellant was of a 'small quantity' his conviction followed under Section 21(a) of the said Act. The sentence was also ordered accordingly.

(3.) On behalf of the appellant, it has been pointed out that the appellant had admitted his guilt; he had admitted that he was in possession of 750 gram heroin; and the same was recovered from his possession. It is pointed out that percentage of the diacetylmorphine as detected by the FSL of 0.05% was only for the purpose of purity and to determine the potential of the contraband; the percentage of the diacetylmorphine would be of no consequence as the whole of the recovered drug has to be treated as diacetylmorphine and for this proposition attention has been drawn to the definition of 'opium derivative' as contained in Section 2(xvi) of the said Act. Attention has also been drawn to the definition of 'preparation' as contained in section 2(xx); submission being that any mixture of a drug with or without any neutral substance would amount to a preparation, it is contended that the case of the petitioner clearly falls under Section 21(c) of the said Act and not 21(a). Learned counsel for the appellant has while distinguishing the judgment of Dule Hasan placed reliance upon an earlier judgment of a Single Judge of this Court Yogesh Tyagi vs. State, 2004 111 DLT 759; reliance has also been placed upon Amarsingh Ramjibhai Barot vs. State of Gujarat, 2005 3 JCC 213. Submission being that in this case where there was a recovery of 920 grams of opium containing 2.8% of anhydride morphine, the conviction of the appellant in that case was sustained under Section 21(c) of the said Act holding it to be a commercial quantity. It is pointed out that the impugned judgment is clearly liable to be set aside and the appellant having been found to be in possession of 750 grams heroin; his conviction under Section 21(c) of the said Act should have followed.