MAHESH PAL SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) The petitioner is in judicial custody since 28.8.2002. The facts as alleged by the prosecution are that on 20.7.2002 on the basis of a secret information, the petitioner along with co-accused Manoj Raj Pal Singh was apprehended and, on search, the petitioner was found to be in possession of 500 grams of a substance, described as Might cream powder'. which was kept in a plastic polypack. The said substance was suspected to be heroin. Samples of the recovered substance were taken and were sent to the Forensic Science Laboratory, Government of NCT of Delhi for chemical analysis. By a report dated 25.9.2002, the Forensic Science Laboratory indicated that on chemical examination, the sample tested positive for the presence of diacetylmorphine. The sample received by the Forensic Science Laboratory was described as 'off white coloured powder' stated to be smack weighing 5.39 grams (with polythene). During trial, on the directions of the trial Court, the investigating officer sent another sample for its analysis with the specific request to indicate the percentage of diacetylmorphine. The Forensic Science Laboratory by its report dated 5.5.2004 described the sample sent to it as Might brown coloured powder' weighing approximately 2.3 grams (with polythene). The said report revealed that on Gas Chromatography examination, the sample was found to contain diacetylmorphine 5.1 percent. The learned Counsel for the petitioner submitted that if the percentage content of diacetylmorphine (heroin) is converted into weight, then it comes to 25.5 grams of diacetylmorphine in the alleged recovered substance of 500 grams. Accordingly, he submitted that it was not a commercial quantity and. therefore, the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') would not apply and the petitioner, who was in custody for over three and half years, ought to be released on bail, particularly as he had no criminal antecedents.

(2.) The learned Counsel appearing for the petitioner argued that it is not the total weight of the substance allegedly recovered that is material but, the percentage content of heroin translated into weight that is relevant for determining whether the recovery is of a small quantity or a commercial quantity or an intermediate quantity. He relied upon the decision of this Court in the case of Ansar Ahmed & Ors. v. State, 123 (2005) DLT 563, wherein it was held that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a 'small quantity' or a 'commercial quantity'. The contrary argument of the learned Counsel who appeared for the State and urged that only the weight of the substance recovered ought to be seen was rejected. The view espoused on behalf of the State was that once the substance tested positive for heroin, its percentage content in the substance was irrelevant; the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a 'small quantity' or a 'commercial quantity'. This view was rejected. This would be clear from the following observations and conclusions in Ansar Ahmed (supra):

(3.) The facts in Amarsingh (supra) were that two persons 'Amarsingh and Danabhai' were apprehended. Amarsingh was found carrying a plastic bag which contained a "black-coloured liquid substance' weighing 920 gms. Similarly, 4.250 kgs of a grey-coloured substance was recovered from Danabhai. Samples were drawn and sent to the Forensic Science Laboratory for testing. The FSL report indicated that the sample from Amarsingh was 'opium as described in the NDPS Act' containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. The sample relateable to Danabhai was also reported to be 'opium as described in the NDPS Act' having 1.2% anhydride morphine and also containing pieces of poppy flowers (posedoda). Both Amarsingh nd Danabhai were charged under Sections 15, 17 and 18 r/w Section 29 of the NDPS Act. The Trial Court found Amarsingh and Danabhai to be in possession (individually and jointly) of 920 gms and 4.250 kgs of opium' and convicted them under Sections Hand 18 read with Section 29, NDPS Act and sentenced them to 5 yea s RI plus fine of Rs. 35,000/- each. Being aggrieved, both Amarsingh and Danabhai filed appeals. The High Court concluded that the conviction under Sections 17 and 18 read with Section 29 was not correct but convicted Amarsingh under Section 21(c) [individually] and under Section 21(c) read with Section 29 [jointly]. The High Court held that the total recovery [920 gms from Amarsingh and 4.250 kgs from Danabhai] constituted a commercial quantity. The High Court went further and held that even if 920 gms alone were to be taken it would amount to a commercial quantity. The High Court sentenced Amarsingh to 10 years RI plus fine of Rs 1 lakh. Being aggrieved, Amarsingh approached the Supreme Court by way of a Special Leave Petition under Article 136 of the Constitution.