STATE Vs. ASHIF KHAN @ KALU

JUDGEMENT

(1.) Delay condoned.

(2.) This is an appeal by the State against the judgment dated 29.9.2005 and the order of sentence dated 20.9.2005 whereby the accused Ashif Khan has been convicted under Section 21(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as the NDPS Act). The quantity of the substance recovered from the said Ashif Khan was 310 grams. It was, prima facie, detected to be Heroin. Two samples of five grams each were taken and the same were sent for testing to the Forensic Science Laboratory. The Forensic Science Laboratory tested the sample sent to it and gave a report on 5.2.2004 The Report reveals that the sample was found to contain 0.95% diacetylmorphine. In view of the percentage contained in the diacetylmorphine in the recovered substance of 310 grams, the actual weight of Heroin present in the substance would come to 2.945 grams (310 x 0.95%/100 = 2.945 grams) of Heroin. In the impugned judgment delivered by the learned Special Judge (NDPS), reference has been made to the decision in the case of Dule Hasan v State of this Court. It is also to be noted that this Court in the case of Ansar Ahmed and others v. The State: 123 (2005) DLT 563 came to the same conclusion as in the case of Dule Hasan v State 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 while considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered but 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 judgment impugned herein, after noting the aforesaid guidelines, has concluded as under:-

(3.) Although the learned counsel for the State submitted that 310 grams of Heroin were recovered from the accused Ashif Khan, in view of the settled position as per the decision of Ansar Ahmed (supra), the actual amount recovered from the accused would come to 2.945 grams which would be a small quantity and, therefore, the conviction under Section 21(a) of the NDPS Act would have to be upheld. The appeal is dismissed and the order on sentence whereby the convict has been released on the sentence already undergone of three years, three months and two days also cannot be interfered inasmuch as the maximum sentence provided under Section 21(a) of the NDPS Act is six months imprisonment.