VEER PAL @ VEERU @ RAHISUDDIN Vs. STATE

JUDGEMENT

(1.) THIS is an appeal preferred by Veer Pal @ Veeru @ Rahisuddin against his conviction and sentence by the Special Judge, Delhi under Section 21(c) of the NDPS Act to rigorous imprisonment for 12 years and a fine of Rs. 1,20,000/ - and in default of payment of fine, to further undergo simple imprisonment for 1 year two months. In the memorandum of appeal presented before this Court, the appellant has assailed his conviction on a number of grounds. However, Mr. Khatana, learned counsel for the appellant has confined his appeal to one ground alone. He says that the sentence awarded to the appellant by the impugned judgment is based on the conclusion reached by the Learned Trial Court that the quantity of the diacetylmorphine (heroin) seized from his client constituted a "commercial quantity" which in turn entailed a minimum sentence of rigorous imprisonment for a term not less than 10 years along with fine not less than 1.00 lac of rupees in terms of Section 21(c) of the NDPS Act. He submits that the Trial Court was in error in concluding that merely because the entire quantity of the substance seized from his client weighed 1 kg., therefore the requirement of Item 56 of the relevant notification of the Central Government, which specifies the commercial quantity of diacetylmorphine (heroin) to be 250 grams, was satisfied. He submits that, in fact, keeping in view the ratio of the judgment of this Court in the case of Ansar Ahmed v. State : (2005) (3) JCC (Nar) 193, the Learned Trial Court ought to have rested its decision on the point of sentencing on the actual quantity by weight of diacetylmorphine (heroin) that was determined to be present within the substance seized after analysis by the CFSL. He submits that had this been done, the actual quantity of diacetylmorphine (heroin) in the substance seized from his client would have actually amounted to 24 grams, which is much less than the quantity designated as a, "commercial quantity", as notified under Section 2(vii -a) of the NDPS Act. In Ansar Ahmed's case (supra), Badar Durrez Ahmed, J. of this Court has taken the view that while applying the provisions of Section 21 of the NDPS Act for awarding punishment, what must be seen is the extent of the substance, in this case diacetylmorphine (heroin), by weight in the mixture. The judgment, inter alia, states as follows:

(2.) THAT judgment also goes on to examine other cases including the case of Mohd. Sayed v. Customs : : 2002 (2) JCC 1293 where a similar question had arisen with regard to the psychotropic substance "buprenorphine" which was to be found in ampoules of "temgesic injections" and it was held that;

(3.) THE Supreme Court of India in Ouseph v. State of Kerala : (2004) 4 SCC 446, while deciding whether the substance in question amounted to a "small quantity" also took into consideration only the actual extent of the psychotropic substance present within the substance seized. My attention has also been drawn to two other decisions of this Court on the same point being Sagar Singh v. State : (2006) 2 JCC 103 and Rashid Mohd. v. State, (2006) 2 JCC 101.