SALIM IBRAHIM CHOUHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant-original accused No.1 Salim Ibrahim Chouhan has preferred Criminal Appeal No. 268 of 2008 and appellant-original accused no.2 Nasir Abubaker Shaikh has preferred Criminal Appeal No. 325 of 2008. In both these appeals, the appellants have impugned the judgment and order dated 29.2.2008 passed by the learned Special Judge, Greater Bombay in NDPS Spl.Case No. 75 of 2007. Hence, both these appeals are being disposed of by this common judgment. By the impugned judgment, the learned Special Judge convicted and sentenced both the appellants under Section 20(c) and under Section 8(c) punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act"). Both the appellants were sentenced to ten years RI and to pay a fine of Rs.1 lakh i/d RI for three months on each count.

(2.) THE prosecution case briefly stated is as under:

(3.) THE learned counsel for both the appellants have stated that they are not arguing for acquittal and they are only praying that the sentence may be reduced in view of the fact that as per the C.A. report the quantity of heroin does not fall under commercial quantity but it falls under intermediate category. They submitted that according to prosecution, 6 kgs. charas was found in possession of each of the appellant. As far as appellant-Salim Ibrahim Chouhan is concerned, the CA report Exhibit-20 shows that the percentage of charas was 5.63 % and as far as appellant-Nasir Abubaker Shaikh is concerned, the C.A. report Exh.20 shows that percentage of charas was 4.40%. It is submitted that on consideration of the percentage of charas found as per the C.A. report, the actual charas found with the appellant-Salim Ibrahim Chouhan is 321.6 gms. and the actual charas found with appellant-Nasir Abubaker Shaikh is 264 gms. In support of this contention, the learned counsel placed reliance on the decision of the Supreme Court in the case of K. Micheal Raj Vs. Intelligence Officer, N.C.B. reported in (2008 AIR SCW 2365). In the said judgment, 4.07 kgs. Of heroin was found with the accused. As per the CA report, percentage of heroin was 1.5%. The Supreme Court observed that if the percentage of heroin is 1.5% then taking into consideration the total quantity of 4.07 kgs. The actual content of heroin would be 60 gms. The Supreme Court further observed that "supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity." The Supreme Court further observed that "We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance's, for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst's report is 60 gms. which is more than 5 gms. i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act".