[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 534/2003 RAFIQ MOHD. Vs. UNION OF INDIA S.B. CRIMINAL APPEAL UNDER SECTION 374(2) CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 12.03.2003 PASSED BY THE SPECIAL JUDGE, NDPS CASES, JHALAWAR IN SESSIONS CASE NO. 19/2002. Date: 03/07/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Biri Singh for the accused-appellant. Mr. Laxman Madnani, Special P.P. for UOI. *** The present criminal appeal is directed against the judgment dated 12.03.2003 passed by the Special Judge, NDPS Cases, Jhalawar, whereby the accused-appellant has been convicted under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act of 1985') and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-, in default of payment of fine to further undergo simple imprisonment for three years. 2. Briefly stated the facts of the case are that one Anant Prasad Choudhary, Inspector, Central Bureau of Narcotics, Bhawani Mandi, Jhalawar filed a complaint on 25.06.2002 in the trial Court for [2] the offence under Section 8/21 of the Act of 1985 against the accused-appellant. As per the complaint, on 29.01.2002 Jamnalal Meena, Superintendent, Central Bureau of Narcotics, Bhawani Mandi received a secret information from informant that Rafiq Mohd. is carrying the narcotic articles from village Jhijhni on 30.01.2002. On the basis of above information, a party was constituted, who checked the accused-appellant while on way and search was conducted by Dharmendra Prasad Bhatnagar, Inspector and a small bag was recovered in which heroine weighing 350 grams was found. A sample was taken and all the formalities were completed and the accused-appellant was arrested. Charge for the offence under Section 8/21 of the Act of 1985 was framed against the accused- appellant, who denied the charge and claimed trial. 3. The Special Judge, NDPS Cases, Jhalawar after hearing rival submissions of the respective parties, convicted and sentenced the accused- appellant vide impugned judgment dated 12.03.2003 as indicated herein above. 4. The impugned judgment dated 12.03.2003 passed by the Special Judge, NDPS Cases, Jhalawar is under challenge in this appeal. 5. Learned counsel for the accused-appellant [3] without challenging the impugned judgment on merit, submits that total 350 grams heroine was recovered from the accused-appellant and the same was sent to the FSL and as per the FSL report, the ratio/percentage of morphine in the quantity recovered was observed as 51.47 % and calculating the total weight of the heroine as per FSL report, was 180.14 grams. 6. Learned counsel for the accused-appellant further submits that as per Schedule appended with notification, specifying small quantity and commercial quantity at Item No.56- 5 grams of Heroin is termed as small quantity and 250 grams as commercial quantity. Thus, as per Section 21 of the Act of 1985, where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. 7. Admittedly, as per the FSL report, the quantity of heroine is more than the small quantity but lesser than the commercial quantity. Learned Special Judge awarded the maximum sentence as prescribed under Section 22 (b) i.e. for the term maximum sentence 10 years rigorous imprisonment with a fine of Rs. 1,00,000/-. [4] 8. Mr. Biri Singh, learned counsel appearing for the accused-appellant placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau, reported in JT 2008 (4) SC 523, wherein the Hon'ble Supreme Court has held that the possession of offending substance would be considered an offence punishable under the NDPS Act, as heroin is an opium derivative as per Section 2 (xvi) (e) which says that “all preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine” is an opium derivative. Further, according to Section 2 (xi), all opium derivatives fall under the category of manufactured drug. Thus, the offending substance is an opium derivative and hence a manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the NDPS Act which prohibits certain operations to the effect that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State export, inter State, import into India, export from India or transship any narcotic drug or psychotropic substance. 9. Hon'ble the Supreme Court has considered whether percentage contents of heroin translated into weight is relevant to decide if it is commercial quantity or otherwise. It was held that [5] heroin is opium derivative, which was found in possession of accused and is prohibited under Section 8, hence offence is punishable under Section 21. Section 21, 8(c),2- Conviction- Sentence- Opium derivative recovered- Total weight coming to 60 gms. which is lesser than commercial quantity- If such weight based on purity is relevant. 10. Hon'ble the Supreme Court having considered the quantity, percentage, contents of heroin has observed that 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 NPDS Act. Further, it is relevant that the appellant is merely a carrier and is not a kingpin. The Hon'ble Supreme Court looking to the facts and circumstances of the case held that the ends of justice would be subserved if we reduce the sentence of the accused-appellant to 6 years' rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine rigorous imprisonment for six months. [6] 11. I have heard learned counsel for the accused-appellant, learned Special Public Prosecutor appearing for the respondent Union of India and carefully gone through the impugned judgment dated 12.03.2003. I have also considered the ratio decided by Hon'ble Supreme Court in the case of E. Micheal Raj (supra). 12. Here in the instant case, the total heroine recovered was 350 grams and same was sent to the FSL and as per FSL report, the percentage of morphine was 51.47% and total quantity as per FSL report came to 180.14 grams, which admittedly is lesser than the commercial quantity but greater than the small quantity. 13. In the considered view of this Court and applying the ratio decided by Hon'ble Supreme Court in the case of E. Micheal Raj (supra) and looking to the facts and circumstances of the case, the accused-appellant who has already undergone the sentence of 6 years, 5 months and 5 days in custody, the ends of justice would be subserved if the sentence awarded to the accused-appellant is reduced to the period already undergone by him in custody and fine of Rs. 1,00,000/- is reduced to Rs. 50,000/-, in default of payment of fine of Rs. 50,000/-, to undergo rigorous imprisonment for one year and six months. [7] 14. Consequently, the impugned judgment dated 12.03.2003 passed by the Special Judge, NDPS Cases, Jhalawar so far as convicting the accused-appellant under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 is concerned, the same is upheld but instead of sentence of rigorous imprisonment for ten years under Section 8/21 of the Act of 1985, the accused appellant is sentenced to the period already undergone by him in confinement and the fine is reduced from Rs. 1,00,000/- to Rs. 50,000/-, in default of payment of fine to undergo rigorous imprisonment for one year and six months. On depositing the amount of fine of Rs. 50,000/-, the accused-appellant Rafiq Mohd. S/o Babu Bhai, who is in Central Jail, Kota, shall be set at liberty forthwith, if not required to be detained in any other case. 15. Accordingly, the present criminal appeal is partly allowed and the impugned judgment dated 12.03.2003 passed by the Special Judge, NDPS Cases, Jhalawar is modified to the extent as mentioned herein above. (K.S. RATHORE), J. /KKC/ (Hearing)