( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1110 OF 2009 Prabhakar Ravan Wagh and Anr. .. Petitioners Versus The State of Maharashtra .. Respondent Shri S.I. Nandode, Advocate for the petitioners. Shri K.M. Suryawanshi, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 20.01.2010 P.C. :- 1. This is a writ petition filed by the accused persons being aggrieved by order passed by the Additional Sessions Judge, Dhule, in Special Case No. 28 of 2009 below application Exh.14 on 30.10.2009, whereby the learned Additional Sessions Judge held that the quantity of Heroin found with the accused/petitioners is commercial quantity and ( 2 ) as such the charge should be under section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short “N.D.P.S. Act”). 2. It is case of present petitioners that the quantity alleged to have been found with the petitioners/accused is lesser than commercial quantity and greater than small quantity and as such the charge should be under section 21 (b) of the N.D.P.S. Act. As per entry No.56 of the Notification No. S.O. 1055(E) dated 19.10.2001 issued under sub-clause (viiia) and (xxiiia), Heroin (Diacetylmorphine) - small quantity is 5 gm. and commercial quantity is 250 gm. 3. Briefly stated it is case of the prosecution that the Police had got information that petitioner – Prabhakar Ravan Wagh, truck driver resident of Dhule, was possessing Gard - a narcotic substance and therefore necessary steps were taken for obtaining permission and then raid was effected by following necessary procedure. In the polythene bag 2 kg. 528 gm. Gard was found. Thus, the total 2.537 kg. quantity of narcotic substance was found. It is case of the petitioners/accused that since as per the Chemical Analyser’s ( 3 ) Report, copy of which is produced at Exh. “B” with the petition, that Heroin (Diacetylmorphine) along with other opium alkaloid is detected in the sample received and the exhibit contained about 0.7% Heroin, which falls under section 2 (xvi) (e) of the N.D.P.S. Act. 4. Application Exh. 14 dated 05.10.2009 was filed by the petitioners before the Additional Sessions Judge, Dhule that total quantity was 2.538 kg. of Brown Sugar. As per the Chemical Analyser’s report the exhibit contained only 0.7% Heroin and therefore it was prayed to frame charge under section 21 (b) of the N.D.P.S. Act. Say of the Public Prosecutor was taken. He strongly opposed the application. Thereafter, the Trial Court came to the conclusion that the total quantity 2.538 kg. which was more than the commercial quantity. It is also said that sample of 50 gm. contained 0.7% Diacetylmorphine. Therefore, the charge should be under section 21 (c) of the N.D.P.S. Act. Being aggrieved thereby, this petition is filed. 5. Rule. Rule made returnable forthwith. With consent of both sides, the matter is heard finally at the stage of ( 4 ) admission. 6. The learned advocate for the petitioners cited case of State of NCT of Delhi V/s. Ashif Khan @ Kalu, 2009 ALL SCR 593. Therein Heroin was found and the C.A. Report showed 0.95% Diacetylmorphine. Total quantity was 310 gms. It was argued that actual quantity of Heroin was 2.045 gms. and therefore the High Court held that conviction ought to have been under section 21 (a) of the N.D.P.S. Act. The State had come in appeal before the Supreme Court. After referring to the case of E. Micheal Raj. V/s. Intelligence Officer, Narcotic Control Bureau, 2008 (5) SCC 161, the Supreme Court held in para 5 that it is not total weight of substance which is relevant but percentage of Heroin translated into weight is relevant. Reference was also made to another case in Ouseph V/s. State of Kerala, 2004 (4) SCC 446. 7. Thus, the law is clearly laid down by the Supreme Court. The learned advocate for the petitioners also referred to the case of Mrs. Oluwole Mutiat V/s. Union of India & Anr., 2008 ALL MR (Cri) 1867, in which same ratio was followed. ( 5 ) 8. In this case the total quantity found is 2.537 kg. As per C.A. Report (Exh. “B”), the percentage of Heroin was 0.7%. So the actual quantity of Heroin was 17.759. In this view of the matter, the charge should have been under section 21 (b) of the N.D.P.S. Act. 9. In the result, the Additional Sessions Judge, Dhule, is directed to frame charge against the accused under section 21 (b) of the N.D.P.S. Act and proceed to decide the case according to law. 10. The writ petition is accordingly allowed and rule made absolute. [P.R. BORKAR,J.] snk/2010/JAN10/crwp1110.09