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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 925 OF 2007
NIKKU KHAN @ MOHAMMADEEN ... Appellant(s)
Versus
STATE OF HARYANA ... Respondent(s)
J U D G M E N T
SIRPURKAR,J.
1. Appellant Nikku Khan @ Mohammadeen, who has been
convicted by both the courts below for the offence
punishable under Section 21 of the Narcotic Drugs and
Phychotropic Substance Act, 1985 (hereinafter referred to as
the "Act") and sentenced to undergo rigorous imprisonment
for twelve years and to pay a fine of Rs. one lakh, in
default of payment of fine to further undergo rigorous
imprisonment for two years, is before us in this appeal.
2. The prosecution case, in brief, is that on 1.6.2003
at 12.30 p.m., ASI Gopi Chand along with other police
officials was on patrol duty at Nohar road, Ellenabad when
he received a secret information that the accused-appellant,
who was indulged in a trade of smack, was likely to arrive
in a Maruti Car and narcotic could be recovered from him.
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On receipt of this information, ASI, Gopi Chand issued
notice under Section 41 of the Act and sent the same to the
Deputy Superintendent of Police, Ellenabad. Thereafter, he
held a picket at Nohar Road. When the accused arrived in
Maruti Case bearing No. DAJ 4223 he was stopped and after
serving a notice under Section 50 of the Act, he was
searched in presence of Deputy Superintendent of Police,
Ellenabad and heroin weighing 740 grams was recovered from
his person.
3. After completion of investigation the accused was
sent for trial and both the trial court as well as the High
Court have held that the accused was found in possession of
740 grams of heroin.
4. We have heard learned counsel appearing for the
parties and perused the evidence as well as the judgments
of the courts below.
5. We do not think that there is anything to dispute
regarding the recovery of contraband from the accused on the
relevant date. The prosecution has been able to prove
that the accused was in possession of the contraband which
was recovered from his person. It is also proved that the
contraband was heroin.
6. We do not wish to interfere with the conviction
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awarded by the trial court and affirmed by the High Court.
However, insofar as the sentence is concerned, Mr. R.K.
Kapoor, learned counsel appearing for the appellant states
that the percentage of the concentration was 16.93%. Mr.
Kapoor, therefore, points out that the quantity of heroin
recovered from the accused virtually comes to 125 grams.
7. We have seen the Notification specifying small
quantity and commercial quantity under Section 2 of the Act
wherein at serial No. 56, the commercial quantity of
heroin is prescribed as 250 grams. Therefore, it is clear
that the quantity of heroin which was recovered from the
appellant was less than the commercial quantity as
prescribed under the Act.
8. In that view, the law laid in E.Micheal Raj Vs.
Intelligence Office, Narcotic Control Bureau 2008 (5) SCC
161 shall apply to the present case. We, therefore, hold
that the accused is liable to be convicted under Section
21(b) and not under Section 21(c) of the Act as, on the
relevant date, he was found in possession of 125 grams of
heroin which is less than the commercial quantity as
prescribed under the Act. The maximum punishment prescribed
for the offence under Section 21(b) of the Act is rigorous
imprisonment for a term which may extend to ten years and
with fine which may extend to one lakh rupees.
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9. Keeping in view the facts and the circumstances of
the present case, while affirming the impugned judgment
passed by the High Court insofar as conviction of the
appellant is concerned, we convert the conviction of the
appellant from Section 21(c) to 21(b) of the Act and reduce
the sentence of the accused from rigorous imprisonment for
twelve years to ten years. The sentence of fine and default
shall remain unaltered.
10. The appeal stands disposed of accordingly.
...................J.
(V.S.SIRPURKAR)
....................J.
(T.S.THAKUR)
New Delhi,
July 21,2011.
