Holding

The appellant is liable to be convicted under Section 21(b) of the NDPS Act as the pure heroin quantity (125 g) is less than the commercial quantity (250 g), and the sentence is reduced to ten years.

Summary

The appellant, Nikku Khan (Mohammadeen), was stopped by police on 1 June 2003 and heroin weighing 740 grams was seized from his person. Laboratory analysis showed the heroin had a purity of 16.93%, equating to approximately 125 grams of pure heroin. Under the NDPS Act, the commercial quantity of heroin is prescribed as 250 grams, making the seized amount fall below this threshold. The trial court and High Court convicted him under Section 21(c) (commercial quantity) and sentenced him to twelve years' rigorous imprisonment and a fine of Rs. 1 lakh. The Supreme Court, applying the principle from E. Michael Raj v. Intelligence Office, held that the conviction should be under Section 21(b) (small quantity) and reduced the imprisonment term to ten years, leaving the fine unchanged.

Issues considered

Whether the quantity of heroin recovered, after accounting for purity, constitutes a 'commercial quantity' under the NDPS Act.
Whether the appellant should be convicted under Section 21(b) or Section 21(c) of the NDPS Act.
What is the appropriate maximum punishment for the offence based on the correct classification of quantity.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 21(b), s. 21(c), s. 2(b), s. 2(c), s. 41, s. 50

Subjects

Narcotic DrugsHeroinCommercial quantitySmall quantityNDPS ActSentencingPurity calculationConviction

Judgment

[2011) 9 S.C.R. 435

•
NIKKU KHAN @ MOHAMMADEEN :A
v.
STATE OF HARYANA
(Criminal Appeal No. 925 of 2007)
JULY 21,2011
.• B
[V.S.SIRPURKAR AND T.S.THAKUR, JJ.]

Narcotic Drugs and Phychotropic Substance Act,
1985:
c
ss. 2(b) and (c) - Notification specifying commercial
quantity of heroin as 250 gm - Heroin recovered from
accused being 125 gm with concentration of 16. 93% -
Conviction and sentence of 12 years and fine of Rs. 1 lac
imposed by trial court - Affirmed by High Court - HELD: 0
Accused is liable to be convicted u!s 21(b) and not uls 21(c)
of the Act as, on the relevant date, he was found in possession
of 125 gm of heroin which is less than the commercial quantity
as prescribed under the Act - The maximum punishment
prescribed for the offence u/s 21 (b) of the Act is rigorous E
imprisonment for a term of ten years and with fine of one lakh
rupees - Keeping in view the facts and the circumstances of
the case, the conviction of the accused is converted from
s.21 (c) to s.21 (b) of the Act and sentence reduced from twelve
' i
years to ten years.
F
E.Micheal Raj Vs. Intelligence Office, Narcotic Control
=
Bureau 2008 (4) SCR 644 2008 (5) SCC 161 - relied on.

Case Law Reference:
• 2008 (4) SCR 644 relied on para 8 G

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 925 of 2007.

435 H
436 SUPREME COURT REPORTS [2011] 9 S.C.R
•
A From the Judgment & Order dated 08.09.2006 of the High
Court of Punjab & Haryana at Chadigarh in Criminal Appeal
No. 698-DB of 2005.

R.K. Kapoor, Neelam Khanna for the Appellant.
8 Rajeev Gaur 'Nassem' (for Kamal Mohan Gupta) for the
' .
Respondent.

The Judgment of the Court was delivered by

C 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.
D 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
E 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.

F 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
G 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
H
NIKKU KHAN @ MOHAMMADEEN v. STATE OF 437
HARYANA
"(
held that the accused was found in possession of 740 grams A
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 .
B
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 c
was heroin.

6. We do not wish to interfere with the conviction awarded
by the trial court and affirmed by the High Court. However,
'
insofar as the sentence is concerned, Mr. R.K. Kapoor, learned D
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 E
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
.> i
which was recovered from the appellant was less than the
commercial quantity as prescribed under the Act. F

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 G
• 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 t~rm which may extend
H
438 SUPREME COURT REPORTS [2011] 9 S.C.R.

A to ten years and with fine which may extend to one lakh rupees.

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
8
concerned, we convert the conviction of the appellant from
Section 21(c) to 21(b) of the Act and reduce the sentence of
I
.
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.
c
R.P. Appeal disposed of.

• <

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