Nikku Khan @ Mohammadeen v. State of Haryana
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
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NIKKU KHAN @ MOHAMMADEEN v. STATE OF 437
HARYANA
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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
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
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.
R.P. Appeal disposed of.
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