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State Of Nct Of Delhi v. Ashif Khan Alias Kalu .
Factual and Procedural Background
The accused was found in possession of 310 g of a substance that, upon preliminary detection, appeared to be heroin. Two 5-gram samples were forwarded to the Forensic Science Laboratory, which reported on 5-2-2004 that the substance contained 0.95% diacetylmorphine, translating to 2.945 g of heroin.
The trial court convicted the respondent under Sections 21(a) and 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The State appealed, contending that the seized quantity constituted more than a “small quantity.” A learned Single Judge of the Delhi High Court dismissed the State’s appeal, holding that only the actual heroin content (2.945 g) is relevant for determining quantity, thereby classifying it as a “small quantity.”
The present appeal before the Supreme Court was filed by the State challenging the High Court’s decision.
Legal Issues Presented
- Whether, for purposes of sentencing under Section 21 of the NDPS Act, the court should consider the total weight of the seized mixture or only the weight of the pure narcotic drug contained in that mixture.
- Consequently, whether 2.945 g of heroin extracted from a 310 g mixture constitutes a “small quantity” under the NDPS Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 | The percentage of the narcotic drug in a mixture, converted into actual weight, is determinative for classifying small, intermediate, or commercial quantity under Section 21 of the NDPS Act. | The Supreme Court applied this principle to affirm that only 2.945 g of heroin was relevant, thereby supporting the High Court’s view that the quantity is “small.” |
| Ouseph Alias Thankachan v. State of Kerala (2004) 4 SCC 446 | Confirmed that the quantity of the narcotic drug present, not the total volume of the carrier solution, governs the “small quantity” assessment. | Quoted to reinforce the rationale that punishment hinges on the actual drug content, not the weight of the neutral or carrier substances. |
Court's Reasoning and Analysis
The Court relied primarily on the ratio in E. Micheal Raj, which had interpreted the 2001 amendments to the NDPS Act and the Government notification specifying 5 g as a “small quantity” and 250 g as a “commercial quantity” for heroin. It reiterated that:
- Sentencing must be proportionate to the quantity of the narcotic drug, not the combined weight of the drug and neutral substances.
- The laboratory report established that the accused possessed only 2.945 g of heroin, well below the 5 g threshold for “small quantity.”
- The earlier decision in Ouseph supported this interpretation by demonstrating judicial consistency in treating the pure drug content as decisive.
Applying these principles, the Court found no error in the High Court's classification of the recovered heroin as a “small quantity,” rendering the State’s appeal untenable.
Holding and Implications
APPEAL DISMISSED – High Court judgment affirmed.
The decision upholds the methodology of calculating quantity based on the actual narcotic content within a mixture. While it does not introduce a new legal standard, it reinforces the precedent set in E. Micheal Raj, confirming uniform application across similar cases.
Dr. Arijit Pasayat, J.— Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Delhi High Court dismissing the appeal filed by the State against the judgment of the trial court whereby the respondent had been convicted under Sections 21(a) and (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS Act”).
3. The quantity of substance recovered from the accused was 310 gm which was prima facie detected to be heroin. Two samples of five grams were taken and those were sent to Forensic Science Laboratory for testing. After testing the said samples the laboratory gave a report on 5-2-2004. The report revealed that samples were found to contain 0.95% diacetylmorphine. In view of the percentage contained the weight of heroin came to be 2.945 gm of heroin.
4. It was observed by the High Court that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substance the quantity of the neutral substance or substances is not to be taken while considering whether small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered but only the actual contents by weight of the narcotic drug or psychotropic substance, as the case may be, is relevant for determining whether it would constitute a small quantity or commercial quantity. The High Court therefore held that the quantity seized was a small quantity and, therefore, the conviction would be under Section 21(a). The appeal was accordingly dismissed by upholding the conclusions of the trial court.
5. The order of the High Court is challenged in this appeal.
6. In E. Micheal Raj v. Narcotic Control Bureau (2008) 5 SCC 161 it was held as follows:
(1) The provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f 2-10-2001), which rationalised the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried.
(2) Thus, by the amending Act, the sentence structure changed drastically. “Small quantity” and “commercial quantity” were defined under Section 2(xxiii-a) and Section 2(vii-a) respectively. New Section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material.
(3) As per Entry 56 of the Notification dated 19-10-2001 issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm and commercial quantity has been mentioned as 250 gm.
(4) So, the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity under Section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused.
7. It was held that the percentage of heroin content translated into weight is relevant. Reference was made to an earlier judgment and observed in para 16 as follows: (Micheal case (2008) 5 SCC 161)
“16. In Ouseph v. State of Kerala (2004) 4 SCC 446 this Court in para 8 has held as under:
‘8. The question to be considered by us is whether the psychotropic substance was in a small quantity and if so, whether it was intended for personal consumption. The words “small quantity” have been specified by the Central Government by the Notification dated 23-7-1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each ml contains only 3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification.’
From the aforesaid decision, we find that the Court has taken the quantity of the narcotic drug or psychotropic substance found in the mixture, relevant for the purpose of imposition of punishment.”
8. In view of what has been stated in the said case the appeal deserves to be dismissed which we direct.
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