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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.