Nikku Khan @ Mohammadeen vs State Of Haryana

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. 4

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.