ORDER

Leave granted.

2. Appellant stands convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine amount he has to undergo a simple imprisonment for a further period of 3 months. He filed an appeal before the High Court. A learned Single Judge of the High Court confirmed the conviction and sentence and dismissed the appeal.

3. The case alleged against him shows that he was found in possession of 23.5 grams of opium at the time when he was intercepted and searched by PW 2, sub-inspector of police. We have noticed that two witnesses were called by PW 2 at the time of search out of whom one was examined as PW 1 and the other was not examined. But even the one examined (PW 1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr. R. Venkataramani, learned senior counsel for the appellant that the evidence of PW2, Sub-Inspector of police remained uncorroborated, and therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Even otherwise, it cannot be said that evidence of PW 2 remains uncorroborated because the fact opium was recovered from his person and also Exhibit P 2 which is anendorsement containing the signature of the appellant could be treated as circumstances corroborating the testimony of PW 2.

4. Learned senior counsel then contended that there was factually no compliance of Section 50 of the NDPS Act inasmuch as the search was not conducted in the presence of a gazetted officer or a Magistrate. That point also seems to be very fragile for the appellant as the concurrent finding shows that PW 2 in fact put it to the appellant whether he required the search to be conducted in the presence of a gazetted officer or a Magistrate and the answer was in the negative. This was communicated in the form of a written record as is evidenced by Ext. PW 2. Hence, we are not disposed to interfere with conviction of the appellant on the ground of non-compliance of Section 50 of the Act.

5. As a last attempt, Mr. Venkataramani made the following endeavour :

Section 27 of the NDPS Act says that whoever is in possession of any narcotic drug or psychotropic substance of "a small quantity" which is proved to have been intended for his personal consumption and not for sale or distribution, the offence would run down to a much lesser rigorous one as the court would then be in a position to consider awarding imprisonment as sentence for a term which may extend to one year or with fine or with both.

6. The said defence is adopted now as a last attempt on the basis of the fact that the opium recovered from the appellant was only 23.5 grams. The Central Government by notification, in exercise of the powers conferred by Explanation (1) to Section 27 of the NDPS Act had specified the small quantity to be 25 grams in respect of opium. For the purpose of this defence we extract the relevant portion of the said notification hereunder :

Central Government Notification No. G.O. 527(E), dated July 16, 1996, published in the Gazette of India, Extra., Part II, Section 3(ii) dated 23rd July, 1996.

In exercise of the powers conferred by Explanation (I) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of the notifications of the Government of India, in the Ministry of Finance Department of Revenue, Numbers S.O. 825(E), dated 14th November, 1985 and S.O. 827(E) dated the 14th Nov. 1985 except as regards things done or omitted to be done before such supersession, the Central Government hereby specifies the quantity mentioned in Column (3) of the Table below, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding en