1. This criminal appeal can be disposed of on a short count, as the learned Counsel for the appellant has restricted the submission, i.e. for conversion of the conviction under section 8(c), read with section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act, for short) to one under section 8(c), read with section 22(b) of the said Act.

2. The brief facts necessary for the disposal of the appeal may be stated thus :

That the appellant (accused No. 1) along with one Jehan Mistri, who was the accused No. 2 (since discharged), was charge-sheeted for the offence punishable under section 8(c), read with section 22(c) of the Act, before the learned Special Judge at Mapusa in Special Criminal Case No. 5/2014.

According to the prosecution, in a raid conducted in the night intervening between 29-8-2013 and 30-8-2013 from 22:00 hours to 1:30 hours, in front of the Electricity Department office, near St. Michael’s Church, Cumbarwado, Anjuna, Bardez, Goa, the appellant was found in illegal possession of 15.5393 grams of MDMA, which is a commercial quantity.

3. At the trial, the prosecution examined in all seven witnesses, including PW-2, Shri K. M. Varshney, who was working as the Deputy Director in CFSL, Hyderabad. PW-2, Shri K. M. Varshney, had analysed the substance, which was recovered from the personal search of the appellant and had found it to be MDMA. He proved the examination on report dated 19-11-2013 at Exhibit-C/38.

4. The learned Special Judge by the impugned judgment dated 2-11-2015, found the appellant guilty of the offence under section 8(c), read with section 21(c) of the Act and sentenced him with rigorous imprisonment for a term of twelve years and to pay a fine of ` 1,50,000/- and in default to suffer simple imprisonment for two years. The period of detention, already undergone, from 30-8-2013, has been set off under section 428 of the Code of Criminal Procedure (Code, for short).

5. I have heard Shri D’Souza, the learned Counsel for the appellant and Shri Rivankar, the learned Public Prosecutor for the respondent. With the assistance of the learned Counsel for the parties, I have gone through the record and the impugned judgment.

6. Shri D’Souza, the learned Counsel for the appellant has restricted his challenge and has submitted that the conviction under section 22(c) of the Act, cannot be sustained in view of the evidence of PW-2. It is submitted that as per the Entry No. 134 of the schedule annexed to the Act, the commercial quantity in relation to MDMA is 10 grams and above. It is submitted that a small quantity is 0.5 grams and below. The learned Counsel has referred to the evidence of PW- 2, Shri K.M. Varshney in which, PW-2 has stated that the powder along with the auto press polythene cover, together weighed 15.5393 grams. It is submitted that PW-2 has not ascertained the weight of the powder independently i.e. without polythene cover. It is further submitted that as per PW-2, he has not carried out any quantitative analysis, due to non-availability of standard sample of known purity. It is submitted that there is reasonable doubt whether, the quantity seized from the appellant, is commercial quantity and the benefit of any such doubt, has to go to the appellant. He, therefore, submits that at the highest, the appellant could have been held guilty of having found in possession of variable quantity of the contraband, where the maximum punishment prescribed is ten years and with fine, which may extend to one lakh rupees. It is submitted that the appellant is in custody from 30-8-2013 i.e. for approximately for 4 years and 8 months. He therefore submits that the conviction may appropriately be modified and the appellant be let off on the imprisonment already undergone.

On behalf of the appellant, reliance is placed on the decision of the Rajasthan High Court in the case of Ramavtar and Shambhulal and others vs. State, 2011 Cri.L.J. 69. It is submitted that in the said case, there was recove