IMPORTANT POINT
In a case of recovery of heroin the accused could be convicted for actual quantity of Di-Acytyl Morphine found by Chemical Analyst in the contraband samples.

JUDGMENT

T. Sudanthiram, J.—The appellant herein is the first accused in C.C. No.9 of 2009, on the file of the learned Principal Special Judge, Principal Special Court under NDPS Act, Chennai, and he stands convicted for the offences under Sections 8(c) r/w 29, 21(c), 25 and 28 of NDPS Act and sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs.1,00,000 for each offence, in default, to undergo six months rigorous imprisonment for each offence. The substantive sentences of imprisonment imposed on the accused were ordered to run concurrently. Challenging the said conviction and sentence, the appellant had preferred this Criminal Appeal before this Court.

2. The case of the prosecution, in brief, is as follows:

On 22.8.2008, the Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, on receiving information, rushed to the Jet Airways, Chennai International Airport. Then, the NCB officers approached the officials of Jet Airways, Chennai International Airport at about 11.30 hours and introduced themselves as officers of NCB, South Zonal Unit, Chennai, by showing their identity cards and requested them to stand as witnesses for the search proceedings to be conducted by them under NDPS Act. Then, the NCB Officers alongwith the independent witnesses, with the assistance of Jet Airways staff, located one Perumal Shanmuganathan, who was standing in the Jet Airways check-in counter area alongwith his luggage. When the NCB officers introduced themselves, enquired about his name and details, he revealed his name as Perumal Shanmuganathan. The NCB officers asked him to identify his luggage and he showed one trolley suitcase, which had an inscription on it ‘POLO’, one carton box, which had an inscription “Prestige Delight 2.2 litres” and another carton box having an inscription “Shadows Induction Cooker SLS-2015” The NCB officers informed him about their intention to search. When the said Perumal Shanmuganathan was questioned by the NCB officers as to whether he was given any articles by the appellant/first accused for taking the same to Colombo and handing over it to his person there, he replied in affirmative. Thereafter, he showed two carton boxes which were in his possession, opened the carton box inscribed as “Prestige Delight 2.2 litres” and took out the electric rice cooker. On opening the top lid portion, they found a silver colour foil packet and on broke opening the bottom portion of the cooker, they found another silver colour foil packet, which were seized. Then, on opening the carton box inscribed as “Shadows induction cooker SLS-2018”, they found a silver colour foil packet and the same was seized. Then, the NCB officers opened the three packets wherein 253 grams, 197 grams and 260 grams, totalling to 710 grams of heroin was found and on opening the other three packets, 255 grams, 251 grams and 253 grams, totalling to 759 grams of heroin was found. Subsequently, the statement of the accused was recorded. Ex. P.37 is the statement of the accused recorded under Section 67 of the NDPS Act.

(ii) In order to establish the case, the prosecution examined PWs. 1 to 5, marked Exs.P1 to P59 and produced MOs 1 to 25. On behalf of the accused, no witness was examined and no document was marked.

(iii) The Trial Court, after analyzing the oral and documentary evidence, convicted and sentenced the accused as already stated above.

3. The learned counsel for the appellant submitted that he has not challenged the evidence with regard to the seizure of contraband from the accused, but, he has challenged the conviction imposed by the trial Court on the basis that the seized contraband was of commercial quantity and that actually the contraband seized comes under ‘in between quantity’ as per the Chemical Analysis Report. The learned counsel for the appellant also relied on a decision of the Hon’ble Supreme Court reported in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bure