BADAR DURREZ AHMED, J.

( 1 ) THE petitioner is in judicial custody since 28. 08. 2002. The facts as alleged by the prosecution are that on 20. 07. 2002 on the basis of a secret information, the petitioner alongwith co-accused Manoj Raj Pal Singh was apprehended and, on search, the petitioner was found to be in possession of 500 grams of a substance, described as light cream powder , which was kept in a plastic polypack. The said substance was suspected to be heroin. Samples of the recovered substance were taken and were sent to the Forensic Science laboratory, Government of NCT of Delhi for chemical analysis. By a report dated 25. 09. 2002, the Forensic Science Laboratory indicated that on chemical examination, the sample tested positive for the presence of diacetylmorphine. The sample received by the Forensic Science Laboratory was described as off white coloured powder stated to be smack weighing 5. 39 grams (with polythene ). During trial, on the directions of the trial court, the investigating officer sent another sample for its analysis with the specific request to indicate the percentage of diacetylmorphine. The Forensic Science Laboratory by its report dated 05. 05. 2004 described the sample sent to it as light brown coloured powder weighing approximately 2. 3 grams (with polythene ). The said report revealed that on Gas Chromatography examination, the sample was found to contain diacetylmorphine 5. 1 percent. The learned counsel for the petitioner submitted that if the percentage content of diacetylmorphine (heroin) is converted into weight, then it comes to 25. 5 grams of diacetylmorphine in the alleged recovered substance of 500 grams. Accordingly, he submitted that it was not a commercial quantity and, therefore, the rigours of Section 37 of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) would not apply and the petitioner, who was in custody for over three and half years, ought to be released on bail, particularly as he had no criminal antecedents.

( 2 ) THE learned Counsel appearing for the petitioner argued that it is not the total weight of the substance allegedly recovered that is material but, the percentage content of heroin translated into weight that is relevant for determining whether the recovery is of a small quantity or a commercial quantity or an intermediate quantity. He relied upon the decision of this court in the case of Ansar Ahmed and ors v. State: 123 (2005) DLT 563 wherein it was held that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a small quantity or a commercial quantity . The contrary argument of the learned counsel who appeared for the State and urged that only the weight of the substance recovered ought to be seen was rejected. The view espoused on behalf of the State was that once the substance tested positive for heroin, its percentage content in the substance was irrelevant; the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a small quantity or a commercial quantity . This view was rejected. This would be clear from the following observations and conclusions in Ansar Ahmed (supra):-"a9. It is, therefore, Entry 56 which shall apply. The quantities of heroin (diacetylmorphine) specified therein are by weight. Keeping in mind that the object of introducing this classification was to rationalise the sentencing structure so as to ensure that while drug traffickers who traffic in significant quantities

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