V.K. Jain, J.

1. This appeal is directed against the judgment dated 29.10.2009 and Order on Sentence dated 30.10.2009, whereby though the appellant was convicted under Section 21(b) of NDPS Act, he was sentenced to undergo imprisonment for the period already spend by him in the custody on the ground that the substance recovered from him contained only 1.1 gm of diacetylmorphine.

2. The case of the prosecution was that on 14.12.2007, the appellant was found to be in possession of mud coloured powder which, on field testing, was found to be heroin, weighed 25 gms and had been kept in five packets. The learned Trial Judge noted that as per the report of FSL, the substance recovered from the appellant contained 4.4% diacetylmorphine. In para 58 of the judgment, the learned Trial Judge noted that the quantity of diacetylmorphine in the substance found in the possession of the appellant was 1.1 gm. Though the quantity up to 5 gms is small quantity, he wrongly recorded the quantity of diacetylmorphine found in possession of the appellant to be intermediate quantity in the aforesaid paragraph. However, this mistake was noted by the learned Trial Judge in para 2 of his Order on Sent