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 Sentence. He, however, was of the view that the aforesaid error could not be rectified by him. He also felt that the error was inconsequential since the quantum of sentence had to be proportionate to the quantity recovered and Section 21(b) does not lay down a minimum punishment.

3. The learned counsel for the appellant submits that considering the overwhelming evidence produced by the prosecution, as discussed in the impugned judgment, the appellant is not disputing his conviction or the sentence awarded to him and his only contention is since the quantity of diacetylmorphine in the substance recovered from the appellant was small quantity, he was liable to be convicted under Section 21(a) and not under Section 21(b) of the Act.

4. The learned Additional PP Ritu Gauba opposes the prayer made by the learned counsel for the appellant and submits that the quantity of the entire substance recovered from the appellant and not the quantity of diacetylmorphine found present in the said substance is to be considered for the purpose of deciding whether it was a small quantity, intermediate quantity or commercial quantity.

5. The issue involved in this case came up for consideration of the Hon’ble Supreme Court in E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161. In the aforesaid case, the appellant before the Apex Court was alleged to be found in possession of heroin weighing 4 kg. The samples drawn from the substance recovered from the appellant when examined in the laboratory were found to have purity of 1.4% in one sample and 1.6% in the other sample. The appellant was convicted under Section 21(c) of the Act on the ground that he was found in possession of heroin in commercial quantity. The High Court, while dismissing the appeal filed by the appellant, had held that it would be evident from Section 21 of the Act read with 2 (xi) thereof, which defines „manufactured drug’, that the substance seized from the appellant was a manufactured drug and since the offence can be in respect of manufactured drug as well as its preparation, defined in Section 2(xx) of the Act, any mixture of narcotics drugs with other substance will also come within Section 21 of the Act and, therefore, the rate of purity becomes irrelevant. Thus, the view taken by the High Court that the whole quantity of the mixture had to be taken into consideration, while imposing punishment under Section 21 of the Act.

It was contended on behalf of the appellant that the conviction was contrary to law since the total quantity of contraband seized from him was 4.0 kg and calculated on the basis of purity percentage the quantity came to only 60 gms which was much below the commercial quantity of heroin. It was also submitted that it was not the total weight, but the percent