The main legal point established in the judgment is the application of the definitions of 'commercial quantity' and 'small quantity' under Section 2 (Vii-a) of the NDPS Act, and the amendments introduced by Amending Act 9 of 2001, which rationalized the structure of punishment under the Act by providing graded sentences linked to the quantity of narcotic drug or psychotropic substance.

Suresh Kait, J.

1. The instant Appeal is being filed while challenging the impugned judgment dated 24.12.2010 passed by Addl. Sessions Judge/Special Judge (NDPS), Dwarka Courts, New Delhi, whereby he was held guilty for the offences punishable under Section 20 (b) (ii) (C) of the NDPS Act with fine of Rs.1 Lac. Also challenged the order on sentence dated 18.01.2011 whereby he was sentenced to undergo RI for a period of 10 years for the offences punishable under Section 20 (b) (ii) (C) of NDPS Act. Benefit of Section 428 Cr. P.C. has been extended to the Appellant.

2. Mr. K.B. Andley, Ld. Sr. Counsel appearing on behalf of the Appellant has argued only on one issue that under Section 2 (vii-a) of NDPS Act, the quantity of the substance recovered should be more than 20 Kgs. If the quantity is less, then person cannot be convicted for the offences mentioned above.

3. For the convenience, Section 2 (Vii-a) of the NDPS Act is reproduced as under:-

“Commercial quantity”, in relation to narcotic drugs and pshychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.”

Therefore, the commercial quantity of ganja will be greater than 20 kg as provided in the official Gazzette/table at Serial no. 55.

4. Ld. Sr. Advocate pointed out that the pouch allegedly recovered from the appellant was of 500 gm. each inclusive of the envelop/wrapper. As per the prosecution case, two bags, 10 Kgs Ganja in each recovered from the appellant. Out of which 2 samples of 500 gram each were taken out from the substance recovered from each bag, which were sealed separately in closed Pullanda with the seal of NC. The remaining substances were kept in the same bags and were sealed with the seal of NC and these were given serial no. 1 & 2 respectively.

5. Additionally, the sample received by the FSL found of the quantity of 3.40 and 3.20 respectively.

6. Therefore, firstly, the FSL received the quantity less than what is sent by the prosecution and even the total quantity recovered from the appellant was not of the commercial; therefore, ld. Trial Judge has wrongly convicted the appellant without application of mind.

7. Though the issue of 20 Kgs. neither raised nor witnesses were cross-examined to this effect, however, the position remained that the total recovery inclusive the wrappers were 20 Kgs. and he was convicted for the offences punishable under Section 20 (b) (ii) (C) of NDPS Act.

8. Ld. Sr. Counsel has relied upon a case of Rajesh Jagdamba Awasthi vs. State of Goa 2004 (9) Scale wherein it is held as under:

However, there appears to be substance in the other submissions urged on behalf of the appellant, namely, that the weight of the substance sealed in two envelopes was found to be different from the weight of the substance received by the laboratory as deposed to by PW-1. It is not disputed that from the shoe on the right foot 100 gms. of Charas was recovered, which was sealed in envelope 'A'. According to PW-1, the Junior Scientific Officer when that envelope was opened and the substance weighed it was found to be 98.16 gms. Similarly, from the shoe on the left foot 115 gms. of Charas was recovered which was packed and sealed in envelope B. But only 82.54 gms. of the substance was found in envelope B when the same was opened by PW-1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could not be explained by the prosecution. The High Court observed that there was no doubt that the envelope B which was said to contain 115 gms. of Charas was found to contain only 82.54 gms. of Charas and this could not be considered to be a minor discrepancy. However, the High Court was of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since there was no material discrepancy in the weight of the Charas found in the other envelope A, the c