The appellant was convicted under Section 22(b) of the NDPS Act by the learned Special Judge, Morigaon in connection with Special Case No. 4 of 2005 and was sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 1,00,000/-. in default to suffer rigorous imprisonment for another 3 (three years). The facts leading to the filing of this appeal may be stated in brief as follows -

On 12.8.2005 at about 7.00 a.m., O/C Moirabari PS. got a secret telephonic message from Superintendent of Police. Morigaon that Md. Jahur Ali. son of Md. Abdul Gafur of Moirabari Bazar was dealing with drugs trafficking by keeping drugs in his house for sale and consumption. After making a GD Entry bearing No. 225 dated 12.8.2005, O/C Moirabari PS. being accompanied by other police officials including C.I., Morigaon (who is a Gazetted Officer) and other local witnesses, conducted a search in the house and compound of accused Jahur Ali, son of Abdul Gafur of village Chanmahal - Moirabari and recovered two small polythene packets containing powder like substance suspected to be heroin which was kept in a "Fair & Lovely" packet. The said packet also contained some other small empty packets including a broken piece of blade and all such articles were taken out at the instance of the accused person and after taking weights, 13 grams of such powder like things were found in the above two packets. In presence of the witnesses samples of the same were taken. All such things were seized and formalities were completed in presence of independent witnesses. The accused person was also arrested and forwarded. Samples drawn from the seized articles were forwarded to Forensic Science Laboratory, Guwahati and on receipt of report from FSL about giving positive tests of heroin, a formal ejahar was lodged by O/C Bhadra Kanta Das of Moirabari PS, Police, accordingly, registered a case under Section 21(b) of the NDPS Act and investigated the matter and on completion of usual investigation, a charge sheet under Section 21(b) NDPS Act was submitted against accused Jahur Ali.

2. On consideration of the documents referred to in Section 173 Cr.P.C. and also after hearing the learned counsel of both the parties, a charge under Section 22(b)(c) of the NDPS Act was framed against the accused. On reading over and explaining the charges, the accused pleaded not guilty and claimed to stand the trial.

3. During trial, the prosecution examined as many as eight witnesses and the defence adduced no evidence. Although the defence denied the alleged recovery and seizure of any article during cross-examination of the PWs., but the accused person in his statement recorded under Section 313 Cr.P.C., pleaded that police recovered some quantities of heroin from his house which were kept by him for his own consumption.

4. On conclusion of the hearing, learned trial Court convicted and sentenced the accused appellant as aforesaid giving rise to this appeal.

5. Mr. S.C. Biswas, learned counsel appearing for the appellant submitted that due to misinterpretation of the provision of the Section 21 and 22 of the NDPS Act, the accused has been convicted under Section 22(b) of the NDPS Act.

6. The short question which arises for consideration in this appeal is (a) whether in the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance?

7. Learned counsel for the appellant submitted that as per the laboratory report of the Foreign sic Science Laboratory, Kahilipara in respect of the sample of heroin seized from the accused, it appears that the percentage of the heroin was 17.97% and 12.11%.

8. Learned counsel for the appellant pointed out that the 13 gms of suspected heroin was seized from the accused. Therefore, even if the percentage of th