1. - This appeal under section 374 (2), Criminal Procedure Code challenges appellant's conviction for the offence punishable under section 21 (c) of the Narcotic Drugs And Psychotropic Substances Act (hereinafter referred to as the "Act") and sentence awarded of 14 years rigorous imprisonment and fine of Rs. 1 lac.

2. Heard learned Counsel for the appellant and learned Public Prosecutor.

3. In course of arguments, on behalf of appellant thrustly argued is that conviction is for possessing (and/or transporting) commercial quantity of heroin alleged to be 450 gms. and appellant's application of 14.11.2008 requesting (i) re-examination of sample for determining quantity of diacetyl morphine and then consequent (ii) calling of the expert examining sample is rejected by Trial Court vide order of same day and, since determination of quantity was and is necessary, so the application ought to have been allowed and ordering accordingly, the appeal should be decided.

4. Learned Counsel while mentioning little points on merits, argued that the above application for determining quantity, may be deemed one under section 91, Criminal Procedure Code and in interest of justice deserves to be allowed even at this stage.

5. Submitted that in appeal also similar in applicant's I.A. No. 56/2009 requesting for direction to forward the sample of recovered contraband to F.S.L. for determination of percentage of diacetyl morphine.

6. Learned Public Prosecutor submitted that application very belatedly resented is rightly rejected by learned Judge and F.S.L. report (Ex. P/27)is straight clear about the substance having diacetyl morphine.

7. Considered rival arguments and perused the record.

8. Contemplated by this order is to address above argument for further scientific chemical examination of same and then other points, if need be.

9. At the outset it is mentioned that consideration of above point is without in any touching the merits of the case and if any alleged fact is described, it is only in context of and for deciding above.

10. In very short, allegedly as per prosecution in June 2006, when S.H.O. P.W./12 searched a moped (two wheeler) driven by appellant, on it in a bag were black pair rexine shoes-concealed in sole of shoes is found this substance stated to be 440 gms. Two samples collected from this sub- stance and one forwarded to F.S.L.

11. Appellant charged, and trial resulted in conviction of and sentence to appellant.

12. Per F.S.L. report, Ex. P/27 bearing dated 31.7.2007, sample was deposited on 7.6.2006 and on microchemical examination, "the sample contained in the packet marked A gave positive tests for the presence of diacetyl morphine (heroin)."

13. Learned Counsel for the appellant submitted that the report does not show how much was percentage of diacetyl morphine and the report submitted before the Trial Court in August, 2007 therefore, the application presented on behalf of appellant cannot be said to be delayed one and as the appellant was in custody so, rejection of application by learned Trial Judge on the basis of stated delay is erroneous. Submitted that determination of percentage of diacetylmorphine is essential for just decision.

14. On behalf of appellant also submitted is that appellant, in relation to his application dismissal order of 14.11.2008, moved a petition under section 482, Cr P.C. being No. 1569/08 but since the case was already decided by that time, the petition was dismissed observing that points raised may be agitated before the appropriate forum. Presented copy of order dated 28.1.2009 for perusal.

15. In support of contentions, learned Counsel relied on decisions (i) E. Michael v. Intelligence Officer, Narcotics Control Bureau, 2008 (65) AIC 112 (SC)=2008 (61) ACC 660=2008 (2) SCC (Cr1) 558, and (ii) Sugan Ram v. State of Rajasthan, 2009 (4) Raj. 296.

16. Learned Public Prosecutor opposing submitted that application presented only on 14.11.2008 when the case at the stage of and posted for final argument