The quantity of the seized contraband under the NDPS Act is a relevant factor in imposing punishment, and legal precedents influence the determination of the appropriate sentence.

1. The above Criminal Appeal has been preferred against the judgment of conviction and sentence, dated 06.08.2004, made in C.C. No. 155 of 2003, on the file of the learned Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai.

2. The appellant herein is the accused in the case before the trial court and after the trial, he was convicted under Sections 8 (c) read with 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) (hereinafter referred to as "the NDPS Act") and sentenced to undergo ten years Rigorous Imprisonment and to pay a fine of Rs. 1 lakh and in default of payment of fine amount, he shall undergo a further period of six months Rigorous Imprisonment. Aggrieved by which, the convicted accused has preferred this appeal.

3. Heard both sides.

4. Mr. T.K. Sampath learned counsel appearing for the appellant submitted that though the alleged seized contraband is stated as a commercial quantity by the respondent, as per the chemical analysis report, in the light of the decisions rendered by the Honble Apex Court, the same weighing 54 grams, could be construed only less than the commercial quantity as per the NDPS Act, but the same was not legally considered by the Court below. Learned counsel further contended that there was a non-compliance of the provisions of Section 42 (2) of the NDPS Act. According to the learned counsel, the information received by the Officer was not recorded and submitted to his immediate superior Officer; though the Intelligence Report-Ex. P-1 was the basis for the interception, search of the appellant and recovery of contraband, on account of the infirmities found in it, the same could not have been relied upon by the Court below; similarly, the inventory of the article or clothing’s found in the bag, in which contraband was alleged to have been kept, was not taken to show that the bag belongs to the appellant and further the independent witnesses who were examined on the side of the prosecution did not support the prosecution case and therefore the testimonies of official witnesses cannot be relied upon for want of independent corroboration to convict the accused; similarly the test of the sample packet sent for chemical analysis cannot be relied upon because of the difference in weight of the samples taken and samples tested in the laboratory; with the aforesaid grounds the learned counsel for the appellant pleaded that the appellant / accused could have been acquitted by giving the benefit of doubt and also on the ground of non-compliance of mandatory provisions of the NDPS Act.

5. Per contra, the learned Special Public Prosecutor for DRI Cases appearing for the respondent submitted that the prosecution has proved and established the case against the appellant / accused only as per the law. As per the prosecution case, based on information, the accused was intercepted at Perambur Railway Station while he alighted from Mumbai - Chennai Express at Coach No. S-3 and on search of the black colour Zipper Bag with a brand name "Polo Santa Roberta", which was found in possession of the accused, it was brought to light that it contained 1.500 kgs of brown colour powder suspected to be heroin, a narcotic drug; the said 1.500 kgs were found in two packets weighing about 1.00 kg and 500 gms powder respectively wrapped and concealed in a towel. However, the sample drawn from the packet weighing about 500 gms was found to be a non-heroin substance and from the pocket weighing about 1.00 kg sample, on analysis, it was found that it contained Diacetyl Morphine (Heroin) for which a case under Sections 8 (c) read with 21 and 29 of the NDPS Act was registered.

6. In order to establish the prosecution case, 10 witnesses were examined on the side of the prosecution apart from marking 27 exhibits and 5 MOs. Considering the evidence available on record and the arguments advanced by the learned counsel on both sides, the Court found the appellant / accused guilty