P.P. Naolekar, J. - This appeal by special leave is directed against the judgment and order dated 25.8.2004 of the Kerala High Court in Criminal Appeal No. 185 of 200 whereby the conviction and sentence of the accused-appellant under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) was confirmed.

2. The relevant facts of the case are that on 5.3.2001, the Intelligence Officer was informed by an informant that two persons with certain drugs would be arriving by a Tamil Nadu Transport Corporation Bus at Thiruvananthapuram Bus Stand. The Officer along with other persons and the informant went to the bus stand and waited for the bus. At about 9.00 a.m., the two accused alighted from the Tamil Nadu Transport Corporation bus. They were identified by the informant. They were intercepted by the officials. The officials disclosed their identity and the accused were searched. When asked about possession of narcotic drugs, it was admitted by the accused that they were carrying 4 kgs. of heroin and they handed over the bag to the Officer. The bag contained two packets wrapped in Tamil newspapers secured with brown adhesive tape in which light grey powder was found. Two samples of 5 gms. Each from both the drug packets were packed, sealed and sent for testing to the Laboratory. The accused were arrested, but the second accused escaped while on the way to produce them before the Magistrate. On 26.3.2001, the Customs House Laboratory, Cochin set a report confirming the samples as answering to the test of crude heroin, a narcotic drug covered under the NDPS Act. The report further said that the Laboratory was not equipped to conduct a quantitative test. Thus, the samples were sent for quantitative test. On 22.2.2002, a quantitative test was done in the Customs Laboratory, Chennai where the purity was tested and the quantitative test report indicated as follows :

S.No. Marking on Lab. Wt. of the Wt. of the Purity

the cover No. sample received remnant

with plastic received with

cover plastic cover

1. S1 235 5.6 g 5.0 g 1.4%

2. S3 236 4.9 g 4.6 g 1.6%

3. The accused-appellant was charged with the offence committed under Section 8(c) read with Sections 21 and 29 of the NDPS Act by the Intelligence Officer, Narcotic Control Bureau. The Special Judge for Trial of Cases under the NDPS Act found that the substance found in possession of the accused was an opium derivative which has been defined under Section 2(xvi), and under Section 2(xvi)(e) a preparation, containing more than 0.2% of morphine or diacetylmorphine, is an opium derivative; and that since this contraband article contained 1.4% and 1.6% heroin it is an opium derivative, and punishable under Section 21 of the NDPS Act. Since the manufactured drug being carried weighed 4.07 kg., it would come under Section 21(c) being a commercial quantity, but since the accused is only a carrier and is not the beneficiary of the transaction, he would not be awarded the maximum sentence and would be awarded the minimum sentence of 10 years’ rigorous imprisonment and a fine of rupees one lakh, in default of payment of fine rigorous imprisonment for one more year. On an appeal being preferred, the High Court found the accused guilty. The High Court said that Section 21 of the NDPS Act when read with Section 2(xi) which defines ‘manufactured drug’, makes it evident that the packet seized from the appellant is a manufactured drug. The offence can be in respect of the manufactured drug as well as preparation of manufactured drug. ‘Preparation’ has been defined in Section 2(xx). Again, any mixture of narcotic drug with other substances will also come within Section 21 of the NDPS Act, so the rate of purity becomes irrelevant. The purity test does not advance the case of the accused. As per the High Court, it is the whole quantity of mixture which has to be taken into consideration for imposing the punishment under Section 2