IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 28.01.2014 Date of Decision: 31.01.2014
+ CRL.A. 34/2010
SUNIL @ BHURE @ MAHANAND ..... Appellant Through: Mr. Mukesh Kalia, Adv.
STATE GOVT. OF NCT OF DELHI ..... Respondent Through: Ms. Ritu Gauba, APP for State
HON'BLE MR. JUSTICE V.K.JAIN
This appeal is directed against the judgment dated 29.10.2009 and Order on Sentence dated 30.10.2009, whereby though the appellant was convicted under Section 21(b) of NDPS Act, he was sentenced to undergo imprisonment for the period already spend by him in the custody on the ground that the substance recovered from him contained only 1.1 gm of diacetylmorphine.
The case of the prosecution was that on 14.12.2007, the appellant was found to be in possession of mud coloured powder which, on field testing, was found to be heroin, weighed 25 gms and had been kept in five packets. The learned Trial Judge noted that as per the report of FSL, the substance recovered from the appellant contained 4.4% diacetylmorphine. In para 58 of W.P.(C) No.34/2010 Page 1 of 8 the judgment, the learned Trial Judge noted that the quantity of diacetylmorphine in the substance found in the possession of the appellant was 1.1 gm. Though the quantity up to 5 gms is small quantity, he wrongly recorded the quantity of diacetylmorphine found in possession of the appellant to be intermediate quantity in the aforesaid paragraph. However, this mistake was noted by the learned Trial Judge in para 2 of his Order on Sentence. He, however, was of the view that the aforesaid error could not be rectified by him. He also felt that the error was inconsequential since the quantum of sentence had to be proportionate to the quantity recovered and Section 21(b) does not lay down a minimum punishment.
The learned counsel for the appellant submits that considering the overwhelming evidence produced by the prosecution, as discussed in the impugned judgment, the appellant is not disputing his conviction or the sentence awarded to him and his only contention is since the quantity of diacetylmorphine in the substance recovered from the appellant was small quantity, he was liable to be convicted under Section 21(a) and not under Section 21(b) of the Act.
The learned Additional PP Ritu Gauba opposes the prayer made by the learned counsel for the appellant and submits that the quantity of the entire substance recovered from the appellant and not...