NIKKU KHAN @ MOHAMMADEEN versus STATE OF HARYANA

Citation: [2011] 9 S.C.R. 435 · Decided: 21-07-2011 · Supreme Court of India · Bench: V.S. SIRPURKAR · Disposal: Disposed off

Judgment (excerpt)

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[2011) 9 S.C.R. 435 
NIKKU KHAN @ MOHAMMADEEN 
v. 
STATE OF HARYANA 
(Criminal Appeal No. 925 of 2007) 
JULY 21,2011 
[V.S.SIRPURKAR AND T.S.THAKUR, JJ.] 
Narcotic Drugs and Phychotropic Substance Act, 
1985: 
:A 
B 
c 
ss. 2(b) and (c) - Notification specifying commercial 
quantity of heroin as 250 gm - Heroin recovered from 
accused being 125 gm with concentration of 16. 93% -
Conviction and sentence of 12 years and fine of Rs. 1 lac 
imposed by trial court - Affirmed by High Court - HELD: 
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Accused is liable to be convicted u!s 21(b) and not uls 21(c) 
of the Act as, on the relevant date, he was found in possession 
of 125 gm of heroin which is less than the commercial quantity 
as prescribed under the Act -
The maximum punishment 
prescribed for the offence u/s 21 (b) of the Act is rigorous 
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imprisonment for a term of ten years and with fine of one lakh 
rupees - Keeping in view the facts and the circumstances of 
the case, the conviction of the accused is converted from 
s.21 (c) to s.21 (b) of the Act and sentence reduced from twelve 
years to ten years. 
E.Micheal Raj Vs. Intelligence Office, Narcotic Control 
Bureau 2008 (4) SCR 644 = 2008 (5) SCC 161 - relied on. 
Case Law Reference: 
2008 (4) SCR 644 
relied on 
para 8 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 925 of 2007. 
435 
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436 
SUPREME COURT REPORTS 
[2011] 9 S.C.R 
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From the Judgment & Order dated 08.09.2006 of the High 
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Court of Punjab & Haryana at Chadigarh in Criminal Appeal 
No. 698-DB of 2005. 
R.K. Kapoor, Neelam Khanna for the Appellant. 
Rajeev Gaur 'Nassem' (for Kamal Mohan Gupta) for the 
Respondent. 
The Judgment of the Court was delivered by 
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SIRPURKAR, J. 1. Appellant Nikku Khan @ 
Mohammadeen, who has been convicted by both the courts 
below for the offence punishable under Section 21 of the 
Narcotic Drugs and Phychotropic Substance Act, 1985 
(hereinafter referred to as the "Act") and sentenced to undergo 
rigorous imprisonment for twelve years and to pay a fine of Rs. 
D one lakh, in default of payment of fine to further undergo rigorous 
imprisonment for two years, is before us in this appeal. 
2. The prosecution case, in brief, is that on 1.6.2003 at 
12.30 p.m., ASI Gopi Chand along with other police officials 
E was on patrol duty at Nohar road, Ellenabad when he received 
a secret information that the accused-appellant, who was 
indulged in a trade of smack, was likely to arrive in a Maruti 
Car and narcotic could be recovered from him. 
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On receipt of this information, ASI, Gopi Chand issued 
notice under Section 41 of the Act and sent the same to the 
Deputy Superintendent of Police, Ellenabad. Thereafter, he held 
a picket at Nohar Road. When the accused arrived in Maruti 
Case bearing No. DAJ 4223 he was stopped and after serving 
a notice under Section 50 of the Act, he was searched in 
G presence of Deputy Superintendent of Police, Ellenabad and 
heroin weighing 740 grams was recovered from his person. 
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3. After completion of investigation the accused was sent 
for trial and both the trial court as well as the High Court have 
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NIKKU KHAN @ MOHAMMADEEN v. STATE OF 
437 
HARYANA 
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held that the accused was found in possession of 740 grams 
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of heroin. 
4. We have heard learned counsel appearing for the 
parties and perused the evidence as well as the judgments of 
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the courts below . 
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5. We do not think that there is anything to dispute 
regarding the recovery of contraband from the accused on the 
relevant date. The prosecution has been able to prove that the 
accused was in possession of the contraband which was 
recovered from his person. It is also proved that the contraband c 
was heroin. 
6. We do not wish to interfere with the conviction awarded 
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by the trial court and affirmed by the High Court. However, 
insofar as the sentence is concerned, Mr. R.K. Kapoor, learned 
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counsel appearing for the appellant states that the percentage 
of the concentration was 16.93%. Mr. Kapoor, therefore, points 
out that the quantity of heroin recovered from the accused 
virtually comes to 125 grams. 
7. We have seen the Notification specifying small quantity 
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and commercial quantity under Section 2 of the Act wherein at 
serial No. 56, the commercial quantity of heroin is prescribed 
as 250 grams. Therefore, it is clear that the quantity of heroin 
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which was recovered from the appellant was less than the 
commercial quantity as prescribed 

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