JUDGMENT
Badar Durrez Ahmed, J.
1. The learned Counsel for the appellant submits that a recovery of 375 grams of contraband substance is said to have been made from the appellant. The report of the Forensic Science Laboratory indicates that the percentage content of diacetylmorphine in the recovered substance is 10.8%. Therefore, according to the learned Counsel for the appellant, the actual weight of diacetylmorphine in the recovered substance comes to 40.5 grams. The appellant has been convicted under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). He has been sentenced to undergo ten years rigorous imprisonment and Rs 1 lakh as fine and, in default, simple imprisonment for one year.
The learned Counsel for the appellant submitted on the strength of the ratio in Ansar Ahmed v. State 123 DLT 563, that the recovery made from the appellant would be of an intermediate quantity inasmuch as the actual weight of diacetylmorphine in the recovered substance would be 40.5 grams which is far below the commercial quantity of 250 grams specified under the Act. Accordingly, he submits that the appellant’s conviction can be upheld only under Section 21(b) of the NDPS Act. He submits that he is not challenging the conviction of the appellant under Section 21(b) of the NDPS Act. However, he is seeking a modification of the sentence. He submits that the appellant has no criminal antecedents including any involvement under the NDPS Act. The amount recovered is 40.5 grams which is far below the commercial quantity specified. Therefore, the sentence of ten years would be too harsh considering that the intermediate quantities go up to 250 grams.
2. The learned Counsel for the State was also heard. He submitted that in view of the ratio in Ansar Ahmed’s case there is no difficulty in the conviction being converted to one under Section 21(b) from the original conviction of Section 21(c). However, he submitted that a lenient view ought not to be taken.
3. Considering the fact that the conviction is being upheld under Section 21(b) of the Act as also the fact that the appellant has already undergone a period of four years and eight months as part of his original sentence, I feel that looking at the proportionality of the offence, the appellant’s sentence can be modified and reduced to the sentence already undergone. An important consideration would also be that the appellant has no other criminal involvement. As regards the fine, the learned Counsel for the appellant submitted that if the fine amount was not deposited then he had to undergo a further one year’s sentence. However, if one were to look at the proportionality aspect, then the in default sentence would have to be reduced to roughly about three months. This, according to me, would be included in the period of four years and eight months already undergone.
4. Accordingly, the appeal is disposed of by upholding the conviction of the appellant under Section 21(b) for being in possession of 40.5 grams of diacetylmorphine by actual weight. However, the sentence and fine is reduced to the period already undergone. The appellant is directed to be released forthwith.
5. A copy of this order be sent to the Superintendent of the concerned Jail.
This appeal stands disposed of.