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Judgment
N.A. Britto, J.—Heard Ms. C. Collasso, learned Counsel on behalf of the Appellant/Accused and Ms. Winnie Coutinho, learned Public Prosecutor on behalf of the Respondent/Complainant The appeal has been argued only on the point of sentence.
Learned Public Prosecutor has left the matter to the discretion of this Court. The Accused was convicted u/s 21(b) of the N.D.P.S. Act, 1985, having been found in possession of 11.2269 gms. of brown sugar/heroin. There is no dispute that the Accused was found with variable quantity, 5 gms. being small quantity and 250 gms. being commercial quantity, provided under the said Act. Learned Counsel on behalf of the Accused submits that no test was conducted in this case and if that was conducted then the contents of the brown sugar/heroin could have been much less than 11.2269 gms. Learned Counsel has submitted that the Accused has already undergone 6 months, 21 days of detention and therefore the same be considered as substantive imprisonment imposed upon the Accused. Learned Counsel further submits that the sentence imposed by the learned trial Court of R.I. of 2 years and fine of Rs.20,000/-in default to under 3 months of imprisonment would be far excessive considering the quantity of brown sugar/heroin found with the accused in the background of the fact that no purity test was otherwise carried out by the prosecution. In support of the said submission, learned Counsel has placed reliance on the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008 AIR SCW 2365). In this case the Accused was found in possession of 4.07 kgs. of heroin and upon purity test having been conducted it was found that it was 60 gms. heroin only and considering that, the Hon''ble Supreme Court was pleased to reduce the sentence from 10 years to 6 years and fine of Rs.20,000/-in default R.I. for 6 months. Reliance is also placed on three unreported Judgments of this Court in Criminal Appeal Nos.19/2008, 12/2000 and 55/2004. In the last Judgment the view held in Criminal Appeal No.12/2000 was followed.
Considering the facts of this case and that the Accused was found with 11.2269 gms. of brown sugar and the purity test was not conducted, in my view, the imprisonment of 6 months, 21 days can be considered as substantive period of imprisonment imposed upon the accused. In addition, Accused shall pay the fine of Rs.20,000/- and in default to undergo 6 months S.I. Appeal allowed on the aforesaid terms and the sentence imposed is accordingly modified.