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TMI Blog2013 (7) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 (N.D.P.S. Act) and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/-(Rupees one Lakh only) with a default sentence of three months simple imprisonment for each offence vide judgment dated 28.04.2009 and challenging the same, present appeal is filed. 2. The facts of the case which are necessary to dispose this appeal are as follows: P.W.1 at the relevant point of time, was the Superintendent of Narcotics Control Bureau at Nagercoil and he received information through the informant at about 03.00 p.m. at 07.01.2001 and the same was reduced into writing. P.W.1 got the signature of the informant and thereafter, informed him that he will meet him at about 06.00 p.m. at Valliyoor. P.W.1 contacted the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to be Heroin. 6. The party headed by P.W.1 asked Veldurai that he should be searched and also explained his right that the said search can be made in the presence of the Judicial Magistrate also. However, Veldurai replied that it is not necessary and the officials themselves can make search. The said two pockets found in the brown coloured polythene covers were given the number as B.1 and B.2 and from each pockets, 5 grams of powder (heroin) were taken and was given the number as B1S1, S2 and B2S1 and S2. The seized samples were separately put in separate covers. The covers were sealed and the signatures of the witnesses as well as Veldurai were obtained and the officials namely P.W.2 and P.w.6 had also subscribed their signatures. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the learned Special Public Prosecutor and perused the materials available on records. 14. Earlier, when this Court heard the appeal, the learned Counsel appearing for the accused submits that the accused has been charged under Section 21(c) of the N.D.P.S.Act for the possession of 1.370kgs of Heroin and it must be construed as small quantity, since the purity test of Heroin has not been conducted. 15. This Court has also agreed with the argument of the learned Counsel for the accused to some extent. Thereafter, the following question is framed for determination: "Whether in the absence of exact quantity/percentage of narcotic drug/psychotropic substance found in the seized contraband, the punishment for contravention in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction. (iii) In pending cases, including appeals, relating to the substances falling within the sweep of entry No.239, the Courts/Prosecuting Agency, may do well by forwarding the samples taken from the remaining contrabands in the custody of the Courts for Purity Test to estimate the percentage of Narcotic Drug/Psychotropic Substance in the mixture or preparation. In pending Criminal Appeals, the report of Purity Test may be received as additional evidence under Section 391 of the Code of Criminal Procedure. (vi) If any such request is made in respect of the pending cases, the Laboratory concerned shall give top priorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented that the accused has been in judicial custody for more than nine and half years. 19. Taking note of the fact that the appellant/accused has been in judicial custody for more than nine and half year, this Court is of the view that no fine amount has to be imposed on the appellant/accused. 20. In the result, this Criminal Appeal is partly allowed and the conviction and sentence imposed on the appellant/accused in C.C.No.1627 of 2001 dated 28.04.2009, by the learned Special District and District and Sessions Judge for E.C. Act and N.D.P.S. Act cases, Madurai, is reduced to six months Rigorous Imprisonment and no fine amount has been imposed on the appellant/accused. 21. Since the appellant/accused has already undergone the sentence as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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