JUDGMENT 1. - This present criminal appeal is directed against the judgment dated 8.4.2003 passed by Special Judge (N.D.P.S. Act) Chhabra, District Baran whereby the accused-appellant was convicted for the offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred to as 'the Act of 1985') and sentenced him to undergo 10 years rigorous imprisonment with a fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo one year rigorous imprisonment. 2. Briefly stated, facts of the case are that on 30.10.2001, the SHO of Police Station, Chhipabarod along with the police party was on patrolling and when he was returning back in the night at around 8.15 P.M., found a person before 'Lahasi' river possessing a bag. On seeing the police, that person tried to hide himself, however, he was apprehended by the police and on asking he disclosed his identity as Dhara Singh and could not give any satisfactory reply. After complying with the provisions of the Act of 1985, the search was made and on search of the bag possessed by Dhara Singh, smack was recovered. The accused was taken into custody and the case was registered under Sections 8/21 and 8/29 of the Act of 1985. 3. After concluding the investigation, the police submitted charge sheet against the accused-appellant for the offences under Sections 8/21 and 8/29 of the Act of 1985. The trial Court on committal, framed charges under Sections 8/21 and 8/29 of the Act of 1985. The Special Judge after hearing final submissions of the respective parties, convicted and sentenced the accused as indicated herein above. 4. The order impugned dated 8.4.2003 is Under challenge in the present appeal. Learned counsel for the accused-appellant without challenging the order impugned on merit submits that total 308 grams smack was recovered from the accused-appellant and same was sent to the FSL. As per FSL report, the percentage/ratio of morphine in the quantity recovered was observed as 3.8% and calculating the total weight of the smack as per FSL report, was 11.704 grams. Learned counsel for the accused-appellant submits that as per Schedule appended with notification, specifying small quantity and commercial quantity at Item No. 56 - 5 grams of Heroin is termed as small quantity and 250 grams as commercial quantity. Learned counsel for the accused-appellant submits that as per Schedule appended with notification, specifying small quantity and commercial quantity at Item No. 56 - 5 grams of Heroin is termed as small quantity and 250 grams as commercial quantity. Thus, as per Section 21 of the Act of 1985, where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. Admittedly, as per the FSL report, the quantity of smack is more than the small quantity but lesser than the commercial quantity. 5. The learned Special Judge awarded the maximum sentence as prescribed under Section 22(b) i.e. for the term maximum sentence 10 years rigorous imprisonment with a fine of Rs. 1 lakh. Mr. N.A. Naqvi, learned counsel for the appellant placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported ,in JT 2008 (4) SC page 523 : 2008 Cr.L.R. (SC) 401 . The Hon'ble Supreme Court has held that the possession of offending substance would be considered an offence punishable under the N.D.P.S. Act, as heroin in an opium derivative as per Section 2(xvi)(e) which says that "all preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine" is an opium derivative. Further, according to Section 2(xi), all opium derivatives fall under the category of manufactured drug. Thus, the offending substance is an opium derivative and hence a manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the N.D.P.S. Act which prohibits certain operations to the effect that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter State, import into India, export from India or transship any narcotic drug or psychotropic substance. 6. The Hon'ble Supreme Court has considered whether percentage contents of heroin translated into weight is relevant to decide if it is commercial quantity or otherwise. It was held that heroin is opium derivative, which was found in possession of accused and is prohibited under Section 8, hence offence is punishable under Section 21. 7. Sections 21, 8(c), 2 - Conviction - Sentence - Opium derivative recovered - Total weight coming to 650 grams, which is lesser than commercial quantity. It was held that heroin is opium derivative, which was found in possession of accused and is prohibited under Section 8, hence offence is punishable under Section 21. 7. Sections 21, 8(c), 2 - Conviction - Sentence - Opium derivative recovered - Total weight coming to 650 grams, which is lesser than commercial quantity. If such weight based on purity is relevant. 8. The Hon'ble Supreme Court having considered the quantity percentage, contents of heroin has observed that the narcotic drug which was found in possession of the appellant as per the Analyst's report is 60 gms. which is more than 5 gms. i.e. small quantity, but less than 250 gms. i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the N.D.P.S. Act. Further, it is relevant that the appellant is merely a carrier and is not a kingpin. The Hon'ble Supreme Court looking to the facts and circumstances of the case held that the ends of justice would be sub served if we reduce the sentence of the accused-appellant to 6 years' rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine rigorous imprisonment for six months. 9. I have heard learned counsel for the accused-appellant as well as learned Public Prosecutor and carefully gone through the impugned judgment dated 8.4.2003. I have also considered the ratio decided by Hon'ble Supreme Court in the case of E. Micheal Raj (supra). 10. Herein in the present case in hand, the total smack which was recovered was 308 grams and same was sent to the FSL and as per FSL report, the percentage/ratio of morphine was 3.8% and total quantity as per FSL report came to 11.704 grams, which admittedly lesser than the commercial quantity but greater than the small quantity. 11. I considered view of this Court and applying the ratio decided by Hon'ble Supreme Court in the case of E. Micheal Raj (supra) and looking to the facts and circumstances of the case, the accused-appellant who has already undergone the sentence for the period 6 years, 8 months and 4 days, the ends of justice would be subserved if the sentence awarded to the accused-appellant is reduced to the period already undergone by him in custody and fine of Rs. 1,00,000/- is reduced to Rs. 50,000/-; in default of payment of fine, to undergo rigorous imprisonment of six months. 12. Consequently, the impugned judgment of the trial Court dated 8.4.2003 passed by the learned Special Judge (N.D.P.S. Act) Chhabra, District Baran, so far as convicting the accused-appellant under Sectioh 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is concerned, the same is upheld but instead of sentence of imprisonment for ten years under Section 8/21 of the Act of 1985, the accused appellant is sentenced to the period already undergone by him in confinement and the fine is reduced from Rs. 1,00,000/- to Rs. 50,000/-, in default of payment of fine to undergo rigorous imprisonment for six months. On depositing the amount of fine of Rs. 50,000/-, accused-appellant -Dhara Singh S/o Balram, who is in Sub Jail, Chhabra shall be set at liberty forthwith, if not required to be detained in any other case. 13. Accordingly, the present criminal appeal filed by the accused-appellant Dhara Singh is partly allowed and the impugned judgment dated 8.4.2003 passed by the Special Judge (N.D.P.S. Act) Chhabra, District Baran is modified to the extent as indicated herein above.Appeal partly allowed. *******