Judgment :- This Criminal Appeal has been preferred against the sentence and conviction passed in C.C.No.770 of 2000 on the file of the Special District and Sessions Court for E.C. Act and N.D.P.S. Act Cases, Madurai and convicting the appellants and Bose @ Suba Chandra Bose (A7) and found them guilty under Section 8(C) r/w. 29, 8(C) r/w. 21 and 8(C) r/w. 23 r/w. 28 of N.D.P.S Act and convicting for 10 years rigorous imprisonment to each of the offence and imposing fine of Rs.1,00,000/-, in default rigorous imprisonment for three years to each of the offence and the sentences shall run concurrently. The total fine amount is 3 lakhs for each accused. The period of detention are ordered to be set off under Section 428 of Cr.P.C. The skeleton of the case of prosecution is as follows: 2. On30.03.2000 at 6.00 p.m., while, P.W.1, the Inspector of Customs, Tuticorin was in duty, received an information through his informer about the occurrence in writing and kept the same in a sealed cover for safe custody. Then, on the basis of the information, he prepared a D.R.I. report and handed over the same to the Assistant Commissioner of Customs for further action. Ex.P.1 is the D.R.I.Report. On receipt of the D.R.I. Report, the Commissioner of Customs directed P.W.9 to proceed to Punnakayal Pump House to apprehend the persons concerned in the D.R.I. Report. Immediately, P.W.9 with the assistance of P.Ws.2 and 5 along with other Customs Officials went to the Punnakayal Pump House and conducted sea patrol in the night of 30/31.03.2000 in the sea off Punnakayal at about 01.00 hrs on 31.03.2000. They noticed a Srilankan Launch in the sea off Punnakayal Pump House. Immediately, they chased the same and since the launch disregarded the signals, to stop the launch, P.W.2 on the direction of P.W.9, fired five rounds from the departmental revolver in the air and hence the launch was stopped. Then, they boarded the launch and found A1 to A6 were there. Since the accused know only Singalese Language, P.W.9 examined them through the translator P.W.5, who knows their language. They were examined in the presence of two independence witnesses and ascertained their name. On the search of the launch, they found a Polythene Bag in the Engine Room. From the examination of the first accused, P.W.1 ascertained that its content is Heroin. 3. They were examined in the presence of two independence witnesses and ascertained their name. On the search of the launch, they found a Polythene Bag in the Engine Room. From the examination of the first accused, P.W.1 ascertained that its content is Heroin. 3. Thereafter, P.W.9 and the Customs Officials brought the accused along with the launch to old port, Tuticorin for the examination of the contents of the packets. They reached the Customs Port at about 3.30 hrs. In the presence of two witnesses and A1 to A6, P.W.9 opened the Polythene Bag and found it containing six brown colour packets covered by Cello Tapes. P.W.9 marked the packets as Ex.P1 to P6. Thereafter, P.W.9 opened the packets one by one. There was a white colour cloth bag with plastic inner coatings in each packets. When the cloth bags were opened, there were polythene packets inside. When they were opened, brown colour powder was found inside. Then P.W.9 took a match head size of the above powder from each packets and tested them with the help of the United Nations Test Kit, which they have brought with them. On completion of the test, P.W.9 came to a conclusion that the above powder in the packets were Heroin. There were 21 fishing nets in the launch. 4. Thereafter, P.W.9, explained the accused about the rights under Section 50 of N.D.P.S. Act through the translator P.W.5 and obtained their consent to search them. P.W.1 conducted the personal search of the accused in the presence of the witnesses and as a result, no incriminating documents or materials was found. Then, he seized the above goods and the launch on the reasonable belief that the above brown colour powder believe to be a Heroin was attempted to export illicitly to Srilanka. For taking action under NDPS Act 1985, P.W.9 sealed the polythene bags of Heroin in the presence of independent witnesses and taken the goods along with the accused to Customs Office, Tuticorin. Ex.P.2 is the Seizure Mahazar prepared by P.W.2 and the contents of the same were translated by P.W.5 to the accused and a copies of the same were furnished to them under acknowledgment. Ex.P.16 is the Report submitted by P.W.9 to the District Collector, Tuticorin regarding the opening of fire on 31.03.2000 at 01.30 hours at sea off coast at Punnakayal. 5. Ex.P.16 is the Report submitted by P.W.9 to the District Collector, Tuticorin regarding the opening of fire on 31.03.2000 at 01.30 hours at sea off coast at Punnakayal. 5. On31.03.2000 at about 10.00 a.m, P.W.9 opened the seal of the polythene bag in the presence of A1 to A6 and the two independent witnesses in the Customs Office, Tuticorin for weighment and taking samples for Chemical Test and found that there were six packets, which were marked P1 to P6. The above packets were covered with brown colour cello tape and when the cello tapes were removed from each packets, white cloth like packing with plastic inner coating was found in each packet. When the polythene cover was opened, brown colour powder believed to be a Heroin was found in each packet. At the instruction of P.W.9, P.W.3 weighed the Heroin powder found in six packets and ascertained the net weight as follows: P.1 –3.395 grams, P2 – 2,980 grams, P3 – 3759 grams P4 – 990 grams, P5 – 400 grams and P6 – 610 grams. Then he draw samples in duplicate weighing 5 grams from each from each packets in Ex.P1 to P6 and placed them in a small polythene cover, sealed the cover and put each of them in a separate khaki coloured paper cover, pasted them and sealed. The above samples were marked as P1S1, P1S2, P2S1, P2S2, P3S1, P3S2, P4S1, P4S2, P5S1, P5S2, P6S1 and P6S2. P.W.3 thereafter sealed the polythene cover containing the remaining quantity of brown coloured powder in the same manner and they were properly sealed and placed in a cloth bag and then stitched and sealed. He also obtained the signatures of the witnesses and of the accused on the above cloth bags and on the sealed khaki coloured paper covers. P.W.3 prepared a Mahazer for the same. The contents of the same was translated by P.W.5 in the language known to the accused and obtained their signatures in the Mahazer. That Mahazer is Ex.P7. 6. Thereafter, as per the direction of the Superintendent, Customs Preventive Division, Tuticorin, P.W.4 recorded the statement of accused A1 to A6 and the same have been translated to the concerned accused by the translator P.W.5 and obtained signatures from A1 to A6. On 31.03.2000 at 22.00 hours, P.W.9 arrested the accused A1 to A6 after informing them the reasons for the same. On 31.03.2000 at 22.00 hours, P.W.9 arrested the accused A1 to A6 after informing them the reasons for the same. Arrest Memos are Ex.Ps.17 to 22. Thereafter, P.W.9 informing the fact that the arrest of the accused with possession of Heroin to his superior under Section 57 of the NDPS Act and the report is Ex.P.23 and then he produced the accused along with the case properties before the Judicial Magistrate No.III, Madurai for judicial custody. Ex.P6 is the Test Memo. Ex.P.12 is the Form 95. But the properties along with form 95 and Test Memo were returned by the Judicial Magistrate No.III, for safe custody. Thereafter, P.W.9 directed P.W.3 to keep the proper custody in the seized goods go down, Tuticorin for safe custody. Ex.P.3 is the forwarding memo. The properties were remanded in the Court on 06.04.2000 for onward transmission for Chemical Test. After the Chemical Report, the same has been received as per Ex.P11. P.W.7, who is the public analyst, spoke in detail about the chemical Report Ex.P.11. On investigation it was revealed to P.W.9 that the seventh accused brought the Heroin under the seizure to Punnakayal Pump House and delivered the launch of the accused 1 to 6. 7. On information, P.W.9 along with P.W.8 and other Customs Officials apprehended the seventh accused on 19.04.2000 at 9.00 hours at Tuticorin Old Bus Stand and brought him to the Customs Office Tuticorin for investigation. After arrested, the seventh accused has been given a statement and he himself admitted his guilt. He also produced the driving licence of the first accused and a slip containing the contact cell phone number of the accused Sakeer Hussain. That is Ex.P.26. Ex.P.24 is the Driving Licence of the first accused. Ex.P.25 is the Xerox Copy of the same wherein signed by the seventh accused. Thereafter, P.W.9 arrested the seventh accused after informing him the reasons for the same and latter submitted him before the Judicial Magistrate No.II, Madurai for judicial custody. Ex.P.27 is the arrest memo. Thereafter P.W.9 submitted a report under Section 57 of the N.D.P.S. Act about the facts of apprehension of the seventh accused to the Assistant Commissioner of Customs, C.P.D., Tuticorin and the report is Ex.P.28. Then P.W.9 filed a petition under Section 52 (A) of N.D.P.S. Act for pre-trial disposal of seized property. Notice has given to the accused. The accused were not having any objection. Then P.W.9 filed a petition under Section 52 (A) of N.D.P.S. Act for pre-trial disposal of seized property. Notice has given to the accused. The accused were not having any objection. Hence, the petition was allowed. The samples were drawn out of it in the presence of the Presiding Officer, which was photographed. M.O.1 series are Photos. M.O.2 series are the Negatives. 8. From the investigation conducted in accordance with law and from the statements of the accused and other materials, it has come to light that in January, February and March 2000 at Srilanka, Chennai, Ramanathapuram and Punnakayal Coast and other places, A1 to A7 and others known to the accused entered into a Criminal conspiracy to possess, transport and attempt to illegally export of Heroin to srilanka about 12.125 kgs, which were seized on 31.03.2000 at the sea off Punnakayal and were apprehended before the completion of the agreement in pursuance of the conspiracy which is punishable under Section 8(C) r/w. 29 8(C) r/w. 21 and 8(C) r/w. 23 r/w. 28 of NDPS Act 1985. 9. The learned Presiding Officer has examined the accused after framing charges against the accused and also examined P.Ws.1 to 9 and marked Exs.P1 to P.23 and M.Os.1 and 2 and come to the conclusion that A1 to A7 are guilty under Section 8(C) r/w. 29 8(C) r/w. 21 and 8(C) r/w. 23 r/w. 28 of NDPS Act 1985 and convicted them 10 years rigorous imprisonment for each of the offence and to pay a fine of Rs.1,00,000/-, in default rigorous imprisonment for 3 years to each of the accused and sentence shall run concurrently and the period of detention are ordered to be set off under Section 428 of Cr.P.C. 10. The points for consideration are whether the appellants/A1 to A6 are possessed below 250 grams of Di Acetyle Morphine and above 5 grams of Di Acetyle Morphine and in between quantity in Heroin and to what relief the appellants are entitled for. 11. The learned appellants' counsel would mainly focused in his contention that since purity test has not been conducted and so the commodities seized is not a commercial quantity i.e. mixtured 250 grams of Di Acetyle Morphine and it is below 250 grams and above 5 grams of Di-Acetyle Morphine. Hence, it is only in between quantity. 11. The learned appellants' counsel would mainly focused in his contention that since purity test has not been conducted and so the commodities seized is not a commercial quantity i.e. mixtured 250 grams of Di Acetyle Morphine and it is below 250 grams and above 5 grams of Di-Acetyle Morphine. Hence, it is only in between quantity. So the appellants are entitled to lesser punishment as per Section 8(c) read with 21(b) of N.D.P.S.Act. 12. Since the learned appellants' counsel would contend that the seizure drugs were not sent to purity test and the prosecution has failed to prove that the appellants were possessed Heroin mixtured 250 grams and more than 250 grams of Di Acetyle Morphine. For that reason, he has cited the following decisions of the Apex Court and this Court. 1. (2008) 2 Supreme Court Cases 558 (E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau). 2. 2009(3) SCALE 429 (State of NCT of Delhi Vs. Ashif Khan @ Kalu). 3. C.A.No.202 of 2003 dated 22.04.2009 of this Court. 13. As per entry in 56 of the Table, it contains Heroin as lesser quantity is 5 gram and the commercial quantity is 250 grams. As per Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, it was stated as follows: "where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a terms which may extend to ten years and with fine which may extend to one lakh rupees. So the learned appellants' counsel would mainly focused upon the quantum of conviction imposed against the appellants/A1 to 6 under Section 21(c) of NDPS Act, 1985. 14. Fortifying the same, the learned counsel has relied upon the decisions reported in (2008) 2 Supreme Court Cases 558 (E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau) and arguing that even though 12.125 kilograms has been seized from the accused, the purity test has not been conducted. What is the percentage of Heroin has been contained in the goods, has not proved by the prosecution. So the Trial Court has committed a mistake and came to the conclusion that the accused were possessing the commercial quantity and convicted them for 10 years rigorous imprisonment and imposing a fine of Rs.1 lakh for each count to the each accused under Section 21 (c) NDPS Act. So the Trial Court has committed a mistake and came to the conclusion that the accused were possessing the commercial quantity and convicted them for 10 years rigorous imprisonment and imposing a fine of Rs.1 lakh for each count to the each accused under Section 21 (c) NDPS Act. For that reason, he relied upon the decision reported in (2008) 2 Supreme Court Cases 558 (E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau) and culled out the following portion: “it is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity” Considering the above, it is true that it is true that the purity test has not been conducted and hence there is no evidence to show that it is a smaller quantity or commercial quantity or in between quality. But, the quantity of Narcotic drugs found in the mixture is relevant for the purpose of imposition of punishment. Hence, the benefit of doubt to be given to these accused/appellants and this Court has to come to the conclusion that they are possessing only in between quantity. While considering the citation, there is no quarrel over the preposition in the laid down citation. 15. He also relied upon the decision reported in 2009(3) SCALE 429 (State of NCT of Delhi Vs. Ashif Khan @ Kalu). In this case, the Court has taken the quantity of the narcotic drug or psychotropic substance found in the mixture, relevant for the purpose of imposition of punishment. 16. While considering the above citation along with the report submitted by the chemical expert, admittedly purity test has not been conducted. So, there is no document before the Court to show how much quantity of narcotic substances has been mixed with the seized quantity. At this juncture, the learned appellants' counsel relied upon the judgment dated 22.04.2009 passed in C.A.No.202 of 2003 on the file of this Court, wherein it is stated as follows: " ..... though the test was conducted from the samples for the presence of the heroin, the purity test has not been conducted so as to establish the quantity of the Di-Acetyl Morphine in the whole mixture. Merely because the powder was in brown colour, it can not be said that the total quantity of the powder is only Di-Acetyl Morpphine. though the test was conducted from the samples for the presence of the heroin, the purity test has not been conducted so as to establish the quantity of the Di-Acetyl Morphine in the whole mixture. Merely because the powder was in brown colour, it can not be said that the total quantity of the powder is only Di-Acetyl Morpphine. No adverse inference can be drawn against the accused in the absence of any specific evidence or any other material to draw such an inference. Certainly, it is the duty of the prosecution to establish that the contravention involves a commercial quantity in order to bring the offence under Section 21(c) of the NDPS Act." 17. While considering the same, the learned Special Public Prosecution has also fairly conceded that no purity test has been conducted on the seized commodities. So, in such circumstances, there is no evidence before this Court to show that it contains more than 250 grams of heroin which was mentioned in the Table column No.56, Heroin. 18. Even though the seized commodities weighing more than 12,125 grams, there is no evidence to show that it contains 250 grams and more than 250 grams of Di-Acetyle Morphine. In such circumstances, this Court has necessarily to come to the conclusion that it is in between quantity. So, the learned appellants' counsel would forcibly advances his arguments stating that the accused have to punish only under Section 21(b) of NDPS Act. 19. At this juncture, the learned Special Public Prosecutor fairly conceded that the purity test has not been conducted and there is no evidence to show that it contains 250 grams and highest grams of Di-Acetyl Morphine containing the seized product. In such circumstances, he leave the matter to Court for consideration in respect of imposing of sentence. He also fairly conceded that Section 21 (b) of the NDPS Act is squarely applicable to the facts of this case. 20. So, this Court, after considering the both sides arguments, has came to the conclusion that since there is no purity test has been conducted as per the citations referred to above i.e. (2008) 2 Supreme Court Cases (Cri) 558, 2009(3) SCALE 429 and the judgment dated 22.04.2009 passed in C.A.No.202 of 2003 and that the appellants were not possessed the commercial quantity and the same is in between quantity. Hence, it is invoking Section 21(b) of NDPS Act. Hence, it is invoking Section 21(b) of NDPS Act. The prosecution has miserably failed to establish that the contravention involves the commercial quantity, the conviction under Section 21(c) of the NDPS Act is not sustainable. In the circumstances of the case, it is safe to conclude that the contravention by the accused involves quantity less than commercial quantity, but greater than small quantity, which is punishable under Section 21(b) of the NPDS Act. 21. Therefore, this Court holds that the appellants are punishable under Section 21(b) of the NDPS Act in stead of 21(c) of the NDPS Act and this Court has to assess the quantum of punishment as per the Section 21(b) of the NDPS Act. 22. The learned Trial Judge is holding 10 years rigorous imprisonment and imposing a fine of Rs.1 lakh under Section 21(C) of the NDPS Act. Since, this Court has come to the conclusion that it is in between quantity, it invoking only Section 21(b) of the NDPS Act. Now, the learned appellants' advocate has submitted that the accused were undergone 9 months 2 months rigorous imprisonment. The remaining period is 10 months alone. He also submitted that they were not paid the fine amount of Rs.1 lakh each. He wants some leniency in the quantum of fine amount and he also prayed that the already under gone period to be sufficient for imposing punishment to these appellants. 23. It is true that the appellants were arrested on 30.03.2000 and they are in jail till today. So, considering the same, this Court feels that the above said period of detention is sufficient regarding the punishment. In so far as the fine amount, the learned appellants' counsel submitted that the appellant are very poor fisherman and hence he prayed to reduce the same. Considering the fact that the appellants are in jail for a period of 9 months and the poverty of the appellants, the fine amount is reduced to Rs.20,000/- from Rs.1 lakh for each count to the each accused and in default to pay the fine amount the appellants have to undergo simple imprisonment for a period of three months each. The total fine amount is Rs.60,000/- for each accused. 24. With the above modification, the criminal appeal is partly allowed.