Sampling inconsistency defeats commercial quantity proof under the NDPS Act, but supports conviction for the lesser proved offence.

Inconsistent evidence on sampling and testing can prevent proof of commercial quantity under the NDPS Act. Where witnesses differed on how samples were drawn and only one sample was sent for examination, the material was insufficient to establish beyond doubt that all recovered packets contained ganja, so conviction under Section 20(c) could not stand. However, where recovery of ganja from the vehicle itself was proved, the facts could still support the lesser offence under Section 20(b)(ii)(B). In that situation, the sentence already undergone may be treated as sufficient and the fine may be waived.

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Issues: (i) Whether the conviction for possession of commercial quantity of ganja under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act could be sustained when the evidence on sampling and testing was inconsistent and only one sample was sent for examination; (ii) Whether, on the proved facts, the conviction could be maintained only for the lesser offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act with the sentence already undergone and waiver of fine.

Issue (i): Whether the conviction for possession of commercial quantity of ganja under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act could be sustained when the evidence on sampling and testing was inconsistent and only one sample was sent for examination.

Analysis: The evidence showed material inconsistency about how the samples were drawn. One witness stated that samples were taken from the top and bottom bags, while the informant stated that samples were drawn from 3 to 4 packets. The bags were said to be of different sizes, yet only one sample was forwarded for testing. In these circumstances, there was no conclusive material to establish that all the recovered bags contained ganja so as to prove commercial quantity beyond doubt.

Conclusion: The conviction under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act was not sustainable.

Issue (ii): Whether, on the proved facts, the conviction could be maintained only for the lesser offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act with the sentence already undergone and waiver of fine.

Analysis: Since recovery of ganja from the vehicle stood established, the material supported possession of a lesser quantity offence, but not the charge of commercial quantity. The sentence already undergone was found sufficient and the fine imposed by the trial court was not warranted in the modified conviction.

Conclusion: The conviction was modified to one under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, the sentence already undergone was treated as sufficient, and the fine was waived.

Final Conclusion: The appeals were dismissed with modification of the conviction and sentence in favour of the appellants to the limited extent indicated above.

Ratio Decidendi: Where the evidence on sampling from seized narcotic articles is inconsistent and does not reliably establish that all recovered packets contained the contraband, conviction for commercial quantity cannot be sustained; the conviction may be confined to the lesser proved offence.

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