Harjit Singh vs State Of Punjab

Harjit Singh ...Appellant

Versus

State of Punjab ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This criminal appeal has been preferred against the judgment

and order dated 19.5.2010 passed by the High Court of Punjab and

Haryana at Chandigarh in Criminal Appeal No. 1711-SB/2005, by

which the High Court has affirmed the judgment and order dated

2.9.2005 passed by learned Special Judge, Fatehgarh Sahib, in

Sessions Case No. 72T/5.9.03/7.10.04, by which the appellant stood

convicted for the offence punishable under Section 18 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereinafter called as

NDPS Act) and was sentenced to undergo RI for 10 years and to pay a

fine of Rs.1,00,000/- in default whereof, to undergo further RI for 6

months.

3. Facts and circumstances giving rise to this appeal are that on

4.7.2003, a police party was proceeding from Focal Point, Mandi

Gobindgarh to G.T. Road on patrol duty in a government vehicle.

When the police party reached near the culvert of minor in the area of

village Ambe Majra, the police party spotted the appellant who was

coming on foot, from the side of Ambe Majra carrying a plastic bag in

his right hand. On seeing the police, the appellant turned to the left

side of the road. The police party apprehended the appellant, being

suspicious of him. In the meantime, Ashok Kumar, an independent

witness also came to the spot and joined the police party. The

appellant was apprised of his right of being searched in the presence

of a Gazetted Officer and in that respect his statement was recorded.

Shri Dinesh Partap Singh, Assistant Superintendent of Police, was

summoned to the spot by the Investigating Officer and in his presence,

Amarjit Singh, Inspector (P.W.3) searched the plastic bag of the

appellant and the substance contained therein was found to be opium.

2 Two samples of 10 gms. each of the opium were taken. The

remaining opium was found to be 7.10 Kgs. The samples and the

remaining opium were sealed and taken into possession by the police

party.

4. A formal FIR was registered against the appellant; on personal

search, an amount of Rs. 510/- was found with the appellant; the arrest

memo of the accused was prepared and he was formally arrested.

After completion of investigation and on receipt of the report from the

Forensic Science Laboratory, confirming the contents of the sample to

be of opium, a charge-sheet was filed against him for the offence

punishable under Section 18 of the NDPS Act. He did not plead guilty

to the charges and claimed trial.

5. The prosecution examined Manjinder Singh, Constable

(P.W.1), Jagdish Singh, Head Constable (P.W.2), Amarjit Singh,

Inspector (P.W.3), Dinesh Partap Singh, Assistant Superintendent of

Police (P.W.4) and Dalip Singh, Sub Inspector (P.W.5). Ashok

Kumar, an independent witness was not examined by the prosecution,

as he had been won over by the appellant.

3 6. In his statement under Section 313 of the Code of Criminal

Procedure, 1973, the appellant stated that the prosecution case was

false; he had been taken by the police from his house and Rs.6,000/-

had been snatched from him; he was not physically fit even to walk as

he had met with an accident in 1999. The appellant also examined 6

witnesses in his defence.

7. The Trial Court after scrutinising the evidence held that the

appellant was guilty of the offences charged with and was awarded

the sentences as mentioned hereinabove. Being aggrieved, he

preferred an appeal before the High Court which has been dismissed

by the impugned judgment and order dated 19.5.2010. Hence, this

appeal.

8. Shri R.S. Suri, learned senior counsel appearing for the

appellant at an initial stage raised a large number of factual and legal

issues. However, ultimately considering that there had been

concurrent findings of fact against the appellant by the two courts, he

primarily submitted that as the opium recovered from the appellant

weighing 7.10 kgs. contained 0.8% morphine, i.e. 56.96 gms., the

quantity was below the commercial quantity, however, more than the

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minimum quantity prescribed under the Notification issued in this

respect, the maximum sentence awarded by the court was

unwarranted.

9. Shri Suri has placed reliance upon the judgment of this Court in

E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau,

(2008) 5 SCC 161, wherein the Court dealt with the case of recovery

of heroin from a carrier, and held that when any narcotic drug or

psychotropic substance is found mixed with one or more neutral

substance (s), for the purpose of imposition of punishment it is the

content of the narcotic drug or psychotropic substance which shall be

taken into consideration. Therefore, it will depend upon the

morphine content and if this is less than the commercial quantity of

morphine, the maximum sentence can not be awarded.

10. On the contrary, Shri Jayant K. Sud, learned Addl. Advocate

General, appearing for the State of Haryana has submitted that as the

entire substance recovered from the appellant was opium and not any

kind of mixture, the question of determining the quantity or

percentage of morphine in the substance could not arise. The opium

itself is an offending material under the NDPS Act. Therefore, the

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court has to proceed in view of Entry No.92 in the Notification in this

regard which deals with opium and any preparation containing opium

and specifies that a small quantity is only 25 gms., whilst a

commercial quantity is 2.5 kgs. In the instant case as it was 7.10 kgs,

i.e. the appellant was carrying about three times the minimum

amount required for a commercial quantity. The judgment of this

Court in E. Micheal Raj (supra) has no application in this case as that

was a case of heroin and not of opium. More so, the accused was

merely a carrier and not a dealer.

11. It is further contended by Shri Sud that the Notification

applicable in this case provides separate Entry No. 77 for morphine,

wherein the minimum quantity is 0.5 gms. and commercial quantity is

250 gms. Entry No. 92 separately deals with opium. Entry No. 93 for

opium derivatives provides that a minimum quantity is 5 gms. and a

commercial quantity is 250 gms. The present case is to be dealt with

under Entry No.92 and not Entry No.77 or any other Entry. More so,

in view of the Notification dated 18.11.2009 under the provisions of

Section 2 of NDPS Act, no consideration is required in respect of the

material recovered from the appellant. Thus, the question of

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interference with the impugned judgment and order does not arise.

The appeal is liable to be dismissed.

12. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

13. Notification dated 18.11.2009 has replaced the part of the

Notification dated 19.10.2001 and reads as under:-

"In the Table at the end after Note 3, the following

Note shall be inserted, namely:-

(4) The quantities shown in column 5 and

column 6 of the Table relating to the respective

drugs shown in column 2 shall apply to the entire

mixture or any solution or any one or more

narcotic drugs or psychotropic substances of that

particular drug in dosage form or isomers, esters,

ethers and salts of these drugs, including salts of

esters, ethers and isomers, wherever existence of

such substance is possible and not just its pure

drug content."

Thus, it is evident that under the aforesaid Notification, the

whole quantity of material recovered in the form of mixture is to be

considered for the purpose of imposition of punishment.

However, the submission is not acceptable as it is a settled legal

proposition that a penal provision providing for enhancing the

sentence does not operate retrospectively. This amendment, in fact,

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provides for a procedure which may enhance the sentence. Thus, its

application would be violative of restrictions imposed by Article 20 of

the Constitution of India. We are of the view that the said

Notification dated 18.11.2009 cannot be applied retrospectively and

therefore, has no application so far as the instant case is concerned.

14. Opium is essentially derived from the opium poppy plant. The

opium poppy gives out a juice which is opium. The secreted juice

contains several alkaloid substances like morphine, codeine, thebaine

etc. Morphine is the primary alkaloid in opium.

15. Opium is a substance which once seen and smelt can never be

forgotten because opium possesses a characteristic appearance and a

very strong and characteristic scent. Thus, it can be identified without

subjecting it to any chemical analysis. It is only when opium is in a

mixture so diluted that its essential characteristics are not easily

visible or capable of being apprehended by the senses that a chemical

analysis may be necessary. In case opium is not mixed up with any

other material, its chemical analysis is not required at all. "Of course,

an analysis will always be necessary if there is a mixture and the

quantity of morphine contained in mixture has to be established for

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the purpose of definition (of opium under the Opium Act)." (Vide:

Baidyanath Mishra & Anr. v. State of Orissa, 1968 (34) CLT 1

(SC); and State of Andhra Pradesh v. Madiga Boosenna & Ors.,

AIR 1967 SC 1550).

16. However, the aforesaid cases have been decided under the

Opium Act and cannot be the authority so far as deciding the cases

under the NDPS Act. Thus, chemical analysis of the contraband

material is essential to prove a case against the accused under the

NDPS Act.

17. The NDPS Act defines `opium' under Section 2(xv) as under:

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the

coagulated juice of the opium poppy,

but does not include any preparation containing not more than

0.2 per cent of morphine.

18. Coagulated means solidified, clotted, curdled - something

which has commenced in curdled/solid form.

In case the offending material falls in clause (a) then the

proviso to Section 2(xv) would not apply. The proviso would apply

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only in case the contraband recovered is in the form of a mixture

which falls in clause (b) thereof.

19. Relevant part of the chemical analysis made by the Forensic

Science Laboratory, Punjab, Chandigarh in the instant case, reads as

under:

" xx xx xx xx

On analysis of the substance kept in the

bundle under reference, it is established that the

substance is opium and percentage of morphine

is 0.8%." (Emphasis added)

20. The amendment in 2001 was made in order to rationalise the

sentence structure so as to ensure that while drug traffickers who

traffic in huge quantities of drugs are punished with deterrent

sentences; on the other hand, the addicts and those who commit less

serious offences are sentenced to lesser punishment.

21. In the instant case, the material recovered from the appellant

was opium. It was of a commercial quantity and could not have been

for personal consumption of the appellant. Thus the appellant being

in possession of the contraband substance had violated the provisions

of Section 8 of the NDPS Act and was rightly convicted under Section

10 18(b) of the NDPS Act. The instant case squarely falls under clause

(a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not

attracted for the simple reason that the substance recovered was opium

in the form of the coagulated juice of the opium poppy. It was not a

mixture of opium with any other neutral substance. There was no

preparation to produce any new substance from the said coagulated

juice. For the purpose of imposition of punishment if the quantity of

morphine in opium is taken as a decisive factor, Entry No.92 becomes

totally redundant. Thus, as the case falls under clause (a) of Section

2(xv), no further consideration is required on the issue. More so,

opium derivatives have to be dealt with under Entry No.93, so in case

of pure opium falling under clause (a) of Section 2(xv), determination

of the quantity of morphine is not required. Entry No.92 is

exclusively applicable for ascertaining whether the quantity of opium

falls within the category of small quantity or commercial quantity.

22. The judgment in E. Micheal Raj (Supra) has dealt with heroin

i.e., Diacetylmorphine which is an "Opium Derivative" within the

meaning of the term as defined in Section 2(xvi) of the NDPS Act and

therefore, a `manufactured drug' within the meaning of Section

11 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not

relevant to the adjudication of the present case.

23. In Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7

SCC 550, this Court dealt with a case where the black-coloured liquid

substance was taken as an opium derivative. The FSL report had been

to the effect that it contained 2.8% anhydride morphine, apart from

pieces of poppy (Posedoda) flowers. This was considered only for the

purpose of bringing the substance within the sweep of Section

2(xvi)(e) as `opium derivative' which requires a minimum 0.2%

morphine.

24. The Notification applicable herein specifies small and

commercial quantities of various narcotic drugs and psychotropic

substances for each contraband material. Entry 56 deals with Heroin,

Entry 77 deals with Morphine, Entry 92 deals with Opium, Entry 93

deals with Opium Derivatives and so on and so forth. Therefore, the

Notification also makes a distinction not only between Opium and

Morphine but also between Opium and Opium Derivatives.

Undoubtedly, Morphine is one of the derivatives of the Opium. Thus,

the requirement under the law is first to identify and classify the

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recovered substance and then to find out under what entry it is

required to be dealt with. If it is Opium as defined in clause (a) of

Section 2(xv) then the percentage of Morphine contents would be

totally irrelevant. It is only if the offending substance is found in the

form of a mixture as specified in clause (b) of Section 2(xv) of NDPS

Act, that the quantify of morphine contents become relevant.

25. Thus, the aforesaid judgment in E. Micheal Raj (Supra) has no

application in the instant case as it does not relate to a mixture of

narcotic drugs or psychotropic substances with one or more

substances. The material so recovered from the appellant is opium in

terms of Section 2(xv) of the NDPS Act. In such a fact-situation,

determination of the contents of morphine in the opium becomes

totally irrelevant for the purpose of deciding whether the substance

would be a small or commercial quantity. The entire substance has to

be considered to be opium as the material recovered was not a mixture

and the case falls squarely under Entry 92. Undoubtedly, the FSL

Report provided for potency of the opium giving particulars of

morphine contents. It goes without saying that opium would contain

some morphine which should be not less than the prescribed quantity,

however, the percentage of morphine is not a decisive factor for

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determination of quantum of punishment, as the opium is to be dealt

with under a distinct and separate entry from that of morphine.

26. In view of the above, we do not find any substance in the

appeal. It is devoid of any merit and, accordingly, dismissed.

..........................J.

(P. SATHASIVAM)

..........................J.

(Dr. B.S. CHAUHAN)

New Delhi,

March 30, 2011

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