Harjit Singh Vs State
of Punjab
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. 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.
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 4minimum 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 5court
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 6interference 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, 7provides 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, the baine 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 8the 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 9only 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 1018(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 112(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
12recovered 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 13determination 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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