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Rajasthan High Court · body

2008 DIGILAW 2049 (RAJ)

Mangi Lal v. State of Rajasthan

2008-09-02

M.N.BHANDARI

body2008
JUDGMENT 1. - Heard learned Counsel for the petitioner as well as the learned Public Prosecutor and perused the record of the case. Learned Counsel for the petitioner submitted that the contraband recovered from the petitioner was 8 kg. 200 gm., however, in the FSL report the quantity of morphine came to be 3.95%. It is stated that as per the notification specifying small quantity and commercial quantity, for morphine small quantity is noticed as 5 gm. whereas commercial quantity is 250 gm. It is also stated that if the substance of morphine is taken note of then in the present matter, it comes less than the commercial quantity and, therefore, the petitioner may be enlarged on bail. 2. To support his contention, learned Counsel for the petitioner has referred the judgment rendered by this Court in S.B. Criminal Appeal No. 278/2003, Ghanshyam and another v. Union of India , wherein the substance of morphine was taken into consideration. Learned Counsel has further referred the judgment of the Hon'ble Supreme Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 (65) AIC 112 (SC) : 2008 (61) ACC 660 : JT 2008 (4) SC 523 . Learned Counsel has also referred a bail order in the case of Bisuxijit, Chandra @ Kanu v. State of West Bengal wherein the quantity of morphine was taken into consideration for the purpose of release of the petitioner. Learned Counsel has lastly referred a bail order of this Court in S.B. Criminal Misc. Second Bail Application No. 5221/08 Bitthal and another v. State of Rajasthan dated 30.7.2008 . 3. Learned Public Prosecutor, on the other hand, has opposed the bail application and submits that recovery of the opium being 8 kg. and 200 gm., thus the petitioner may not be enlarged on bail. It is also stated that in view of the notification issued in exercise of the powers conferred by clauses (viia) and (xxiiia) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985' (hereinafter referred to as 'the Narcotic Drugs And Psychotropic Substances Act', for short) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527 (E) dated 15.7.1996, the contraband has been specified in different items along with details regarding small quantity and commercial quantity. It is stated that so far as opium is concerned, it exists at item No. 92 of the notification and small and commercial quantity has been given as 25 gm. and 2.5 kg. respectively whereas morphine has been separately given at item No. 77 wherein small quantity has been given as 5 gm. and commercial quantity as 250 gm. It is also stated that since both the drugs have been separately specified in the notification, thus guiding factor has to be notification and not the contents of one drug. 10 elaborate tale argument, it is stated that opium may be having mixed of material and out of which percentage of morphine may also exist but then guiding factor cannot be taken only for morphine but has to be taken for opium as the said contraband material has not been considered in the judgments referred by the learned Counsel for the petitioner. It is also stated that quantity of opium is 8 kg. and 200 gm. being more than commercial quantity given in the notification, thus the petitioner may not be enlarged on bail. 4. I have considered the rival submissions of the parties and perused the record. 5. After perusal of the record, I find that under the provisions of Narcotic Drugs And Psychotropic Substances Act, notification has been issued giving out the names of the narcotic drugs along with its substance and also prescribing small quantity and commercial quantity separately. The look at the list shows that morphine has been separately shown than the opium and it is no where provided that while adjudging the small and commercial quantity of opium, substance of morphine should be looked into and if the quantity of morphine is found too be less than commercial quantity or the small quantity as the case may be, the matter of the accused is to be adjudged for grant of bail. In the case of Biswajit Chandra @ Kanu (supra), the bail order has been passed by the Hon'ble Apex Court and therein 543 gm. contraband was recovered and upon chemical analysis thereof 23.17% of morphine was deducted therein and in that view of the matter, the total content of the morphine would be 126.27 gm., which is more than small quantity but lesser than the commercial quantity and based on that, the bail order was passed. contraband was recovered and upon chemical analysis thereof 23.17% of morphine was deducted therein and in that view of the matter, the total content of the morphine would be 126.27 gm., which is more than small quantity but lesser than the commercial quantity and based on that, the bail order was passed. However, it is no where held that when a specific contraband is recovered, the assessment of small and commercial quantity should always be based on the ingredients of morphine therein. Same is the position in the case of Ghanshyam and another v. Union of India (supra) , because therein also it has no where held that even if, a particular contraband has been specified in the notification, small and commercial quantity specified in the notification has to be ignored and the quantity has to be adjudged only on the basis of ratio of morphine received therein. 6. In the case of E. Micheal Raj (supra), the aforesaid issue came up for consideration and therein the Hon'ble Apex Court held that the punishment in these cases is to be based on the contents of offending drug in the mixture and not on the weight of the mixture as such, thus it was held that the quantity of natural substance is not to be taken into consideration while determining the small quantity or the commercial quantity of a narcotic drug and it was further held that it is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. In this case, another judgment of the Hon'ble Apex Court in the case of Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 (34) AIC 47 (SC) : 2005 (53) ACC 496 : (2005)7 SCC 550 was also considered but was not applied. In this case, another judgment of the Hon'ble Apex Court in the case of Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 (34) AIC 47 (SC) : 2005 (53) ACC 496 : (2005)7 SCC 550 was also considered but was not applied. If the judgment of the Hon'ble Apex Court in the case of Amarsingh Ramjibhai Barot (supra) is looked into, then considering the provisions of section 2 (xvi)(e) it was held that all preparation containing more than 0.2% of morphine would then fall within the definition of opium derivative and therein issue as to whether the quantity of contraband recovered is small quantity or commercial quantity was threshold minutely and it was held that the offending contraband so recovered should be taken into consideration for determining as to whether it is small quantity or commercial quantity subject to the condition that it contains more than. 0.2% of morphine. The definition of 'opium' as given under section 2 (xv) thus : "Opium means (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." 7. The definition of 'opium derivated' is given under section 2 (xvi) reads thus : "Opium derivative means (a) Medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) Prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) Phenanthrene alkaloids, namely, morphine, codeine, thebaine, and their sales; (d) Diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and (e) All preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine." 8. The Hon'ble Apex Court has held in para 15 of the aforesaid judgment, which reads thus "The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub - clauses (a), (b), (c) or (d) of section 2 (xvi). The Hon'ble Apex Court has held in para 15 of the aforesaid judgment, which reads thus "The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub - clauses (a), (b), (c) or (d) of section 2 (xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 percent anhydride morphine. Consequently, it would amount to "opium derivative" within the meaning of section 2 (xvi)(e), Clause (a) of section 2 (xi) defines the expression "manufactured drug" as: "2. (xi) 'manufactured drugs' means (a) all coca derivatives. medicinal cannabis, opium derivatives and poppy straw concentrate; (b) ...... All "opium derivatives" fall within the expression "manufactured drug" as defined in section 2 (xi) of the Narcotic Drugs And Psychotropic Substances Act. Thus, we arrive at the conclusion that what was recovered from the appellant was "manufactured drug" within the meaning of section 2 (xi) of the Narcotic Drugs And Psychotropic Substances Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within section 21 of the Narcotic Drugs And Psychotropic Substances Act for illicit possession of "manufactured drug". 9. Even if the matter is analyzed in view of the provisions of Narcotic Drugs And Psychotropic Substances Act and the notification issued providing small quantity and commercial quantity of the contraband, it becomes clear that quantity of opium has been provided separately, thus the said quantity cannot be ignored if it contains more than 0.2% of morphine or above because in that case it becomes opium derivative and the quantity of opium alone has to be considered for determining the small quantity and the commercial quantity and not the contents of the morphine otherwise notification so issued in view of the powers conferred under the provisions of Narcotic Drugs And Psychotropic Substances Act will not only become redundant to a great extent and it is settled law that any notification issued under the statutory powers cannot be made redundant by the Court unless declared to be as unconstitutional, thus taking note of the aforesaid ratio. I am of the view that in the present matter since FSL report shows the contraband so recovered to be opium as it contains more than 0.2% of morphine, thus the total quantity of opium has to be considered to determine its commercial quantity and in the present matter the recovery of contraband is more than commercial quantity. The legislatures have provided the punishment subject to the quantity of the contraband looking to the fact that now many people are involved in this business and the problem is becoming chronic, thus looking to the fact that d; ug may cause damage even to the youth, a serious view is to be taken otherwise also. 10. In the bail order passed by the Court in the case of Bitthal and another v. State of Rajasthan (supra) , the contraband recovered was said to be heroin but in the FSL report presence of heroin was not even deducted and the report was given regarding existence of 12% morphine and, therefore, assessing the quantity of morphine in the absence of a positive report of the presence of heroin, the bail application was decided. In the present matter, the FSL report does not suggest that the opium is not found after chemical analysis as was the case of Bitthal and another v. State of Rajasthan (supra) , where presence of heroin was not found. If it is a case where presence of specific contraband is not found, then definitely the presence of morphine can be noticed for adjudging the issue, however, in the present matter, the FSL report shows presence of opium and subsequently substance of morphine has also been given but for this reason, this Court cannot ignore the notification, which specifies small and commercial quantity of opium more specifically when the quantity of opium recovered from the petitioner is more than commercial quantity. 11. In view of the above and more specifically looking to the fact that the recovery of drugs is more than commercial quantity, thus I am of the view that the petitioner cannot be enlarged on bail and accordingly his application is rejected. 12. 11. In view of the above and more specifically looking to the fact that the recovery of drugs is more than commercial quantity, thus I am of the view that the petitioner cannot be enlarged on bail and accordingly his application is rejected. 12. It is, however, observed that looking to the fact that the petitioner is behind the bars for last one and half year and charges have been framed, thus the Trial Court is expected to expedite the trial and if possible, the same may be concluded within a period of three months from the date of receipt of certified copy of this order.With the aforesaid observation, this bail application is, accordingly, rejected.Application Rejected. *******