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2009 DIGILAW 2106 (PNJ)

Manjit Kaur v. State of Punjab

2009-12-03

JORA SINGH

body2009
JUDGMENT Jora Singh, J.:- Manjit Kaur filed this revision against the order dated 11.10.2008 passed by Special Judge, Nawanshahar. By this order, Manjit Kaur petitioner was charge sheeted that on 28.4.2008 at about 8.05 PM in the area of Village Lakhpur, she was found in conscious possession of one kg of smack without any licence or permit and as such committed an offence punishable under Section 21 of the NDPS Act (for short ‘the Act’). 2. Notice of motion was issued. 3. Learned counsel for the petitioner argued that according to the story, on 28.4.2008 at about 8.05 PM, while present in the area of Village Lakhpur, one kg of smack was recovered from the possession of the petitioner, but the petitioner was ordered to face trial under Section 21 of the Act. 4. Annexure P-1 is the copy of charge, whereas Annexure P-2 is the copy of FIR No. 95 dated 28.4.2008 under Sections 21/91/85 of NDPS Act. 5. Annexure P-3 is the copy of the report under Section 173 Cr.P.C. 6. Annexure P-4 is the copy of report of Chemical Examiner. As per report, percentage of Diacetylmorphine was found to be 14.76% morphine. In view of the law laid down by Hon’ble Supreme Court in 2008 (2) RCR (Crl.) 597, E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, keeping in view the percentage of morphine in the alleged recovery of smack, recovery comes to 148 grams, which is non-commercial, trial Court should have framed charge under Section 21(b) of the Act. 7. Learned State counsel argued that recovery is of one kg. of smack. Smack is sold as per weight and not as per percentage. Trial Court has rightly framed charge punishable under Section 21 of the Act. 8. Submission of learned counsel for the petitioner seems to be reasonable one. According to the story, one kg of smack was recovered. Annexure P-4 is the copy of report of the Chemical Examiner. Relevant portion of the report (Annexure P-4) is reproduced as under:- “1. Physical Appearance - A brown 2. Diacetylmorphine - Present 3. Diacetylmorphine% - 14.76% morphine - STC - Opinion: The analysis indicates that contents of exhibit are of diacetylmorphine also known as smack/heroin.” 9. Annexure P-4 is the copy of report of the Chemical Examiner. Relevant portion of the report (Annexure P-4) is reproduced as under:- “1. Physical Appearance - A brown 2. Diacetylmorphine - Present 3. Diacetylmorphine% - 14.76% morphine - STC - Opinion: The analysis indicates that contents of exhibit are of diacetylmorphine also known as smack/heroin.” 9. In [2008(4) LAW HERALD (P&H) (DB) 2623] : 2008(4) RCR (Crl.) 390, Anup Gupta vs. State of Punjab, recovery was of one kg of brown sugar from Ruldhu Ram, whereas from Anup Gupta, recovery was of 500 grams of brown sugar. As per report of the Chemical Examiner, contraband contained 5% diacetylmorphine (heroin). As per percentage, recovery is more than small quantity, but less than commercial quantity. 10. As per percentage of diacetylmorphine (heroin), recovery of heroin from Ruldhu Ram and Anup Gupta is not commercial as per Central Government Notification dated 19.10.2001. 11. In E.Micheal Raj’s case (supra), recovery was of 4 kgs of manufactured drug having content of narcotic drug (heroin). As per report of Analyst, the substance contained 60 grams of narcotic substance. Recovery is lesser than commercial quantity (250 grams), but greater than small quantity (5 grams). Held that accused would be punishable under Section 21(b) of the NDPS Act. 12. In the present case, one kg of smack was recovered. Percentage of diacetylmorphine was found to be 14.76% morphine. As per the report of Analyst, recovery comes to be 148 grams of smack, which is non-commercial, in view of Division Bench Judgment of this Hon’ble High Court and as per the authority cited above rendered by the Hon’ble Supreme Court. 13. Learned State counsel failed to cite any authority that when there is a recovery of smack and smack is sold as per weight, then total weight is to be taken into consideration i.e. as to whether recovery is small, non-commercial or commercial. I agree with the submission of learned State counsel that opium, smack, ganja etc. is sold by weight and not as per percentage of morphine, but in view of the above cited authorities, recovery of smack as per report of Chemical Examiner comes to 148 grams, which is non-commercial. Accused is to be charged for the offence punishable under Section 21(b) of the Act. 14. As a sequel to the above discussion, revision is accepted. Accused is to be charged for the offence punishable under Section 21(b) of the Act. 14. As a sequel to the above discussion, revision is accepted. Order dated 11.10.2008 rendered by Special Judge, Nawanshahar, is ordered to be modified. As per law laid down in the above cited authorities, Special Judge, Nawanshahar, is directed to frame charge keeping in view the Central Government Notification dated 19.10.2001. ------------------------