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Madhya Pradesh High Court · body

2010 DIGILAW 44 (MP)

Nagga v. State of M. P.

2010-01-13

I.S.SHRIVASTAVA

body2010
JUDGMENT 1. The appellant has preferred this appeal being aggrieved by the judgment dated 30.7.2004 passed by Shri J.P. Maheshwari, Special Judge, NDPS Act and Ist ASJ Neemuch in Spl. S.T. No. 84/01 by which the appellant Nagga has been convicted under S. 8/18 (b) of the NDPS Act (for short the Act) and sentenced to rigorous imprisonment of 10 years along with fine of Rs. 1,00,000/ - (one lakh) and in default of payment of fine, further imprisonment of four years rigorous imprisonment. 2. As per prosecution story on 7.6.2001 on information of informer, R.S. Chouhan, ASI seized 7 kg. 200 gms. of opium from the possession of the appellant Nagga. On interrogation it was informed by Nagga that the co-accused Jamnalal took him to Surajmal who has sold the opium at the rate of Rs. 3800/- per kg. Hence challan was filed against Nagga and Jamnalal and supplementary challan was filed against Surajmal. Accused Surajmal was absconding. 3. Vide impugned judgment accused Nagga was punished as mentioned above and Jamanlal was acquitted from the charges levelled against him. Hence this appeal has been preferred by the appellant Nagga and the advocate from the Legal Aid are appearing for him. 4. It has been argued on behalf of the appellant that according to FSL report Ex. P. 19 the percentage of morphine was 2.90%, hence the purity of the opium comes to be 208.8 gms., which is below the commercial quantity; and the case of the appellant is punishable under S. 8/18 (c) of the NDPS Act; hence appeal be disposed of accordingly. 5. It has been argued on behalf of the respondent State that 7kg. 200 gms. of opium was seized from illegal possession of the accused Nagga and the case was proved by the evidence produced by the trial Court against him. He has been lightly convicted. Appeal being baseless, be dismissed. 6. Considered the arguments. Record perused. 7. According to the FSL report Ex. P.19 the percentage of morphine was 2.90%; hence purity of opium comes to be 208.8 gms. in the seized quantity. 8. In law laid down in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported in 2008 CrLJ 2250 , the quantity of narcotic drug and psychotrpic substance shall be taken into consideration. Therefore, looking to the pure quantity of the opium 208.8 gms. in the seized quantity. 8. In law laid down in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported in 2008 CrLJ 2250 , the quantity of narcotic drug and psychotrpic substance shall be taken into consideration. Therefore, looking to the pure quantity of the opium 208.8 gms. case of the appellant falls punishable under S. 8/18 (c) of the NDPS Act. Therefore, conviction of the appellant under S. 8/18 (b) is converted into conviction under S. 8/18 (c) of the NDPS Act and he is punished with rigorous imprisonment of 8 years and 6 months along with fine of Rs. 40,000/- and in default of payment of fine, to undergo rigorous imprisonment for two months. Hence the appeal is allowed accordingly.