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Madhya Pradesh High Court · body

2010 DIGILAW 679 (MP)

Ramsingh v. State of M. P.

2010-07-12

I.S.SHRIVASTAVA

body2010
JUDGMENT 1. This appeal has been preferred under section 374 of the CrPC by the appellants being aggrieved by the judgment dated 26.10.2007 passed by the Court of Shri P. S. Patidar, Special Judge (under NDPS Act) Ratlam in Special Sessions Case No. 30/2004 by which the appellants have been convicted under sections 8/18 (b) of the Narcotic Drugs and Psychotropic Substances Act, (in short NDPS Act') and sentenced for ten years rigorous imprisonment with fine of Rs. 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each. 2. According to the prosecution case, on 13.9.2004, Shri Y.S. Tomar PSI PW-11 received an information from the informer that appellant Ramsingh and Salim were likely to transfer opium by motorcycle bearing registration No. MP-14 D-4439, hence panchanama about the information of the informent was prepared. After arranging raid party, they reached the spot Kalaliya Gante. On arrival of two persons on motorcycle they were stopped and after verification of their names, they were apprised with the information of the informat and after obtaining due consent, 6 kg opium was seized from the bag, which was kept in between accused Ramsingh and Salim. Two samples of 30 grams each were prepared, marked as A-1 and A-2 and sealed them as well as remaining quantity was also sealed and marked it as Article-A. Thereafter, both the accused/appellants were arrested and after obtaining report from FSL, challan was filed and the appellants were convicted and sentenced as mentioned herein above after trial. 3. It has been mentioned on behalf of the appellants that the appellants are in jail since 13.9.2004. As per the FSL report Ex.P/25, percentage of morphine in the sample was 4.56, therefore, the total purity in the seized opium comes to 273.6 grams, which is less than the commercial quantity, therefore, the appellants arc entitled to be convicted under section 8/18 (c) of the NDPS Act. In view of the law laid down in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, [2008 Cri. LJ 2250] the appeal be allowed. 4. It has been argued on behalf of the respondent/State that the appellant have been found guilty for heinous offence on the basis of the evidence produced before the trial Court; they have rightly been convicted and hence the appeal being devoid of merit, be dismissed. 5. Considered the arguments. LJ 2250] the appeal be allowed. 4. It has been argued on behalf of the respondent/State that the appellant have been found guilty for heinous offence on the basis of the evidence produced before the trial Court; they have rightly been convicted and hence the appeal being devoid of merit, be dismissed. 5. Considered the arguments. Record of the trial Court perused. 6. According to the law laid down in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (supra) it has been held that "when any narcotic drug or psychotropic substance is found mixed with one or more neutral substances, for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. Hence, total quantity of the purity of opium is to be considered which is below the commercial quantity in this appeal." 7. In this case, according to the FSL report, Ex.-P/25, percentage of morphine in the sample A-I was 4.56, therefore, the total purity in the seized opium comes to 273.6 grams, which is less than the commercial quantity, hence the appellants are liable to be convicted under sections 8/18 (c) of the NDPS Act instead of sections 8/ 18 (b) of the NDPS Act. 8. Hence, in view of the above law laid down by the apex Court, conviction of the appellants under sections 8/18 (b) of the NDPS Act is converted into sections 8/18 (c) of the NDPS Act, therefore the appellants are punished under sections 8/18 (c) of the NDPS Act with rigorous imprisonment of seven years along with fine of Rs. 60,000/- each and in default of payment of fine 10 undergo rigorous imprisonment for two months by each appellants. 9. Accordingly, the appeal is disposed of.