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Rajasthan High Court · body

2011 DIGILAW 1700 (RAJ)

Dharma @ Dharmi Lal v. State

2011-08-11

RAGHUVENDRA S.RATHORE

body2011
Hon'ble RATHORE, J.—This second bail application has been filed by accused petitioner primarily on the ground that FSL report has been received. The earlier bail application was dismissed by this Court on 2.8.2010 looking to the fact that contraband weighing 2 Kgs. opium has been recovered from the petitioner while he was going on a motorcycle. 2. The learned counsel for the petitioner has submitted that now the FSL report has been received and the percentage of morphine found is 2.47. Therefore, he has submitted that the total quantity of contraband seized from petitioner would be only 49.4 gms. Such quantity is much less than the commercial quantity. Hence, it is prayed that the petitioner be now enlarged on bail. In support of his submission, learned counsel has placed reliance on the case of Biswajit Chandra @ Kanu vs. State of West Bengal, SLP (Cr.) No. 4771/2007 decided on 3.1.2008. 3. The learned Public Prosecutor has opposed the bail application and submitted that so far as the contention of learned counsel for the petitioner in respect of percentage of morphine and proportionate weight of contraband in question is concerned, it would not be the consideration for the purpose of contraband in the present case which is opium. He has further submitted that Hon'ble Supreme Court has dealt with the issue in the recent judgment of Harjit Singh vs. State of Punjab in Criminal Appeal No. 816/2011 decided on 30.3.2011, wherein similar contention was raised on behalf of the accused. 4. Anxious and thoughtful consideration has been given to the submissions made by the counsel for the rival parties. In order to appreciate the respective contentions, firstly the substance recovered from the accused is to be identified; the relevant provisions of law as given under the NDPS Act, 1985 particularly the definition clause is to be considered and then to find out the relevant entry given under the Notification issued by the Central Government specifying the small quantity and commercial quantity, which is required to be dealt with. 5. In the present case, the material recovered from the accused petitioner was opium. The quantity of 2 Kg opium recovered from possession of the petitioner was less than commercial quantity but much more than the small quantity. Therefore, the contraband recovered could not have been for personal consumption of the accused. 6. 5. In the present case, the material recovered from the accused petitioner was opium. The quantity of 2 Kg opium recovered from possession of the petitioner was less than commercial quantity but much more than the small quantity. Therefore, the contraband recovered could not have been for personal consumption of the accused. 6. Under the Act of 1985, opium has been defined under Section 2(xv) which reads as under: "(xv)" "opium" means- (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, or the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent. of morphine." In other words, the Act defines opium as coagulated juice of opium poppy and any mixture with or without any neutral material of coagulated juice of opium poppy but does not include any proportion containing not more than 0.2 percent of morphine. 7. Similarly, opium derivative has been defined in section (2)(xvi) which reads as under: "(xvi) "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 obtained 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, the baine and their salts; (d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorophine;" 8. The Notification issued by the Central Government, in exercise of powers conferred under clauses (viia) and (xxiiia) of section 2 of the Act of 1985 specifies the small quantity and commercial quantity. Entry 56 is with regard to heroine. Similarly, entry 77 of the Notification deals with morphine and entry 92 in respect of opium. Entry 93 relates to opium derivatives. Under entry 92, the small quantity of opium is 25 gms and commercial quantity is 2.5 kg. In entry No. 77, the small quantity of morphine is 5 gms. and commercial quantity is 250 gms. Similarly, entry 77 of the Notification deals with morphine and entry 92 in respect of opium. Entry 93 relates to opium derivatives. Under entry 92, the small quantity of opium is 25 gms and commercial quantity is 2.5 kg. In entry No. 77, the small quantity of morphine is 5 gms. and commercial quantity is 250 gms. Entry 93 of the said Notification gives the quantity of opium derivatives whereas the small quantity is 5 gms. and commercial quantity is 250 gms. Therefore, in the Notification, there is distinction between opium, morphine and opium derivative. When the substance recovered is opium, as in the instant case, then it would be covered in the definition of clause (a) of section 2(xv). In such a situation, the percentage of morphine contained therein would not be relevant. It is only when the substance recovered is found in the form of mixture as specified under Clause (b) of Section 2(xv) of the NDPS Act that the quantity of morphine contained in it gains significance. In the instant case, the opium seized is coagulated juice of opium poppy and not any mixture, with or without any neutral material of the coagulated juice of opium poppy. Therefore, the contents of morphine in the contraband of 2 kg recovered from the petitioner is totally irrelevant. 9. This view of mine is supported by the principle of law laid down by the Hon'ble Apex Court in the case of Harjit (supra) wherein it has been observed, in para 25, as under. 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 b 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. The entire substance has to b 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 fact for determination of quantum of punishment as the opium is to be dealt with under a distinct and separate entry from that of morphine." 10. In view of the aforesaid facts and circumstances of the case; the relevant provisions and principles of law, the contention raised by the learned counsel for the accused petitioner in this second bail application on the basis of FSL report has no substance and deserves to be rejected. Moreover, number of prosecution witnesses have already been examined by the learned trial Court and therefore there is no just reason to reconsider the question of bail to the petitioner, at this stage of the trial. 11. Consequently, this second bail application is dismissed. However, learned trial Court is directed to expedite the trial and conclude the same preferably within a period of six months.