JUDGMENT Dev Darshan Sud, J The appellant has been convicted for offences under Section 18(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘ND&PS Act’) for possessing 1.Kg.50 grams of opium. The learned trial Court convicted the appellant to undergo rigorous imprisonment for three years and to pay fine of Rs. 30,000/- and in default of payment of fine further to undergo simple imprisonment for six months. 2. The only point urged before me in appeal is that the conviction could be sustained only under Section 21 of the N.D&P.S Act and not Section 18(C). The quantity of the opium seized as also the other facts considered by the learned Sessions Judge are not disputed before me. 3. Learned counsel appearing for the appellants relies upon the decision of a Division Bench of this Court in Criminal Appeal No. 316 of 2004 titled State of H.P. Vs. Des Raj decided on 11.1.2013. This Court has considered the provisions of law in extenso holding: “1. An interesting question which arises in this appeal is- “What is “opium poppy”, “opium derivative”,” poppy straw” and “opium” within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as the ‘Act’).” 2. Des Raj decided on 11.1.2013. This Court has considered the provisions of law in extenso holding: “1. An interesting question which arises in this appeal is- “What is “opium poppy”, “opium derivative”,” poppy straw” and “opium” within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as the ‘Act’).” 2. To understand the issues raised before us and the rival contentions of the parities, it would be pertinent to refer to the definition of the opium, opium derivative, opium poppy, poppy straw and poppy straw concentrate in actions 2(xv), 2(xvi), 2(xvii), 2(xviii) and 2(xix) of the Act, which reads as follows:- “2(xv) “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: 2(xvi) “opium derivative” means- (a) medicinal opium, that is, opium which has undergone the process 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, the baine and their salts; (d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine; 2(xvii) “opium poppy” means- (a) the plant of the species Papaver somniferum L; and (b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act; 2(xviii) “poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; 2(xix) “poppy straw concentrate” means the material arising when poppy straw has entered into a process for the concentration of its alkaloids……………………. 7. 7. Thereafter relying upon the judgment in Rajiv Kumar alias Guglu v. State of H.P., the Court went on to hold as follows:- “21. We have considered the submission and also perused the report, Ex. PW-17/E. The only difference in this report, Ex. PW-17/E, and the report which had been relied upon by the prosecution in Rajiv Kumar’s case (supra) is that in the present case the Chemical Examiner conducted tests for the presence of codeine and papaverine, in addition to morphine and meconic acid, tests for which were conducted in Rajiv Kumar’s case. 22. We have consulted The New Encyclopaedia Britannica, 15th Edition, to ascertain the meaning and source of “codeine” and “papaverine”. 23. “Codeine”, as per Volume II, of the aforesaid Encyclopaedia, is methylmorphine, naturally occurring alkaloid of opium and the methyl derivative of morphine. The meaning/explanation further reads that codeine may be extracted from opium, the dried milk exudates of the unripe seed capsule of opium poppy (Papaver somniferum), but most of the codeine used in the drug industry is produced from morphine. Term “Papaverine” as such is not defined or explained in the said Encyclopaedia, but according to Volume VII, while explaining term “Papaveraceae”, it has been mentioned that morphine, heroin, codeine and papaverine are the derivatives of opium, which (opium) is derived from Papaver somniferum.. 24. The Encyclopaedia Britannica, while explaining the aforesaid terms, “codeine” and “papaveraceae”, does not say that codeine or papaverine are derived from the opium obtained from a plant of species of Papaver somniferum-L. To fall in the definition of “opium straw”, the straw has to be of opium poppy of a plant of the species of Papaver somniferum-L, or any plant of a papaver species, notified by the Central Government in the Official Gazette. Report Ex. PW-17/E does not even say that morphine, codeine, papaverine and meconic acid found by the Chemical Examiner, in the examined stuff, were part of opium obtained from a plant of Papaver somniferum-L species, leave alone his specifically saying that the stuff was of a plant of the aforesaid species nor has he said that the same were derivatives of opium obtained from a plant of any other species of Papaver, notified by the Central Government in the Official Gazette, within the meaning of sub-clause (b) of Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act. Hence, the submission made by the learned Additional Advocate General that the report, Ex. PW-17/E, is different in its contents from the report that was the subject matter of Rajiv Kumar’s case (supra), is rejected.” 8. At this stage it would also be relevant to refer to the judgment of the Apex Court in Amarsingh Ramjibhai Barot vs. State of Gujarat, (2005) 7 Supreme Court Cases 550, wherein the Apex Court was dealing with a case of opium. The FSL report indicated that the substance recovered from the accused was “opium as described in the NDPS Act.” Thereafter, the Apex Court made reference to Sections 2(xv) and 2(xvi) and held as follows:- “14. There does not appear to be any acceptable evidence that the black substance found with the appellant was “coagulated juice of the opium poppy” and “any mixture, with or without any neutral material, of the coagulated juice of the opium poppy”. FSL has given its opinion that it is “opium as described in the NDPS Act.”. That is not binding on the court. 15. 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 substances recovered from the appellant had 2.8 per cent 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 drug’ 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 NDPS 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 NDPS Act. The material on record, therefore, indicates that the office proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of “manufactured drug………... 18. If any contraband contains more than 0.2% morphine even if it does not fall within the definition of opium poppy, poppy straw or opium it would be an opium derivative within the meaning of Section 2(xvi). 18. If any contraband contains more than 0.2% morphine even if it does not fall within the definition of opium poppy, poppy straw or opium it would be an opium derivative within the meaning of Section 2(xvi). Phenanthrene alkaloids, namely, morphine, codeine, the baine under clause (c) of Section 2(xvi) and their salts and are also opium derivatives. Therefore, if the Chemical Analyst comes to the conclusion that the stuff is a phenanthrene alkaloid, namely, morphine, codeine, the baine or their salts then this would make the stuff opium derivative and such stuff would be contraband within the meaning of Section 2(xvi) of the Act. 19. Similarly, if the Chemical Analyst comes to the conclusion that stuff is diacetylmorphine or diamorphine or heroin as laid down in clause (d) and its salt then it is a opium derivative under Section 2(xvi). All other preparations containing more than 0.2% morphine or containing any amount of diacetylmorphine/heroin are also opium derivatives within the meaning of clause (e) of Section 2(xvi) of the Act. 20. In Amarsingh Ramjibhai Barot’s case (supra) when the Apex Court found that anhydride morphine was 2.8% the substance was considered to be opium derivative falling within the sweep of Section 2(xvi)(e). 21. Therefore, though we agree with the final conclusion given by a Division Bench of this Court in Dula Ram’s case that the stuff in question was not poppy straw, we find that though the Division Bench relied upon the judgment in Amarsingh Ramjibhai Barot’s case, it did not consider the entire import of the said judgment. 21. Therefore, though we agree with the final conclusion given by a Division Bench of this Court in Dula Ram’s case that the stuff in question was not poppy straw, we find that though the Division Bench relied upon the judgment in Amarsingh Ramjibhai Barot’s case, it did not consider the entire import of the said judgment. In Amarsingh Ramjibhai Barot’s case, the Apex Court clearly held that even if the substance was not opium since there was 2.8% anhydride morphine it was a manufactured drug within the meaning of Section 2(xi) of the Act, which reads as follows:- “2(xi) “manufactured drug” means- (a) all coca derivatives, medicinal cannabis opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug.” 22. All opium derivatives and poppy straw concentrates are manufactured drugs within the meaning of Section 2(xi) of the Act. When manufactured drug is illegally kept, manufactured or sold the offence is one under Section 21 of the Act. As already held by us above, whenever there is phenanthrene alkaloid, namely, morphine, codeine, the baine and their salts, the stuff in question is an opium derivative. Codeine is dealt at Serial No. 28 of the Table specifying small quantity and commercial quantity. Morphine is dealt at Serial No. 77 and the baine at Serial No. 120. Therefore, in case the Chemical Analyst in his report indicates that the quantity of codeine, morphine or the baine is more than the minimum quantity prescribed under the Table, then even if the stuff is not opium poppy or poppy straw, the Court must consider whether it is an opium derivative and the quantity is one which constitutes an offence. This aspect of the matter has not been dealt with in Dula Ram’s case and is explained accordingly. 23. Opium derivatives are dealt with under Item No.93 and separate quantities are prescribed for opium derivatives. This aspect of the matter has not been dealt with in Dula Ram’s case and is explained accordingly. 23. Opium derivatives are dealt with under Item No.93 and separate quantities are prescribed for opium derivatives. These also must be looked into. Therefore, we conclude by holding that in cases relating to opium, poppy straw and opium poppy the Chemical Analyst must come to the conclusion that the product has come from papaver somniferum plant. However, in cases relating to poppy straw concentrate and opium derivatives it is not necessary to give such a finding. 24. Section 15 of the Act lays down the punishment for poppy straw. In cases falling within the purview of Section 15 it would be necessary for the Chemical Analyst to clearly certify that the substance is the product of papaver somniferum plant. Similarly, in cases of offences falling under Section 18 of the Act, which relates to opium poppy and opium, it would be necessary for the Chemical Analyst to come to the conclusion that the product is that of papaver somniferum plant. However, in cases of offence falling under Section 21 of the Act i.e. relating to manufactured drug such as opium derivative and poppy straw concentrate it will not necessary for the Chemical Analyst to certify that the product is that of papaver somniferum plant”. 4. Relevant portion of letter (Ext. PW7/G) States that: “Various scientific tests such as Colour tests, Chemicals test and Chromatographic analysis (TLC) carried out in the Laboratory with exhibit stated as opium under reference gave positive results for the presence of Morphine, Codeine, Thebaine, Papaverine and Meconic acid in the exhibit which are active constituents of opium. On quantitative analysis, the percentage of Morphine as found in the exhibit stated as opium is 2.34% w/w.” 5. This analysis does not meet the requirements of law as noticed in Des Raj’s case supra. In these circumstances, I hold that the case of the appellant is covered by Section 21 (b). Considering that the percentage of morphine is 2.34% w/w which in this case would work out 24.57 grams on the analysis of Ext.PW7/G and this quantity is less than the commercial but greater than the smaller quantity, I sentence the appellant to the imprisonment already undergone which in this case is one year and in addition fine of Rs. Considering that the percentage of morphine is 2.34% w/w which in this case would work out 24.57 grams on the analysis of Ext.PW7/G and this quantity is less than the commercial but greater than the smaller quantity, I sentence the appellant to the imprisonment already undergone which in this case is one year and in addition fine of Rs. 30,000/- more than what has been imposed by the learned trial Court. The additional amount of fine Rs. 30,000/- shall be deposited within a period of three months from today after the appellant has been released from jail. In case the fine amount is not deposited by the appellant herein, the sentence imposed by the learned trial Court shall revive which shall be dutifully executed. Registry to take follow-up action.