68 Crll7evllTo589 of2009 1 t IN THE HIGH COURT OF PUNJAB 8 HARYANA AT CHANDIGARH CrlRevllT0389 of2009 Date ManjitKaur Petitioner versus StateofPunjab nee CORAM HONBLE MR JUSTICEJORA SINGH 0 Present MrClVenna Advocate C for the MrPSSidhu AddlAG Punjab C5 JORA SINGH J Z ManjitKaur flled this revlSlOll againstthe order dated r 112008 by SpecialJudgeNawanshahar By this order Manjit I Kaur was chargesheetedthaton 28A008 at about 805 PM in 08 the area of VillageLakhpurshe was found in conscious of one l kgof sinack without any licence or permitand as such commed an Z offence under Section21 ofthe NDPS Act Oforshort the Act tl Notice ofmotion was issued Learnedcounsel for the arguedthat according to the story on 28A2008at about805 PM while presentin the area of Village Lakhpurone kg of smack was recovered frotn the of the but the petitioner was orderedto face trial under Section 21 of the Act Annexure Pel is the copy of chargewhereasAnnexure P2 is thecopy of FIR No95 dated 282008 under Sections 21161185of NDPS Act Annexure P3 is the copy of the report under Section 173 Kumar Suresh 2013.03.26 13: 15 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document n 69 CrlRev N0389 of2009 2 4 CrP Annexure P4 is thecopy of reportof ChemicalExaminer As per reportpercentageof was found to be 146Io Inorphine In viewofthe law laid down byHonble Supreme Court in 21RCR Crl1 597 Elvlicheal Rai vs IntelligenceOfficer Narcotic Control Bureaukeepingin view thepercentage in theallegedrecovery m of smack recovery comes to 148 grams which is norcommercial trial r Courtshould have framedcharge under Section216b9 ofthe Act 0 C Learned State counselarguedthat recovery is of one kg of I C5 smack Smack is sold as per weightand not as per percentageTrial Couit I hasrightlyfratnedcharge underSection21 ofthe Act Z Submissionof learnedcounselfor the petitionerseemsto be C reasonableone Accordingto the story one kgof smack was recovered I Annexure P4 is the copy of reportof the ChemicalExaminer Relevant e4lis as underl 1 Physical 4 brown 7 Z 2 Present 3 Io 1476Io STC OpinionlThe analysis indicatesthat contents ofexhibit are of also known as smacklheroin 5 In 2008441 RCR Crl 390 Anup Gupta VS Stateof Puniab recovery was of one kgof brown sugar 8om Ruldhu Ram whereas from AnupGuptarecovery was of 500 gramsof brown sugar As per reportof the Chemical Examiner contrabandcontained 5Io heroinl As per percentagerecovery is more than small quantitybut less thancommercialquantity Kumar Suresh 2013.03.26 13: 15 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 70 Crll2ev1110389of2009 3 4 As per percentage of recovery of heroinfrom RuldhuRam and AnupGuptais not commercialas per Central Govemment Notificationdated 19 0200 1 In EMicheal Ras case 6suprarecovery was of 4 kgsof manufactureddrughavingcontent of narcoticdrugheroinlAs per report of Analystthe substance contained60 grams of narcotic substance 1 is lesser than commercial 6250gramslbut greaterthan r smallquantity65grams Held that accusedwould be under 0 C Section216b1 ofthe NDPS Act C5 In thepresent case one kgof smack was recovered Percentage I of was foundto be 1436Io morphineAs per the report Z of Analystrecovery comes to be 148 grams of smack which is nol 2 r commercial111view of Division Bench of this Honble High I Courtand as per the cited aboverenderedbythe Honble C6 Court 00 l LearnedState counsel failed to cite any authority that when W2 Z thereis a recovery of smack and smack is sold as per weightthen total Qm weight is to be tken into considerationie as to whetherrecovery is small noncommercial or commercial I agree with the submissionof learned Statecounsel that opiumsmack ganja etc is sold byweightand not as per of but in view ofthe above cited authorities recovery ofsmackas per reportofChemical Examiner comes to 148 grams which is Accusedis to be charged for the offence punishable under Section216b9 ofthe Act As a sequelto the above discussion revlSlOIl 1S accepted Orderdated 11 02008 rendered by SpecialJudge Nawanshahar 1S Kumar Suresh 2013.03.26 13: 15 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 71 Crl Rev N0389 of2009 4 tV orderedto be modified Asper law laid downin the above cited authorities JudgeNawanshaharis directedto framechargekeeping in view theCentralGovemomentNotiflcation dated19102001 6 3 1202009 JORA SINGH I pk JUDGE 1 C 0 0 p11 I f I 1 Z 1 I 08 17 Z Qm Kumar Suresh 2013.03.26 13: 15 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document