1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T Smt. Nazma vs. State of Rajasthan S.B. Criminal Appeal No.1568 of 2002 under Section 374 (2) Cr.P.C. against the judgment dated 27.9.2002 passed by Shri Ramesh Chand Pareek, RHJS, Special Judge (NDPS Act) Cases and Addl. Sessions Judge No.1, Kota in Special Sessions Case No.11/2002. 000 Date of Judgment :::: 09.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. R.P.Vijay for the appellant Mrs. Rekha Madnani, P.P. By the Court: Reportable Accused appellant has preferred this appeal against the judgment of conviction and order of sentence dated 27.9.2002 passed by Special Judge (NDPS)Act Cases and Additional Sessions Judge No.1, Kota whereby the appellant has been convicted for offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act,1985 (for short `the Act') and has been sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/- and in 2 default thereof to further undergo six months imprisonment. The relevant facts of the case are that on 3.11.2001 Station House Officer of Police Station G.R.P. Kota received an information from an informant that a lady named Nazma wearing Salwar of Jamuni colour would be arrived by Swarn Mandir Mail 2093 down in the ladies coach and would arrive at Kota. The same information was transmitted to the Superintendent of Police and the Station House Officer along with the raiding party arrived at the railway station and apprehended a lady having a bag in her hand. After inquiry she disclosed her name. The Station House Officer introduced himself and informed her about the search of the bag to be made. He also apprised Smt. Nazma that she is free to be searched by a Magistrate or by a Gazetted Officer to which she stated that she can be searched by a lady constable in his presence then she was searched by a lady constable in his presence. From the bag which was in her hand smack/heroin weighing 410 Grams was recovered. Two samples of 5 grams each from the recovered substance were taken and the same were sealed at the spot for sending the same to the Chemical Examiner for analysis and the rest of the seized substance was 3 sealed in another packet. Appellant was arrested. After doing the needful challan against her was filed under Section 8/21 of the Act. The learned trial court on the basis of the material and evidence collected by the investigating agency during investigation framed charge against the appellant under Section 8/21 of the Act to which she denied and claimed trial. To prove its case against the appellant, the prosecution examined 10 witnesses and exhibited Ex.P.1 to Ex.P.20. In her statement under Section 313 Cr.P.C. the appellant denied the allegations of the prosecution and also the evidence produced by it against her. However, no defence was led. The trial court after evaluating the statements of the prosecution witnesses and the documents and hearing both the parties arrived at the conclusion that the recovered smack was a contraband as the FSL report reveals that it gave a `positive test' for the presence of diacetyl- morphine (HEROIN). The recovered smack is more than commercial quantity as provided in the schedule and the compliance of every mandatory provisions of the Act was made by the SHO during investigation. Therefore, on the basis of the conclusions arrived at by the learned trial court the appellant was convicted and sentenced by the 4 impugned judgment dated 27.9.2002 in the manner as has been stated hereinabove. Hence the instant appeal. Heard learned counsel for the appellant, learned Public Prosecutor and perused the material and evidence available on record. Learned counsel appearing for the appellant without pressing the other grounds simply argued that report of the Chemical Examiner (Ex.P.17) is not disclosing about the quantitative percentage of the morphine in the sample whereas it was mandatory for the Chemical Examiner to mention about the quantitative percentage of morphine in the report after chemical analysis of the sample so as to link the accused in the commission of offence. The report has not spell out as to under what definition of Section 2 of the Act the drug or the substance falls. Merely by mentioning the word `positive test' in the report would not sufficient to frame the accused because before imposing sentence the court has to arrive at a definite conclusion on the basis of the quantitative percentage of morphine as to under what sub-section of section 21 of the Act the accused is to be punished. To bring home the guilt charged, the substance recovered should 5 have contained more than 0.2 per cent of morphine. The simple word `positive test' for the presence of diacetyl-morphine cannot lead to any inference that it contained more than 0.2 per cent of morphine. Simply describing the word `Positive Test' for morphine can also lead to infer that it may contain less than 0.2% morphine. So under these circumstances the recovered substance cannot be termed as a Narcotic Drug because any preparation of opium or opium derivative containing more than 0.2% diacetyl-morphine can come under the purview of of the definition provided under Sections 2(xv) and 2(xvi)(e) of the Act. Hence, the analyst's report cannot be a proof of the guilt against the accused under Section 8/21 of the Act. The report is very cryptic and more so the Chemical Examiner was not examined. For a cryptic report the Chemical Examiner should have been produced. Thus the report so submitted by the prosecution does not inspire any confidence for convicting the accused in the case. Per contra learned P.P. Has argued that any recovered contraband if has a `positive test' for morphine then it is not necessary to quantify the percentage of the morphine and the entire substance has to be viewed as a narcotic drug and 6 the total weight of the substance is to be considered which was done in this case by the learned trial court. Learned P.P. Has contended that the total weight of the substance recovered has to be taken into consideration which is in the present case is 410 grams which is more than commercial quantity and the substance found in the possession of the appellant was opium derivative as prescribed under Section 2(xvi) (e) of the Act. Therefore, the trial court has committed no error in punishing the accused under Section 8/21 of the Act. Before appreciating the arguments of the parties, the relevant provisions of the Act have to be looked into, which are as under:- Sec. 2.(viia) “Commercial quantity” {Section 2(viia) (inserted by Amending Act 9 of 2001 w.e.f. 2.10.2001} in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Sec.2.(xiiia)“Small quantity' {Section 2(xxii-a) (inserted by Amending Act 9 of 2001 w.e.f.2.10.2001} in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. 2(xiv)”narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs; 7 S.2(xiv)”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)...... (b)...... (c)...... (d)..... (e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine; An amendment was also made for punishments for the contravention in relation to Narcotic Drugs and Psychotropic Substances Act. The relevant section for punishment for manufactured drug and Preparation is Section 21, which is under:- “21. Punishment for contravention in relation to manufactured drugs and preparations:- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possess, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable- 8 (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees; Provided that the court may, for reasons to be recored in the judgment, impose a fine exceeding two lakh rupees” These amendments for punishment were made to rationalise the punishment on the basis of the quantity of the recovered contraband because looking to the deterrent punishment it was thought fit that the persons who only carries should be dealt with leniently according to the recovered contraband from their possession and those who deal with drug trafficking should be dealt with strenuous punishment. So under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. As per the definition of the 9 `opium' or `opium derivative' if the preparation contains more than 0.2 per cent of morphine or any diacetyl-morphine then and then only the recovered contraband can be covered under the provisions of the Act as per Section 2(xiv) or 2 (xvi-e). Therefore, for punishing the appellant under Section 21 of the Act it has to be proved that the substance recovered from the possession of the appellant is a `opium derivative' as per the definition of Section 2(xvi)(e) of the Act. Before dealing with the question of quantum of punishment a perusal of the FSL report (Ex.P.17) is necessary to ascertain whether the recovered substance is a opium derivative or not as the recovered substance is alleged to be heroin or smack. The report speaks about a positive test for the presence of diacetyl- morphine. The word `positive test' means unqualified or admitting of no doubt. This word `positive test' mentioned in the report with reference to recovered substance would only means that the substance recovered is having morphine but of what percentage is not clear. If suppose the recovered substance is having morphine 0.1% it will not be a opium derivative under the Act because to cover the substance recovered from the appellant under the provisions of the Act it 10 should have more than 0.2% morphine. Unless and until the report quantifies the rate of purity of morphine describing that the substance recovered is having more than 0.2% morphine it cannot come under the definition of `manufactured drug'. If the report simply describes after analysis by mentioning the word `positive' it would mean and would indicate only the presence of morphine in the substance but would not mean that it does contain more than 0.2% morphine as it does not say about the quantity of morphine in the recovered substance. Thus, it can safely and with certaintity be said that this analysis report of FSL not showing the ratio of purity would not fall within the definition of `opium derivative' because it nowhere says or quantify that the recovered contraband is having morphine more than 0.2 per cent. This report in these circumstances cannot be relied upon and also cannot be acted upon because it lacks quantitative test and unless and until this is done, the substance recovered cannot be termed as `opium derivative' as per the definition of the Act. In the present case, the report of FSL about the opium derivative which was found in possession of the appellant is not specifying the 11 rate of purity, it can not be termed as manufactured substance as per the definition of Section 2 (xvi)e of the Act because to come under the provisions of the Act, the derivative must contain morphine more than 0.2 percent which is completely lacking in the FSL report. The report of FSL if says simply that it is positive for morphine and not about the rate of purity, then the recovered substance cannot be termed as opium derivative because it may contain the neutral material along with morphine in it. The quantity of neutral substance is not be taken into consideration in absence of the rate of purity because it is not the total weight of the substance recovered, which is relevant but after segregating the quantity of morphine from rest of the substance is to be considered for purposes of treating it to be a opium derivative. The content of morphine if it is more than 0.2% in the substance, than it would be covered under the definition of opium derivative as per definition provided under Section 2.(xvi). In these circumstances it is concluded that the recovered substance cannot be described as opium derivative and if so then it is found that prosecution has failed to prove the guilt charged against the appellant. 12 The other aspect is about the quantum of punishment under Section 21 of the Act which provides three clauses a, b and c relating to `small quantity' `intermediate' and `commercial'. Unless there is quantitative test describing the percentage of morphine, the classification about the quantity cannot be done because the total contraband recovered is not to be taken into account but only the morphine content in the mixture would reveal about the quantity whether it is small, intermediate or commercial. In the case of E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau {(2008) 5 SCC 161} their Lordships of the Supreme Court have held that to bring the contraband recovered under the Act, quantitative test must be there to ascertain the percentage of morphine so as to enable the Court to impose punishment under the specific clauses having small or commercial quantity. The Central Government by the S.O. No.527(E), dated 16.7.1996 has provided `small quantity' and `commercial quantity' of the narcotic drugs or substances. Entry 56 `Heroin' having small quantity 5 grams and commercial quantity 250 grams. As discussed above, it has been observed 13 that unless the report is not quantifying the per centage of the Morphine in the recovered substance, it cannot be inferred or said with certaintity that the recovered substance is having morphine more than 0.2%. Thus, it cannot be said that the accused was having either small, intermediate or commercial quantity. Since the recovered substance cannot be termed as `opium derivative' as per the case of the prosecution itself then the recovered substance from the possession of the accused cannot be said to be a manufactured drug. The trial court while considering the recovered substance as `manufactured drug' on the basis of the report of the Chemical Examiner has committed a serious error in convicting the accused appellant which cannot be sustained as in the present case the substance which was recovered from the possession of the appellant as per the Chemical Report cannot be said to be opium derivative in absence of quantitative analysis report. As a result of the discussions hereinabove it is found that the conviction of the appellant under Section 8/21 of the Act cannot be sustained and the same deserves to be quashed and set aside. 14 Consequently, the appeal is allowed. The conviction and order of sentence awarded by the trial court under Section 8/21 of the Act vide its judgment dated 27.9.2002 are hereby set aside. The accused appellant is acquitted of the charge under Section 8/21 of the Act. The appellant is undergoing sentence in Central Jail, Kota and if she is not required in any other case, she shall be released forthwith. (Bhanwaroo Khan),J. bairwa