1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE. S. B. : HON’BLE SHRI. JUSTICE I. S. SHRIVASTAVA. Criminal Appeal no.1070/2003 Jamanalal S/o Ranchhodji Vs. State of Madhya Pradesh Appellant by Shri Sudarshan Joshi, Advocate. Respondent / State by Mr. Suraj Sharma, Dy.G.A. J U D G M E N T ( Delivered 23/08/2010 ) This appeal has been preferred under section 374 of the Cr.P.C by the appellant Jamanalal being aggrieved by the judgment dated 16/09/2003 passed by the Court of Ms. Pratibha Ratnaparkhi, Additional Special Judge ( under NDPS Act ) Mandsaur in Special Criminal Case no. 63/2002, by which the appellant has been convicted under sections 8/18 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/- and in default of payment of fine to undergo rigorous imprisonment for one year. 2 According to the prosecution case, on 19/05/2001, Shri Mamrajsingh Tomar, ASI of police station – Suwasra, District – Mandsaur received an information from the informer that accused Jamanalal had brought the opium in a gani bag and near the turn of Guradiya, he was waiting for bus. Hence panchanama about the information of the informer was prepared and his superior officers were informed. Thereafter, Shri Mamrajsingh Tomar, ASI along with police force and panch witnesses reached the spot where they found a person sitting below a tree. After confirmation of his name as Jamanalal, he was apprised with the information of the informer and after obtaining his due consent, gani bag in his possession was searched, from which a polythine bag was recovered, which contained 10.200 kg opium. Two samples of 30 grams each were prepared from the seized opium and marked as Article – A/1 and A/2 and the remaining bulk quantity was placed in the bag and marked as Article – A. All the samples and packet were seized and sealed on the spot. The gani bag was also sealed and marked as Article- B. Other panchanamas were also prepared and the accused / appellant was arrested. Thereafter, raid party returned to police station where FIR was lodged at Crime no. 46/2001. One sample Article – A/1 was sent to FSL, 2 Indore from where presence of morphine was confirmed. After completion of investigation, challan was filed against the accused / appellant and the appellant was convicted and sentenced as mentioned herein above. Hence the appellant preferred this appeal. 3. It has been mentioned on behalf of the appellant that the appellant is in jail since 19/05/2001. As per the FSL report Ex.-P/26, percentage of morphine in the sample Article - A-1 was 4.06, therefore, the total purity in the seized 10.200 kg opium comes to 414.12 grams, which is below the commercial quantity, therefore, the appellant is 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 Vs. Intelligence Officer, Narcotic Control Bureau [2008 Cri. L.J. 2250]. Hence, the appeal be allowed. 4. It has been argued on behalf of the respondent / State that the appellant has been found guilty for heinous offence on the basis of the evidence produced before the Trial Court; he has rightly been convicted and sentenced. 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 Vs. 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 substance/s, 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/26, percentage of morphine in the sample Article - A-1 was 4.06, therefore, the total purity in the seized 10.200 kg opium comes to 414.12 grams, hence the appellant is liable to be convicted under sections 8/18(c) of the NDPS Act instead of section 8/18 of the NDPS Act. 8. Hence, conviction of the appellant under sections 8/18 of the NDPS Act is converted into sections 8/18 (c) of the NDPS Act, therefore the appellant is punished under section 8/18(c) of the NDPS Act with rigorous imprisonment of nine years and three months along with fine of Rs. 1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for one month. Hence, ordered accordingly. ( I. S. Shrivastava, J. )