IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Miscellaneous No. M-20294 of 2008 Date of Decision: October 20, 2008 Vikram .....PETITIONER(S) VERSUS State of Punjab .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Veneet Sharma, Advocate, for the petitioner. Mr. Kamaldeep Singh Sidhu, Deputy Advocate General, Punjab. Mr. Gautam Dutt, Advocate. . . . AJAI LAMBA, J (Oral) This petition has been filed under Section 439 Cr.P.C. for bail to the petitioner in case FIR No.6 dated 19.1.2008 lodged for commission of offences under Section(s) 21 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985, with Police Station, G.R.P., Amritsar. Learned counsel for the petitioner contends that as per the prosecution case, 350 grams of smack was recovered from the petitioner. It has been contended that after examination of the material by the Forensic Science Laboratory, only 36.94% of it has been Crl. Misc. No. M-20294 of 2008 [2] found to be a “Diacetylmorphine” and the offending drug, therefore, is only 117 grams of the total volume. This factual position has not been disputed by the learned counsel for the respondent- State. I have heard the learned counsel for the parties. Mr. Gautam Dutt, Advocate, who was appointed as Amicus Curiae, has assisted the Court in the matter. For consideration of the issue, reference needs to be made to a judgment rendered by the Delhi High Court in Ansar Ahmed vs. State (Govt. of NCT of Dehli), 2005(4) RCR (Criminal) 393 (Para A8 & A9):- “A8. Upon a plain and uncomplicated reading of the above Entry No.56 it is clear that the content of heroin to qualify as a “small quantity” is less than 5 grams of it. The content of heroin in excess of 250 grams would qualify as a “commercial quantity”. But, going back to our hypothetical case, heroin and some other substance are mixed together having a combined weight of 500 grams. As such, the learned counsel for the State submitted that Entry 239 would come into play and, as a consequence, the entire weight of the substance would have to be taken. I am unable to agree with this reasoning. What Entry 239 deals with is, a situation where two or more narcotic drugs or psychotropic substances are mixed or a preparation derived therefrom, with or without the addition of neutral material. It does not deal with a situation where a mixture or preparation contains only one narcotic drug or psychotropic substance alongwith neutral material. To make things clear, let us suppose we have two narcotic drugs P and Q and some neutral material N. Entry 239 would apply to a situation where the mixture is of P and Q, with or without N. It would not apply where the mixture is of P and N or Q and N. In our prototype case, the mixture is of a neutral substance and heroin (a narcotic drug). Hence, Entry 239 would have no application. In fact, as rightly submitted by the learned counsel for the petitioners, even the significations for small and commercial quantities in respect of Entry 239 favour such an interpretation. “Small quantity” relative to Entry 239 means “lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture”. This, in itself, contemplates a mixture Crl. Misc. No. M-20294 of 2008 [3] of more than one narcotic drug or psychotropic substance. For example, if against a narcotic drug P, the small quantity prescribed is 5 grams and for narcotic drug Q, the small quantity specified is 1 gram, then, the small quantity for the mixture of P and Q (with or without a neutral substance) would be 1 gram being the “lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming pail of the mixture”. But, this Entry 239 would not come into play when the mixture is of a narcotic drug such as heroin and a neutral substance. A9. It is, therefore, Entry 56 which shall apply. The quantities of heroin (diacetylmorphine) specified therein are by weight. Keeping in mind that the object of introducing this classification was to rationalise the sentencing structure “so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishments”, it does appear to me that what has to be seen is the content of heroin by weight in the mixture and not the weight of the mixture as such. Otherwise, anomalous consequences would follow. While a recovery of 4 grams of heroin would amount to a small quantity, the same 4 grams mixed up with say 250 grams of powdered sugar would be quantified as a “commercial quantity”! And, where would this absurdity stop? Suppose one were to throw a pinch of heroin (say 0.5 gram), into a polythene bag containing small steel ball bearings having a total weight of 1 kg; would the steel ball bearings he also weighed in and it be declared that it commercial quantity (1000.5 grams) of heroin was recovered! Surely, it is only the content of heroin (0.5 gram) in the “mixture” of heroin and steel ball bearings that is relevant? Clearly, then, it would qualify as a small quantity. Therefore, in a mixture of narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a “small quantity” or a “commercial quantity”.” The judgment was considered by this Court while dealing with Criminal Miscellaneous No.24058-M of 2007 (Amanpreet Singh vs. State of Punjab) decided on 20.8.2007. The ratio in Ansar Ahmed’s case (supra) has been followed. Reference may also be made to the judgment rendered by the Hon’ble Supreme Court in E. Crl. Misc. No. M-20294 of 2008 [4] Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, 2008(2) RCR (Criminal) 597 (Para 4 & 13):- “4. The only submission made by Shri K.V. Viswanathan, learned counsel for the appellant is confined to the limited issue relating to sentence of the appellant under Section 21 of the NDPS Act. As per the learned counsel, the conviction and sentence of the appellant is contrary to law because the total quantity of contraband seized from him was 4.07 kgs. Since the purity of heroin is 1.4% and 1.6% respectively in two samples, therefore the quantity of heroin in possession is only 60 gms. [(1.4+1.6)/2 = 1.5% of 4.07 kgs. = 60 gms.). Thus, the total quantity of heroin seized is below 250 gms., i.e. below the commercial quantity. It is submitted that it is not the total weight of the substance allegedly recovered that is material, but the percentage content of heroin translated into weight that is relevant. xx xx xx xx 13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.” Considering the law as laid down in Crl. Misc. No. M-20294 of 2008 [5] various judgments referred to above, for the purposes of consideration on issue of bail, it becomes clear that the total weight of the substance allegedly recovered is not material, rather the percentage content of the offending chemical is relevant. The Hon’ble Supreme Court has considered the issue raised in Para 4 of the judgment in Para 13, which have also been reproduced. It has been held that it is only the actual content of the narcotic drug which is relevant for the purposes of considering whether the substance recovered would constitute small quantity or commercial quantity. A person who commits less serious offence is required to be dealt with less severely. Considering the facts and circumstances of the case that infact offending drug out of the total substance is only 117 grams of Diacetylmorphine, it would constitute less than commercial quantity. Without making any observations on the facts and circumstances of the case, this petition is allowed. Bail to the satisfaction of Chief Judicial Magistrate, Amritsar. Heavy surety. (AJAI LAMBA) October 20, 2008 JUDGE avin