1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T State of Rajasthan vs. Naresh Kumar S.B. Criminal Leave to Appeal No.142 of 2008 under Section 378 (i) and (iii) Cr.P.C. against the judgment dated 16.7.2008 passed by Shri S.K.Mathur, RHJS, Special Judge, NDPS Act Cases, & Addl. Sessions Judge No.2, Kota,in Sessions Case No.8/2003. Date of Judgment :::: 18.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mrs. Rekha Madnani,P.P. By the Court: On 5.6.2003, Station House Officer, Police Station Bhimganj Mandi, Kota along with his staff was on patrolling then at about 10.35 A.M. Near the Dak Bungalow a person was found in the bushes and after apprehending him he was asked about his name to which he gave out his name as Naresh Kumar. Looking to his conduct in the presence of two motbirs when he was searched then smack weighing 5 gram 930 mg was found in his possession i.e. from the right side pocket of the pant. Out of the smack so recovered from the 2 possession of the accused respondent, sample of one gram smack took out. The sample and the remaining 4.100 gram smack were sealed separately and the sample was sent for chemical analysis. Accused respondent was arrested. After investigation a challan was filed against accused respondent under Section 8/21 of the Narcotic Substances and Psychotropic Substances Act (for short `the NDPS Act'). On the basis of the material and evidence produced by the prosecution along with the challan, the learned trial court framed charge against accused respondent under Section 8/21 of the NDPS Act, to which he denied, pleaded not guilty and claimed trial. To prove its case, the prosecution examined 10 witnesses and also produced some documents. In his statement under section 313 Cr.P.C. the accused respondent denied the allegations and has deposed that he was falsely implicated in the case with the help of Kareem and Haleem with whom he has enmity in relation to payment of money. One witness was examined in defence and some documents were got exhibited. Learned trial court after hearing both the sides and evaluating the evidence produced by the prosecution, on the basis of difference in the weight of the smack mentioned in the FSL report 3 and the sample taken and also the fact that search of the accused is doubtful as the investigating agency has not summoned independent witnesses before the search and search was not made in the presence of the two independent witnesses, the learned trial court giving benefit of doubt to the respondent has acquitted the accused respondent of the charge under Section 8/21 of the NDPS Act vide judgment dated 16.7.2007. Against which judgment, the present leave to appeal has been filed by the State Government. The accused respondent was served with a notice but none appeared on his behalf. Heard learned P.P. and perused the material and evidence available on the record of the case. Learned P.P. has contended that the difference in the weight of the smack sent for chemical analysis and the actual weight of the smack found by the FSL is due to the fact that at the time of sample the smack was weighed with the paper in which the smack was wrapped whereas in the FSL only the smack was weighed and such marginal weight could not have any affect on the case of the prosecution. It was also contended 4 that in a case of sudden checking it is not necessary to summon independent witnesses because the investigating officer was on patrolling and by chance he could lay hand on the accused respondent. Hence, the grounds on which the trial court has placed reliance while acquitting the accused respondent are not sustainable and the learned trial court has committed error and illegality in acquitting the accused respondent. Before going into these aspects of the matter, it is useful to go through the FSL report (Ex.P.12). A perusal of the FSL report reveals that the substance alleged to have been recovered from the accused respondent gave `positive test' for the presence of diacetylmorphine (HEROIN). 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. This Court in the matter of Smt. Nazma vs. 5 State of Rajasthan (S.B.Criminal Appeal No.1568/2002, decided on 9.3.2009) has an occasion to consider the meaning of word `positive test' in the light of the law laid down by the Apex Court in the case of E.Micheal Raj (supra), the definitions of `commercial quantity', `small quantity', `narcotic drug' `opium' and `opium derivative' and also the amendment made in Section 21 of the NDPS Act and it has been held as under:- “that unless the report is not quantifying the percentage 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.” 6 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 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 7 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. It is to be noted that the amendments inserted in Section 21 of the Act dividing punishment into three parts i.e for `small quantity, `lesser than commercial quantity' and `commercial quantity'. These amendments 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 `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 8 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. As a result of the discussions hereinabove the leave to appeal lacks merit and deserves to be dismissed. Consequently, leave is refused and the leave to appeal is, dismissed. (Bhanwaroo Khan),J. bairwa