IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1317 of 2010 Date of decision: 6.10.2010 Sarabjit Kaur ......Petitioner Vs. State of Punjab ...Respondent CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.C.L.Verma, Advocate, for the petitioner. Mr. R.S.Rawat, AAG, Punjab. **** ORDER Crl.Misc.No.25115 of 2010 There is delay of 19 days in filing the revision which is condoned for the reasons mentioned in the application. Crl.Revision No.1317 of 2010 The present revision has been filed against order dated 22.1.2010 passed by Judge, Special Court , Nawanshahr vide which the petitioner had been charge-sheeted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') for having found in conscious possession of 300 grams of smack without any licence or permit. Notice of motion was issued on 13.5.2010. Learned counsel for the petitioner submits that as per Crl. Revision No. 1317 of 2010 [2] story of the prosecution, the petitioner was found in possession of 300 grams of smack. As per report of Chemical Examiner, the contraband contained 50.23% Diacetyl morphine and smack was 151 grams which is non-commercial. Learned counsel for the petitioner further submits that the learned trial Court has not appreciated the FSL report and charge has been framed of the substance contained 300 grams of smack. Hon'ble the Apex Court in E.Micheal Raj v. Intelligence Officer, Narcotic Control Bureau 2008(2) R.C.R.(Criminal) 597 has held as under: “Narcotic Drugs and Psychotropic Substances Act, Section 21(b) and (c) - recovery of 4 Kgs of manufactured drug having content of narcotic drug (heroin) – As per report of Analyst the substance contained 60 grams of Narcotic substance- The quantity of 6 grams is lesser than commercial quantity (250 grams) but greater that small quantity (5 grams) - Accused would be punishable under Section 21(b) of N.D.P.S. Act – Held;- Entire substance cannot be viewed as narcotic drug- It is the quantity of content of narcotic drug which is relevant for determining whether it will constitute small quantity or commercial quantity. 2006(2) RCR (Crl.) 127 (SC) relied and 2005(3) Apex Criminal 326 (SC)Distt.” Learned counsel for the petitioner also argues that as per Crl. Revision No. 1317 of 2010 [3] decision of Hon'ble the Apex Court in E.Micheal Raj's case (supra), the petitioner can be charged only for 151 grams and not of 300 grams of smack. 151 grams of smack falls under non-commercial quantity. Learned counsel for the petitioner also relies upon the Division Bench judgment of this Court in Anup Gupta v. State of Punjab 2008(4) RCR (Criminal) 390 and in Manjit Kaur v. State of Punjab 2010(2) Law Herald (Punjab and Haryana) 1220. Mr. R.S.Rawat, learned AAG, Punjab opposes the contentions made by the learned counsel for the petitioner by stating that smack is sold as per weight and not as per percentage and the trial Court had rightly framed the charge punishable under Section 21 of the Act. I have heard the arguments of learned counsel for the parties and have also gone through the impugned charge and other documents available on the record. As per case of the prosecution, the petitioner was found in possession of 300 grams of smack and as per report of FSL, the Diacetyl morphine was found to be 50.23% which comes to 151 grams, which is non-commercial. The trial Court has not taken into consideration this aspect while framing the charge as the charge has been framed of 300 grams of smack and FSL report has not been considered. In view of the judgment of Hon'ble the Apex Court in E. Micheal Raj's case (supra), the analyst report has to be taken into consideration whereas the charge has been framed without taking into consideration the FSL report. This issue has been Crl. Revision No. 1317 of 2010 [4] discussed by this Court in Anup Gupta's case (supra), wherein it has been held as under: “ A. Narcotic Drugs and Psychotropic Substances Act, 1985, Section 2(xvi)(a)- Narcotic Drugs and Psychotropic Substances Act, 1985, Section 21- Small quantity and commercial quantity- recovery of 500 grams of contraband- Chemical Analysis revealed that contraband contained 5% of heroin- Total quantity of heroin thus comes to 25 grams which is less than commercial quantity- Accused would be convicted considering that recovery was 25 grams and not 500 grams- In the instant case accused was convicted and sentenced to 12 years – Sentence reduced to 6 years under Section 21. 2008(2) RCR (Crl.) 597 relied. [paras 17,21,25,27 and 29] B. Narcotic Drugs and Psychotropic Substances Act, 1985, Section 21 – Narcotic Drug and Psychotropic Substances Act, 1985, Section 2(xvi)(e) – Recovery of 500 grams of brown sugar- Chemical analysis revealed that brown sugar contained 5% diacetylmorphine (heroin) – According to this total quantity of heroin came to 25 grams- It is more than small quantity but less than commercial quantity – As per Central Govt. Notification dated 19.10.2001 small quantity is 5 grams and Crl. Revision No. 1317 of 2010 [5] commercial quantity is 250 grams – Weight of entire material i.e. 500 grams is not to be taken into consideration to find out whether the material recovered was ' small quantity' or commercial quantity. 2005(5) SCC 550 Distt and 2008(2) RCR (Crl.) 597 relied. [paras 17.21.25,27 and 29] C. Narcotic Drugs and Psychotropic Substances Act, 1985,Sections 21 and 2 (xvi)- Recovery of Contraband- Whether quantity of contraband will come with category of small quantity or commercial quantity – law explained as under: (1)firstly, for narcotic drug (s) /Psychotropic substance(s) expressly mentioned by their generic, as well as, chemical names in the central Govt. notification dated 19.10.2001, the precise component of the narcotic drug/psychotropic substance only, has to be taken into consideration to determine the “ small quantity” or “commercial quantity” thereof – In the case of drug(s)/ substance(s) mentioned by generic and chemical name where the recovery is in the form of a mixture, the weight of the neutral substance included in the mixture will have to be excluded to determine the “small quantity or “ commercial quantity”. (2) Secondly, only when the notification visualizes a Crl. Revision No. 1317 of 2010 [6] mixture and specifies a weight as “ small quantity” and “ commercial quantity” in reference to the mixture, then and only then, the total weight of the mixture is to be taken into consideration – In other words, the weight of the neutral substance has to be included in the total weight for finding out “ small quantity” and “commercial quantity” for this category of narcotic drug (s)/Psychotropic substances. (3)Thirdly, in case of a mixture falling in the category envisaged by the entry at Serial No. 239 of Central Govt. notification dated 19.10.2001, the total weight of the narcotic drug(s)/Psychotropic substance(s) will have to be clubbed together to determine the “ small quantity” or the “ commercial quantity” for this category – Heroin, lesser of the prescribed “small quantity” or “ commercial quantity”, out of the components constituting the mixture shall be accepted as the determining factor.[Para 27] D. Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 2(xvi) (e) and 21- “Opium derivative” - Meaning of – A mixture containing more than 0.2% of morphine or containing any diacetyl morphine has to be accepted as a opium derivative – When the recovery from accused is of opium derivative whole quantity of contraband will have to be taken into Crl. Revision No. 1317 of 2010 [7] consideration to determine whether the recovery is of “small” or “ commercial quantity”. [paras 26 (ii) and 20]” In E.Micheal Raj's case (supra), recovery was of 4 kgs of manufactured drugs having contents of narcotic drug (heroin) and as per report of analyst, the substance contained 60 grams of narcotic and it was held that the accused would be punishable under Section 21 (b) of the Act. In the present case, 300 grams of smack was recovered and percentage of diacetyl morphine was found to be 50.23% and as per report of FSL, the substance contained 151 grams which is non-commercial. In the facts and circumstances as mentioned above, 151 grams of smack is below the commercial quantity and it is not the total weight of the substance which is material but percentage of diacetyl morphine is relevant. Accordingly, the revision petition is allowed and impugned order dated 22.1.2010 passed by Judge, Special Court, Nawanshahr is ordered to be modified to the extent that charge be framed for the recovery of 151 grams of smack. (DAYA CHAUDHARY) JUDGE October 06, 2010. raghav