Crl. Misc. No.M-26598 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on: November 10, 2010. Crl. Misc. No.M-26598 of 2010 (O&M). Dinesh Verma .. Petitioner VERSUS State of Punjab. . Respondent *** CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.G.S.Kaura, Advocate, for the petitioner. Mr.K.S.Pannu, DAG., Punjab. *** M.M.S. BEDI, J. (ORAL) In this case the petitioner was found in possession of 3 Kgs. of Opium. The report of Chemical Examiner indicates that the sample reflected existence of 3.4 per cent of Morphine. Counsel for the petitioner placed reliance upon judgment in case E.Micheal Raj Vs. Intelligence Officer, Narcotic Central Bureau, 2008 (2) SCC (Crl.), Page-538, to contend that taking into consideration the percentage of Morphine which is 3.4 per cent in the present case, the petitioner will be deemed to have been in possession of 102 gms. Which falls under the definition of non- commercial quantity. He has placed reliance on two unreported . . . 1 Crl. Misc. No.M-26598 of 2010 (O&M) judgments of this Court in case Mohinder Singh Vs. State of Punjab, Crl.Misc. No.M-15614 of 2010, decided on 12.08.2010 and Amrinder Singh Vs. State of Punjab, Crl.Misc. No.M-23244 of 2010, decided on 24.09.2010. In above said cases the concession of bail has been granted in case of recovery of 4Kgs. Opium and 5 Kgs. Opium containing 0.88 per cent and 4.48 per cent Morphine, respectively. I have considered the contention of the counsel for the petitioner. Definition of Opium as given in the Narcotic Drugs and Psychotropic Substances Act, reads as follow:- (xv)“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.” I am of the opinion that in view of above definition of Opium, it is the totality of the quantity of the mixture which is to be taken into consideration. The legislature in its wisdom has opted to include even the other material in the mixture containing coagulated juice of Opium poppy containing more than 0.2 per cent of Morphine. I am fortified by the Division Bench Judgment of this Court in Gurmail Singh alias Gela Vs. The State of Punjab, Crl. Appeal No.512-DB of 2006, decided on 25.09.2009. . . . 2 Crl. Misc. No.M-26598 of 2010 (O&M) The operative part of the above judgment reads as follow:- “Section 2(xv) of the Act says that opium would mean the coagulated juice of the opium poppy, and any mixture, with or without any neutral material of the coagulated juice of the opium poppy but does not include any preparation containing more than 0.2 per cent of morphine. A plain reading of the definition makes it very clear that opium is coagulated juice of opium poppy and any other mixture containing contents of juice of opium poppy where morphine content is not more than 0.2 %. Section 2 (xx) defines”Preparation” in relation to a narcotic drug or psychotropic substance in a dosage form or any solution or mixture, in whatever physical state containing one or more such drugs or substances. It means that any preparation which contains more than 0.2 % of the morphine can safely be put and described as opium. In view of facts, mentioned above, it is not possible to calculate actual weight of opium by taking note of purity of morphine content in it. If we do that, then the last portion of sub clause (xv) of Section 2 of the Act, which reads thus:”but does not include any preparation containing not more than 0.2 per cent of morphine” shall become redundant. Even in raw opium, morphine content on average will not be more than 8 to 14%. In some cases, depending upon climate, variety of plant etc. may go down upto 3%. The parameters, which are applicable in the case of heroin, which is an opium derivative, cannot be made applicable to the opium to calculate actual weight. Any contraband, in . . . 3 Crl. Misc. No.M-26598 of 2010 (O&M) which morphine content is found more than 0.2 % will be opium and charge-sheet may be framed and punishment can be awarded accordingly. In this case, report of the Forensic Science Laboratory Ex. PQ, column No. 8 reads thus: “Morphine and other alkaloids cocaine of opium found present. Percentage of morphine: 5.1%” In conclusion, it is further said in the report that on the basis of analysis, contents of the sample have been identified as opium. Not only this, when an accused (criminal) sells opium to an innocent person, on that drug no label is put to show its purity. Notorious criminals add neutral material in the opium/heroin with a view to increase profit, the criminals do not mention purity of morphine/heroin content and other chemicals in the contraband. If by adding neutral material, criminals, in order to satisfy their greed, can increase the bulk to get profit , then why they should not be punished by treating the neutral material as part of the contraband recovered. In view of danger posed to the society, a criminal shall not be entitled to get such like technical benefit from the Courts.” Besides this, it is not out of place to mention here that vide notification inserted by S.O. 2941 (E), dated 18.11.2009, the following clarification has been inserted: - “(4) The quantities shown in column 5 and . . . 4 Crl. Misc. No.M-26598 of 2010 (O&M) column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.” In view of the above circumstances, 3 Kgs., of Opium containing 3.4 per cent of Morphine, prima facie, cannot be considered to be non-commercial quantity if seen in contest to the definition of Opium as per Section 2(5) of the ND & PS Act. No ground is made out for the grant of bail in context to the provisions of Section 37 of the ND & PS Act. So far as unreported judgments Mohinder Singh (Supra) and Amrinder Singh (Supra), are concerned, it appears that the judgment of Division Bench dated 25.09.2009, and latest notification dated 18.11.2009, were not brought to the notice of the Single Bench. Dismissed. However, while dismissing the application, the trial Court is directed to expeditiously conclude the trial. (M.M.S.BEDI) JUDGE November 10, 2010. rka . . . 5