Ravinder Kumar vs Nct Of Delhi (State)
2014 Latest Caselaw 1163 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Reserved on: February 24, 2014
                                     Decision on: March 5, 2014

                        CRL.A. No. 64 of 2008

RAVINDER KUMAR                              ..... Appellant
            Through: Mr. Abhishek Singh with Mr. Atul T.N.,
            Advocates.

                        versus

NCT OF DELHI (STATE)                         ..... Respondent
                Through: Ms. Isha Khanna, APP for State with
               ASI Ramesh Chand, Narcotics Cell, Crime.

        CORAM: JUSTICE S. MURALIDHAR

                                 JUDGMENT

05.03.2014

1. Ravinder Kumar, in this appeal challenges the impugned judgment dated 27th August 2007 passed by the Special Judge, NDPS in SC No. 23/N/04 convicting him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act') and the order on sentence dated 30th August 2007 whereby the Appellant was sentenced to rigorous imprisonment ('RI') for ten years with fine of Rs.1 lakh and in default to undergo further simple imprisonment ('SI') for six months.

2. At the outset it must be noticed that in the order on sentence dated 30th August 2007 itself, the trial Court noticed that the Appellant had been in custody since the date of his arrest i.e. 25th February 2004. He

continued to remain in custody till 23rd July 2010 when he was granted bail by the Supreme Court of India by an order of that date. This leads to an unexpired portion of sentence of 03 years, 07 months and 02 days.

3. The case of the prosecution was that on 25th February 2004, Sub Inspector ('SI') Attar Singh, PS: Narcotics Branch had received an information around 9.45 am that the Appellant who is a resident of 3rd Pushta, Trans Yamuna area and who deals in supply of opium would come via Iron Bridge to Sanjay Amar Colony between 11.30 am and 12.30 pm in order to supply a huge quantity of opium. This information was placed before Inspector PS Hooda, SHO PS: Narcotics Branch. In turn, Inspector Hooda informed ACP Mehar Singh on telephone, who then ordered for the raid to be conducted. DD No. 16 was lodged and a raiding team was formed consisting of Constables Naresh Kumar, Ravinder Kumar, Virender Kumar and Rajbir. The raiding party started from the PS at 10:30 am along with an informer in a government vehicle driven by Constable Satbir Singh and reached the Iron Bridge at around 11 am. According to SI Attar Singh, he asked four passers-by and four jhuggi dwellers to join the raid but they refused. The SI then detailed the members of the raiding party and carried out a Nakabandi. At around 11:45 am, the Appellant was seen coming from the Iron Bridge towards Trans Yamuna holding a thaila in his right hand and, upon being identified by the informer, was apprehended by the raiding party. After being served a notice under Section 50 NDPS Act and after declining to get himself searched before the Gazetted Officer/ Magistrate, a search of the Appellant was conducted by SI Attar Singh.

The blue coloured rexine thaila was found to contain a pink coloured polythene bag which in turn contained a transparent polythene bag containing a black coloured sticky substance which was tested on the field testing kit which gave a positive result for opium. The total weight was found to be 5 kg. Two samples of 25 gms each were taken out in two separate envelopes. They were separately sealed with the help of rubber bands and were put in two separate envelopes and were given Marks-A and B. The remaining opium was converted into a cloth parcel and was given Mark-C. Form FSL was then filled up.

4. According to the prosecution, the envelopes marked A and B were sealed with the seal of 1A PS NB DELHI (three seals each). Parcel marked-C and FSL Form were also sealed with the same seal (one seal each). The seal after use was handed over to Constable Rajbir Singh. The recovered Opium and Form FSL were taken into police possession. A rukka along with the parcels Mark-A to C, FSL Form and a copy of the recovery memo were taken to the police station in the official vehicle driven by Constable Satbir Singh. Constable Ravinder then went to the police station and gave the rukka to the Duty Officer. He produced the three parcels marked A to C, Form FSL and copy of the seizure memo before the SHO PS Hooda who then fixed his own seal on the parcels and Form FSL and deposited the same in the malkhana. After registration of the FIR, the investigation was handed over to SI Bhoop Singh. Bhoop Singh prepared the site plan, recorded the statement of Constable Rajbir, arrested the accused and conducted his

personal search. On 8th March 2004, the sample prepared was sent to the FSL through Constable Kheta Ram.

5. A charge was framed under Section 18 of the NDPS Act against the Appellant to which he pleaded not guilty.

6. 12 prosecution witnesses were examined. When the accused was examined under Section 313 CrPC he denied all the incriminating evidence as incorrect and claimed that he had been falsely implicated. According to him, the entire paper work had been done in the police station and the parcels were planted upon him. He claimed that he was lifted from the place of his work on 25th February 2004 at around 5:30 pm and then taken to police station Kamla Nagar where he was mercilessly beaten up and his signatures were obtained on a few blank papers. The accused declined to lead any evidence.

7. In the impugned judgment dated 27th August 2007, holding the Appellant guilty of the offence under Section 18 of the NDPS Act, the trial Court came to the following conclusions:

(i) There was no violation of Section 42 of the NDPS Act. The prosecution had been able to prove that the information noted down as DD No.16 was forwarded to the SHO and then forwarded to the higher authorities.

(ii) Section 57 of the NDPS Act had also been complied with. The report of the seizure of 5 kg opium (Ex. PW-5/A) was forwarded to the

SHO on 26th February 2004 who in turn forwarded it to the ACP/DCP concerned.

(iii) Section 52A NDPS Act was also duly complied with. There was no requirement of the SHO to prepare a separate inventory for the parcels deposited in the malkhana.

(iv) There was evidence to show that the raiding party unsuccessfully attempted to associate independent witnesses. The evidence of the police witnesses could not, therefore, be discarded only on that ground as long as they corroborated each other on material particulars.

(v) In the present case, the learned counsel for the defence had not been able to show that the prosecution witnesses were not reliable or truthful. There was no violation of Section 50 of the NDPS Act since search has been taken only of the bag of the accused and not the accused himself. Since personal search of the accused did not result in recovery of any contraband, no illegality was committed in serving a notice to him under Section 50 of the NDPS Act.

(vi) There was no evidence to substantiate the defence of the accused that he has been falsely implicated or had been lifted from his work place near Kumar Cinema in Chandani Chowk. Accordingly, the defence was false and concocted.

8. As already noticed by the order on sentence dated 30th August 2007,

the accused was sentenced to 10 years RI and fine of Rs.1 lakh and in default to SI for one year.

9. During the pendency of the appeal in this Court, a plea was raised that as per the FSL report the content of morphine is only 0.24% which worked out to 12 gm of the substance. If one went only by the morphine content then it cannot be said that the recovered quantity was a commercial quantity. In other words, it was contended that the morphine content being only 12 gm, the opium recovered was much less than 'small quantity' which was specified to be 25 gm in the notification issued by the Central Government specifying 'small' and 'commercial' quantity. Under the 2001 Amendment to the NDPS Act, effective from 2nd October 2001, the punishment structure was rationalised by providing graded sentences linked to the quantity of the NDPS Act viz., small quantity, intermediate quantity and commercial quantity. If, indeed, what was recovered was a 'small quantity' as defined under Section 2 (xxiii-a) of the NDPS Act, the Appellant would be liable to an imprisonment only for a term which may extend up to six months and fine amount which may extend up to Rs.10,000 or both. In case of commercial quantity, the minimum punishment would be 10 years and fine, which shall not be less than Rs.1 lakh and in a given case, the punishment may extend to 20 years and the fine up to Rs.2 lakhs. Accordingly, by the order dated 28th May 2009, the learned Single Judge referred the following question to the Division Bench for decision:

"Whether the percentage of morphine in a sample of opium can by itself be determinative of the purity of the sample and whether such test is relevant or necessary for the purpose of considering the grant of bail or of awarding of sentence in terms of Section 18 read with Section 37 of the NDPS Act?"

10. The Division Bench answered the above question referred to it by its judgment dated 2nd July 2010. The Division Bench first noticed that the terms 'opium', 'opium derivative', 'opium poppy' and 'preparation' have been defined separately in NDPS Act. Under Section 2(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."

11. After referring to the judgment of the Supreme Court in Baidyanath Mishra v. The State of Orissa 1968 (XXXIV) Cuttack Law Times 1 where the Supreme Court was concerned with the definition of 'opium' under Section 3 of the Opium Act, 1878, the Division Bench concluded that "for determining whether the opium recovered is of a small quantity or a commercial quantity there is no need to examine the percentage content of morphine. It is without doubt that all opium would contain some morphine. The percentage content of morphine does not determine the weight of opium which is distinct and separate

from that of morphine." The Division Bench noted that while opium comprises of alkaloids which includes morphine, "morphine by itself does not constitute opium".

12. The Division Bench then pointed out that "while going about the determination of the quantity of the seized substance, the first thing that has to be done is to determine the nature of that substance. In the context of the opium and morphine, it must first be determined as to whether the substance is opium as defined in Section 2(xv) or it is morphine which is nothing but an opium derivative defined in Section 2(xvi) (c) of the NDPS Act". If it is opium, as defined in Section 2(xv), then the percentage content of morphine other than for the purposes of any mixture as specified in Section 2(xv)(b) of the NDPS Act, would be irrelevant. Further, "once the seized substance has been identified as opium, the percentage content of morphine has no further relevance in determining the quantity of opium for the purposes of classifying the same as a small quantity or a commercial quantity. On the other hand, if the seized substance is determined to be morphine, then it is S.No. 77 which would apply for ascertaining whether it falls in the category of small quantity or commercial quantity". The Division Bench further observed that from the decision of the Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat 2005 (7) SCC 550 it was apparent that "unless and until there is acceptable evidence that the seized substance falls within one of the two kinds of opium mentioned in Section 2(xv), the mere fact that morphine, in excess of 0.2%, is detected in the sample, would not lead to the conclusion that the

substance is opium". The Division Bench also rejected the contention of the learned APP for the State that in light of the decision of the learned Single Judge in Satish Kumar v. State ILR 1989 Delhi 413, since in the present case the morphine content was more than 0.2% i.e. 0.24%, it should be concluded that what was recovered from the Appellant was nothing but 5 kg of opium. The Division Bench overruled Satish Kumar v. State as being contrary to the decision of the Supreme Court in Baidyanath Mishra and Amarsingh Ramjibhai Barot. Summarising its conclusions, the Division Bench in para 23 of its order dated 2nd July 2010 held as under:

"1) For a substance to be regarded as opium, it must fall under either of the two categories mentioned in Section 2(xv) of the NDPS Act;

2) In case the substance in question falls under the first category mentioned in Section 2(xv), that is, it is the coagulated juice of opium poppy, then it would not be necessary to examine as to whether it contains more than 0.2% of morphine or not. That test is only in relation to the second category of opium, when it is in the form of a mixture, with or without any neutral material comprising of the coagulated juice of opium poppy;

3) Once it is determined that the seized substance is opium, then the weight of the entire substance would have to be considered for the purposes of determining whether it is a small quantity or a commercial quantity. The percentage content of morphine would have no role to play in such a determination;

4) Merely because a substance contains more than 0.2% morphine, does not mean that the substance is opium. It would be opium only if it falls within the definition of opium as given in Section 2(xv) of the NDPS Act."

13. The Division Bench further observed in para 24 as under:

"24. In view of the foregoing discussion, we answer the question referred to us by holding that the percentage of morphine in a sample of opium, by itself, is not determinative of the purity of opium and that, in any event, the test for determining the percentage content of morphine in opium is not relevant for the purposes of considering the question of whether the seized opium is of a small quantity or of a commercial quantity and consequently, for the purposes of considering the grant of bail or for awarding the sentence in terms of Section 18 read with Section 37 of the NDPS Act."

14. The Special Leave Petition filed against the aforementioned order dated 2nd July 2010 by the Appellant was dismissed by the Supreme Court.

15. Meanwhile, even while the matter was pending before the Division Bench, an application had been filed for suspension of the sentence of the Appellant which was dismissed by the learned Single Judge on 4th March 2010. By an order dated 23rd July 2010 in Criminal Appeal No. 1324 of 2010, the Supreme Court held as under:

"Having regard to the peculiar facts and circumstances of this case, we consider it appropriate to release the appellant on bail to the satisfaction of the Trial Court in

connection with Session Case No. 23/N/04, during the pendency of the appeal before the High Court of Delhi. We order accordingly.

The appeal is disposed of."

16. Mr. Abhishek Singh, learned counsel for the Appellant, submitted that there was no acceptable evidence to show that the FSL Form containing the specimen sheet was in fact forwarded to the FSL. He referred to the evidence of Inspector PS Hooda (PW-11), SI Bhoop Singh (PW-12), Constable Ravinder (PW-2), Constable Kheta Ram (PW-5) and Constable Rajbir (PW-8). He also referred to the deposition of Dr. Madhulika Sharma (PW-10) who issued the test report of the FSL. He referred to the judgment dated 27th November 2012 of learned Single Judge in Criminal Appeal No. 426 and 847 of 2010 (Mohd. Ibrahim v. State of NCT of Delhi) and the decision dated 8th July 1992 of the Division Bench of the Kerala High Court in Criminal Appeal Nos. 65 and 196 of 1989 (Sivamani v. State of Kerala) and urged that the mere fact that the accused stated that he had no defence to lead, in answer to a question under Section 313 CrPC, did not mean that the trial Judge could have avoided the steps envisaged under Sections 232 and 233(1) of CrPC where the accused should be asked whether he wishes to call upon a defence.

17. Mr. Abhishek Singh further submitted that by relying on the judgment in Daulat Ram v. State of Punjab (1997) 10 SCC 236 that the mere weakness in the case of the accused cannot lead to holding

that the prosecution has proved its case. The prosecution case had to stand on its own legs. It was next submitted that the non-production of the secret informer as a witness could be fatal to the case of the prosecution. Reliance was placed on the decision of the Division Bench of this Court in Surender v. State 2009 6 ILR Delhi 549. Lastly, it was contended that the FSL report in the present case has not categorically held that the recovered substance is opium but only mentions the percentage of morphine. The order of the Division Bench dated 4th July 2010 had left it to the Appellate Court actually to undertake the exercise of determining what the seized substance was, in light of the evidence on record. It was submitted that in the absence of a clear report by the FSL that the recovered substance is opium, the charge against the accused cannot be said to be proved.

18. In reply, Ms. Isha Khanna, learned APP for the State first submitted that there was sufficient evidence to show that the scientific expert at the FSL i.e. PW-10 indeed compared the seals on the parcels with the specimen seal and found that both of them tallied. Merely because there was no specific acknowledgment of the receipt of the FSL Form, did not mean that the specimen seal was not available with the FSL. Reliance was placed on the decision dated 14th December 2007 of the learned Single Judge in Criminal Appeal No. 460 of 2005 (Mohd. Irfan v. State) and the decision in State of Rajasthan v. Bhaiya Ram 2009 LawSuit (SC) 2190 and Bilal Ahmed v. State 2011 Law Suit (Del) 51.

19. Ms. Khanna further submitted that the non-association of public

witnesses was not fatal to the case of the prosecution and referred to the decision of Kashmiri Lal v. State of Haryana (2013) 6 SCC 595. She also sought to distinguish the decision in Surender v. State as regards non-examination of the secret informer by pointing out that it was not a decision in the context of the NDPS Act. She also referred to the decision in Bahadur Singh v. State of Haryana (2010) 4 SCC 445 and submitted that once it was proved that the accused was found in conscious possession of 5 kg of opium then the conviction under Section 18 should follow. She relied on the report of the FSL as per the case of the prosecution that the accused was in possession of 5 kg of opium.

20. With the help of the counsel, the trial Court record has been carefully perused again by the Court. It is seen that according to the prosecution, two samples were taken from the rexine bag seized from the accused and marked as parcels-A and B. For some reason, parcel B was never produced in Court. It appears that parcel A is what was produced in the Court. Inspector PS Hooda deposited with HC Gyan Prakash (PW-1), who was the in-charge of the malkhana, the three parcels marked A, B, C and Form FSL duly sealed with the seal of 1 APS NB DELHI and 1 SHO NBR DELHI along with a carbon copy of the seizure memo.

21. It is evident, therefore, that two sets of seals were being used. The two parcels were prepared and they were sealed by SI Attar Singh with the seal 1 APS NB DELHI. The rukka (Ex. PW-9/B) shows that there

were three seals put on each parcel-A and B and one upon C and Form FSL. This was the seal of 1 APS NB DELHI. On the same parcels, it appears that Inspector PS Hooda also affixed the seal of 1 SHO NBR DELHI. Therefore, clearly two seals were used. The evidence of Constable Ravinder (PW-2) also confirms that two separate parcels were prepared i.e. A and B with the seal of 1 APS NB DELHI.

22. The evidence of Kheta Ram (PW-6) shows that he took the sample parcel mark A and Form FSL duly sealed with the seals of 1 APS NB DELHI and 1 SHO NBR DELHI from PW-1 for depositing the same at the FSL, Rohini. The Road Certificate under which the parcel was sent is Ex.PW-1/B. It mentions that one filled up FSL Form with the seals of 1 APS NB DELHI and 1 SHO NBR DELHI was taken to the FSL.

23. Learned counsel for the Appellant laid great emphasis on the reverse of the Road Certificate where under signature dated 8th March 2004, an official of the FSL has made the following observations "Retained one (OL) sealed envelope in Chemistry Division". It was sought to be argued that what was actually, therefore, given to the FSL was only a sealed envelope and not the FSL Form. No question, however, appears to have been put to PW-6 that he did not deposit the FSL Form with the FSL. Learned counsel for the accused submitted that PW-6 did not state anything about bringing back the FSL Form from the FSL, Rohini. But then no question was asked to him about this by the learned counsel for the defence.

24. Next is the evidence of Constable Rajbir Singh (PW-8). He too speaks about Form FSL being filled up at the spot and SI Attar Singh affixing a seal on the parcels and the Form FSL. He was not cross- examined on this aspect. He stated that the seal had been returned to Attar Singh between 10th and 15th March 2004. No supplementary question was asked to this witness as to where the seal was actually kept. If the seal too had also been deposited in the malkhana then easily the witness could have been asked this question.

25. The evidence of Dr. Madhulika Sharma (PW-10) is important on this aspect. She stated that she had brought the original case file of the FSL which contained the forwarding letter and Form FSL which was marked as Ex. PW-10/B. For some reason, the said document Ex. PW- 10/B is not on the trial Court record. Learned counsel for the accused, therefore, submitted that there was no evidence to show that Ex.PW- 10/B was in fact in the office of the FSL. However, the matter does not end there since PW-10 was specifically asked questions regarding Form FSL. That portion of her deposition reads as under:

"Q. Whether the specimen seal on form FSL can be read as 1 APS NB DELHI and 1 SHO NBR DELHI as digit 1 is written in the centre of the round seals?

Ans: Yes, these seals impressions can be read as 1 APS NB DELHI and 1 SHO NBR DELHI."

26. During her cross-examination by defence counsel, PW-10 gave the following answers:

"I had not personally received the sample parcel and form FSL on 8.3.04. It is correct that on Ex. PW-1/B dated 16.10.04 first seal reads 1 APS NB DELHI and on my report Ex. PW-10/A dated 2.9.05 it reads P.S./NB/1A DELHI. There is no oblique or full stop on the first seal of Ex. PW-1/B and 1A is placed after NB in my report, and in the second seal 1 is placed in the beginning of PW-1/B and there is no dot in between while in my report second seal reads SHO/N. BR. 1 DELHI. I did not refer Ex.PW-1/B while writing my report Ex.PW-10/A. (Vol. As it is not required to tally on the page sent with the FSL form (road certificate) because before sending the case exhibits it is necessary for me to tally the seals impressions on the parcels with the specimen seal impressions sent to me.

Q. Whether contents of the description of the seal sent by the officer on the FSL from and road certificate either 1 APS NB DELHI are relevant to tallied or not?

Ans. Yes, both are important for us just to tally that the alphabets and the digits mentioned in the seals they tallied or not with the specimen seals.

Sequence of alphabet is not important because the seal was a circular.

Q. How many seals were imposed on the parcel A has not been mentioned in your report. Is it correct or not?

Ans. Yes it is correct that I have not mentioned the number of seals imposed on the parcel A. (Vol. Two types of seals were imposed.)"

27. PW-10 denied the suggestions that she had made a false statement

in the FSL report about tallying the seals. It is clear from the FSL report itself that the official who undertook the test did receive parcel A which contained the envelope with both the seals. It also clearly states that those seals were tallied with the impressions forwarded along with the forwarding letter/FSL Form. It is important, therefore, to extract the entire report dated 2nd July 2004 of the FSL (Ex. PW-10/A) which reads as under:

"To

The Station House Officer PS: Narcotics Branch Kamla Market Delhi.

Your letter No. 634 Dated 08.03.04 regarding one parcel(s) in connection with case FIR No. 12/2004 dated 25.02.04 U/S 18/61/185 NDPS Act PS Narcotics Branch duly received in this office on 08.03.2004.

Description of parcels & condition of seals The Parcel(s) one in number marked 'A' which was sealed and tallied with specimen seal impression forwarded along with forwarding letter (FSL FORM).

Description of articles contained in parcel Parcel-A: One paper envelope sealed with the seal of "P.S/NB 1A DELHI" and "SHO/N.BR.1 DELHI". It is found to contain exhibit 'A' kept in a polythene.

Exhibit-'A': Dark brown coloured sticky solid substance stated to be 'Opium' weight approx. 26 gms. with polythene.

Results of examination

(i) On chemical examination, exhibit 'A' gave positive tests for the presence of meconic acid, morphine, thebaine, codeine, narcotine and papavarine which are main constituents of Opium.

(ii) On HPTLC examination, exhibit 'A' was also found to contain morphine '0.24'per cent.

Note: Remnants of the exhibits have been sealed with the seal of MS FSL DELHI.

(Dr. MADHULIKA SHARMA)"

28. The evidence of PW-10 appears to be truthful. There is no means for the Court to doubt that she in fact had seen the FSL Form with the specimen seals and tallied it with the seals on the parcels. The facts of the present case are clearly different from the facts in Mohd. Ibrahim v. State. Sufficient evidence has been placed on record to show that the FSL Form was indeed sent and did contain the specimen seals which were tallied by the scientific experts with the seals on the parcels. Consequently, the plea that the samples may have been tampered is also hereby rejected.

29. As regards the plea of non-association of public witness, while it is right that the arrest took place in the busy area, in the present case SI Attar Singh had clearly deposed that while he tried to associate the public witness, they refused the join. It is possible that in a given case the raiding party may not have been able to associate public witnesses as explained by the Supreme Court in Kashmiri Lal. This by itself cannot be fatal to the case of the prosecution.

30. As regards plea of not giving the accused the opportunity to enter his defence, the Court finds that no such plea was ever raised by the Appellant before the trial Court. Even in the grounds of appeal, no such plea appears to have been taken. The appeal has been pending for many years before the Court. The fact remains that the accused in fact did not file any application seeking to summon defence witnesses. In the circumstances, the Court is of the view that the facts in Sivamani v. State of Kerala are distinguishable and that the said decision is of no assistance to the Appellant herein.

31. This brings up the last aspect of the matter which is whether the prosecution has been able to prove that what was seized from the Appellant was in fact opium.

32. The FSL report which has been extracted above states that exhibit 'A' gave positive tests "for the presence of meconic acid, morphine, thebaine, codeine, narcotine and papvarine which are main constituents of opium". Further, the HPTLC examination revealed that "exhibit 'A' was also found to contain morphine 0.24 per cent". The FSL report does not unambiguously state that Exhibit A is a coagulated juice of the opium poppy or that it is a mixture, with or without any neutral material, of the coagulated juice of the opium poppy. In the absence of the FSL report clearly stating that the sample tested positive for coagulated juice for opium poppy or a mixture thereof, with or without any neutral material, the question of the entire substance being

classified as opium within the meaning of Section 2(xv) is itself in doubt.

33. At this point in time, it is important to refer to the decision of the Supreme Court in Amarsingh Ramjibhai Barot where the FSL had given an opinion that the substance was 'opium' as described in the NDPS Act. The Supreme Court rejected the FSL report in that case as not being binding on it. In fact, in para 10 it held as under:

"10. There does not appear to be any acceptable evidence that the black substance found with the appellant was "coagulated juice of the opium poppy" and "any mixture, with or without any neutral material, of the coagulated juice of the opium poppy". The FSL has given its opinion that it is 'opium as described in the NDPS Act'. That is not binding of the Court".

34. Even the Division Bench noted the above fact. The Supreme Court in Amarsingh Ramjibhai Barot went on to hold that the substance found was an opium derivative. That was because the substance was found to contain 2.8% of morphine. The Supreme Court went on to hold that the substance would fall within the definition of opium derivative under Section 2(xvi) of the NDPS Act.

35. It is significant that in the present case what recovered was a black sticky substance whereas the FSL report described it to be dark-brown sticky solid substance. PW-10 was in fact asked a question in this regard and she answered: "I can distinguish between dark-brown colour and black colour". However, no further question was asked of her on

this aspect. Under Section 2(xvi) (e) of the NDPS Act, "all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine" would answer the definition of 'opium derivative'. With the FSL report not being binding upon Court, in the present case it can safely be stated that the FSL report does not categorically state that the substance seized from the Respondent answers the definition of 'opium' under Section 2(xv) of the NDPS Act.

36. However, that does not bring the matter to an end. Taking cue from the decision of the Supreme Court in Amarsingh Ramjibhai Barot it is held that the substance seized, on the basis of the report of the FSL, can be stated to be a preparation consisting more than 0.2% of morphine which in this case is 0.24%. The percentage of morphine at 0.24% works out to 12 gm of the substance. This would bring it within the range of an intermediate quantity of the opium derivative. The notification dated 19th October 2001 under the NDPS Act specifies 5 gm as small quantity and 250 gms as commercial quantity of opium derivative.

37. Even if one were to take this not to be an opium derivative and morphine per se, then in Serial No. 77 the small quantity for morphine is shown as 5 gm and commercial quantity as 250 gms. So whether one takes the substance to be an opium derivative as defined under Section 2(xvi) (e) of the NDPS Act or morphine per se, the small quantity would be 5 gm and the commercial quantity would be 250 gms which makes the intermediate quantity between 5 and 250 gms. In the present

case, as per the 2001 amendment to the NDPS Act, the punishment under Section 21(b) for manufactured drugs and preparations would be for a term extending up to ten years RI, with fine.

38. In the present case, the Appellant has already undergone more than six years of RI. Considering that what was seized from him was an intermediate quantity of either opium derivate or morphine per se, the Court is of the considered view that the Appellant should be sentenced to the period already undergone by him with a fine of Rs. 10,000.

39. Consequently, the impugned judgment dated 27th August 2007 and the order on sentence dated 30th August 2007 passed by the trial Court are both modified by convicting the Appellant for the offence of possession of a intermediate quantity of a manufactured drug punishable under Section 21(b) of the NDPS Act and sentencing him to the period already undergone with a fine of Rs.10,000, and in default of payment of fine, to undergo simple imprisonment for one month.

40. The appeal is disposed of in the above terms.

S. MURALIDHAR, J.

MARCH 5, 2014 dn