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2011 Supreme(Raj) 786
[Citation : 2012(1) RLW 430 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Dharma @ Dharmi Lal Vs. State (Rathore, J.)
HON'BLE RAGHUVENDRA S. RATHORE, J.
Dharma @ Dharmi Lal
Versus
State
S.B. Cr. Misc. 2nd Bail Appl. No. 2630 of 2011, decided on 11.08.2011
J.S. Tanwar, for Petitioner;
Javed Chaudhary, Public Prosecutor
Headnote:Cr.P.C., 1973, Sec. 439; Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 2(xv) and (xvi) — Second bail application — Recovered 2 kgs opium — First bail application was dismissed — Now second bail application on the ground that FSL report has been received and percentage of morphine found is 2.47 total only 49.4 which is much less than commercial quantity — Held — The opium seized is coagulated juice of opium poppy and not any mixture covered in definition of clause (a) of Sec. 2(xv) — The percentage of morphine would not be relevant — It is relevant only when the substance recovered is found in the form of mixture as specified under clause (b) of Sec. (xv) — The contents of morphine in the recovered contraband of 2 kgs is totally irrelevant — Number of prosecution witnesses have already been examined by trial court — No just reason to reconsider the question of bail at this stage of trial. (Paras 6 to 10)
Second bail application dismissed.
na-iz-la-] 1973] /kkjk 439( Lokid vkS"kf/k ,oa eu% izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 2 ¼xv½ ,oa ¼xvi½ & f}rh; tekur vkosnu & nks fdxzk- vQhe dh cjkenxh & izFke tekur vkosnu [kkfjt gqvk & vc f}rh; tekur vkosnu bl vk/kkj ij fd ,Q-,l-,y- fjiksVZ vk xbZ gS rFkk eksjfQu dh izfr'krrk 2-47 ik;h xbZ gS bl izdkj dqy 49-4 gS tks O;kolkf;d ek=k ls cgqr gh de gS & vfHkfu/kkZfjr & tCr fd;k x;k vQhe] vQhe iksLr dk tek gqvk jl gS u fd /kkjk 2 ¼xv½ ds [k.M ¼a½ dh ifjHkk"kk ls vko`r dksbZ lfEeJ.k & eksjfQu dh izfr'krrk ;gka lqlaxr ugha gksxh & ;g dsoy rHkh lqlaxr gksrh gS tc cjken inkFkZ /kkjk 2¼xv½ ds [k.M ¼[k½ ds rgr ;Fkk fofufnZ"V lfEeJ.k ds :i esa ik;k tkrk gS & 2 fdxzk ds cjken fofuf"k) esa eksjfQu dh vUroZLrq iw.kZ:is.k vlaxr gS & cM+h la[;k esa vfHk;kstu lk{khx.k dk fopkj.k U;k;ky; }kjk ijh{k.k fd;k tk pqdk gS & fopkj.k dh bl voLFkk esa tekur ds iz'u ij iqufoZpkj djuk dksbZ U;k;ksfpr dkj.k ughaA
f}rh; tekur vkosnu [kkfjt fd;kA ¼in la[;k 6 ls 10½
Certainly. Based on the provided legal document, here are the key points summarized:
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The case involves a second bail application filed by the accused petitioner, primarily on the grounds that the FSL report has been received, indicating the percentage of morphine in the recovered substance is 2.47%, which translates to a total of approximately 49.4 grams, less than the commercial quantity (!) (!) .
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The initial bail application was dismissed because 2 kg of opium was recovered from the petitioner while he was traveling on a motorcycle (!) .
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The petitioner’s counsel argued that since the FSL report shows a low percentage of morphine, the total quantity of contraband is below the threshold for a commercial quantity, and therefore, bail should be granted (!) .
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The prosecution opposed the bail, emphasizing that the percentage of morphine is irrelevant in this context because the substance recovered is opium, which is defined as coagulated juice of the opium poppy, and not a mixture covered under the relevant legal clause (!) (!) .
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The legal provisions specify that opium, as coagulated juice, does not require consideration of morphine content for classification, unless it is in the form of a mixture with specified proportions. Since the recovered substance is not a mixture, the morphine percentage is deemed irrelevant (!) (!) .
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The relevant legal definitions and notifications distinguish between opium, morphine, and opium derivatives, with specific quantities designated as small and commercial quantities for each substance (!) (!) .
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The court's reasoning aligns with the principle that the mere presence of morphine within opium does not alter its classification unless it is part of a mixture as defined under the law. Therefore, the quantity of 2 kg of coagulated opium does not qualify as a commercial quantity, and the content of morphine is not a decisive factor in this context (!) (!) .
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The court upheld the previous decision to dismiss the bail application, citing that the substance recovered is opium in terms of the law, and the contention based on the FSL report lacks substance (!) .
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The court also directed the trial to be expedited and concluded within six months, emphasizing the importance of timely justice (!) .
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2. The learned counsel for the petitioner has submitted that now the FSL report has been received and the percentage of morphine found is 2.47. Therefore, he has submitted that the total quantity of contraband seized from petitioner would be only 49.4 gms. Such quantity is much less than the commercial quantity. Hence, it is prayed that the petitioner be now enlarged on bail. In support of his submission, learned counsel has placed reliance on the case of Biswajit Chandra @ Kanu vs. State of West Bengal, SLP (Cr.) No. 4771/2007 decided on 3.1.2008.
3. The learned Public Prosecutor has opposed the bail application and submitted that so far as the contention of learned counsel for the petitioner in respect of percentage of morphine and proportionate weight of contraband in question is concerned, it would not be the consideration for the purpose of contraband in the present case which is opium. He has further submitted that Hon'ble Supreme Court has dealt with the issue in the recent judgment of Harjit Singh vs. State of Punjab in Criminal Appeal No. 816/2011 decided on 30.3.2011, wherein similar contention was raised on behalf of the accused.
4. Anxious and thoughtful consideration has been given to the submissions made by the counsel for the rival parties. In order to appreciate the respective contentions, firstly the substance recovered from the accused is to be identified; the relevant provisions of law as given under the NDPS Act, 1985 particularly the definition clause is to be considered and then to find out the relevant entry given under the Notification issued by the Central Government specifying the small quantity and commercial quantity, which is required to be dealt with.
5. In the present case, the material recovered from the accused petitioner was opium. The quantity of 2 Kg opium recovered from possession of the petitioner was less than commercial quantity but much more than the small quantity. Therefore, the contraband recovered could not have been for personal consumption of the accused.
6. Under the Act of 1985, opium has been defined under Section 2(xv) which reads as under:
"(xv)" "opium" means-
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, or the coagulated juice of the opium poppy,
but does not include any preparation containing not more than 0.2 per cent. of morphine."
In other words, the Act defines opium as coagulated juice of opium poppy and any mixture with or without any neutral material of coagulated juice of opium poppy but does not include any proportion containing not more than 0.2 percent of morphine.
7. Similarly, opium derivative has been defined in section (2)(xvi) which reads as under:
"(xvi) "opium derivative" means-
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorophine;"
8. The Notification issued by the Central Government, in exercise of power
