The percentage of diacetyl morphine in the substance is relevant in determining the quantity of narcotic substance under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Daya Chaudhary, J.

1. 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.

2. Notice of motion was issued on 13.5.2010.

3. Learned counsel for the petitioner submits that as per 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% Diacetyi 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. Honble 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."

4. Learned counsel for the petitioner also argues that as per decision of Honble the Apex Court in E.Micheal Rajs 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.

5. 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.

6. 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.

7. 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 Honble the Apex Court in E. Micheal Rajs 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 discussed by this Court in Anup Guptas 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