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2011 (3) TMI 1558 - SC - Indian LawsWhether determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity? Whether the entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92 Whether opium would contain some morphine which should be not less than the prescribed quantity however the percentage of morphine is not a decisive factor for determination of quantum of punishment as the opium is to be dealt with under a distinct and separate entry from that of morphine?
Issues Involved:
1. Legality of the conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. Applicability of the judgment in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau. 3. Interpretation of the term "opium" under Section 2(xv) of the NDPS Act. 4. Relevance of morphine content in determining the punishment for possession of opium. 5. Retrospective application of the Notification dated 18.11.2009. Issue-wise Detailed Analysis: 1. Legality of the conviction under Section 18 of the NDPS Act: The appellant was apprehended by the police carrying a plastic bag containing opium. The substance was confirmed to be opium by the Forensic Science Laboratory (FSL). The Trial Court convicted the appellant under Section 18 of the NDPS Act, sentencing him to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000/-. The High Court affirmed this judgment. The Supreme Court upheld the conviction, stating that the appellant was rightfully convicted under Section 18(b) of the NDPS Act for possessing a commercial quantity of opium. 2. Applicability of the judgment in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau: The appellant's counsel relied on the judgment in E. Micheal Raj, which dealt with heroin mixed with neutral substances, arguing that the morphine content in the opium should be considered for determining the sentence. However, the Supreme Court distinguished this case, noting that E. Micheal Raj pertained to heroin, an opium derivative, whereas the present case involved pure opium. The Court held that the judgment in E. Micheal Raj was not applicable as the substance recovered was not a mixture but pure opium. 3. Interpretation of the term "opium" under Section 2(xv) of the NDPS Act: The NDPS Act defines "opium" under Section 2(xv) as the coagulated juice of the opium poppy or any mixture containing this juice. The Court clarified that if the substance is pure opium (coagulated juice), the proviso regarding morphine content does not apply. The case at hand involved pure opium, not a mixture, thus falling under clause (a) of Section 2(xv). 4. Relevance of morphine content in determining the punishment for possession of opium: The appellant argued that the morphine content (0.8%) in the opium should be considered for sentencing. The Court rejected this argument, stating that for pure opium, the percentage of morphine is irrelevant. The entire quantity of opium (7.10 kgs) is considered for determining whether it is a small or commercial quantity. The Court emphasized that the Notification specifies separate entries for opium and morphine, and the recovered substance being pure opium falls under Entry No. 92, making the morphine content irrelevant for sentencing. 5. Retrospective application of the Notification dated 18.11.2009: The Notification dated 18.11.2009, which amended the earlier Notification, stated that the entire mixture or solution containing narcotic drugs should be considered for punishment. The Court held that this amendment could not be applied retrospectively to enhance the sentence, as it would violate Article 20 of the Constitution of India. Therefore, the Notification dated 18.11.2009 was not applicable to the appellant's case. Conclusion: The Supreme Court dismissed the appeal, upholding the conviction and sentence under Section 18 of the NDPS Act. The Court clarified that the recovered substance being pure opium, the percentage of morphine content was irrelevant, and the entire quantity of 7.10 kgs was to be considered for sentencing. The judgment in E. Micheal Raj was deemed inapplicable, and the Notification dated 18.11.2009 could not be applied retrospectively.
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