9911796707
TMI Blog2005 (9) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... r named Danabhai, having particular physical descriptions, were likely to come from village Dhima to Deesa town through Tharad Cross Roads carrying opium. Chauhan made the necessary entry in the register and gathered a posse of police officers with necessary equipment for interception of the possible carriers of drugs. The raiding party arrived near Tharad Cross Roads, parked their vehicle near Gokul Hotel and maintained a watch. After some time, a jeep coming from village Dhima was sighted. The jeep halted near Tharad Cross Roads. Two persons alighted from the said jeep and were found to have the physical descriptions matching those given by the informant. While the two persons were going towards Gokul Hotel, they were intercepte by the Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from deceased Danabhai was found to be `opium' as described in NDPS Act having 1.2% anhydride morphine, also containing pieces of poppy flower (posedoda). The appellant and deceased Danabhai Virabhai Rabari were charged with offences punishable under Sections 15, 17 and 18 read with section 29 of the NDPS Act and put up for trial. The trial court held that the prosecution had proved that both the accused were guilty of individually and jointly possessing 920 grams of opium and 4.250 kgs. of opium without any pass or permit and, were, therefore, liable to be convicted for offences punishable under Sections 17 and 18 read with Section 29 of the NDPS Act. Each of the accused, i.e. the appellant and the deceased Danabhai, was awarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of 920 grams and for being jointly, in conspiracy with the deceased, in possession of 4.250 kgs. of the prohibited substance recovered. In the view of the High Court, the total amount of prohibited substance recovered (personally from the appellant and also from the joint possession of the two accused) being more than ``commercial quantity'' as defined under the applicable notification, the appellant was liable to be visited with the minimum punishment of 10 years rigorous imprisonment plus fine of Rs. 1 lakh. The High Court was also of the view that, even if the quantity of 920 grams recovered from the appellant alone were to be considered, it would warrant conviction under Section 21(c) and the minimum sentence of 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted. The High Court was justified in its conclusion that the appellant could not have been punished under Sections 17 and 18 of the NDPS Act. The High Court has not merely rested its conclusion on Section 29 and the fact of adding together the recoveries made from the appellant and the other accused, deceased Danabhai Virabhai Rabari, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 from or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium 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 thebaine 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 diacetylmorphine& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of ``manufactured drug''. The learned counsel for the appellant raised a further contention that even if the appellant is guilty of an offence under Section 21 of the NDPS Act, the punishment could only fall within clause (a) of Section 21 as the ``manufactured drug'' involved was of ``small quantity''. In our view, this contention is untenable. The Amending Act of 2001' introduced the concept of ``small quantity'' and ``commercial quantity'' for the purpose of imposing punishment. The punishment thereunder is graded according to whether the contravention involved ``small quantity'', ``commercial q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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