TMI Blog2005 (9) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to as ``the NDPS Act''). H.K. Chauhan, Police Inspector, C.I.D., Crimes, Narcotics Cell, Ahmedabad received information that on 29.9.1999 a person named Amarsingh and another 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as sample A/1, (recovered from the present appellant) was opium as described in the NDPS Act containing 2.8% anhydride morphine, and also pieces of poppy flowers (posedoda). The sample recovered 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, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the High Court came to the conclusion that the appellant was liable to be convicted under Section 21(c) and also under Section 21(c) read with Section 29 of the Act, for individually being 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 ₹ 1 lakh. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased, Danabhai Virabhai Rabari. In our view, however, there 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent of morphine'' The term ``opium derivative'' is defined in Section 2(xvi) as follows: ``(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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was ``manufactured drug'' within the meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved 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' i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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