REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  816  of 2011 (Arising out of SLP(Crl.) No. 7103 of 2010)

Harjit Singh        …Appellant

        Versus

State of Punjab                  …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.  

2. This criminal appeal has been preferred against the judgment  

and order dated 19.5.2010 passed by the High Court of Punjab and  

Haryana  at  Chandigarh  in  Criminal  Appeal  No.  1711-SB/2005,  by  

which  the  High  Court  has  affirmed  the  judgment  and  order  dated  

2.9.2005  passed  by  learned  Special  Judge,  Fatehgarh  Sahib,  in  

Sessions Case No. 72T/5.9.03/7.10.04, by which the appellant stood  

convicted for the offence punishable under Section 18 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereinafter called as  

NDPS Act) and was sentenced to undergo RI for 10 years and to pay a  

fine of Rs.1,00,000/- in default whereof, to undergo further RI for 6  

months.  

3. Facts and circumstances giving rise to this appeal are that on  

4.7.2003,  a  police  party  was  proceeding  from Focal  Point,  Mandi  

Gobindgarh to  G.T.  Road on patrol  duty  in  a  government  vehicle.  

When the police party reached near the culvert of minor in the area of  

village Ambe Majra, the police party spotted the appellant who was  

coming on foot, from the side of Ambe Majra carrying a plastic bag in  

his right hand. On seeing the police, the appellant turned to the left  

side of the road. The police party apprehended the appellant, being  

suspicious of him.  In the meantime, Ashok Kumar, an independent  

witness  also  came  to  the  spot  and  joined  the  police  party.  The  

appellant was apprised of his right of being searched in the presence  

of a Gazetted Officer and in that respect his statement was recorded.  

Shri  Dinesh  Partap  Singh,  Assistant  Superintendent  of  Police,  was  

summoned to the spot by the Investigating Officer and in his presence,  

Amarjit  Singh,  Inspector  (P.W.3)  searched  the  plastic  bag  of  the  

appellant and the substance contained therein was found to be opium.  

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Two  samples  of  10  gms.  each  of  the  opium  were  taken.   The  

remaining  opium was found to  be 7.10 Kgs.  The samples  and the  

remaining opium  were sealed and taken into possession by the police  

party.   

4. A formal FIR was registered against the appellant; on personal  

search, an amount of Rs. 510/- was found with the appellant; the arrest  

memo  of  the  accused  was  prepared  and he  was  formally  arrested.  

After completion of investigation and on receipt of the report from the  

Forensic Science Laboratory, confirming the contents of the sample to  

be  of  opium,  a  charge-sheet  was  filed  against  him for  the  offence  

punishable under Section 18 of the NDPS Act. He did not plead guilty  

to the charges and claimed trial.  

5. The  prosecution  examined  Manjinder  Singh,  Constable  

(P.W.1),  Jagdish  Singh,  Head  Constable  (P.W.2),  Amarjit  Singh,  

Inspector (P.W.3), Dinesh Partap Singh, Assistant Superintendent of  

Police  (P.W.4)  and  Dalip  Singh,  Sub  Inspector  (P.W.5).   Ashok  

Kumar, an independent witness was not examined by the prosecution,  

as he had been won over by the appellant.   

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6. In  his  statement  under  Section 313 of  the  Code of  Criminal  

Procedure,  1973, the appellant  stated that the prosecution case was  

false; he had been taken by the police from his house and Rs.6,000/-  

had been snatched from him; he was not physically fit even to walk as  

he had met with an accident in 1999. The appellant also examined 6  

witnesses in his defence.  

7. The  Trial  Court  after  scrutinising  the  evidence  held  that  the  

appellant was guilty of the offences charged with and was awarded  

the  sentences  as  mentioned  hereinabove.   Being  aggrieved,  he  

preferred an appeal before the High Court which has been dismissed  

by the  impugned judgment and order  dated 19.5.2010.  Hence,  this  

appeal.  

8. Shri  R.S.  Suri,  learned  senior  counsel  appearing  for  the  

appellant at an initial stage raised a large number of factual and legal  

issues.  However,  ultimately  considering  that  there  had  been  

concurrent findings of fact against the appellant by the two courts, he  

primarily submitted that as the opium recovered from the appellant  

weighing  7.10  kgs.  contained  0.8% morphine,  i.e.  56.96  gms.,  the  

quantity was below the commercial quantity, however, more than the  

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minimum quantity  prescribed  under  the  Notification  issued  in  this  

respect,  the  maximum  sentence  awarded  by  the  court  was  

unwarranted.  

9. Shri Suri has placed reliance upon the judgment of this Court in  

E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau,  

(2008) 5 SCC 161, wherein the Court dealt with the case of recovery  

of  heroin  from a carrier,  and held  that  when any narcotic  drug  or  

psychotropic  substance  is  found  mixed  with one  or  more  neutral  

substance (s), for the purpose of imposition of punishment it is the  

content of the narcotic drug or psychotropic substance which shall be  

taken  into  consideration.    Therefore,  it  will  depend  upon  the  

morphine content  and if this is less than the commercial quantity of  

morphine, the maximum sentence can not be awarded.  

10. On the contrary, Shri Jayant K. Sud, learned Addl. Advocate  

General, appearing for the State of Haryana has submitted that as the  

entire substance recovered from the appellant was opium and not any  

kind  of  mixture,  the  question  of  determining  the  quantity  or  

percentage of morphine in the substance could  not arise. The opium  

itself is an  offending material under the NDPS Act.  Therefore, the  

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court has to proceed in view of Entry No.92 in the Notification in this  

regard which deals with opium and any preparation containing opium  

and  specifies  that  a  small  quantity  is  only  25  gms.,  whilst  a  

commercial quantity is 2.5 kgs.  In the instant case as it was 7.10 kgs,  

i.e.  the  appellant  was  carrying  about  three  times    the  minimum  

amount required for a  commercial  quantity.   The judgment of  this  

Court in E. Micheal Raj (supra) has no application in this case as that  

was a case of heroin and not of opium.  More so, the accused was  

merely a carrier and not a dealer.  

11. It  is  further  contended  by  Shri  Sud  that  the  Notification  

applicable in this case provides separate Entry No. 77 for morphine,  

wherein the minimum quantity is 0.5 gms. and commercial quantity is  

250 gms. Entry No. 92 separately deals with opium. Entry No. 93 for  

opium derivatives provides that a minimum quantity is 5 gms. and a  

commercial quantity is 250 gms. The present case is to be dealt with  

under Entry No.92 and not Entry No.77 or any other Entry.  More so,  

in view of the Notification dated 18.11.2009 under the provisions of  

Section 2 of NDPS Act, no consideration is required in respect of the  

material  recovered  from  the  appellant.  Thus,  the  question  of  

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interference with the impugned judgment  and order  does not  arise.  

The appeal is liable to be dismissed.  

12. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

13. Notification  dated  18.11.2009  has  replaced  the  part  of  the  

Notification dated 19.10.2001 and reads as under:-

“In the Table at the end after Note 3, the following   Note shall be inserted, namely:-

(4)  The quantities  shown in column 5 and  column 6 of  the Table relating to the respective   drugs shown in column 2 shall apply to the entire   mixture  or  any  solution  or  any  one  or  more  narcotic drugs or psychotropic substances of that   particular drug in dosage form or isomers, esters,   ethers and salts of these drugs, including salts of   esters, ethers and isomers, wherever existence of   such  substance  is  possible  and not  just  its  pure   drug content.”  

Thus,  it  is  evident  that  under  the  aforesaid  Notification,  the  

whole quantity of material recovered in the form of mixture is to be  

considered for the purpose of imposition of punishment.   

However, the submission is not acceptable as it is a settled legal  

proposition  that  a  penal  provision  providing  for  enhancing  the  

sentence does not operate retrospectively.  This amendment, in fact,  

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provides for a procedure which may enhance the sentence.  Thus, its  

application would be violative of restrictions imposed by Article 20 of  

the  Constitution  of  India.   We  are  of  the  view  that  the  said  

Notification dated 18.11.2009 cannot be applied retrospectively and  

therefore, has no application so far as the instant case is concerned.

14. Opium is essentially derived from the opium poppy plant.  The  

opium poppy gives out a juice which is opium.  The secreted juice  

contains several alkaloid substances like morphine, codeine, thebaine  

etc.  Morphine is the primary alkaloid in opium.

15. Opium is a substance which once seen and smelt can never be  

forgotten because opium possesses a characteristic appearance and a  

very strong and characteristic scent. Thus, it can be identified without  

subjecting it to any chemical analysis.  It is only when opium is in a  

mixture  so  diluted  that  its  essential  characteristics  are  not  easily  

visible or capable of being apprehended by the senses that a chemical  

analysis may be necessary. In case opium is not mixed up with any  

other material, its chemical analysis is not required at all.  “Of course,  

an analysis  will  always  be necessary if  there  is  a  mixture  and the  

quantity of morphine contained in mixture has to be established for  

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the purpose of definition (of opium under the Opium Act).”  (Vide:  

Baidyanath Mishra & Anr. v. State of Orissa,  1968 (34) CLT 1  

(SC); and  State of Andhra Pradesh v. Madiga Boosenna & Ors.,  

AIR 1967 SC 1550).     

16. However,  the  aforesaid  cases  have  been  decided  under  the  

Opium Act and cannot be the authority so far as deciding the cases  

under  the  NDPS Act.   Thus,  chemical  analysis  of  the  contraband  

material  is  essential  to  prove a  case  against  the  accused under  the  

NDPS Act.  

17. The NDPS Act defines ‘opium’ under Section 2(xv) as under:  

(a) the coagulated juice of the opium poppy; and  

(b) any mixture, with or without any neutral material, of the  

coagulated juice of the opium poppy,  

but does not include any preparation containing not more than  

0.2 per cent of morphine.

18. Coagulated  means  solidified,  clotted,  curdled  –  something  

which has commenced in curdled/solid form.

In  case  the  offending  material  falls  in  clause  (a)  then  the  

proviso to Section 2(xv) would not apply.  The proviso would apply  

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only in case the contraband  recovered is in the form of a mixture  

which falls in clause (b) thereof.

  19.      Relevant part of the chemical analysis made by the Forensic  

Science Laboratory, Punjab, Chandigarh in the instant case, reads as  

under:

“ xx xx xx xx

On  analysis  of  the  substance  kept  in  the  bundle  under  reference,  it  is  established that  the  substance is opium and percentage of  morphine  is 0.8%.”            (Emphasis added)

20. The amendment in 2001 was made in order to rationalise the  

sentence  structure  so  as  to  ensure  that  while  drug  traffickers  who  

traffic  in  huge  quantities  of  drugs  are  punished  with  deterrent  

sentences; on the other hand, the addicts and those who commit less  

serious offences are sentenced to lesser punishment.

21. In the instant case,  the material  recovered from the appellant  

was opium.  It was of a commercial quantity and could not have been  

for personal consumption of the appellant.  Thus the appellant being  

in possession of the contraband substance had violated the provisions  

of Section 8 of the NDPS Act and was rightly convicted under Section  

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18(b) of the NDPS Act.  The instant case squarely falls under clause  

(a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not  

attracted for the simple reason that the substance recovered was opium  

in the form of the coagulated juice of the opium poppy. It was not a  

mixture  of  opium with  any other  neutral  substance.  There  was  no  

preparation to produce any new substance from the said coagulated  

juice.  For the purpose of imposition of punishment if the quantity of  

morphine in opium is taken as a decisive factor, Entry No.92 becomes  

totally redundant.  Thus, as the case falls under  clause (a) of Section  

2(xv),  no  further  consideration  is  required  on  the  issue.  More  so,  

opium derivatives have to be dealt with under Entry No.93, so in case  

of pure opium falling under clause (a) of Section 2(xv), determination  

of  the  quantity  of  morphine  is  not  required.   Entry  No.92  is  

exclusively applicable for ascertaining whether the quantity of opium  

falls within the category of small quantity or commercial quantity.   

 22. The judgment in E. Micheal Raj (Supra) has dealt with heroin  

i.e.,  Diacetylmorphine  which  is  an  “Opium Derivative”  within  the  

meaning of the term as defined in Section 2(xvi) of the NDPS Act and  

therefore,  a  ‘manufactured  drug’  within  the  meaning  of  Section  

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2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not  

relevant to the adjudication of the present case.

23. In Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7  

SCC 550, this Court dealt with a case where the black-coloured liquid  

substance was taken as an opium derivative. The FSL report had been  

to the effect that it contained 2.8% anhydride morphine, apart from  

pieces of poppy (Posedoda) flowers. This was considered only for the  

purpose  of  bringing  the  substance  within  the  sweep  of  Section  

2(xvi)(e)  as  ‘opium  derivative’  which  requires  a  minimum  0.2%  

morphine.   

24.  The  Notification  applicable  herein  specifies  small  and  

commercial  quantities  of  various  narcotic  drugs  and  psychotropic  

substances for each contraband material.  Entry 56 deals with Heroin,  

Entry 77 deals with Morphine, Entry 92 deals with Opium, Entry 93  

deals with Opium Derivatives and so on and so forth.  Therefore, the  

Notification also makes  a  distinction not  only between Opium and  

Morphine  but  also  between  Opium  and  Opium  Derivatives.  

Undoubtedly, Morphine is one of the derivatives of the Opium.  Thus,  

the  requirement  under  the  law is  first  to  identify  and  classify  the  

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recovered  substance  and  then  to  find  out  under  what  entry  it  is  

required to be dealt with.  If it is Opium as defined in clause (a) of  

Section  2(xv)  then  the  percentage  of  Morphine  contents  would  be  

totally irrelevant. It is only if the offending substance is found in the  

form of a mixture as specified in clause (b) of Section 2(xv) of NDPS  

Act, that the quantify of morphine contents become relevant.   

25. Thus, the aforesaid judgment in E. Micheal Raj (Supra)  has no  

application in the instant case as it  does not relate to a mixture of  

narcotic  drugs  or  psychotropic  substances  with  one  or  more  

substances.  The material so recovered from the appellant is opium in  

terms of Section 2(xv) of the NDPS Act.   In such a fact-situation,  

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. 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.  Undoubtedly, the FSL  

Report  provided  for  potency  of  the  opium  giving  particulars  of  

morphine contents. It goes without saying that 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  

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determination of quantum of punishment, as the opium is to be dealt  

with under a distinct and separate entry from that of morphine.      

26.     In view of the above, we do not find any substance in the  

appeal. It is devoid of any merit and, accordingly, dismissed.  

  ……………………..J.     (P. SATHASIVAM)

                       ……………………..J.    (Dr. B.S. CHAUHAN)

New Delhi, March  30, 2011

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