TaxTMI 
TaxTMI 
2011 (2) TMI 1213
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....fficer and some other police officers of Dongri Police Station, to falsely implicate the complainant in a case under the NDPS Act. As per the conspiracy, the accused persons planted 340 grams of heroin in the car of the complainant and arrested him. Accused Rajendra Bhosle registered Crime No. 4/2004 under Sections 8(c) and 21 of the NDPS Act against the applicant and he was in custody for 150 days. On his application, the investigation was taken over by the superior officers and the true facts were revealed. The applicant was discharged and on the complaint of the present applicant, the learned Addl. C.M.M., 2nd Court, Mazgaon, Mumbai, directed investigation under Section 156(3) by the DCP Zone- I. The complaint was investigated by the officers of M.R.A. Marg Police Station and FIR came to be registered against 11 police officers, including Rajendra Bhosle and the builder Ravindra Shelatkar and his friend. Statements of several witnesses were recorded by the Investigating Officer and also under Sec. 164 Cr.P.C. The accused Rajendra Bhosale and Ravindra Shelatkar came to be arrested under the provisions of NDPS Act for possessing the contraband and for planting the same in the car ....
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....eport dated 10.12.2004 presuming the same to be correct. It appears that 8 samples were taken and they were sent to Forensic Science Laboratory, Mumbai and as per the report dated 10.12.2004, the traces of heroin and Monoacetyl Morphine along with other opium alkaloids is detected in Exh.1 to 8. As per the report, Exhibits 1 to 8 fall under Section 2(xvi)(e) of the NDPS Act. The report also shows that the percentage of Monoacetyl Morphine is as follows:- "Exh. No. Monoacetyl Morphine (MAM)% 1 1.56 2 1.69 3 1.65 4 1.82 5 1.90 6 1.90 7 1.66 8 1.65" On an average, the sample contained 1.72% of Monoacetyl Morphine. 8. To appreciate the arguments of the learned Counsel for the parties, it will be necessary to refer to the definitions of certain important terms. Under Section 2(xi) of the NDPS Act, "manufactured drug" means (a) all coca derivatives medicinal cannabis, opium derivatives and poppy straw concentrate and any other narcotic substance or preparation which the Central Government may, declare to be manufactured drug. Under Section 2(xv) "opium" means (a) the coagulated juice of the opium poppy; and (b) any....
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....s in possession of commercial quantity, small quantity or intermediate quantity. After the Amendment of 2001, under Sectino 21, where contravention involves small quantity, the punishment may be rigorous imprisonment which may extend to six months or with fine which may extend to ten thousand rupees, or with both, where the contravention involves commercial quantity, the offence is punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years, and fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. However, if the contravention involves a quantity less than commercial quantity but greater than small quantity, the punishment may be rigorous imprisonment for a term which may extend to ten years and fine which may extend to one lakh rupees. In E.Micheal Raj, the Supreme Court observed thus in para 15:- "15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with d....
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.... to be sentenced accordingly. Same view was taken in Ouseph v. State of Kerala, (2004) 4 SCC 446. 11. The learned Counsel for the accused vehemently contended that the percentage of Morphine or heroin in the contraband would also be equally relevant for the purpose of deciding whether the provisions of Section 167(2) Cr. P.C. are applicable or not. For this purpose, the learned Counsel placed reliance upon Sami Ullaha vs. Superintendent,Narcotic Central Bureau 2008 Drugs Cases (Narcotics) 705. In Sami Ullaha, the accused was granted bail by the Special Court, but it was cancelled by the High Court. The order of the High Court was set aside by the Supreme Court. In that case, the contraband weighing 2 kgs. was recovered from the accused. However, the report from the Central Revenue Control laboratory, New Delhi, revealed that only 2.6% of the sample was found to be heroin and, therefore, the quantity alleged to have been recovered from the accused could be said to be intermediate quantity. Therefore, the rigours of Section 37 in respect of grant of bail could not be applicable to the same. 12. Section 36-A(4) of the NDPS Act reads thus:- (4) In respect ....
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...., Monoacetyl Morphine along with other opium alkaloids was detected in the same. The percentage of Morphine was though more than 0.2% and actually it comes to around 1.72%. In view of the presence of heroin, though in a very small quantity, and presence of Morphine in the samples the said samples fall within the definition of opium derivative within the meaning of Section 2(xvi)(e) of NDPS Act. The learned Counsel for the accused pointed out that the applicant, when he was facing the same case earlier as an accused, had contended that the total quantity of Morphine was just 5.8 grams, which was less than the commercial quantity. On the other hand, the learned Counsel for the applicant contended that if the C.A. report is carefully read, it will reveal that the samples contained heroin and Monoacetyl Morphine along with other opium alkaloids and not the neutral substances ordinary sugar or any other eatable article. In the Notification issued by the Government of India, under clauses (viia) and (xxiii-a) of Section 2 of the NDPS Act, small and commercial quantities of the different narcotics drugs and psychotropic substances are given. Entry No. 56 pertains to heroin or dicetylmorph....
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...." In my opinion, Entry 239 has no application to the facts of the present case because Entry 93 about opium derivative is specific. 15. The learned Counsel for the applicant contends that the Judgment in E.Micheal Raj (supra) was delivered by the Supreme Court on 11.3.2008 and the Government of India made an amendment by Notification dated 18.11.2009 in the earlier notification dated 19.10.2001 and added Note 4 which reads as follows:- "(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 those drugs, including salts of esters, ethers and isomers,wherever existence of such substance is possible and not just its pure drug content." The learned Counsel contends that in view of this amendment, the total quantity of substance will have to be taken into consideration and therefore, the authority in E. Micheal Raj will be no more applicable. 16. On the other hand, the learned Counsel for the ....