AMAR SINGH RAMJIBHAI BAROTversusSTATE OF GUJARAT

                                                                                  \

A                     AMAR SINGH RAMJIBHAI BAROT
                                   v.
                          ST ATE OF GUJARAT

                             SEPTEMBER 19, 2005

B                  [H.K. SEMA AND B.N. SRIKRISHNA, JJ.]


         Narcotic Drugs and Psychotropic Substances Act, 1985:

          Section 29--Criminal conspiracy-Abetment of-Contraband substances
C   recovered from accused persons-They were found together but individually
    carried the substances recovered-High Court concluded that there was
    criminal conspiracy between them-Correctness of-Held: There was no
    evidence to suggest that there was any such abetment and/or criminal
    conspiracy-Hence, it was not possible for the High Court 10 take the view
D   that Section 29 was a/tracled

          Sections 21, 2(xi) and (xvi)(e)-Applicability of-Conlraband substance
    recovered from accused was "opium derivalive" which was a "manufactured
    drug" under S. 2(xi)-Held: Such an offence fell wilhin S. 21 for illicit
    possession of "manufactured drug".
E
          Section 2/(c )-Applicability of-920 gms. of "opium derivative"
    recovered from accused-Whelher such a quantity was "small quantity" or
    "commercial quantity"-Held: In respecl of "opium derivatives" the Central
    Govt. Notification specified 5 gms. as "small quantity" and 250 gms. as
    "commercial quantity"-Hence, the offence fell under S. 21(c) and not under
F   S. 2J(a) or (b)-Notification S.O. 1055 (E) dt. 19.10.2001.

         Evidence Act, 1872:

           Section 45-Expert opinion-Forensic Science Laboratory (FSl) opined
    that the contraband substances recoveredfrom accused was "opium "-Binding
G   nature of-Held: when no acceplable evidence that the substance found was
    coagulated juice of opium poppy-Opinion of FSl not binding on the Court.

          Words & Phrases:


H                                      272
               AMARSINGH RAMJIBHAI BAROTF. STATE OF GUJARAT            273

     "Manufactured drug"-Meaning of-In the context of S. 2(xi)(a) of the       A
Narcotic Drugs and Psychotropic Subs1ances Act, I 985.

     The appellant and the deceased-accused were found to be in
possession of contraband substances weighing 920 gms. and 4.250 gms.
respectively. Two sets of samples were drawn from the substances
recovered and were forwarded to Forensic Science Laboratory (FSL)              B
which opined that the substances were "opium" as described in the
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

      The trial Court held that both the accused persons were guilty of
individually and jointly possessing 920 gms. of opium and 4.250 gms. of        C
opium and convicted them under Sections 17 and 18 of the NDPS Act.
However, the High Court held that the appellant was liable to be convicted
under Section 21(c) read with Section 29 of the NDPS Act for individually
being in possession of 920 gms. and for being jointly, in conspiracy with
the deceased-accused, in possession of 4.250 gms. of opium. Hence the
appeal.                                                                        D
      Dismissing the appeal, the Court

      HELD: 1. There was no warrant for the conclusion of the High Court
that there was a criminal conspiracy between the appellant and the
deceased-accused. There is no evidence to suggest that there was any such      E
abetment and/or criminal conspiracy within the meaning of Section 29 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). The
appellant and the deceased-accused 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. 1277-G-HI                p
     2. There does not appear to be any acceptable evidence that the black
substance found with the appellant was "coagulated juice of the opium
poppy" and any mixture, with or without any neutral material, of the
coagulated juice of the opium poppy". The Forensic Science Laboratory
(FSL) has given its opinion that it is 'opium as described in the NDPS Act'.   G
That is not binding on the court. [279-C-DJ

      3.1. The evidence does not indicate that the substance recovered from
the appellant would fall within the meaning of sub-clauses (a), (b), (c) or
(d) of Section 2(xvi). The residuary clause (e) would take into its sweep
all preparations containing more than 0.2 per cent of morphine. The FSL        H
    274                    SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A   report proves that the substance recovered from the apj'Jellant had 2.8 per
    cent anhydride morphine. Consequently, it would amount to "opium
    derivative" within the meaning of Section 2(xvi)(e). (279-D-E-F]

          3.2. All "opium derivatives" fall within the expression "manufactured
    drug" as defined in Section 2(xi) of the NDPS Act. Thus, the conclusion is
B   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". [279-G-H]
c         4.1. The appellant's contention that even if the appellant was guilty
    of an offence under Section 21 of the NDPS Act, the punishment could
    only fall within Section 2l{a) as the "manufactured drug" involved was
    of "small quantity" is untenable. The Narcotic Drugs and Psychotropic
    Substances (Amendment) Act, 2001(Act9 of2001) introduced the concept
D   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
    quantity" or a quantity in between the two. By reason of Section 41(1) of
    the Amending Act of 2001, the amended provisions apply to pending cases.
E   Simultaneously, with the Act of 2001 coming into force, by a notification
    S.O. 1055 (E) dated 19.10.2001, the Central Government specified what         •
    would amount to "small quantity" and "commercial quantity"
    respectively, of different substances. [280-A-D]

          4.2. In respect of opium derivatives (at Sr. no. 93) in the said
F   notification 5 gms. is specified as "small quantity" and 250 gms. as
    "commercial quantity". The High Court was, therefore, right in finding
    that the appellant was guilty of unlawful possession of "commercial
    quantity" of a manufactured drug. Consequently, his case would be
    covered by clause (c) and not clause (a) or (b) of Section 21 of the NDPS
G   Act. [280-D-E]

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1218
    of 2005.

          From the Judgment and Order dated 29.4.2004 of the Gujarat High
H Court in Crl.A. No. 431 of 2002.
        AMARSINGHRAMJ!BHAI BAROTv. STATE OF GUJARAT [SRIKRISHNA, J.]   275
      Sushi! Kumar Jain, Ms. Pratibha Jain, Ram Niwas and Sarad Singhania    A
for the Appellant.

     Mrs. Hemantika Wahi and V. Madhukar for the Respondent.

     The Judgment of the Court was delivered by
                                                                             B
     SRIKRISHNA, J. Leave granted.

     This appeal by a special leave petition under Article 136 impugns the
judgment of the Division Bench of the High Court of Gujarat upholding the
conviction of the appellant under the provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS      C
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 D
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 E
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 Police. On interrogation, their names were disclosed as (i) Amarsingh
Ramji Barot (the appellant), and (ii) Danabhai Virabhai Rabari, the other
accused who died during the pendency of his appeal before the High Court. F
The Police Officer-lncharge of the raiding party, Police Inspector Chauhan,
gave an offer to the appellant and deceased Danabhai of being searched in
the presence of a Gazetted Officer or a Magistrate. This offer was declined,
upon which they were searched. The appellant was found to be carrying a
plastic bag. When the plastic bag was opened, it contained a black coloured G
liquid substance. The black coloured liquid substance was prima facie found
to have the smell of opium. The Police Officer weighed the said substance
recovered from the appellant and the weight was found to be 920 grams.
4.250 kgs. of a grey coloured substance, suspected to be a drug, was recovered
from deceased Danabhai. Out of the 920 grams opium recovered from the
appellant, two samples of 10 grams ~h were drawn, placed in plastic jars, H
    276                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A wrapped with paper bearing signatures of panch witnesses and sealed. Similar
    samples were drawn from the substance recovered from deceased Danabhai.
    The samples were forwarded to the Forensic Science Laboratory (FSL). The
    FSL opined that the substance which had been sent as sample A/I, (recovered
    from the present appellant) was opium as described in the NDPS Act containing
B   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
C 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
D accused, i.e. the appellant and the deceased Danabhai, was awarded with
  punishment of 5 years rigorous imprisonment together with a fine of Rs.
  35000 with a default sentence. With regard to jointly possessing 4.250 kgs.
  opium without any pass or pem1it, both the accused i.e. the appellant and
  Danabhai Virabhai Rabari were awarded with punishment of rigorous
E imprisonment for 10 years with a fine of Rs. 1,00,000 each, together with a
  default sentence. Both the punishments were directed to run concurrently.

          The appellant and the said Danabhai Virabhai Rabari filed separate
    appeals challenging their convictions. CRA No. 431 /02 was filed by Amarsingh
    Ramjibhai Barot, and CRA No. 553/02 by Danabhai Virabhai Rabari. During
p   the pendency of his appeal, Danabhai Virabhai Rabari expired on 22.3.2004,
    therefore, his appeal CRA No. 553/02 was disposed of as having abated by
    an order made on 28.4.2004.

        A number of contentions were urged in the High Court by the appellant
  in support of his appeal. It was contended that the conviction was liable to
G be set aside as there was non-compliance with the provisions of section
  42(2), 50, 52 and 57 of the NDPS Act. There is no sub;tance in this contention.
  The High Court, however, was of the view that the conviction of the appellant
  under section 17 and 18 read with section 29 of the NDPC Act was not
  correct. On the other hand, the High Court came to the conclusion that the
H appellant was liable to be convicted under Section 21(c) and also under
        AMARSINGH RAMJIBHAI BAROT 1·. STA TE OF GUJARAT [SRlKRlSHNA,J.]    277
Section 2J(c) read with Section 29 of the Act, for individually being in           A
possession of920 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   B
punishment of I0 years rigorous imprisonment plus fine of Rs. I 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 2J(c) and the minimum sentence of JO years rigorous
imprisonment plus fine of Rs. I lakh. Being aggrieved thereby, the appellant       C
is before this Court.

       The learned counsel appearing for the appellant urged only one
contention in support of the present appeal. He contended that the High Court
fell into an error in taking the total quantity of the offending substances
recovered form the two accused jointly and holding that the said quantity was D
more than the commercial quantity, warranting punishment under Section
2l(c) of the NDPS Act. He contended that as far as the appellant is concerned,
the High Court erred by assuming that there was criminal conspiracy within
the meaning of Section 29 of the NDPS Act, and erroneously proceeded
under the said section. The High Court fell into a further error of assuming E
that because Section 29 was applicable, the total quantity of opium recovered
was 920 grams plus 4.250 kgs. The counsel urged that because of this error
the High Court took the wrong view that the total recovered opium was of
"commercial quantity" and, therefore, attracted Section 21 (c) of the NDPS
Act.
                                                                                   F
       Although, at first blush, the argument of the learned counsel appeared
attractive, on careful appreciation of the facts on record we are satisfied that
the High Court judgment is fully 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 G
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.                                     H
    278                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A         The High Court was justified in its conclusion that the appellant could
    not have been punished under Sections I 7 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 purposes of arriving
B   at a quantity of recovery of opium more than the 'commercial quantity'. The
    High Court has carefully analysed the facts before it and arrived at the right
    conclusions as we shall see presently.

          The appellant was found in possession of 920 grams of black liquid
C   which prima facie smelt of opium. The FSL report indicates that the substance
    recovered from the appellant was 'opium as described in the NDPS Act'
    containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda)
    flower found in the sample.

          Sections 17, 18 and 21 of the NDPS Act are intended to operate in
D different circumstances. Section 17 prescribes the punishment inter alia for
    possession of ''prepared opium'', Section 18 prescribes the punishment inter
    alia for possession of "opium" and Section 21 deals with the punishment
    inter alia for possession of "manufactured drugs". Each one of these terms
    has been defined in the NDPS Act. "Opium" is defined in Section 2(xv) as:

E          "(>. v) "opium" means -

           (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,

F          but does not include any preparation containing not more than 0.2 per
           cent of morphine"

          The term "opium derivative" is defined in Section 2(xvi) as follows:

            "(xvi) "opium derivative" means -
G           (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;
H
        AMARS!NGH RAMJ!BHAI BAROT v. STATE OF GUJARAT [SRIKR!SHNA, J ]    279
       (b) prepared opium, that is, any product of opium by any series of         A
           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;                                                        B
       (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"
                                                                                  c
      There does not appear to be any acceptable evidence that the black
substance found with the appellant was" coagulated juice of the opium peppy"
and "any mixture, with or without any neutral material, of the coagulated
juice of the opium poppy". The FSL has given its opinion that it is 'opium
as described in the NDPS Act', That is not binding on th~ court.
                                                                                  D
      The evidence also does not indicate that the substance recovered form
the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d)
of Section 2(xvi). The residuary clause (e) would take into its sweep all
preparations containing more than 0.2 per cent of morphine. The FSL report
proves that the substance recovered from the appellant had 2.8 per cent           E
anhydride morphine. Consequently, it would amount to "opium derivative"
within the meaning of Section 2(xvi)(e). Clause (a) of Section 2(xi) defines
the expression "manufactured drug" as:

        "(xi) "manufactured drug" means -

        (a) all coca derivatives, medicinal cannabis, opium derivatives and       F
        poppy straw concentrate;

        (b) ... "

      All "opium derivatives" fall within the expression "manufactured drug"
as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion    G
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".
                                                                                  H
    280                         SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A        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 200 l' introduced the concept
B 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 quantity" or a quantity
  in between the two. By reason of Section 41 (I) of the Amending Act of
  2001, the amended provisions apply to pending cases. Simultaneously, with
  the Act of 200 I coming into force, by a notification S.O. I055 (E) dated
C 19.10.2001 issued in exercise of the powers conferred by clauses (viia) and
  (xxiiia) of Section 2 of the NDPS Act, the Central Government specified
  what would amount to "small quantity" and "commercial quantity"
  respectively, of different substances.

          In respect of opium derivatives (at sr. no. 93) in the said notification,
D   5 6rams is specified as "small quantity" and 250 grams as "commercial
    quantity". The High Court was, therefore, right in finding that the appellant
    was guilty of unlawful possession of "commercial quantity" of a manufactured
    drug. Consequently, his case would be covered by clause (c) and not clause
    (a) or (b) of Section 21 of the NDPS Act.
E         The impugned judgment of the High Court upholding the imposition of
    minimum punishment prescribed under Section 2 l(c) of 10 years rigorous
    imprisonment together with a fine of Rs. I lakh is unexceptionable. We find
    no substance in the appeal, which is liable to be dismissed.

           In the premises, the appeal is hereby dismissed.
F
    v.s.s.                                                               Appeal dismissed.




    I.    The Narcotic Drugs and Psychotropic Substances (Amendment) Act 200 I (Act 9 of200 I).