HARJIT SINGHversusSTATE OF PUNJAB

                     [2011] 5 S.C.R. 691


                        HARJIT SINGH                               A
                               v.
                     STATE OF PUNJAB
              (Criminal Appeal No. 816 of 2011}
                       MARCH 30, 2011
                                                                   B
     [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

       Narcotic Drugs and Psychotropic Substances Act, 1985
  - ss. 2, 8 and 18 - Distinction between Opium and Morphine
  - Recovery of contraband - Conviction of accused-appellant C
  - Whether when the entire substance recovered is opium and
  not any kind of mixture, the question of determining the
  quantity or percentage of morphine in the substance is
  relevant - Held: Morphine is one of the derivatives of the
  Opium - The requirement under the law is first to identify and o
  classify the 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 s.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 E
  specified in clause (b) of s.2(xv), that the quantity of morphine
  contents becomes relevant - The instant case did not relate
  to a mixture of narcotic drugs or psychotropic substances with
  one or more substances - The material so recovered from
  the appellant was opium in terms of s.2(xv) - In such a fact-
                                                                    F
  situation, determination of the contents of morphine in the
  opium became totally irrelevant for the purpose of deciding
  whether the substance would be a small or commercial
  quantity - The entire substance had to be considered to be
  opium as the material recovered was not a mixture -
  Percentage of morphine was not a decisive factor for G
  determination of quantum of punishment, as opium is to be
  dealt with under a distinct and separate entry from that of
  morphiQe.

                               691                                 H
    692      SUPREME COURT REPORTS            [2011) 5 S.C.R.


A     On 4-7-2003, a police party on patrol duty, being
  suspicious of the appellant, apprehended him. The
  appellant was carrying a plastic bag which was found to
  contain opium. He was convicted by the trial Court under
  Section 18 of the Narcotic Drugs and Psychotropic
8 Substances Act, 1985 (NDPS Act) and sentenced to
  undergo RI for 10 years. The High Court affirmed the
  judgment passed by the trial court.

      In the instant appeal, the appellant contended that as
  the opium recovered from him weighing 7.10 kgs.
C contained 0.8% morphine,. i.e. 56.96 gms., the morphine
  content was below the commercial quantity, though
  more than the minimum quantity prescribed under the
  Notification issued in this respect, and thus the maximum
  sentence of 10 years as awarded by the court was
D unwarranted.

      Per contra, the State Government submitted that as
  the entire substance recovered from the appellant was
  opium and not any kind of mixture, the question of
E determining the quantity or percentage of morphine in the
  substance could not arise.

          Dismissing the appeal, the Court

       HELD:1. Notification dated 18.11.2009 (as .issued
F under the provisions of Section 2 of the Narcotic Drugs
  and Psychotropic Substances Act, 1985) has replaced
  the part of the Notification dated 19.10.2001. It is evident
  that under the aforesaid Notification, the whole quantity
  of material recovered in the form of mixture is to be
G considered for the purpose of imposition of punishment.
  However, this amendment, in fact, provides for a
  procedure which may enhance the sentence. It is a
  settled legal proposition that a penal provision providing
  for enhancing the sentence does not operate
H
        HARJIT SINGH v. STATE OF PUNJAB                  693

retrospectively. Its' application would be violative of         A
restrictions imposed by Article 20 of the Constitution of
India. The said Notification dated 18.11.2009 cannot be
applied retrospectively and therefore, has no application
so far as the instant case is concerned. [Para 13] [700-C-
HJ                                                              B
     2. 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. Opium is a substance which           C
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        D
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.
An analysis, however, will always be necessary if there         E
is a mixture and the quantity of morphine contained in
mixture has to be established for the purpose of
definition (of opium under the Opium Act). [Paras 14,15]
[701-A-DJ
                                                                F
    Baidyanath Mishra & Anr. v. State of Orissa 1968 (34)
CLT 1 (SC); State of Andhra Pradesh v. Madiga Boosenna
                           =
& Ors. AIR 1967 SC 1550 1967 SCR 871 - relied on.
    3. Chemical analysis of the contraband material is
essential to prove a case against the accused under the         G
NDPS Act. 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            H
    694      SUPREME COURT REPORTS               [2011) 5 S.C.R.

A than 0.2 per cent of morphine. 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 only in case
s the contraband recovered is in the form of a mixture
  which falls in clause (b) thereof. [Paras 16 to 18] [701-E-
  H; .702-A-B]

         4. In the instant case, the material recovered from the
C   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 18(b) of the NDPS Act. The instant case
D   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
E   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
F   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 ls not
G   required. Entry No.92 is exclusively applicable for
    ascertaining whether the quantity of opium falls within the
    category of small quantity or commercial quantity. [Para
    21] [702-E-H; 703-A-B]

          E. Micheal Raj v. Intelligence Officer, Narcotic Control
H
        HARJIT SINGH v. STATE OF PUNJAB                695


Bureau (2008) 5SCC161: 2008 (4) SCR644 and Amarsingh           A
Ramjibhai Barot v. State of Gujarat (2005) 7 SCC 550: 2005
(3) Suppl. SCR 272 - distinguished.

     5. The Notification applicable herein specifies small
and commercial quantities of various narcotic drugs and        8
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         C
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 recovered
substance and then to find out under what entry it is
required to be dealt with. If it is Opium as defined in        D
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 quantity of morphine contents become relevant.        E
[Para 24] [703-F-H; 704-A-B]

     6. The instant case does not relate to a mixture of
narcotic drugs or psychotropic substances with one or
more substances. The material so recovered from the F
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 G
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
                                                             H
    696       SUPREME COURT REPORTS              [2011] 5 S.C.R.


A   which should be not less than the prescribed quantity,
    however, the percentage of morphine is not a decisive
    factor for determination of quantum of punishment, as the
    opium is to be dealt with under a distinct and separate
    entry from that of morphine. [Para 25] (703-C-F]
B
                         Case Law Reference:
      2008 (4) SCR 644           distinguished         Paras 9,
                                                       10,22,25
      1968 (34) CLT 1. (SC)      relied on             Para 15
c
      1967 SCR 871               relied on             Para 15
      2005 (3) Suppl. SCR 272 distiguished             Para 23
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D   No. 816 of 2011.

        From the Judgment & Order dated 19.5.2010 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 1711-SB of 2005.
E      R.S. Suri, V. Mukherjee, Suruchi Suri, Chanchal Kumar
    Ganguli for the Appellant.

        Jayant K. Sud, AAG, Aman Raj G., Kuldip for the
    Respondent.
F
          The Judgment of the Court was delivered by

          DR. 8.S. CHAUHAN, J. 1. Leave granted.

       2. This criminal appeal has been preferred against the
G 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/
H 7.10.04, by which the appellant stood convicted for the offence
        HARJIT SINGH v. STATE Of PUNJAB                   697
             [DR. B.S. CHAUHAN, J.]
punishable under Section 18 of the Narcotic Drugs and A
Psychotropic Substances Act, 1985 (hereinafter called as
NDPS Act) and was sentenced to .undergo RI for 10 years and
to pay a fihe of Rs.1,00,000/- in default whereof, to undergo
further RI for 6 months.
                                                                 B
      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 C
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 D
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, E
Inspector (P.W.3) searched the plastic bag of the appellant and
the substance contained therein was found to be opium. Two
samples of 10 gms. each of the opium were taken. The
 remaining opium was found to be 7.10 Kgs. Th~ samples and
the remaining opium were sealed and taken into possession F
 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 G
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 H
    698      SUPREME COURT REPORTS                  [2011) 5 S.C.R.

A   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
8
    Inspector (P.W.5). Ashok Kumar, an independent witness was
    not examined by the prosecution, as he had been won over by
    the appellant.

         6. In his statement under Section 313 of the Code of
C   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
D   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
E   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
F 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,
G however, more than the 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
H   Court in E. Micheal Raj v. Intelligence Officer. Narcotic Control
        HARJIT SINGH v. STATE OF PUNJAB                   699
             [DR. B.S. CHAUHAN, J.]
Bureau, (2008) 5 SCC 161, wherein the Court dealt with the . A
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. B
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 Addi.
Advocate General, appearing for the State of Haryana has C
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 court has to · D
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 E
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.                                                         F

     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 G
with opium. Entry No. 93 for opium derivatives provides that a
minimum quantity ~s 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. H
    700       SUPREME COURT REPORTS                    (2011] 5 S.C.R.


A   2 of NDPS Act, no consideration is required in respect of the
    material recovered from the appellant. Thus, the question of
    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
8
    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:- ·

c         "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
D      · 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
E        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.
F
        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, provides for a procedure which may
  enhance the sentence. Thus, its application would be violative
G 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.

H
            HARJIT SINGH v. STATE OF PUNJAB                    701
                  [DR. B.S. CHAUHAN, J.]
     14. Opium is essentially derived from the opium poppy             A
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.
                                                                       B
       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    C
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                D
established for 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).
                                                                       E
     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.                                F

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

      (a)     the coagulated juice of the opium poppy; and
                                                                       G
      (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.
                                                                       H
    702       SUPREME COURT REPORTS                  [2011] 5 S.C.R.

A      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 only in case the contraband recovered is in the form of a
8
    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:
c
          "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)
D
       20. The amendment in 2001 was made in order to
  rationalite 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
E 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
F 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 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
G 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 supstance. There was .
  no preparation to produce any new substance from the said
  coagulated juice. For the purpose of imposition of punishment
H if the quantity of morphine in opium is taken as a decisive
        HARJIT SINGH v. STATE OF PUNJAB                     703
             [DR. 8.S. CHAUHAN, J.)
factor, Entry No.92 becomes totally redundant. Thus, as the        A
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   B
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 C
heroin i.e., Diacetylmorphine which is an "Opium Derivat.ive"
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 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.                                                   ·D

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

      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        G
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 recovered      H
    704      SUPREME COURT REPORTS                    [2011) 5 S.C.R.


A   substance and then to find out under what entry it is required
    to be dealt wi!h. 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
8   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
C 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
D 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
E 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 determination of quantum
  of punishment, as the opium is to be dealt with under a distinct
  and separate entry from that of morphine.
F
       26. In view of the above, we do not find any substance in
  the appeal. It is devoid of any merit and, accordingly,
  dismissed.

    8.8.8.                                        Appeal dismissed.