RAVINDER KUMAR Vs. NCT OF DELHI STATE

JUDGEMENT

(1.) A learned single Judge of this court by an order dated 28.05.2009, referred the following question for a decision by the Division Bench:-

(2.) The appellant was convicted for the offence punishable under Section 18 of the Narcotic Drugs and sychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") for possession of 5 kgs of opium and was sentenced to undergo imprisonment for 10 years. In appeal, the appellant raised a plea before the learned single Judge that as the morphine content of the contraband said to have been recovered from the appellant was only 0.24%, which translated to 12 gms, the sentence awarded to him was, therefore, not in consonance with the provisions of the said Act. The plea of the appellant was that if the weight of opium is to be determined on the basis of the morphine content of 0.24%, the same would amount to only 12 gms which would be a small quantity for which, the maximum sentence was only six months imprisonment. It was contended on behalf of the appellant that the extent of opium allegedly recovered from the possession of the appellant ought to have been taken as 12 gms and not the entire 5 kgs and consequently, he should have been treated as having been in possession of a small quantity and not a commercial quantity of opium.

(3.) The learned single Judge, who passed the reference order on 28.05.2009, noted in the said order itself that there was divergence of the opinion between two single bench decisions of this court with regard to the relevance of percentage of morphine in recoveries of opium. On the one hand, a learned single Judge of this court in Mohd Irfan v. State [Crl. A.460/2005] had taken the view that the definition of opium in Section 2(xv) of the NDPS Act left no manner of doubt that morphine is always present in opium and so long as the recovered sample contains more than 0.2% morphine, the entire sample would be regarded as opium. A different view had been taken by another learned single Judge of this court in Rajender Kumar v. State [Crl. A.436/2007] by holding that the percentage of morphine contained in opium had relevance in considering the question as to whether the recovered substance fell within the category of small quantity or commercial quantity.