BASANTILAL Vs. STATE OF MP

JUDGEMENT

(1.) This Criminal Revision under section 397 read with section 401 of Cr.P.C. is directed against the order passed by learned Special Judge under NDPS Act, Neemuch in Special Sessions Trial No.24/2013 dated 04.04.2015 by which learned Special Judge framed charge under section 8/18 (b) of the NDPS Act and refused the prayer made by counsel to frame charge under section 8/21 of the NDPS Act.

(2.) The facts giving rise to this revision are that present applicant is facing trial before the Special Judge, Neemuch, for keeping in his possession 4 kg of the contraband Opium. The sample of the seized contraband was sent for chemical analysis to the Regional Forensic Science Laboratory, Bhopal. It was found that the seized substance is impure coagulated juice of Opium Poppy in which 5.07% anhydrous morphine is present. Counsel for the applicant submits that the definition of Opium derivatives given under section 2 (XVI) (e) reads as under: -

(3.) Counsel for the applicant submits that as the percentage of anhydrous morphine is more than 0.2%, the seized substance is Opium derivative and not Opium. Therefore, it is punishable under section 8(21) of the NDPS Act and not under section 8/18 (b) of the NDPS Act. He also referred the judgment of Hon'ble the Supreme Court in the case of Amarsingh Ramjibhai Barot Vs. State of Gujarat reported in 2005 Cri.L.J. 4521. In this case, percentage of anhydrous morphine was 2.8, therefore, Hon'ble the Supreme Court held that it was Opium derivative and the quantity is prescribed in Entry 93 of Schedule appended to the Act.