MOHAMMAD JAHIR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellants have preferred this appeal against the Judgment dated 22/02/2002 passed in Special Case No. 32/2001 by learned Special Judge (N.D.P.S. Act), Indore, whereby convicted for the offence punishable under Section 8/21 (c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short the Act ) and sentenced to R.I. for ten years and fine of Rs. 1,00,000/-, in default of payment of fine additional R.I. for three years to each appellant.

(2.) Counsel for the appellants has not disputed seizure of heroin, 350 gram from appellant No. 1 Jahir, 300 gram from appellant No. 2 Dilawar Khan and 300 gram from appellant No. 3 Sahjad. Learned counsel relying upon the Supreme Court Judgment passed in case of E. Micheal Raj v. Intelligence Officer, Narcotic Central Bureau dated 11/03/2008 in Criminal Appeal No. (s) 1250/05 submitted that appellants can be convicted only for pure form of morphine or diacetylmorphine and not for other one or more natural substance in which heroin was mixed. The learned counsel pointed out the Ex. P/1 wherein percent-age of diacetylmorphine (heroin) is not given by the Chemical Analyser in all three samples Articles A-1, B-1 and C-1, therefore, how much quantity of pure form of diacetylmorphine present in the seized narcotic drug is not clear and cannot be calculated. Learned counsel has submitted that because of this deficiency in the Forensic Science Laboratory report benefit of doubt may be given to the appellants and they may be convicted only under Section 8/21 (b) of the Act for possessing non-commercial quantity of the heroin.

(3.) On the other hand, learned counsel for the State does not dispute the legal position as decided by the Supreme Court in case of diacetylmorphine (supra) as well as absence of percentage of diacetylmorphine in report Ex.P/1.