RAJU MINDA Vs. STATE OF M. P.

JUDGEMENT

(1.) BY this revision petition, the petitioner has challenged order dated 3.3.2009 passed by Special Judge, (under NDPS Act), Mandsaur in ST No. 2/2009 framing charges for offence under section 8/21-B of the NDPS Act.

(2.) COUNSEL for the petitioner had drawn my attention in the impugned order framing charges and stated that 10 gms. smack or heroin was recovered from the possession of the petitioner. Despite which offence has been registered under section 8/21-B of the NDPS Act; looking to the quantity, counsel has stated that actually the Court should have framed charges for offence u/s 21-A of the NDPS Act which is an offence for possession of less than small quantity of a narcotic drug. Counsel also relied on E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 CrLJ 2250 whereby the apex Court had held that offence under section 21 of the NDPS Act, imposition of sentence which has to be based on content of offending drug in mixture and not on weight of the mixture as such. Stating that in the said case 250 gms. heroin or more was only punishable u/s 21-B of the NDPS Act, counsel prayed for setting aside the impugned order since the per centage of content of the heroin in the narcotic substance was found to be less than the schedule prescribed. Counsel also stated that, in the present case, the FSL report indicated that the quantity analyzed only 19.19% diacetylmorphine in the contraband seized from the possession of the petitioner and offence has been framed under section 8/21-B but it falls within the ambit of section 8/21-A of the NDPS Act.

(3.) COUNSEL for the petitioner has further stated that the petitioner unnecessarily undergoing the litigation and the offence is not made out and prays that it would be profitable to remand the matter to the Lower Court.