KAMLESH PATIDAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties and perused the record of the case.

(2.) A case was registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the act' ). The allegation is that while S. H. O. , police Station Bhawani Mandi was on patrolling, then he recovered 8 kg. 500 gms. opium from the petitioner. The contraband so recovered from the petitioner was thereupon sent for FSL Report and therein it gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2. 47% (two point four seven per cent.)morphine. Learned counsel for petitioner submits that contents of morphine is found 2. 47%, thus on the total weight of the contraband so recovered, if morphine is taken note of, then it comes to less than the commercial quantity. Hence, the petitioner may be enlarged on bail.

(3.) LEARNED counsel for petitioner made a reference of the judgment of the Hon'ble apex Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5 SCC 161 : (2008 Cri LJ 2250) and also the case of Sami Ullaha v. Superintendent, Narcotic Central Bureau reported in 2008 Drugs Cases (Narcotics)705 : (2009 Cri LJ 1306 ). It is submitted that the opium was recovered but looking to the fact that coagulated juice contains more than 0. 2% of morphine, thus It does not fall within the definition of 'opium' as given under Section 2 (xv) of the Act. Referring to Schedule appended to the Act more specifically Item No. 77 pertaining to morphine, it is stated that commercial quantity therein is 250 gms. whereas quantity of morphine herein comes to nearly 210 gms. Only, thus petitioner is entitled for bail.