Rupesh Meshram vs State of C.G.

Prashant Kumar Mishra, J.—This is an application filed u/s 439 of the Code of Criminal Procedure seeking grant of regular bail to the applicant who was arrested in connection with Crime No. 245/2013 registered at P.S. Durg, Distt. Durg (C.G.) for the offence punishable under Sections 21 & 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth "NDPS Act, 1985"). On receiving secret information that applicant is engaged in selling brown sugar, the concerned Police recorded the information in Rosnamcha Sanha and arrested the applicant at 14.40 hours on 14.03.2013 on finding that the applicant is carrying 24 small sachets of brown sugar, total quantity admeasuring 14 grams.

Learned counsel for the applicant would submit that the prosecution has not stated the exact quantity of diacetyl-morphine, therefore, the quantity of narcotic substance is not ascertained and as such the applicant deserves to be released on bail. He has placed reliance on judgments reported in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, Rajdeep Singh Vs. State of Punjab 1999 (3) Crimes 308 3 & 4 Girdhari Nath Vs. State of Rajasthan and Union of India Vs. Lalit Baruah & others 1998 (1) Crimes 65 6. He would also submit that brown sugar is not a narcotic substance as the same is not defined under the Act.

Learned State Counsel would oppose the prayer for grant of bail and would submit that diacetyl-morphine has been found in the report of FSL which is the chemical name of brown sugar and the applicant has previous antecedents of committing similar crime wherein he was found in possession of 18 grams of brown sugar in the year 2012 itself, therefore, he does not deserve to be released on bail.

Indisputably, the FSL report has found presence of diacetyl-morphine in the contraband seized from the applicant and the same is an "opium derivative" as defined u/s. 2(16) of the NDPS Act, 1985. Section 2 of the said Act, 1985 deals with definitions. Section 2(xvi) defines "Opium derivative" which reads as under:

(xvi) "Opium derivative" means--

(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;

(b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;

(d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and

(e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine;

Section 2(xi) of the Act, 1985 defines "manufactured drug" which means--

(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug;

but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;

Thus an "opium derivate" falls within the expression "manufactured drug" as defined in section 2(xi) of the Act. Since the FSL report has found the presence of diacetyl-morphine which is an opium derivative in the contraband recovered from the applicant, the same is "manufactured drug" and as such the said offence is punishable u/s. 21 of the Act for illegal possession of "manufactured drug". In taking this view, this Court is guided by the law laid down by the Supreme Court in the matter of Amarsingh Ramjibhai Barot Vs. State of Gujarat, and P.P. Fathima Vs. State of Kerala,

The argument that brown sugar recovered from the applicant is not I a psychotropic substance is not convincing because brown sugar is the popular marketable name for diacetyl-morphine i.e. heroin and once the presence of diacetyl-morphine is found established in FSL report, it becomes opium derivative as defined u/s. 2(xvi) of the NDPS Act, 1985 and being a manufactured drug as defined u/s. 2(xi), it is punishable u/s. 21 of the said Act, 1985. Although the exact quantity of diacetyl-morphine present in the substance recovered from the applicant is not mentioned in FSL report, yet considering the fact that the applicant appears to be a habitual offender in committing similar nature of crime, because similar offence was registered against him in the year 2012 also, this Court is not inclined to release the applicant on bail. Accordingly, the prayer for grant of bail is dismissed.