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On an average, the sample contained 1.72% of Monoacetyl Morphine.

8. To appreciate the arguments of the learned Counsel for the parties, it 7 Cri-176-11-&-200-11.sxw will be necessary to refer to the definitions of certain important terms. Under Section 2(xi) of the NDPS Act, "manufactured drug" means (a) all coca derivatives medicinal cannabis, opium derivatives and poppy straw concentrate and any other narcotic substance or preparation which the Central Government may, declare to be manufactured drug. Under Section 2(xv) "opium" means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine;" As per Section 2(xvi)(e) "opium derivative" means all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine. Diacetylmorphine is also known as heroin as shown by clause (d) of Section 2(xvi). In the present case, minimum Monoacetyl Morphine was 1.56% and maximum was 1.90% in the said 8 samples. Thus, each sample contained more than 0.2% Morphine. The learned Counsel for the applicant referred to the Multilingual Dictionary of Narcotic Drugs and Psychotropic Substances under International Control. As per this dictionary, Monoacetyl Morphine, 3 acetylmorphine and 6 acetylmorhine are the chemical names while the common name is "Morphine". The C.A. report shows that traces of heroin and Monoacetyl Morphine along with other opium alkaloids were detected. As the percentage of Morphine was more than 0.2% and the samples also contained heroin or diacetylmorphone they fall within the 8 Cri-176-11-&-200-11.sxw definition of "opium derivatives" under Section 2(xvi)(e) as reported by the C.A.

13. Keeping in mind the above authorities and the legal position, the facts of the present case will have to be examined. In the present case, contraband which was allegedly in possession of the accused persons was 340 grams. It was treated as heroin. However, as pointed out earlier, the C.A. report reveals that only traces of heroin, Monoacetyl Morphine along with other opium alkaloids was detected in the same. The percentage of Morphine was though more than 0.2% and actually it comes to around 1.72%. In view of the presence of heroin, though in a very small quantity, and presence of Morphine in the samples the said samples fall within the definition of opium derivative within the meaning of 14 Cri-176-11-&-200-11.sxw Section 2(xvi)(e) of NDPS Act. The learned Counsel for the accused pointed out that the applicant, when he was facing the same case earlier as an accused, had contended that the total quantity of Morphine was just 5.8 grams, which was less than the commercial quantity. On the other hand, the learned Counsel for the applicant contended that if the C.A. report is carefully read, it will reveal that the samples contained heroin and Monoacetyl Morphine along with other opium alkaloids and not the neutral substances ordinary sugar or any other eatable article. In the Notification issued by the Government of India, under clauses (vii-

Entry 77 deals with morphine and case, small quantity is 5 grams and commercial quantity is 250 grams. In view of the percentage of morphine found in the samples, morphine may be slightly more than small quantity, but less than commercial quantity. Entry 92 deals with opium which is punishable under Section 18. In case of opium and other preparation containing opium, the small quantity is 25 grams while commercial quantity is 2.5 kg. The C.A. report does 15 Cri-176-11-&-200-11.sxw not show that samples were opium. Entry 93 pertains to Opium Derivatives.

Column 4 of the said Notification, which gives the chemical names, shows that the Opium Derivatives in Entry 93 means material other than heroin, morphine or those listed herein. In case of opium derivatives also the small quantity is 5 grams and commercial quantity is 250 grams. As the opium derivatives shown in Entry 93 pertains to opium derivatives other than heroin or morphine and those listed in the Notification, the percentage of heroin or morphine is not determinative factor. In the present case, the C.A. report reveals that besides the traces of heroin and some percentage of morphine, it contained other opium alkaloids. The report does not reveal that the samples contained anything other than heroin, morphine or other opium alkaloids. None of these articles are the neutral substances and therefore, the case would fall within the meaning of Entry 93 and as the quantity of the said substance, which was opium derivative, was 340 grams, it was a commercial quantity.