Indian Kanoon - Search engine for Indian Law

"The Ld. Special Judge while framing charge below Exh. 59 in Spl. NDPS Case no. 3 of 2018 has invoked Sec. 21 of the NDPS Act by indicating that the Opium seized from Room No. 305 of Lajwanti hotel has morphine content of 0.9 percent & "Opium derivatives" is defined under sub clause (e) of Clause XVI of Sec 2 of NDPS Act where it indicates "all preparation containing more than 0.2 per cent of morphine or containing any directly morphine and clause XI of Section 2 of NDPS act define "the manufactured drug" and therefore the contraband article seized is a "manufactured drug" and hence punishable u/s. 21 of the NDPS Act.

R/CR.RA/296/2021 CAV JUDGMENT DATED: 05/08/2021

(ii) That, learned Special Judge wrongly framed the charge at exh:59 by invoking Section 21 of the NDPS Act indicating that the opium seized from Room No.305 of Lajvanti Hotel has morphine content of 0.9 % and opium derivatives is defined under Section 3 of clause XVI of Section 2 of the NDPS Act, as it cannot be said to be a part of manufacturing process....

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the trial judge in order to frame a charge against the accused."

15. The Ld. Adv. Has raised the contention with respect to "manufactured drug" as defined under section 211 or not. It would be apposite to refer to the FSL report from page 218 where the morphine content of the contraband seized is more than 0.2 % and therefore, it would be covered under the definition of opium derivative. The Hon'ble Hgih Court has dealt with theis aspect while deciding the bail application of accused no.2 and given detailed finding with respect to that. It would be apposite to refer to the judgment of Amarsingh Ramjibhai barot Vs. State of Gujarat (reported in (2005) 7 SCC 550], wherein, the expression manufactured drug and opium derivatives have been discussed.