HARJIT SINGH versus STATE OF PUNJAB

Citation: [2011] 5 S.C.R. 691 · Decided: 30-03-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2011] 5 S.C.R. 691 
HARJIT SINGH 
v. 
STATE OF PUNJAB 
(Criminal Appeal No. 816 of 2011} 
MARCH 30, 2011 
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985 
- ss. 2, 8 and 18 - Distinction between Opium and Morphine 
A 
B 
- Recovery of contraband - Conviction of accused-appellant C 
- Whether when the entire substance recovered is opium and 
not any kind of mixture, the question of determining the 
quantity or percentage of morphine in the substance is 
relevant - Held: Morphine is one of the derivatives of the 
Opium - The requirement under the law is first to identify and o 
classify the recovered substance and then to find out under 
· what· entry it is required to be dealt with - If it is Opium as 
defined in clause (a) of s.2(xv) then the percentage of 
Morphine contents would be totally irrelevant - It is only if the 
offending substance is found in the form of a mixture as 
E 
specified in clause (b) of s.2(xv), that the quantity of morphine 
contents becomes relevant - The instant case did not relate 
to a mixture of narcotic drugs or psychotropic substances with 
one or more substances - The material so recovered from 
F 
the appellant was opium in terms of s.2(xv) - In such a fact-
situation, determination of the contents of morphine in the 
opium became totally irrelevant for the purpose of deciding 
whether the substance would be a small or commercial 
quantity - The entire substance had to be considered to be 
opium as the material recovered was not a mixture -
Percentage of morphine was not a decisive factor for G 
determination of quantum of punishment, as opium is to be 
dealt with under a distinct and separate entry from that of 
morphiQe. 
691 
H 
692 
SUPREME COURT REPORTS 
[2011) 5 S.C.R. 
A 
On 4-7-2003, a police party on patrol duty, being 
suspicious of the appellant, apprehended him. The 
appellant was carrying a plastic bag which was found to 
contain opium. He was convicted by the trial Court under 
Section 18 of the Narcotic Drugs and Psychotropic 
8 Substances Act, 1985 (NDPS Act) and sentenced to 
undergo RI for 10 years. The High Court affirmed the 
judgment passed by the trial court. 
In the instant appeal, the appellant contended that as 
the opium recovered from him weighing 7.10 kgs. 
C contained 0.8% morphine,. i.e. 56.96 gms., the morphine 
content was below the commercial quantity, though 
more than the minimum quantity prescribed under the 
Notification issued in this respect, and thus the maximum 
sentence of 10 years as awarded by the court was 
D unwarranted. 
Per contra, the State Government submitted that as 
the entire substance recovered from the appellant was 
opium and not any kind of mixture, the question of 
E determining the quantity or percentage of morphine in the 
substance could not arise. 
Dismissing the appeal, the Court 
HELD:1. Notification dated 18.11.2009 (as .issued 
F under the provisions of Section 2 of the Narcotic Drugs 
and Psychotropic Substances Act, 1985) has replaced 
the part of the Notification dated 19.10.2001. It is evident 
that under the aforesaid Notification, the whole quantity 
of material recovered in the form of mixture is to be 
G considered for the purpose of imposition of punishment. 
H 
However, this amendment, in fact, provides for a 
procedure which may enhance the sentence. It is a 
settled legal proposition that a penal provision providing 
for enhancing the sentence does not operate 
HARJIT SINGH v. STATE OF PUNJAB 
693 
retrospectively. Its' application would be violative of A 
restrictions imposed by Article 20 of the Constitution of 
India. The said Notification dated 18.11.2009 cannot be 
applied retrospectively and therefore, has no application 
so far as the instant case is concerned. [Para 13] [700-C-
HJ 
B 
2. Opium is essentially derived from the opium poppy 
plant. The opium poppy gives out a juice which is opium. 
The secreted juice contains several alkaloid substances 
like morphine, codeine, thebaine etc. Morphine is the 
primary alkaloid in opium. Opium is a substance which 
C 
once seen and smelt can never be forgotten because 
opium possesses a characteristic appearance and a very 
strong and characteristic scent. Thus, it can be identified 
without subjecting it to any chemical analysis. It is only 
when opium is in a mixture so diluted that its essential 
D 
characteristics are not easily visible or capable of being 
apprehended by the senses that a chemical analy

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