2.5 kg Opium Equal to Notified Figure Not Commercial Quantity: Rajasthan High Court Cuts Sentence to Eight Years

The Special Judge, NDPS Cases, Baran convicted the appellant under Section 8/18 of the NDPS Act on 27.11.2007 and sentenced him to 10 years' rigorous imprisonment and a fine of Rs 1,00,000 (para 2). According to the prosecution, on 01.08.2005 a police patrol stopped a man who ran on seeing it, searched his bag after telling him of the option of a search before a Gazetted Officer or Magistrate, and found opium weighing 2.5 kg net of the bag (para 9). In appeal, he pleaded that 2.5 kg only equals the notified commercial quantity for opium, so the 10-year minimum did not apply; he had been in custody since 2005 (paras 3-6).

Narendra Kumar Jain-I J. found the recovery and the seizure memo proved by the police witnesses; that finding was not challenged, and the conviction under Section 8/18 was justified (para 10). On sentence, the sole question was whether 2.5 kg of opium is commercial quantity under Section 2(viia), which means any quantity greater than the quantity notified by the Central Government (paras 11-12). The Court turned to the three-Judge Bench of the Himachal Pradesh High Court in Ratto v. State of H.P., which held that one kg of charas is not commercial quantity because the quantity has to be greater than one kg, and that a notification, being delegated legislation, cannot override the main provision (para 13). It then set out Chanda Soni, where the Rajasthan High Court applied that reading to 2.5 kg of opium (para 14). The Public Prosecutor accepted the point (para 7). Finding the reasons in both rulings legal and sound, the Court held the recovery was not commercial quantity and the trial court's 10-year minimum was an illegality (para 15). As the quantity was on the higher side, it refused to cut the sentence to the period already served and fixed eight years (para 17).