- (1.) K. N. Ojha, J. Instant revision has been preferred against the order dated 6-7-2006 passed by learned Additional Sessions Judge/ Fast Track Court No. 24, Allahabad, in ST No. 678 of 2001, State v. Sangam Pasi, police station Dhumanganj, Allahabad, whereby objection of the revisionist-accused against the charge, which was framed by the learned Additional Sessions Judge under Section 8/22 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act) was rejected.
(2.) HEARD Sri Deepak Dubey, learned Counsel for the accused-revisionist, learned AGA and have gone through the record including the impugned order dated 6-7-2006. According to prosecution when the police party was on patrol duty in the night on 1-10-2001 at 2. 30 a. m. 5000 diazepam tablets were recovered from the possession of the revisionist. After investigation charge-sheet was submitted and the learned Additional Sessions Judge/f. T. C. 24, Allahabad, framed charge under Section 8/22 of NDPS Act. The revisionist moved application 32c and placed reliance of Section 215, 227, 228, 228a of Cr. P. C. Sections 20 and 36-AA of the NDPS Act that necessary contents of diazepam were not found in the alleged recovered tablets and quantity also does not exceed the minimum commercial quantity, therefore, the case be sent to the Chief Judicial Magistrate, Allahabad, for trial, and it should not proceed in the Sessions Court. Section 22 of the NDPS Act provides punishment for contravention in respect of psychotropic substances. It provides that whoever in contravention of any provision of the Act or any Rule or Order made or condition of license granted therein manufactures, possesses, sells purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substances shall be punishable, where contravention involves small quantity with R. I. for a term, which may extend to six months or with fine, which may extend to Rs. 10000/-or with both, where contravention involves quantity lesser than commercial quantity but greater than small quantity with R. I. for a term, which may extend to 10 years and with fine, which may extend to Rs. One lacs, where contravention involves commercial quantity with R. I. for a term, which shall not be less than 10 years, which may extend to 20 years and shall be liable to fine, which shall not be less than Rs. One lacs but which may extend to Rs. Two lacs provided that the Court may for reasons be recorded in the judgment, impose a find exceeding Rs. Two lacs. The table given at the end of the Act shows that commercial quantity in the case of diazepam is 500 Gm and small quantity is 20 Gm. Even though specific weight of each tablet of diazepam is not mentioned here but considering the number of diazepam tablets alleged to have been recovered the quantity cannot be less than small quantity, which is 20 Gm in the case of diazepam. Even if it be taken that weight of recovered diazepam tablets alleged to have been recovered will not exceed commercial quantity. Still in the case of quantity higher than small quantity 10 years imprisonment is provided, which cannot be imposed by the Chief Judicial Magistrate and therefore, if the learned Additional Sessions Judge has observed that considering the number of diazepam tablets it is not a fit case, which be sent to the Chief Judicial Magistrate to proceed with the trial it does not suffer from any illegality. The schedule provided at the end of the N. D. P. S. Act shows that the contents of diazepam, includes Chloro or dihydro or methyl or phenyl or benzodiazepin. Even though in the chemical report, which was submitted by the chemical examiner, does not contain the detailed description of different contents, which were found in diazepam tablet, but the report, which was sent by the Joint Director, Scientific Laboratory, Lucknow, to the prosecution shows that diazepam was found in the tablets, which were sent as sample.
(3.) THE learned Additional Sessions Judge has observed in the Impugned order that these points may be raised at the final arguments but the at the stage of charge only prima-facie consideration is to be made under Section 228 Cr. P. C. Learned AGA has submitted that so far compliance of Section 50 and other Sections the N. D. P. S. Act is concerned the prosecution has to adduce evidence and has to show as up to what extent the provisions of these Sections has been complied with.;