- (1.)This Criminal Revision under Section 397 read with Section 401 of the Cr.PC has been filed by the appellant Prakash being aggrieved by order dated 1-12-11 passed by the learned Special Judge (NDPS), Indore in Sessions Trial No. 24/09 allowing the application filed by the respondent State under Section 216 of the Cr.PC for amending the charges. Counsel for the petitioner has vehemently urged the fact that the charges for offence under Section 8/21 of the NDPS Act, were already framed against the appellant by the learned Judge of the Trial Court on 30-10-09. However, presently on the basis of the notification issued by the Central Government dated 18-11-09, the Trial Court has upon application by the respondent State amended the charges to include that the contraband was of commercial quantity since initially the Trial Court had depended on the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, 2008 CrLJ 2250, whereby the Apex Court had held that for the imposition of the sentence for offence under Section 8/18/21 of the NDPS Act would be based on the content of offending drug in mixture and not on weight of the mixture itself and hence the amount is generally reduced substantially when only the purity of the contraband article is considered. In the present instance also Counsel stated that the contraband of the opium derivative of the present appellant was found to be 35.64 grams of brown sugar/heroine and the challan papers were put up and the offence was registered and the petitioner was duly committed to his trial bearing No. 24/09. The charges were framed on 30-10-09 and the accused statement recorded on 21-11-11.
(2.)Whereas the respondent State moved an application on 21-11-11 for amending the charges in the light of the notification issued by the Ministry of Finance (Department of Revenue) Notification, New Delhi, the 18th November, 2009. The notification reads thus :
S.O. 2941 (E).-- In exercise of the powers confirmed by clause (vii-a) and (xxiii-a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notifications S.O. 1035 (a), dated 19th October, 2001, namely :--

In the table at the end after Note 3, the following Note shall be inserted, namely :--

(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture of any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."

(D. No. 662/33/2008-NC-I)

Vimla Bakshi, Under Seer

(3.)Counsel stated that in pursuance to the notification the Amendment Act came into effect by bringing material charges in the parent Act. The Act was given effect from particular date namely 2-10-01. Counsel stated that initially on the basis of the E-Micheal Raj , the petitioner had been charged for being in possession of contraband which was of non-commercial quantity on the basis of the FSL report and the purity of the contraband; however, due to circular dated 18-11-2009 amendment in the schedule the respondent prosecution urged the Court to amend the charges on actual weight of the contraband recovered from the present petitioner, which was accepted by the Trial Court by order dated 1-12-2011 and hence the present petition.