Vijay Bishnoi, J
This criminal misc. fourth bail application under Section 439 Cr.P.C. has been filed on behalf of the petitioner as the petitioner has been arrested in
FIR No.116/2019 of Police Station Sangaria, District Hanumangarh for the offences punishable under Sections 8/15, 21, 22 and 29 of NDPS Act.
Learned counsel for the petitioner has submitted that as per the prosecution story, 260 grams capsules containing narcotic substance Tramadol were
recovered from the possession of the petitioner. It is also submitted that as per the recovery memo, 400 capsules were recovered from the petitioner
and each capsule is weighing 65 grams and as such the weight of 10 capsules is approx 6.5 grams.
Learned counsel for the petitioner has invited my attention towards the report of the Regional Forensic Science Laboratory, Jodhpur and submitted
that as per the said report, the weight of the inner substance of the capsules is 5.399 grams. It is also submitted that out of the said weight if the
weight of the narcotic substance Tramadole is excluded, then the same comes to 215.26 grams and i.e. below commercial quantity because 250 grams
of narcotic substance Tramadol is considered as commercial quantity. Learned counsel for the petitioner has, therefore, submitted that the total weight
of the narcotic substance Tramadol, allegedly recovered from the petitioner, after excluding the other substance, is below commercial quantity.
Learned counsel for the petitioner has also submitted that the weight of the outer shells of the capsules is also to be excluded. Hence, the petitioner is
entitled to be enlarged on bail.
Per contra, learned Public Prosecutor has vehemently opposed the bail application and argued that the Hon’ble Supreme Court in Hira Singh and
Another Vs. Union of India and Another reported in (2020) 20 Supreme Court Cases 272 has held that in case of mixture of narcotic drugs or
psychotropic substance with one or more neutral substances, the quantity of the neutral substances is not to be excluded. Leaned Public Prosecutor
has also submitted that in view of the above decision of the Hon’ble Supreme Court, it cannot be said that the petitioner was carrying narcotic
substance below commercial quantity.
Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the material available on record.
The Hon’ble Supreme Court in the case of Hira Singh (supra) has held as under :-
“12.2. In case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral
substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the
“small or commercial quantity†of the narcotic drugs or psychotropic substances.
In view of the above authoritative pronouncement of the Hon’ble Supreme Court, the contention of learned counsel for the petitioner that only the
weight of the narcotic substance Tramadol is to be taken into consideration excluding the other substance as well as the outer shells of the capsules,
cannot be accepted.
Having regard to the totality of the facts and circumstances of the case and looking to the nature of accusation and gravity of the offence, without
expressing any opinion on the merits of the case, I am not inclined to grant bail under Section 439 Cr.P.C. to the petitioner.
Accordingly, this criminal misc. fourth bail application preferred by the petitioner under Section 439 Cr.P.C. is rejected.
