Ram Autar Singh,J.
Heard Sri Satish Trivedi assisted by Shri Arvind Kumar, learned counsel for the applicant, learned A.G.A. for the State of U.P. on the application for bail of the applicantaccused Badruddin Ansari, son of Hazi Mohd. Jamaluddin, resident of Stuarganj, Mohania, P.S. Mohania, District Kaimoor, State Bihar, in case crime no.205 of 2009, under section 8/21 of N.D.P.S. Act, P.S. Saiyadraja, District Chandauli and perused the record.
It transpires from the record that an F.I.R. was lodged on 8.10.2009 at 15.25 P.M. at P.S. Saiyadraja by S.H.O. Saiyadraja against the applicant Badruddin Ansari with this allegation that on 8.10.2009 the complainant received an information while he alongwith police party was busy in search of wanted criminals. The police party on the basis of information pounced upon the applicant at 13.30 P.M. at Bhatija Morh Crossing in the vicinity of village Raghavpatti Dilliya on pointing out of the informer. The police party then complying with the provisions of Section 50 of N.D.P.S. Act conducted his personal search and recovered heroin weighing 250 grams in a polythene and took a sample of 10 grams from the said heroin for the purpose of sending the same for chemical examination and then a recovery memo was prepared as well as the recovered heroin was sealed in the same polythene. The police then lodged F.I.R. and the accused alongwith recovered article at P.S. concerned. The sample was sent to chemical examiner for analysis and on receipt of analysis report and on completion of investigation the police submitted charge sheet against the applicant in the court.
The learned counsel for the applicant has contended that the police took sample of heroin weighing 10 grams from alleged recovered heroin and the same was sent to Chemical Examiner, Ram Nagar, Varanasi, but the weight of the said sample was found to be 7.20 grams therein. It is further contended that on chemical examination of the sample it has been found that out of 7.20 grams heroin content has been found to be 1.4 grams in percentage. The learned counsel for the applicant has also contended that it creates doubt as to whether the sample sent to Chemical Examiner was the same which was taken by the police on the spot because the weight of sample taken by police was 10 grams while the sample received in the chemical laboratory was found to be 7.20 grams. It is further contended that in view of the prosecution case heroin weighing 250 grams is alleged to have been recovered from the possession of the applicant which is below commercial quantity. Moreover, the percentage of heroin in sample has been found to be 1.4 and in view of total quantity of contraband heroin of 250 grams, the actual heroin content in the recovered material comes to 3.5 grams, which is below the minimum quantity and thus the applicant is entitled to bail.
The learned A.G.A. for the State of U.P. has contended that all the provisions of N.D.P.S. Act have been complied with by the police at the time of arrest and search of the applicant. Moreover, the police, on completion of investigation, has submitted chargesheet against the applicant on 25.11.2009, on which the learned Magistrate has taken cognizance. The police also tried its level best to procure the witnesses from public, but nobody was found ready to be witness. It is further submitted by learned A.G.A. that the sample of 10 grams was sent to chemical examiner which was in fact not exact 10 grams.
The learned counsel for the applicant has relied on decision of the Hon''ble Apex Court in the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau (2008) 2 SCC (Criminal) 558, in which it has been held that as per the notification issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm and commercial quantity as 250 gm. So, the basic question for decision herein is whether the contravention involved in the instant case is small, intermediate or commercial quantity under Section 21 of the N.D.P.S. Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused.
The provisions of N.D.P.S. Act were amended by the Narcotic Drugs and Psychotropic Substance (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2.10.2001), which rationalised the punishment structure under the N.D.P.S. Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment.
The intention of the legislature is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.
The learned counsel for the applicant has also relied on decision of the Hon''ble Apex court in Criminal Appeal No. 428 of 2009 (arising out of S.L.P. (Crl.) No.848 of 2007) State of NCT of Delhi Vs. Ashif Khan @ Kallu, it has been observed that the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity under Section 21 of the N.D.P.S. Act,and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused. It has been held that percentage of heroin content translated into weight is relevant.
On behalf of the State a notification dated 18.11.2009 issued by the Government of India in this respect has been placed before this Court which is reproduced below:
?S.O. 2941 (E). In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055(E), 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 or 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.?
The learned A.G.A. has placed reliance on the order passed by coordinate bench presided over by Hon''ble A.K. Roopanwal,J, in Criminal Misc. Bail Application No. 17581 of 2009 (Shyam Kumar @ Seth Vs. Union of India), in which it has been observed that at present the prevailing law is that the whole recovered material shall be taken into use for determining the commercial quantity or other quantity, hence, the whole 11/2 kg shall be taken into use for the purpose of determining the bail application.
By way of above amendment made by Government of India in Notification S.O.1055(E) dated 19.10.2001, it has been incorporated that quantity 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 or any solution or any one or more narcotic drugs or psychotropic substance of that particular drug and not just its pure drug content. In view of above circular letter the entire weight i.e. 250 grams of heroin allegedly recovered from the possession of the applicant is to be considered for deciding this application for bail and pure content of heroin is not to be considered. Thus in view of above notification the minimum quantity of heroin (Diacetylmorphine) as shown in Column 5 is 5 grams and commercial quantity is 250 grams.
In the present case the applicant is alleged to have been found in possession of heroin weighing 250 grams which is commercial quantity and thus the applicant is not entitled to bail in view of Notification S.O. 1055 (E) dated 19.10.2001 as amended by Notification S.O. 2941(E) dated 18.11.2009.
In view of above facts and circumstances of the case, the applicant is not entitled to bail.
Consequently, the bail application is rejected.
