Punjab-Haryana High Court
Bodhraj @ Bodhu @ Sunny vs State Of Punjab on 22 February, 2018
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRM-M-47823-2017 (O&M)
Date of Decision: 22.02.2018
Bodhraj @ Bodhu @ Sunny --Petitioner
Versus
State of Punjab --Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. L.S. Lakhanpal, Advocate for the petitioner.
Mr. S.S. Sandhu, A.A.G., Punjab.
***
TEJINDER SINGH DHINDSA.J (Oral) This order shall dispose of the present petition filed under Section 439 Cr.P.C seeking the benefit of regular bail to the petitioner in case F.I.R. No.31 dated 4.4.2017 under sections 22, 29 of N.D.P.S Act , registered at Police Station, Jalandhar Cantt., District Jalandhar.
Learned counsel for the parties have been heard.
As per prosecution version, the alleged recovery effected from the petitioner was of 15 injections of Buprenonrphine 2 ml. Each.
Petitioner was arrested on 4.4.2017.
Trial is stated to be at the initial stage and would take time to conclude.
During the course of arguments, counsel has adverted to an order dated 06.10.2017, passed by a Co-ordinate Bench of this Court in CRM-M-30008 of 2017, wherein the benefit of bail was granted to the petitioner, therein, namely Sonu and against whom, there was an alleged recovery of 24 injections of Rexogesic containing 2 ml. each and containing the salt of Buprenorphine Hydrochloride.
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CRM-M-47823-2017 (O&M) -2-
The order dated 06.10.2017 in CRM-M-30008 of 2017 reads as follows:-
"This petition has been filed under Section 439 Cr.PC for grant of regular bail in case FIR No.86 dated 24.04.2017, registered under Sections 22, 61, 85 NDPS Act, 1985 at Police Station Basti Bawa Khel, District Jalandhar.
According to the case spelled out in the FIR, the petitioner was apprehended while carrying one green colour bag in his right hand. The search revealed that the bag contained 24 injections of "Avillomc" and 24 injections of "Rexogesic" containing 2 ml each. The injections were seized and the petitioner was taken into custody on 24.04.2017. Since then, the petitioner has been in jail.
Learned counsel for the petitioner submits that according to the report of the FSL "Avillomc" is a nonpsychotropic substance whereas "Rexogesic" contains the salt "Buprenorphine Hydrochloride" and each injection contains 0.324 mg of the said substance and in totality 24 injections contain 15.55 mg of the alleged contraband. Thus, according to the learned counsel for the petitioner, the quantity recovered from the petitioner is less than the commercial quantity.
Learned counsel for the State, on the other hand, submits that according to the FSL report, 0.25 mg of psychotropic substance is contained in every ml of the sample. Taking the same into consideration, the total content of the psychotropic substance in 24 injections of 2 ml each works out to be 12 mg. Apart from that learned State counsel relies upon Note (iv) inserted vide amendment dated 18.11.2009 in Notification dated 19.10.2001 appended with the NDPS Act, 1985 to submit that the quantity mentioned as non- commercial/commercial in the said Notification is to be taken with reference to the entire quantity of the contraband, recovered and not on the basis of the pure drug content.
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Having heard learned counsel for the parties, I am of the view that whether the possession of the alleged psychotropic substance falls within commercial quantity or not, is to be decided at the time of trial. The first proviso to Rule 66 (ii) of NDPS Rule, 1985, favours the petitioner provided he is able to show at the time of trial that the possession of the substance, was for medicinal use. Further, "Avillomc" has been proven to be a non-psychotropic substance.Keeping in view the totality of the facts and circumstances and the fact that the petitioner has been in custody since 24.04.2017, I deem it just and expedient to release the petitioner on bail subject to his furnishing bail/surety bonds to the satisfaction of learned CJM/Judge, Special Court under the NDPS Act, 1985, District Jalandhar.
Petition stands disposed of accordingly." Learned State counsel concedes that petitioner is not involved in any other case under the N.D.P.S Act.
Petitioner is held entitled to the benefit of bail in terms of the reasoning adopted in order dated 6.10.2017 passed by a Coordinate Bench of this Court in CRM-M-30008-2017.
Accordingly, the present petition is allowed. Petitioner be enlarged on bail subject to satisfaction of Trial Court/Duty Magistrate, concerned.
Petition disposed of.
(TEJINDER SINGH DHINDSA)
JUDGE
22.02.2018
lucky
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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