Delhi High Court
Ansar Ahmed vs State (Govt. Of Nct Of Delhi) [Along With ... on 2 September, 2005
Equivalent citations: 123(2005)DLT563
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. These ten bail applications were heard together as they raise common question. I shall deal with the common issues first and then with the individual bail applications. To consider the common issues I have taken a hypothetical case, which, it will become clear from what is stated below, bears a striking resemblance with the facts of each case:
A1. An alleged recovery of a suspected narcotic drug is made from the person of an accused. It is a brown coloured powder in a polythene bag. The field kit reveals that it is heroin (diacetylmorphine). It is weighed on an electronic scale and found to be 500 gms in weight. Two samples of 5 gms each are taken and placed in separate envelopes marked A and B. These samples are sent to the Forensic Science Laboratory for Chemical analysis1. Gas chromatography tests2 conducted at the laboratory reveal that the brown coloured powder tests positive for diacetylmorphine. But, it comprises only of 0.2 percent diacetylmorphine. The question that arises is whether the alleged recovery is of a 'small quantity' or a 'commercial quantity' or an intermediate quantity of Heroin. Is the the entire 500 gms of the substance to be taken into consideration or only the actual content of Heroin in it? It makes a big difference. For, 500 gms would qualify as a commercial quantity. On the other hand, 1 gm ( 500 x 0.2/100), the actual content of Heroin in the substance, would be a small quantity. The punishments are different and more importantly, at this stage, the considerations for grant of bail are different. In the case of commercial quantities, the rigours of section 373 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') would apply.
This is the prototype of the factual matrix (with variations in quantities and percentages) in each of the bail applications and these questions are common to all. So, an answer to the above hypothetical case will provide us with the common key to the individual bail applications. At this stage, it would be sufficient to set out, in tabular form, the details of the alleged recoveries in each of the bail applications. This would give us an insight into the nature of the problem confronting us and also help in ascertaining whether these are truly recoveries of 'commercial quantities' of heroin, which they purport to be:-
S. Bail Application Petitioner's Weight of Percentage of Actual weight of
No. No. name (in substance Diacetylmorphine Diacetylmorphine
custody since) allegedly (heroin) in sub- (heroin alleged-
recovered stance ly recovered
1 646/2004 Ansar Ahmed 500 gms 0.61% 3.05 gms
(5.1.2002)
2 1069/2004 Satish Kumar() 300 gms 0.20% 0.60 gms
3 1282/2004 Raj Rani @ Raj 625 gms 7.80% 48.75 gms
Bala ()
4 23/2005 Akhil Rajat 500 gms 8.10% 40.50 gms
Dass ()
5 705/2005 Gurubaksh @ 1000 gms 2.50% 25 gms
Bakshi
(28.3.2004)
6 1923/2004 Sallauddin 300 gms 0.28% 0.84 gms
(2.8.2001)
7 145/2005 Dule Hassan Nil (2 packets from
(21.2.2003) co-accused:
255 gms
55 gms
Nil 0.08%
0.23%
Nil 0.204 gms
0.1265 gms
8 164/2005 Azad Ali 500 gms 9.30% 46.5 gms
(21.2.2004)
9 530/2005 Mohd. Ramzani 1000 gms 1000 gms
(12.12.2003) Nil 4.4% Nil
44 gms
10 699/2005 Mubina @ Baby 500 gms 6.20% 31 gms
(4.9.2004)
A2. Coming back to the common issue in all these bail applications, the learned counsel appearing for the petitioners argued that it is not the total weight of the substance allegedly recovered that is material but, the percentage content of Heroin translated into weight that is relevant. On the other hand, the learned counsel who appeared for the State urged that only the weight of the substance recovered ought to be seen. They submitted that once the substance tested positive for Heroin, its percentage content in the substance was irrelevant; the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a 'small quantity' or a 'commercial quantity'.
A3. As pointed out by the Supreme Court in Basheer v. State of Kerala: , the NDPS Act contemplates severe and deterrent punishments as is evident from the minimum terms of imprisonment prescribed in Sections 21 and 22 thereof. It was found that a large number of cases, in which the accused were found to be in possession of a small quantity of drugs, were really cases of drug addicts and not of traffickers in narcotic drugs and psychotropic substances. As a result of the stringent bail provisions there were hardly any cases where such persons could obtain bail. Thus, trials were pending for long periods and the accused languished in jail. Under Section 27 of the Act of 1985, there was a marginal concession in favor of drug addicts by providing a reduced quantum of punishment if the accused could prove that the narcotic drug or psychotropic substance in his possession was intended for his personal consumption and not for sale or distribution.
A4. In Basheer (supra), the Supreme Court further pointed out that the provisions of the NDPS Act, 1985 were amended by the amending Act 9 of 2001, which rationalised the structure of punishment under the NDPS Act by providing graded sentences linked to the quantity of the narcotic drug or the psychotropic substance in relation to which the offence was committed. The application of strict bail provisions was also restricted only to those offenders who indulged in serious offences.
A5. It would be instructive to go through The Statement of Objects and Reasons concerning the amendments of 2001:-
'STATEMENT OF OBJECTS AND REASONS Amendment Act 9 of 2001. 'The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years' rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences.' A6. In Basheer (supra), the Supreme Court observed:-
'5. As a consequence of the amending Act coming into force on 2-10-2001, the sentencing structure underwent a drastic change. The Act introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding clause (vii-a) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the expression 'small quantity' is defined in Section 2, clause (xxiii-a), as any quantity lesser than the quantity specified in the notification. Under the rationalised sentencing structure, the punishment would vary depending on whether the quantity of offending material was 'small quantity', 'commercial quantity' or something in between. This is the effect of the rationalisation of sentencing structure carried out by the amending Act 9 of 2001, in Section 27. A notification was issued on 9-10-2001, specifying in respect of 239 narcotic drugs and psychotropic substances, as to what would be 'small quantity' and 'commercial quantity'.
A7. I have heavily relied upon the Supreme Court decision in Basheer (supra) because it succintly gives the genesis of the classification of narcotic drugs and psychotropic substances into 'small quantities' and 'commercial quantities' and the reasons and object for such classifications, namely, rationalisation of the sentencing structure. Let me now examine these expressions in greater detail. These expressions are defined under Sections 2(xxiii-a) and 2 (vii-a) of the NDPS Act, which read as under:-
(xxiii-a) 'small quantity', in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.' (vii-a) 'commercial quantity' in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.' As noticed in Basheer (supra), by a Notification dated 19th October, 2001, the Central Government specified the 'small quantity' and 'commercial quantity' for each of the Narcotics Drugs/Psychotropic substances listed therein. In the table appended to the said Notification, at Entry No. 56, Heroin has been specified and the small quantity has been mentioned as 5 grams whereas the commercial quantity has been specified as 250 grams. The said Entry No.56 and Entry 239, which, apparently, is a residual entry, read as:-
Sl. Name of Narcotic Other non- Chemical Name Small Commercial
No. Drug and Psychot- -propriet- quantity Quantity
ropic Substance ary name (in gm.) (In gm./kg.)
[International non-
proprietary name
(INN)]
1 2 3 4 5 6
56 Heroin Diacetylmorphine 5 250 gm 239
Any mixture or preparation that of with or without a neutral material, of any of the above drugs.
...
* ** * Lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.
** Lesser of the commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.' A8. Upon a plain and uncomplicated reading of the above Entry No. 56 it is clear that the content of heroin to qualify as a 'small quantity' is less than 5 grams of it. The content of heroin in excess of 250 grams would qualify as a 'commercial quantity'. But, going back to our hypothetical case, heroin and some other substance are mixed together having a combined weight of 500 grams. As such, the learned counsel for the State submitted that Entry 239 would come into play and, as a consequence, the entire weight of the substance would have to be taken. I am unable to agree with this reasoning. What Entry 239 deals with is a situation where two or more narcotic drugs or psychotropic substances are mixed or a preparation derived there from, with or without the addition of neutral material. It does not deal with a situation where a mixture or preparation contains only one narcotic drug or psychotropic substance Along with neutral material. To make things clear, let us suppose we have two narcotic drugs P and Q and some neutral material N. Entry 239 would apply to a situation where the mixture is of P and Q, with or without N. It would not apply where the mixture is of P and N or Q and N. In our prototype case, the mixture is of a neutral substance and heroin (a narcotic drug). Hence, Entry 239 would have no application. In fact, as rightly submitted by the learned counsel for the petitioners, even the specifications for small and commercial quantities in respect of Entry 239 favor such an interpretation. 'Small quantity' relative to Entry 239 means 'lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture'. This, in itself, contemplates a mixture of more than one narcotic drug or psychotropic substance. For example, if against a narcotic drug P, the small quantity prescribed is 5 grams and for narcotic drug Q, the small quantity specified is 1 gram, then, the small quantity for the mixture of P and Q (with or without a neutral substance) would be 1 gram being the 'lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture'. But, this Entry 239 would not come into play when the mixture is of a narcotic drug such as heroin and a neutral substance.
A9. It is, therefore, Entry 56 which shall apply. The quantities of heroin (diacetylmorphine) specified therein are by weight. Keeping in mind that the object of introducing this classification was to rationalise the sentencing structure 'so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment', it does appear to me that what has to be seen is the content of heroin by weight in the mixture and not the weight of the mixture as such. Otherwise, anomalous consequences would follow. While a recovery of 4 grams of heroin would amount to a small quantity, the same 4 grams mixed up with say 250 grams of powdered sugar would be quantified as a 'commercial quantity'! And, where would this absurdity stop? Suppose one were to throw a pinch of heroin (say 0.5 gram) into a polythene bag containing small steel ball bearings having a total weight of 1kg: would the steel ball bearings be also weighed in and it be declared that a commercial quantity (1000.5 grams) of heroin was recovered! Surely, it is only the content of heroin (0.5 gram) in the 'mixture' of heroin and steel ball bearings that is relevant? Clearly, then, it would qualify as a small quantity. Therefore, in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for detrmining whether it would constitute a 'small quantity' or a 'commercial quantity'.
A10. In the case Mohd. Sayed v. Customs: 2002 [2] JCC 1293 a similar question arose. The accused in that case was allegedly found to be in possession of 3215 Tidigesic Injections (Buprenorphine) of 2 ml each. Buprenorphine is a psychotropic substance and the question that was posed was whether the actual quantity of Buprenorphine found to be present in the ampoules or the total quantity of the these ampoules was to be taken for framing of the charge. It was also noted in the said decision that as per the said notification of 19th October, 2001, the small quantity and commercial quantity of Buprenorphine had been specified at 1 gram and 20 grams respectively. In this factual position, a learned single judge (K. S. Gupta, J.) of this court held as under:-
'In my view, in this case it could only be the actual quantity/ value of Buprenorphine as found present in each ampoule i.e. 0.18 ml and not the total quantity of 2 ml that may be taken for the purposes of framing of charge against the petitioner. So calculated, the aggregate Buprenorphine in 3215 ampoules would come to 0.578 gm which is a small quantity.' Masoom Ali @ Ashu v. State (Crl Rev.P 195/2004) decided on 7.4.2004 was a decision of another learned single judge (R.S. Sodhi, J.) of this court. In that case, the petitioner had filed a revision petition being aggrieved by the order of the Additional Sessions Judge rejecting the petitioner's application to have the sample re-examined by the Central Forensic Science Laboratory to determine the percentage of diacetylmorphine. In this background, the court held:-
'The reasoning given by the learned judge for dismissing the application is that the percentage in the total quantity of recovery is immaterial for the purpose of determining the offence. The reasoning does not appeal to me. I am of the view that where in a large quantity of powder recovered the percentage of the narcotic substance is very small then proportionate reduction in the recovery would have to be made in order to ascertain whether the offence falls within the categories mentioned in the NDPS Act.' In Ouseph v. State of Kerala: (2004) 4 SCC 4464, the case against the appellant therein was that he was found in possession of 110 ampoules of buprenorphine (under the trade name Tidigesic) which is a psychotropic substance. The question to be considered by the Supreme Court was whether the said psychotropic substance was a 'small quantity'. The Court held [at page 447]:-
'The words 'small quantity' have been specified by the Central Government by the notification dated 23-7-1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each ml contains only .3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification.' The recovery was of 110 ampoules of 2 ml each. However, the Supreme took into consideration only the actual content of Buprenorphine (i.e. 0.3 mg per ml) for the purposes of deciding whether the recovery was of a small quantity of Buprenorphine or not. It found that each ampoule contained 0.6 mg (0.3 x 2) of Buprenorphine and, since, 110 ampoules were recovered, the total quantity of Buprenorphine recovered would amount to 66 mg (0.6 x 110). Accordingly, the supreme court held that the recovery was of a small quantity, being less than 1 gram (1000 mg).
Therefore, the contrary decision of a learned single judge (O.P. Dwivedi, J) of this court5 in the case of Yogesh Tyagi & ors v. State: would be of no avail to the learned counsel for the respondents who relied upon it rather heavily. In Yogesh Tyagi (supra) (a decision rendered on 26.5.20046), the court held:
'...I am of the view that the entire quantity recovered in each of these cases falls within the definition of narcotic drug or psychotropic substance and the percentage mentioned in the CFSL reports whether by weight or potency is irrelevant for determining whether the quantity of drug recovered in each case is small quantity or commercial quantity.' This view is clearly the diametrical opposite of the view taken by not only earlier Single Benches of this Court but also the Supreme Court. I have no hesitation in holding that the decision in Yogesh Tyagi (supra) was per incuriam7 inasmuch as the decisions in Masoom Ali (supra) and Ouseph (supra) have not been noticed. With regard to the decision in Mohd. Sayed (supra), Yogesh Tyagi (supra) refers to it in, inter alia, the following terms:-
'It is not clear from the judgment as to what would be the weight in terms of mg of .18 ml Buprenorphine contained in each ampule. Moreover, the question of calculating the weight of diacetylmorphine on the basis of percentage given in the FSL report was not at all raised in that case. So the said decision has no direct bearing on the facts of these cases.' These observations have overlooked the aforesaid clear finding in Mohd. Sayed (supra) to the following effect:-
'In my view, in this case it could only be the actual quantity/ value of Buprenorphine as found present in each ampoule i.e. 0.18 ml and not the total quantity of 2 ml that may be taken for the purposes of framing of charge against the petitioner. So calculated, the aggregate Buprenorphine in 3215 ampoules would come to 0.578 gm which is a small quantity.' Clearly, the decision in Yogesh Tyagi (supra) being per incuriam, it does not constitute a binding precedent. Accordingly, based upon the reasoning given above and respectfully following the decisions of this court in Mohd. Sayed (supra) and Masoom Ali (supra) and the decision of the Supreme Court in Ouseph (supra), I reiterate that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken while considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a 'small quantity' or a 'commercial quantity'.
Having decided the common question in all these bail applications, I shall now take up the individual bail applications for disposal.Bail Application 646/04
Ansar Ahmed FIR No. 2/2002 P.S. Narcotics Branch U/S: 21 NDPS Act.
B1. The petitioner (Ansar Ahmed) was allegedly in possession of 500 grams of smack. Two samples are alleged to have been taken of 5 grams each. The sample marked Ext. `A' was sent to the Forensic Science Laboratory, Government of NCT of Delhi, Malviya Nagar, New Delhi for Chemical analysis. The report dated 26.3.2002 discloses that Ext. `A' contained brown coloured powder stated to be smack having an approximate weight of 5.16 grams with polythene. On Chemical examination Ext. `A' gave positive tests for the presence of diacetylmorphine. Since the percentage content of diacetylmorphine was not disclosed in this report, the petitioner had sought retesting which had been rejected by the Court below. However, it was subsequently allowed and a fresh report dated 23.8.2004 was prepared by the said Forensic Science Laboratory. This time around, the result of examination disclosed that the sample gave a positive test for the presence of diacetylmorphine and that on Gas Chromatography examination, the same was found to contain diacetylmorphine 0.61%. Since the alleged recovery was of 500 grams, the content of diacetylmorphine in the said 500 grams on the basis of the percentage constituent came to 3.05 grams (500 x 0.61/100 = 3.05). The small quantity specified of diacetylmorphine (heroin), as noted above, is 5 grams.
B2. Therefore, in view of the discussions above, the alleged recovery from the accused Ansar Ahmed would come to only about 3.05 grams which is a small quantity. Accordingly, the rigours of Section 37 of the NDPS Act would not apply. The petitioner has been in custody since 5.1.2002 and in these circumstances, is clearly entitled to be released on bail. Moreover, that he has no previous conviction under the NDPS Act. Accordingly, I direct that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 1069/04
Satish Kumar FIR NO 42/2003 U/S 21 NDPS Act, P.S. Narcotics Branch, Kamla Market.
C1. The prosecution's case is that the accused (Satish Kumar) is stated to have been found in possession of 300 grams of smack on 24.5.2003. One gray coloured packet is alleged to have been recovered from the right pocket of his kurta and a muddy coloured powder was found therein which, on testing by the testing kit, was found to contain heroin. The packet was found to weigh 300 grams as per the electric scale. Two samples of 5 grams each were taken and marked as `A' and `B'. The sample marked `A' was sent to the Forensic Science Laboratory, Malviya Nagar, New Delhi for Chemical analysis. The said laboratory prepared a report on 15.10.2003. It disclosed that on Chemical and gas chromatography examination the said sample was found to contain diacetylmorphine 0.2%. In terms of weight this would translate to 0.6 grams (300 x 0.2/100 = 0.6) of heroin in the said recovery of 300 grams of the substance. Clearly, in view of the discussions aforesaid, the recovery is of a very small quantity of heroin. Therefore, Section 37 of the NDPS Act would not apply.
C2. The petitioner has been in custody since 24.5.2003, i.e. for a period of over two years and that too in the case of an alleged recovery of a small quantity. The petitioner is clearly entitled to bail and I direct that he be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 1282/04
Raj Rani alias Raj Bala U/S 29 read with Sec. 21(b) NDPS Act DZU, New Delhi.
and Bail Application 23/05 Akhil Rajat Dass U/S 21, 23,29 NDPS Act, DZU New Delhi.
D1. These bail applications are considered together inasmuch as they arise out of the same set of facts.
D2. Raj Rani is the wife of Akhil Rajat Dass. Both of them have been in custody since 8.10.2002. It is alleged that on that date 500 grams of smack were recovered from the dash board of the car being driven by the said Akhil Rajat Dass. Samples were taken. The house of Akhil Rajat Dass was also searched thereafter and it is alleged that a further recovery of 625 grams of smack was affected from the house. In the house Raj Rani (wife of Akhil Rajat Dass) was also present and she was also booked. Samples were taken. The samples that were taken were sent for testing to the Chemical Examiner, Central Revenue Control Laboratory, New Delhi. The report revealed that the samples taken from the car which was driven by Akhil Rajat Dass comprised of 8.1% diacetylmorphine and the samples taken from the house premises were said to contain 7.8% diacetylmorphine. In view of the discussions aforesaid, the alleged recoveries of heroin (diacetylmorphine) from the car and the house (respectively) would, in terms of weight, be 40.5 grams (500 x 8.1/100 = 40.5) and 48.75 grams (625 x 7.8/100 = 48.75). In fact, even the charges framed against the two accused refer to these weights as being the alleged recoveries of heroin.
D3. In this view of the matter, the alleged quantities of recovery, although do not qualify to be called as small quantities, are still far below the commercial quantity of 250 grams. As such, the provisions of Section 37 of the NDPS Act would not apply to these accused. Considering these facts as also the fact that the said accused have been in custody since 8.10.2002, i.e. for almost a period of three years, I feel that they are entitled to be released on bail. Accordingly, I direct that the petitioners in these two bail applications be released on bail on their furnishing personal bonds in the sum of Rs 20,000/- each with one surety each of the like amount to the satisfaction of the concerned trial Court.Bail Application 705/05
Gurubaksh alias Bakshi U/S 21 NDPS Act, P.S. Narcotics Branch, R.K.Puram.
E1. On 28.3.2004 the petitioner was allegedly found in possession of 1 Kg. of heroin in a polythene packet. Two samples of 5 grams each were taken. One of the samples marked `A-1' was sent to the Central Revenue Control Laboratory, New Delhi for Chemical examination. A report dated 28.5.2004 was prepared wherein the content of diacetylmorphine (heroin) in the sample was disclosed as being 2.5%. This, in view of the discussion above, translates to a content of 25 grams of heroin by weight (1000 x 2.5/100 = 25) in the said substance. Clearly, the recovery, although it is of a quantity larger than the small quantity specified, is just about 1/10th of the commercial quantity specified. Therefore, Section 37 of the NDPS Act would not apply. The petitioner had been in custody since 28.3.2004, i.e. for a period of almost one and a half years and he is entitled to be released on bail. Accordingly, I direct that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 1923/04
Sallauddin FIR NO 30/2001 U/S 21, NDPS ACT.
PS Narcotics Branch Kamla Market.
F1. It is alleged that a recovery of 300 grams of smack was affected from the accused Sallauddin. Two samples of 10 grams each were taken and marked as `D' and `E'. The sample marked `D' was sent to the Forensic Science Laboratory for Chemical analysis. According to the report dated 5.2.2004 submitted by the FSL, Ext `D' was found to contain brown coloured lumps stated to be `Heroin', having an approximate weight of 8 grams with polythene. The report further reveals that on Chemical and Gas Chromatography examination Ext. `D' was found to contain diacetylmorphine 0.28%. This would mean that in terms of weight the content of diacetylmorphine would be only 0.84 grams (300 x 0.28/100 = 0.84) in the entire substance of 300 grams.
F.2. Clearly, the recovery was of a quantity which was a small quantity. The petitioner had already been in custody since 2.8.2001, i.e. for a period of almost four years in respect of an alleged recovery of 0.84 grams of heroin. Section 37 of the NDPS Act does not apply and keeping in view the fact that the petitioner has been in custody for over four years, a clear case for grant of bail is made out.
F.3. Accordingly, I direct that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 145/05
Dule Hassan< FIR NO 9/03 U/S 21, 29 NDPS ACT PS NARCOTICS BRANCH KAMLA NAGAR.
G1. It is the case of the prosecution that on 21.2.2003, the accused Dule Hassan took out a parcel from his right pocket of his trouser and handed it over to co-accused Shakur. Accused Dule Hassan and co-accused Shakur and Nafis were apprehended. All three were searched. Nothing was recovered from accused Dule Hassan. From co-accused Shakur, it is alleged that a polythene bag containing a dark brown coloured powder and weighing 255 grams was recovered. Two samples of five grams each were taken and they are marked `A' and `B'. From co-accused Nafis an alleged recovery of 55 grams of a light brown coloured powder in a polythene bag was made. Two samples of five grams each were taken and marked `D' and `E'. Samples `A' and `D' were sent for Chemical examination to the Forensic Science Laboratory. The report dated 22.1.2004 discloses that on Chemical and Gas Chromatography examination Ext. `A' and `D' were found to contain diacetylmorphine 0.08 and 0.23% respectively. Therefore, the actual content of heroin allegedly recovered from co-accused Sakur and Nafis would come to 0.204 grams (255 x 0.08/100 = 2.204) and 0.1265 grams (55 x 0.23/100 = 0,1265) respectively.
G.2. First of all, there was no recovery of any narcotic drug or psychotropic substance from the accused Dule Hassan. Moreover, even if the recoveries allegedly made from co-accused Shakur and Nafis are taken, the total content of heroin recovered from them comes to only 0.3305 grams. This is far below the maximum amount of small quantity prescribed. Clearly Dule Hassan is entitled to bail. The petitioner has been in custody since 21.2.2003, i.e. for a period of almost two and a half years when no recovery was made from him and the recovery from the co-accused was also only of 0.3305 grams of heroin. Accordingly, I direct that the petitioner (Dule Hassan) be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 164/05
Azad Ali FIR NO 11/2004 U/S 21,29 NDPS ACT PS NARCOTICS BRANCH H1. The case against Azad Ali is that on 21.2.2004 an alleged recovery of 500 grams of heroin is stated to have been made from him. Two samples marked `A' and `B' of five grams each are said to have been taken. On testing, the Forensic Science Laboratory has indicated that the sample contained 9.3% diacetylmorphine. In other words, the total content of heroin in the alleged recovery of 500 grams of the substance would come to 46.5 grams (500 x 9.3/100 = 46.5). The learned counsel for the petitioner submitted that the recovery not being a commercial quantity, Section 37 of the NDPS Act is not applicable. He further submitted that the petitioner had no criminal antecedent in respect of offences under the NDPS Act and that the alleged recovery is said to have been effected in a crowded place, yet no independent recovery witness has been produced.
H2. Considering that the alleged recovery is of 46.5 grams of heroin which is far below the commercial quantity and the fact that the petitioner has been in custody since 21.2.2004, I feel that the petitioner is entitled to bail at this stage. Accordingly, I direct that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 530/05
Mohd. Ramzani FIR NO. 103/2003 U/S 21,29 NDPS ACT PS NARCOTICS BRANCH, KAMLA MARKET.
I.1. An alleged recovery of 2 Kg. of heroin is said to have been made from the accused Mohd. Ramzani on 12.12.2003. It is alleged that two packets of 1 Kg. each were recovered from him. Two samples of five grams each were taken from each of the packets and marked as `A-1', `A-2' and `B-1' and `B-2'. The samples marked `A-1' and `B-1' were sent to the Forensic Science Laboratory for Chemical analysis. The FSL report dated 5.5.2004 reveals that on Gas Chromatography examination Ext. `A-1' was found to contain diacetylmorphine 4.4% and insofar as Ext. `B-1' was concerned, diacetylmorphine could not be detected. This implies that one of the packets of 1 Kg. did not contain any narcotic drug and particularly heroin and comprised of some neutral substances. Therefore, the content of heroin in the alleged recovery would amount to only 44 grams (1000 x 4.4/100 = 44) which is less than 1/5th of the commercial quantity specified for heroin. Clearly, Section 37 of the NDPS Act would not be attracted and considering the fact that the petitioner has been in custody since 12.12.2003, I feel that the petitioner is entitled to be released on bail at this stage. Accordingly, I direct that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.Bail Application 699/2005
Mubina Alias Baby FIR NO 65/2004 U/S 21,29 NDPS ACT PS NARCOTICS BRANCH, KAMLA MARKET J.1. Allegedly, a recovery of 500 grams of heroin was made from the petitioner on 4.9.2004. Two samples were said to have been taken of five grams each and marked as `A' and `B'. Sample `A' was sent to the Forensic Science Laboratory for Chemical examination and the report of the Forensic Science Laboratory dated 16.12.2004 reveals that on Gas Chromatography examination sample `A' was found to contain diacetylmorphine 6.2%. In other words, the actual content of heroin allegedly recovered from the petitioner would come to 31 grams by weight (500 x 6.2/100 = 31). Clearly, this is far below the commercial quantity of 250 grams. Accordingly, the rigours of Section 37 of the NDPS Act would not apply.
J.2. Considering these factors as well as the fact that the petitioner has been in custody since 4.9.2004 (i.e. almost one year), I feel that the petitioner is entitled to be released on bail. Accordingly, I direct that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs 20,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.
2. This disposes of all the ten bail applications.
3. dusty.