TMI Blog2011 (2) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the accused are entitled to be released on bail if the charge sheet is not filed within 60 days. When the bail has been granted in clear contravention of law, this Court can certainly interfere. - Bail cancelled. - Criminal Application No. 176 and 200 of 2011 - - - Dated:- 15-2-2011 - J.H. Bhatia, J. Swapnil Wagh i/b. Rizwan G. Merchant, Advs. for the Applicant A.K. Wanwari i/b. K.A.J. Merchant, Advs. Ayaz Khan, Adv. P.P. Shinde, APP, for the Respondent JUDGMENT 1. Both these Applications are filed by the original complainant for cancellation of bail granted to the accused persons, who are respondent No. 1 in these two Applications by orders dated 1.2.2011 and 3.2.2011. 2. The implementation of the impugned orders was stayed by this Court and with consent of the learned Counsel, these Applications were taken up for hearing urgently. 3. To state in brief, the accused No. 1 Ravindranath Shelatkar and the complainant/applicant had some rivalry. According to the complainant, accused No. 1 Ravindranath hatched a conspiracy with accused Rajendra Bhosle, who was a police officer and some other police officers of Dongri Police Station, to fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity, if the charge sheet is not filed within 180 days, then only the accused can be released on bail under Section 167(2) of Cr.P.C. 5. The learned APP supported the applications filed by the complainant for cancellation of bail. 6. The learned counsel for the accused referred to several provisions of the NDPS Act and the Judgments of the Supreme Court, particularly the Judgment in E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 2 SCC (Cri) 558 in support of their contention that purity of heroin or morphin in the total quantity of contraband article is relevant to come to a finding as to whether the accused were in possession of small quantity or commercial quantity or intermediate quantity of heroin or opium derivative. 7. According to the applicant, the samples sent to the C.A. were tampered with and therefore fresh samples are required to be sent for test to Forensic Science Laboratory, Hyderabad or Chandigarh. The learned Counsel for the parties fairly conceded that at this stage, the Court will have to decide the matter on the basis of the C.A. report dated 10.12.2004 presuming the same to be correct. It appears that 8 samples were taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment Act, 2001 (with effect from 2.10.2001) irrespective of the quantity of the drug, the sentence, which could be awarded, would be same. However, the said Amendment was brought with intention to rationalise the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances. 10. In the case of E. Micheal Raj (supra), total quantity of contraband seized from the accused was 4.07 kg. However, as per the Forensic Science Laboratory report, purity of heroin was 1.4% and 1.6% respectively in the two samples and therefore, the quantity of heroin in the total contraband was just 60 grams. As the total quantity of heroin seized was below 250 grams, which is a commercial quantity, it was contended that the accused could be sentenced for possessing not the commercial quantity, but less than commercial quantity or intermediate quantity. In view of the Amendment of 2001, and in view of the fact that small quantity has been mentioned as 5 grams and commercial quantity has been mentioned as 250 grams, it was necessary to find out the purity of heroin to find out whether the accused was in possession of commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hotropic 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 intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking insignificant quantities, with more severe punishment." The Supreme Court held that even though the accused was found in possession of 4.07 kg. of contraband article, heroin in the same was only 60 grams and therefore it was less than commercial quantity and sentence was passed accordingly. Same view has been reiterated by the Supreme Court in State of NCT of Delhi vs. Asif Khan (2009) 4 SCC 42. In that case, according to prosecution, 310 grams of heroin was recovered from the accused. As per Forensic Science Laboratory sample contained 0.95% of diacetylmorphin and thus the weight of heroin in the said contraband was only 2.945 grams which is small quantity within the meaning of Section (xxiii-a) and the accused was liable to be sentenced accordingly. Same view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial quantity and the charge sheet is not filed within 180 days after the date of arrest, the accused would be entitled to be released on bail unless of course, the said period has been extended by the Special Court. In view of this legal position, if the accused are involved in an offence involving commercial quantity, bail cannot be granted to them under Section 167(2) Cr P.C. unless the period of 180 days after the date of arrest has expired, but if the quantity is less than commercial quantity, the accused will be entitled to be released on bail if the charge sheet is not filed within 60 days after the date of arrest. Therefore, it is necessary to find out whether the contraband found in possession of the accused was a commercial quantity or less than commercial quantity. 13. Keeping in mind the above authorities and the legal position, the facts of the present case will have to be examined. In the present case, contraband which was allegedly in possession of the accused persons was 340 grams. It was treated as heroin. However, as pointed out earlier, the C.A. report reveals that only traces of heroin, Monoacetyl Morphine along with other opium alkaloids was detected i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rphine is not determinative factor. In the present case, the C.A. report reveals that besides the traces of heroin and some percentage of morphine, it contained other opium alkaloids. The report does not reveal that the samples contained anything other than heroin, morphine or other opium alkaloids. None of these articles are the neutral substances and therefore, the case would fall within the meaning of Entry 93 and as the quantity of the said substance, which was opium derivative, was 340 grams, it was a commercial quantity. 14. The learned Counsel for the accused referred to Entry 239 in the Notification which reads as follows:- "239. Any mixture or preparation that of with or without a neutral material, of any of the above drugs. - x xx 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." In my opinion, Entry 239 has no application to the facts of the present case because En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.11.2009, is read carefully, it only indicates that the quantity prescribed in the Notification shall apply to entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug. The learned Counsel contended that if the total quantity contained neutral substance, the neutral substance cannot be considered and taken into account for the purpose of deciding the commercial or small quantity even after the said amendment. Prima facie, there appears substance in the contention of the learned Counsel for the accused in this respect. Therefore, in my opinion, the amendment of 2009 need not be taken into consideration. 17. Even if that amendment is kept aside, the contraband found in possession of the accused was opium derivative within the meaning of Section 2(xvi)(e) and Entry 93 is applicable to the same. As pointed out above, the C.A. report indicates that the traces of heroin and Morphine along with opium alkaloids were found in the said samples. There is nothing to show that any neutral substance was found in the said substances. Therefore, at this stage, the entire quantity of 340 grams will have to be treated as opium derivati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
