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TMI Blog2011 (12) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant spot. At about 4 p.m. one Maruti Alto car bearing registration no. RJ-27-CB-3899 arrived and stopped in front of Modern Cafe. The officers of the Narcotics Cell surrounded the car and introduced themselves to the occupants of the car and enquired about the identity of the occupants of the car. Applicant No.2 Kailash was on the driver seat while the applicant no.1 Ambalal was on the seat by the side of driver. From below the seat of the vehicle, one jute bag consisting of a plastic bag was found. The said plastic bag contained black coloured substance. With the help of field testing kit, small quantity of that substance was tested and it answered positive for opium. The contents of the plastic bag weighed 14.500 kg. Three representative samples of 25 gm each were drawn and put into three separate plastic pouches. They were heat sealed with the seal of "Narcotics Cell, Pune Customs" and other formalities were completed. The said samples were S-I, S-II and S-III. Sample S-II was referred to the Deputy Chief Chemist, Central Revenue Control Laboratory, New Delhi. Another sample marked S-I was referred to the Deputy Chief Chemist, New Customs House, Ballard Estate,Mumbai. Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drug falls and as it is not shown specifically, the matter may be considered at the time of trial and, therefore, no fault can be found with the grant of bail. The learned counsel also argued that merely because of the presence of morphine, it may not be concluded that the substance was opium and not something else. 5. In view of the arguments and the points raised by the learned counsel for the accused on the last date, I had directed prosecution to produce complete data of the analysis, at-least from one of the laboratories and accordingly, a copy of the data from the office of the Assistant Chemical Analyser, New Customs House, Mumbai has been produced. Some of the observations in the said data of the analysis would be relevant and material. They are as follows: Observations: 1 Sample is in the form of dark brown thick sticky paste having characteristic strong odour of opium. 3 Mayer's test for Alkaloids- Positive 4 Marquis test for opium alkaloids - Positive 5 Test for Meconic Acid - Positive 7 "All the five major opium alkaloids viz. Morphine, Codeine, Thebaine, Papaverine and Narcotine were found present in the sample." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powder form or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine; "2(xviia) "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;" 2(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, mans any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;" 9. The Ministry of Finance, Department of Revenue, in the Central Government had issued Notification dated 19.10.2001 prescribing small quantity and commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phine contents were found to be 10.6% by one laboratory and 9.88 % by another laboratory, which is much above minimum prescribed in clause (b). The learned counsel vehemently contended that purity of the opium has to be considered for the purpose of determining whether the accused was found in possession of commercial quantity of opium or not. For that purpose, he relied upon E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau 2008 ALL MR (Cri) 1318 (S.C.). In fact, E. Micheal Raj (Supra) pertains to the case of heroin, which is opium derivative under Section 2(xvi)(d) and is defined as diacetylmorphine, i.e., the alkaloid also known as dia-morphine or heroin and its salts. In view of the specific definition, heroin does not mean complete mixture of any material other than dia-morphine or diacetylmorphine and, therefore, purity of the heroin has to be considered for the purpose determining commercial quantity of heroin. The Supreme Court was considering the case of heroin to find out whether it was commercial quantity or not. Language of opium derivative in respect of heroin is materially different from the language of the definition of opium in Section 2(xvi). Harjit S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cent of morphine does not arise in connection with the 2nd clause of the definition to which this opium obviously belonged. It refers to a preparation which means a mixture with or without neutral materials containing any other two forms of opium. ..." 13. Clause (iii) in the definition of opium in the Opium Act is almost similar to clause (b) in the definition of opium in NDPS Act. Therefore, it can be stated without any difficulty that proviso or expression "but does not include any preparation containing not more than 0.2 per cent of morphine" is applicable only to clause (b) or the second category of opium. In Harjit Singh (Supra), after quoting definition of opium under NDPS Act, the Supreme Court observed thus in paragraph 18: "Coagulated means solidified, clotted, curdled-something which has commenced in curdled/solid form. In case the offending material falls in clause (a) then the proviso to Section 2(xv) would not apply. The proviso would apply only in case the contraband recovered is in the form of a mixture which falls in clause (b) thereof" 14. Looking to the C.A. Reports with data of the analysis, it becomes clear that in this case opium fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the present case. 16. The learned counsel for the accused vehemently contended that the considerations for grant of bail are different for consideration of cancellation of bail and unless there are very strong and cogent reasons; or unless bail has been misused or the terms and conditions of the bail are breached, bail can not be cancelled. On the other hand, the learned counsel for the Union of India contends that if bail has been granted without looking to the gravity of the matter and if order granting bail is per-se illegal, High Court can certainly interfere and cancel the bail. In Anil Kumar Tulsiyani v. State of U.P. and Anr. (2006) 2 SCC (Cri) 565 after considering the law in respect of cancellation of bail, the Supreme Court observed thus, "10. By now it is well-settled principle of law that one of the considerations in granting bail in nonbailable offences is the gravity and the nature of the offence. The High Court has not at all addressed to this issue while granting bail to the respondent. 11. This Court in state of U.P. v. Amarmani Tripathi in which one of us (Raveendran,J) was a member has considered various decisions of this Court and obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected. 10. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179. In that case the Court observed as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmit such offence if granted bail. These are the stringent conditions in respect of grant of bail in respect of commercial quantity of the narcotic drugs or psychotropic substance. The trial Court granted the bail holding that it was not commercial quantity of opium because the morphine contained in the total substance was 1537 gm. The trial Court committed serious error in equating quantity of morphine with the quantity of opium and then gave go bye to the stringent provisions of section 37 of the NDPS Act. Therefore, it is clear that in the present case, bail could not have been granted under the law and hence, the order passed by the trial Court granting bail is per-se illegal and against the spirit of law, which seeks to prevent the offences relating to narcotic drugs or psychotropic substance. Taking into consideration the nature and gravity of the offence, severity of punishment, the specific provisions prohibiting granting of bail, in view of the law laid down in Anil Kumar (Supra) and Puran V/s Rambilas (Supra), this Court can certainly interfere in the order of bail passed by the Special Judge. 19. Therefore, the Criminal Application is allowed. The order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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