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TMI Blog2008 (11) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... e said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ). Appellant contends that he was tortured and the statement was obtained forcibly from him on some blank documents. He later on retracted therefrom. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 of 2005, was dismissed by reason of the impugned judgment. 7. Appellant is, thus, before us. 8. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the appellant, would contend that in the peculiar facts and circumstances of this case there was no justification at all for cancellation of bail which had already been granted to the appellant. The learned counsel would contend that a bail granted must be cancelled only if the requirements contained in Sub-section (2) of Section 439 of the Code of Criminal Procedure are fulfilled. In any event, as the Central Revenue Control Laboratory, New Delhi is not a designated chemical examiner as defined in the Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short the Rules ), reliance thereupon could not have been placed particularly when the laboratory which comes within the definition of the term Chemical Examiner had opined otherwise. The learned counsel would contend that unlike the provisions of Section 13(3) of the Prevention of Food Adulteration Act, 1954, no provision exists in the Act for sending one sample to one laboratory and the second to another laboratory. The learned counsel would fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 12. However, a distinction even is made as regards grant of bail in relation to a commercial quantity and a small quantity. Commercial quantity has been defined in Section 2(viia) of the Act to mean any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette . 13. We will advert to the question of the definition of Chemical Examiner a little later. The question, however, as to whether the contraband found came within the purview of the commercial quantity within the meaning of Section 2(viia) or not is one of the factors which should be taken into consideration by the courts in the matter of grant or refusal to grant bail. Even, according to the Central Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Assistant Chemical Examiner, Government Opium Alkaloid Works, Neemuch or, as the case may be, Ghazipur . 15. It is not necessary for us to consider the matter in depth as to whether the aforementioned definition is exhaustive but then we are concerned with a question involving cancellation of an order of bail. The authorised laboratory at Neemuch categorically found that the seized substance did not contain any contraband. For the purpose of grant of bail, the court cannot be said to have committed any illegality in relying thereupon. There exists a difference of opinion insofar as the Central Revenue Control Laboratory, New Delhi, has since opined that the sample contained 2.6% hereoin. The effect of said contradictory report must be gone into only at trial. A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured. 16. It is not the stage where the court is required to take into consideration the submission of Mr. B.B. Singh that a judgment of conviction is possible to be recorded on the basis of a confessional statement made by an accused. It ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of goods; it acts for the purpose of detection of crime and bringing an accused to book. But, as indicated hereinbefore, the said question need not be gone into at this stage. 17. We may, however, incidentally refer to a recent decision of the Privy Council in State of Mauritius v. Khoyratty [2006] UKPC 13 : [2006] 2 WLR 1330] wherein a similar provision curtailing the power of court to grant bail was held by the Supreme Court of Mauritius to be ultra vires of the doctrine of separate of power. A constitutional amendment by simple majority was carried out. Even that constitutional amendment was held to be unconstitutional. The Privy Council in the aforementioned case upheld the said decision stating: In A v Secretary of State for the Home Department [2005] 2 AC 68 Lord Bingham gave the leading judgement. He stated at para 42: . . . It is also of course true . . . that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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