Jay Kumar Shah vs Union of India (UOI)

Alok K. Singh, J.—Objection filed today is taken on record.

Heard learned Counsel for the appellant and learned A.G.A. on the prayer for bail.

The appellant has been convicted under Sections 8/21 and 8/29 NDPS Act and sentenced to ten years'' R.I. and a fine of rupees one lac.

The recovery is said to be of 600 gms. heroin from the appellant.

As per the chemical examination report prepared by the Government Opium and Alkaloid Works, Ghazipur (U.P.), on the basis of chemical and chromatographic examination the sample answered positive test for Diacetyl Morphine and the percentage of Heroin (Diacetyl Morphine) was 23.1 (Twenty Three Deci One). Thus the quantity of heroin comes to 138.6 grams out of total recovery of 600 grams which is below commercial quantity (Ext Ka-25).

It is, therefore, submitted that in view of the law laid down in the case of E. Micheal Raj v. Intelligence Officer, Narcotics Control Bureau 2008 (61) ACC 660 the recovery in question will now fall below commercial quantity. Therefore, the provisions of Section 37 of N.D.P.S. Act will also not apply.

Relevant para 13 of the aforesaid case law is significant which is extracted hereinbelow:

It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable u/s 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing, 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 Kgs. of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic 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 appear 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 in significant quantities, with more severe punishment.

Sri I.B. Singh, learned Counsel for Union of India, however, submits that isomers, easters, ethers and salts of these drugs are also to be taken into consideration while determining the category of the psychotropic substance. But admittedly no mention has been made about the aforesaid salts etc. in the above report and, therefore, in the absence of that it can be safely inferred that the material in question, the percentage of which has been found as mentioned above is inclusive of the aforesaid salts also.

Lastly it is submitted by the learned Counsel for the appellant that (i) he has been in jail for the last about 2 years and 9 months, (ii) there is no criminal history against him, (iii) speedy justice is a fundamental right but the appeal may take a couple of years or even more in its final disposal and (iv) the appellant has every hope of success in the appeal.

In view of the facts and circumstances, without entering into merits of the case and particularly having regard to the aforesaid proposition of law laid down by the Hon''ble Apex Court and keeping in view the aforesaid laboratory report as the material in question now falls below the commercial quantity wherein Section 37 of the N.D.P.S. Act has no application, I find it to be a fit case for granting bail.

Let the appellant (Jay Kumar Shah) be enlarged on bail on his furnishing a personal bond of Rs. 50,000/- and two local and reliable sureties in the like amount to the satisfaction of the Magistrate/court concerned.

It is submitted that the amount of fine is exorbitant and as the appellant has been languishing in jail for the last about two years nine months it is difficult for him to manage such a huge amount. In view of the facts and circumstances and having regard to the fact that he has already put in two years nine months in jail it is provided that half of the total amount of fine i.e. Rs. 50,000/- shall be deposited by the appellant within two months from the date of his release. Rest of the amount of fine shall remain stayed. Subject to the above, the period of sentence shall remain suspended during the pendency of this appeal.