Kailash S/o Krishan Lal vs State of Rajasthan

Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record.

The petitioner has been arrested in connection with FIR No.489/2017 of Police Station Hanumangarh Town, District Hanumangarh for the offences

punishable under Sections 8/21 and 22 N.D.P.S. Act. He has preferred this bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that as per prosecution story, 100 vials of Onerex cough syrup which contained narcotic substance

codeine phosphate have been recovered from the petitioner. It is submitted that each vial contains 2 grms of codeine phosphate, thus, total codeine

phosphate contained in 100 vials is 200 grams, which is below commercial quantity. Learned counsel for the petitioner has further submitted that while

calculating the quantity of narcotic substance alleged to have been recovered from the petitioner, the prosecution has taken into consideration the total

weight of 100 vials and has not taken into consideration the actual weight of narcotic substance, which was contained in the vials.

It is further argued that the Hon’ble Supreme Court in Hira Singh and Ors. Vs. Union of India (UOI) and Ors., reported in (2017) 8 SCC 162 has

referred the following question to three Judges’ Bench:-

“(d) Does the Act envisage that the mixture of narcotic drug and seized material/ substance should be considered as a preparation in totality or on

the basis of actual drug content of the specific narcotic drug?â€​

It is, therefore, prayed that the petitioner may be enlarged on bail.

Per contra, learned Public Prosecutor has opposed the bail application and argued that as the Hon’ble Supreme Court in Md. Sahabuddin and Ors.

Vs. State of Assam reported in 2012 (10) SCALE 77 has held that the mixture of narcotic drug and seized material are liable to be considered in

totality and the actual drug content of specified narcotic contraband cannot be considered. It is also submitted by the learned Public Prosecutor that

the judgment of the Hon’ble Supreme court in Md. Sahabudin’s case (supra) is still holding feet and has not been reversed, therefore, the

petitioner is not entitled to be released on bail.

Having regard to the totality of the facts and circumstances of the case and taking into consideration the fact that the matter is sub-judice before the

Larger Bench of the Hon’ble Supreme Court, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to

the accused petitioner under Section 439 Cr.P.C.

Accordingly, this bail application filed under Sec.439 Cr.P.C. is allowed and it is directed that petitioner - Kailash S/o S. KrishanLal shall be released

on bail in connection with FIR No.489/2017 of Police Station Hanumangarh Town, District Hanumangarh provided he executes a personal bond in a

sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/-each to the satisfaction of learned trial court for his appearance before that

court on each and every date of hearing and whenever called upon to do so till the completion of the trial.