Mushtaq Ahmad Malik vs State of Jammu & Kashmir

Mohammad Yaqoob Mir, J.—Petitioner(accused) is facing trial before the trial court of 3rd Additional Sessions Judge (Special Judge),

Jammu for commission of offences punishable under Sections 8/20, 21, 23 and 28 NDPS Act.

Allegedly on 17.3.2010, car bearing registration No. HR-26M-4527 was intercepted, on search in presence of Gazetted Officer 1.8 Kg

hashish/charas was recovered. Both Petitioner and the co-accused Feroz Ahmad Shah were taken into custody. The recovered material was

divided into two lots, lot A contained 40 pieces of sample marked 1 to 40 and lot B contained 8 pieces of sample marked 41 to 48. Same were

send for analyses initially to Jammu & Kashmir Forensic Science Laboratory, Jammu. On examination the said laboratory on 26.4.2010 has

submitted the report. The result of the examination was recorded as under:

RESULT:

The exhibits were subjected to various chemical, microscopical and chromatographic examination and the result arrived at is as under:

i) Charas was detected in the Exhibit No. K-299/2010 & K-300/2010

ii) The percentage of Tetra hydro Cannabidol (T.H.C) in exhibit Nos. K-299/2010 & K-300/2010 was found to be 4.07% in each exhibit.

Later on the sample has also been send to Central Revenues Control Laboratory, New Delhi which in its report has stated that the samples

under reference answers positive test for charas. The content of THC (Tetrahydrocannabidol) and gross weight of remnant samples are as under:

Lab No. Marked as % of THC Gross weight

Content pouch

CLD-1281 H1-40/B 5.03(five 4.3gm

(N) decimal zero

three)

-do- H241-48/B 15.1(Fifteen 4.4gm

Decimal one)

According to learned Counsel for the Petitioner, the THC as per FSL in the recovered material was 4.07% which would mean the total quantity

of THC was around 50 grams and in terms of opinion of CRCL, Delhi, it would be around 100 grams.

In the table appended to the NDPS Act, the charas, Hashish appears at serial No. 23 wherein small quantity is shown as 100 grms and

commercial quantity as 1 kg. In terms of the FSL opinion, the quantity recovered is less than small quantity and in terms of the CRCL Laboratory,

the quantity will be slightly more than small quantity but in any case not the commercial quantity.

It is the contention of learned Counsel for the Petitioner that when the quantity involved is not the commercial one, then the rigour of Section 37

of NDPS Act will not operate.

It is to be borne in mind that the menace of drugs is disturbing the social environment and the persons indulging in such activities are required to

be dealt with firmly but at the same time the protections as guaranteed by law are not to be sidelined. Furthermore, the cardinal principal of criminal

jurisprudence i.e. presumption of innocence until guilt is brought home has to be on the side of the accused, there can't be sentence before

conviction.

An unsuccessful attempt of the Petitioner in seeking bail before the trial court has resulted in filing of instant petition.

The learned trial court has opined that in view of Notification SO 2941 (E) dated 18th November 2009, entire mixture or any solution, not just

pure drug content of the recovered material, is to be considered for the purposes of being commercial or small quantity. Same argument was

repeated by the learned Counsel for the Respondents. It shall be quite relevant to quote said notification:

Ministry of Finance

S. Order 2941 (E) ? In exercise of the powers conferred by Clause (vii a) and (xxiii) of Section 2 of the Narcotic Drugs and psychotropic

Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S. 0.1055(E), dated 19th

October, 2001, namely:

In the Table at the end after Note 3, the following Note shall be inserted, namely:

(4) The quantities shown in column 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any

solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage from or isomers, esters, ethers and salts of

these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content

(F. No. 662/33/2008-NC-1)

Earlier it has been settled by the Hon'ble Apex Court in the judgment rendered in Criminal Appeal No. 428/2009 captioned State of NCT of

Delhi Vs. Ashif Khan @ Kalu, that for ascertaining small or commercial quantity, percentage of narcotic content in the total material is relevant.

Now in view of the notification dated 18.11.2009, as quoted above, the entire mixture has to be considered for the purposes of small and

commercial quantity, not just its pure drug content.

In the case of the Petitioner, whole recovered material cannot be considered for the purposes of ascertaining small or commercial quantity

because the FSL or CRCL while formulating their opinion have no where mentioned as to what was the remnant material i.e. they have not opined

vis-a-vis existence of isomers, esters, ethers and salts of these drugs including salts of esters, ethers and isomers, so the opinion of the expert is

silent. Petitioner has been send up for trial and has been facing trial on the basis of FSL opinion vis-a-vis existence of pure drug content in the

material so recovered. Case has not been set up before the trial court vis-a-vis existence of aforesaid substances in the material recovered. If that

would have been so, then definitely the entire material was to be taken into consideration for purposes of ascertaining small/commercial quantities.

Vis-a-vis pure drug content, there is conflict in the opinion of FSL and that of CRCL which at this stage has to favour the accused. In this view

I am fortified by the judgment of the Hon'ble Apex court rendered in Sami Ullaha Vs. Superintendent, Narcotic Central Bureau, . The following

sub-paras from para 15 of the said judgment are relevant to be quoted:

The authorized 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 exist a difference of opinion in sofar 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.

In terms of Section 37 of the NDPS Act, a person accused of offence punishable u/s 19 or Section 24 or Section 27A and also for offences

involving commercial quantity, shall not be released on bail unless Public Prosecutor has been given an opportunity to oppose the application and

there are reasonable grounds to believe that the accused is not guilty of such offences. Furthermore, limitations on grant of bail are in addition to the

limitations as imposed under the Code of Criminal Procedure. In short the rigour of Section 37 has to be applied with all harshness. Same is the

mandate of said provision, but when Section 37 will not apply then bail application has to be treated on different basis provided extenuating

circumstances are available.

In the instant case, admittedly accused is facing trial for commission of offences punishable under Sections 8/20, 21, 23 and 28 of NDPS Act,

not for commission of offence punishable under Sections 19, 24 of 27-A. The question of involvement vis-a-vis commission of offence involving

commercial quantity at this stage is not forthcoming because THC i.e. pure drug content in the recovered material in terms of FSL opinion is less

than small quantity whereas in terms of report of CRCL is more than small quantity, in any case is not commercial quantity. The entire material

could be considered for the purposes of commercial quantity in case there would have been opinion of the FSL or CRCL about existence of

above referred substances in the material coupled with the fact that trial would have proceeded on said basis.

For the recovery of small quantity, the punishment prescribed for the offence u/s 20 is up to six months rigorous imprisonment, same is the

position vis-a-vis offences punishable u/s 21, Section 23 and Section 28.

The accused has been arrested on 7.3.2010 which would mean that he has been in the custody in connection with the offences allegedly

committed, for a period of more than one year. Therefore, exercise of discretion, so as to extend the concession of bail, is warranted, otherwise

further incarceration of the Petitioner would offend the right guaranteed under Article 21 of the Constitution.

For the afore-stated circumstances, petition is allowed. Petitioner is admitted to bail so shall be released subject to following conditions:

(1) That the Petitioner must furnish bail bond to the tune of Rs. 50,000/to the satisfaction of trial court and the personal bond of like amount to the

satisfaction of Superintendent jail concerned.

(2) That the Petitioner will ensure presence during the trial before the trial court on each and every date of hearing, except for just cause.

(3) That the Petitioner will not in any manner tamper with prosecution evidence.

(4) It shall be open for the trial court to cancel the concession as extended if at any point of time Petitioner is found violating any of the aforesaid

conditions.

The observations made hereinabove will remain confined only to the disposal of this bail application, same shall not in any manner influence the

trial court in deciding the case in accordance with evidence and the law.

Bail petition accordingly succeeds.