Narcotic Control Bureau, Govt. Of India @APPELLANT@Hash Parveen Kumar

The instant revision petition filed by the petitioner against the order dated 29.10.2010 passed by the learned 1st Additional Sessions Judge, Jammu by virtue of which respondent/accused has been admitted to bail in the offence under Sections 8/20 NDPS Act with a further prayer for setting aside the said order as the order has been passed in non-compliance of mandatory provisions laid down u/s 37 of the NDPS Act.

The petitioner-Narcotic Control Bureau has challenged the impugned order on the following grounds:

a) That the commercial quantity of Charas has been recovered from the possession of the accused but the bail has been granted to the accused ignoring the limitation imposed by the statute incorporated in Section 37 of NDPS Act, as such the order impugned is liable to be set aside.

b) That the learned Judge has by-passed and ignored the established/statutory provisions of law for calculating the weight of charas and the definition of the Charas has not been taken into consideration while calculating the weight.

c) That interpretation given by the learned Judge by assessing the weight of charas is absurd/wrong and illegal. It is cordial rule of interpretation of statute that a provision of statute is to be read as it is without addition or alteration but in the instant case self-drawn observation/interpretation given by the learned Judge for assessing the weight is wrong, against the law which is liable to be set aside.

d) That the trial Judge before arriving at final conclusion that THC is the only actual Narcotic substance in the charas, has not sought the opinion of FSL experts who is the only person to clarify the said fact and otherwise also the whole quantity of charas has to be seen recovered from the accused and not the THC.

e) That it has already been held by different High Courts that in case of charas the percentage of THC is irrelevant as charas itself is a Narcotic drug, which may be in crude form or in purified form.

f) That the judgment of the Apex Court referred in the impugned order is not applicable in the present case for the reason that said judgment is regarding the contraband material heroine and not regarding the charas. From the definition of charas, it is clear that charas as whole is a Narcotric drug whereas in case of heroine diacetylmorphine is the only actual narcotic substance present in the heroine as such there is mis-interpretation in applying the said judgment in the present case of charas as such order of the leaned Judge is not sustainable in the eyes of law and palpably wrong/illegal and same is liable to be set aside.

g) That vide notification dated 18.11.2009 issued by Ministry of Finance Department of Revenue, it has been clarified that by assessing the weight of any drugs/substance the entire mixture of any solution of drugs/substance be taken into consideration.

I have considered the rival contentions. From perusal of the impugned order, it reveals that the accused filed an application before the trial Court for grant of regular case in offence under Section 8/20 NDPS Act. The accusation against the accused is that on intervening night of 31.03.2009 and 01.04.2009 on the basis of a source information the officials of the complainant's office intercepted two accused persons including the present accused at Batala Chak Bishnah, who were found travelling in a car and on search of the car, contraband- charas 1Kg 500 gms was found concealed in a polythene bag which was seized on spot. The present accused along with other accused were arrested. It is also evident from the impugned order that the co-accused, namely, Jeet Raj was discharged vide order dated 07.11.2009.

The relevant para of the impugned order passed by the Court below reads as under:

"The accused has been arrested on the day of occurrence as reflected by the arrest memo on record and since then he is in custody facing the trial. The FSL report on the file discloses the prohibited content that is T.H.C. 8.9% in the sample sent for chemical analysis. As per the order of the Hon'ble High Court, the total prohibited content T.H.C. in a quantity of 1Kg 500 gms charas would work out to 135 gms in total which would admittedly fall below the commercial quantity. Therefore, the rigors of Section 37 NDPS Act would not get attracted the bail plea of the accused can be considered under the provisions of the Cr.P.C. The accused as already stated in the custody since 01.04.2010. The accused is also facing multiple health problems including Low Back Ache problem, which is apparent from a bare look at the person of the accused in the court, for which accused is undergoing treatment as per the medical reports placed on record. Therefore, I do not find any reasonable ground to perpetuate the detention of the accused in judicial lock up any more. Accordingly, the accused is admitted to bail and is directed to deposit Rs.10,000/- as cash security besides a surety bond and personal bond in the amount of Rs.50,000/-, failing which he shall remain in judicial lock up. This application is accordingly disposed of and be attached with the main challan file."

From perusal of the order impugned, it is evident that the Court below has granted bail after relying on some order passed by High Court, wherein it has been held that the total prohibited content T.H.C. has to be considered while calculating the contraband for the purpose of commercial quantity or small quantity; and Court below thus came to conclusion that total T.H.C. in recovered 1Kg 500 gms of charas would be 135 gms, which quantity as per schedule of Act would admittedly be below than commercial quantity. But Court below has nowhere mentioned the detail of orders passed by High court, so order passed by Court below is not as per judicial precedent. Court below has passed order in very casual manner without going through the law on the subject. The order is, thus, incorrect and illegal. Since impugned order has been passed on 29.10.2010, about 8 years ago, so it would not be appropriate to set it aside and cancel the bail at this stage. In view of above, this petition is dismissed.