Shakeel Ahmad vs Union of India (UOI)

Rajesh Chandra, J.—Learned Counsel for the applicant and Union of India present.

In brief the facts are that on 5.10.2008, Mr. N.S. Bisht Deputy Information Officer of N.C.B., Lucknow on a tip off stopped a motorcycle. The driver of the motorcycle tried to escape but he was detained. He disclosed his name as Shakil Ahmad. Thereafter an option was given to him that his search may be taken in the presence of a Magistrate or a Gazetted Officer and that it is his right. The accused however did not avail the option. Thereafter a search of the motorcycle was made in the presence of two public witnesses namely, Sanjay and Shamsher. A bag was recovered from the motorcycle in which 500 grams of heroin was recovered.

Sample of the recovered contraband article was analysed at "Central Revenue Control Laboratory, Government of India" in which it was found that the percentage of heroin is only 7%.

The learned Counsel for the applicant argued that in the sample only 7% of heroin was found hence the total weight of heroin in the recovered contraband comes to 35 gram which is much below the commercial quantity. He has relied upon the judgment of Apex Court in E. Micheal Raj v. Intelligence Officer N.C.B. (LXI)2008 ACC 660 : 2008 (2) ACR 2204 (SC), and has argued that since the recovered heroin is less than the commercial quantity and the accused is in jail since 5.10.2008, he may, be allowed bail.

Learned Counsel for the Union of India argued that even if the recovered quantity of heroin is 35 gram, it is above the small quantity and the accused has confessed his guilt in the statement recorded u/s 67 of N.D.P.S. Act, hence the bail should not be allowed.

I considered over the respective arguments. The main submission of the learned Counsel for the applicant is that although 500 grams of contraband was allegedly recovered from the possession of the applicant but in the report of Scientific Laboratory the percentage of heroin in the recovered contraband is only 7% which means that the actual heroin in the contraband article was only 35 grams which is much below the commercial quantity.

In E. Micheal Raj v. Intelligence Officer N.C.B. (LXI)2008 ACC 660 : 2008 (2) ACR 2204 (SC), the Apex Court held as under:

The provisions of the N.D.P.S. Act, were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2.10.2001), which rationalised the punishment structure under the N.D.P.S. Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried.

Thus, by the amending Act, the sentence structure changed drastically. "Small quantity" and "commercial quantity" were defined u/s 2(xxiii-a) and Section 2 (vii-a) respectively. New Section 21 also provides for proportionate sentence for possessing small, Intermediate and commercial quantities of offending material.

As per Entry 56 of the Notification dated 19.10.2001 issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gms. and commercial quantity has been mentioned as 250 gms.

So, the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity u/s 21 of the N.D.P.S. Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused.

It was held that the percentage of heroin content translated into weight is relevant.

The aforesaid judgment was followed by the Supreme Court in State of N.C.T. of Delhi v. Asif Khan alias Kalu (2009) 2 SCC 54 : 2009 (1) ACR 990 , and it was held that the quantity of the narcotic drug or, psychotropic substance found in the mixture is relevant for the purpose of imposition of punishment.

Since the Apex Court has taken a view that it is not the total quantity of the recovered article which has to be taken into consideration while awarding punishment but only the percentage of heroin reported to be present in the report of the chemical analyst, the argument advanced on behalf of the Counsel for the applicant that the same yardstick be adopted in the present case, should be accepted. Since the total quantity of heroin in the recovered 500 grams contraband is only 35 grams, it is definitely less than the commercial quantity. The accused-applicant is in jail since 5.10.2008.

After considering the entire facts and circumstances of the case and without expressing any opinion on merits, I am of the view that the accused-applicant may be released on bail.

Let the accused-applicant Shakeel Ahmad be released on bail in Case Crime No. 13 of 2008 under Sections 8/21 and 27A of N.D.P.S. Act, P.S.N.C.B., Lucknow, District Varanasi on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Court concerned on following conditions:

Accused-applicant shall appear in the lower Court regularly either personally or through Counsel.

He will not seek any adjournment on the date when the prosecution witnesses are present.

He shall not in any manner either intimidate or influence the witnesses or tamper with the evidence.

If any of these conditions are violated the Court shall report the matter to the High Court so that the steps for cancellation of bail may be taken.

Let a copy of this order be sent to the C.J.M., Varanasi to ensure compliance of this order.