Sulakhan Singh @ Billa vs State of Punjab

Petitioner seeks benefit of regular bail pending trial in case FIR No.42 dated 17.05.2017, under Section 22/61/85 of the NDPS Act, registered

at Police Station Longowal, District Sangrur.

As per prosecution version, the alleged recovery effected from the present petitioner was of 20 intoxicant injections of Buprenorphine 2 ml.

each and 06 vials of Rexcof cough syrup of 100 ml. each. Petitioner was arrested on 17.05.2017.

Investigation in the case is complete, challan stands presented and charges have been framed. Court has been informed that the trial is at the

very initial stage and would take time to conclude.

During the course of arguments, counsel has adverted to an order dated 06.10.2017 passed by a Coordinate Bench of this Court in CRM

No.M-30008 of 2017 wherein the benefit of bail was granted to the petitioner therein, namely, Sonu and against whom the alleged recovery was

of 24 injections of Rexogesic containing 2 ml. each and containing the salt of Buprenorphine Hydrochloride.

The order dated 06.10.2017 in CRM No.M-30008 of 2017 reads as follows:

This petition has been filed under Section 439 Cr.PC for grant of regular bail in case FIR No.86 dated 24.04.2017, registered under Sections 22,

61, 85 NDPS Act, 1985 at Police Station Basti Bawa Khel, District Jalandhar.

According to the case spelled out in the FIR, the petitioner was apprehended while carrying one green colour bag in his right hand. The search

revealed that the bag contained 24 injections of ""Avillomc"" and 24 injections of ""Rexogesic"" containing 2 ml each. The injections were seized and

the petitioner was taken into custody on 24.04.2017. Since then, the petitioner has been in jail. Learned counsel for the petitioner submits that

according to the report of the FSL ""Avillomc"" is a non-psychotropic substance whereas ""Rexogesic"" contains the salt ""Buprenorphine

Hydrochloride"" and each injection contains 0.324 mg of the said substance and in totality 24 injections contain 15.55 mg of the alleged

contraband. Thus, according to the learned counsel for the petitioner, the quantity recovered from the petitioner is less than the commercial

quantity.

Learned counsel for the State, on the other hand, submits that according to the FSL report, 0.25 mg of psychotropic substance is contained in

every ml of the sample. Taking the same into consideration, the total content of the psychotropic substance in 24 injections of 2 ml each works out

to be 12 mg. Apart from that learned State counsel relies upon Note (iv) inserted vide amendment dated 18.11.2009 in Notification dated

19.10.2001 appended with the NDPS Act, 1985 to submit that the quantity mentioned as non-commercial/commercial in the said Notification is to

be taken with reference to the entire quantity of the contraband, recovered and not on the basis of the pure drug content.

Learned counsel for the petitioner relies upon the first proviso to Rule 66(ii) of NDPS Rules, 1985, to submit that a person is lawfully authorised to

possess 100 doses unit at a time. He relies upon a judgment of Division Bench in Saleem Mohd. vs. State of Punjab, 2015(5) Law Herald 3939.

Having heard learned counsel for the parties, I am of the view that whether the possession of the alleged psychotropic substance falls within

commercial quantity or not, is to be decided at the time of trial. The first proviso to Rule 66 (ii) of NDPS Rule, 1985, favours the petitioner

provided he is able to show at the time of trial that the possession of the substance, was for medicinal use. Further, ""Avillomc"" has been proven to

be a non-psychotropic substance. Keeping in view the totality of the facts and circumstances and the fact that the petitioner has been in custody

since 24.04.2017, I deem it just and expedient to release the petitioner on bail subject to his furnishing bail/surety bonds to the satisfaction of

learned CJM/Judge, Special Court under the NDPS Act, 1985, District Jalandhar. Petition stands disposed of accordingly.

State counsel concedes that the petitioner is not involved in any other case under the NDPS Act. Petitioner is held entitled to the benefit of bail

in terms of the reasoning contained in order dated 06.10.2017 passed by the Coordinate Bench in CRM No.M-30008 of 2017. Petition is

allowed. Petitioner be enlarged on bail subject to satisfaction of the trial Court/Duty Magistrate, Sangrur. Disposed of.