Suman vs State of Rajasthan and Another

Mohammad Rafiq, J.—Heard Learned Counsel for the petitioners, learned Public Prosecutor for the State and perused the relevant documents placed before me.

Learned Counsel for the petitioners argued that no recovery has been made from the petitioners and allegation is that they supplied 2 kg. heroine to co-accused Liyakat. Chemical examination of the laboratory has revealed the percentage of diacetylmorphine contained in 2 kg. powder having only 2.3% density of diacetylmorphine thus having only 46 grams of heroine which is much less than the commercial quantity of 250 gm. Co-accused Rameshwar Lal was also present with accused Liyakat in the vehicle which was being driven by him at the time when the recovery of psychotropic substance was made. Coordinate bench of this Court in bail application No. 1895/2007 vide order dated 24th April, 2007 has granted bail to co-accused Rameshwar Lal, from whose vehicle the recovery was made, vide its order dated 24th April, 2007. Learned Counsel argued that while as per the challan, though the principal accused Liyakat is shown to have had previous cases registered against him but there are no such antecedents against either of the accused petitioners. The petitioners are in jail since 21.11.2006. Learned Counsel relied on the judgment of Delhi High Court reported in 2006(1)EFR212.

Learned Public Prosecutor has opposed the bail application and argued that density of psychotropic substance cannot be looked into at this stage in as much as the allegation against the accused petitioners is of supplying the psychotropic substance to co-accused Liyakat.

In so far the benefit of grant of bail to the petitioners is concerned, it may be stated that the aforesaid report of the laboratory which has been produced before the Court indicates the percentage of diacetylmorphine to be only 2.3%, which when analyzed, quantity of heroine comes to only 46 grams. If on that basis the opium derivative is found to be less than the commercial quantity, the Court at the stage of grant of bail while examining the effect of rider of section 37 of the NDPS Act is certainly entitled to look into the same so as to ascertain actual content of heroine to know whether or not the quantity of recovered psychotropic substance is less than the commercial quantity as notified u/s 2(viia) of the NDPS Act. In the facts and circumstances of the case and taking into consideration aforesaid arguments but without expressing any opinion on merits of this case, I deem it appropriate to enlarge the petitioners on bail u/s 439 Cr.P.C.

In the result, this bail application u/s. 439 Cr.P.C. is allowed and it is directed that petitioners Siraj Ahmed son of Aladeen Mansoori and Farooq Mansoori son of Siraj Ahmed shall be released on bail in FIR No. 8/2006-07 Rs. Drugs Control Bureau, Jodhpur subject to each of them furnishing a personal bond in the sum of Rs. 30,000/- together with two sureties in the sum of Rs. 15,000/- each to the satisfaction of the trial Court for their appearance before that court on all dates of hearing and as and when called upon to do so till conclusion of the trial.