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2008 Supreme(SC) 2020
SUPREME COURT OF INDIA
S.B. SINHA, V.S. SIRPURKAR, JJ.
Biswajit Chandra @ Kanu - Petitioner
Versus
State of West Bengal - Respondent
Criminal Appeal No. 4 of 2008
Decided on : 03-01-2008
The possession of contraband must meet the threshold for 'Commercial quantity' as specified in the NDPS Act in order to determine the period of bail.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - Section 36A(4), Section 2(viia), Section 2(xxiiia) - The court analyzed the provisions of Section 36A(4) which determines the period of bail for possession of certain quantities of narcotic drugs. It also examined the Notification issued under Section 2(viia) and Section 2(xxiiia) which specify the threshold quantities for 'Small quantity' and 'Commercial quantity' respectively.
Fact of the Case:
Bail granted to the appellant by the Trial Court was cancelled by the High Court. The appellant was found in possession of 545 gms. of Morphine. The High Court opined that the appellant was entitled to bail after 180 days under sub-section (4) of Section 36A of the NDPS Act. The appellant argued that only 23.17% of morphine was detected in the contraband, making the total content 126.27 gms. which is less than the Commercial quantity specified in the NDPS Act. The Supreme Court agreed with the appellant's argument and set aside the High Court's judgment, directing the appellant's release on bail.
Finding of the Court:
The court analyzed the provisions of the NDPS Act and the Notification issued under sub-sections (viia) and (xxiiia) of Section 2. It concluded that the seized article did not fall within the purview of 'Commercial quantity' as specified in the notification.
Ratio Decidendi: The appellant's possession of the contraband did not meet the threshold for 'Commercial quantity' as specified in the NDPS Act. Therefore, the appellant was entitled to bail after 90 days and not 180 days.
Result: The impugned judgment was set aside and the appellant was directed to be released on bail.
ORDER :
1. Leave granted.
2. Bail granted to the appellant by the learned Trial Court has been cancelled by the High Court by reason of the impugned judgment, opining that as 545 gms. of Morphine was found to be in possession of the appellant herein and another person, and in that view of that matter sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985, ("NDPS Act", for short) was attracted in terms whereof he was entitled to bail on the expiry of 180 days and not on the expiry of 90 days.
3. Learned counsel appearing on behalf of the appellant has drawn our attention to the fact that although 545 gms. of contraband was recovered, upon chemical analysis thereof 23.17% of morphine was detected therein and in that view of the matter, the total content of the narcotic would be 126.27 gms. only, which is more than Small quantity but lesser than the Commercial quantity.
4. Indisputably, the commercial quantity so far as morphine is concerned, as specified in the Notification issued under sub-sections (viia) and (xxiiia) of Section 2 of the NDPS Act is 250 gms, as contained in item No. 56 therein. Item No. 239 thereof reads as under:
Any mixture or preparation that of with or without a natural material, of any of the drugs mentioned therein.
Asterisk * and ** appended to the said notification read thus:
" *Lesser of the small quantity between the quantities given against the respective drugs or psychotropic substances mentioned above forming part of the mixture.
** Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. "
5. In that view of the matter, we are of the opinion that the learned counsel appearing on behalf of the appellant is correct to the extent that the seized article would not come within the purview of 'Commercial quantity' as specified in the said notification.
6. For the reasons aforementioned, the impugned judgment is set aside and the appellant is directed to be released on bail on furnishing bail bond for Rs. 25,000/- with two sureties each of the like amount to the satisfaction of the learned Trial Judge. The appeal is allowed accordingly.
SLP/Appeal allowed.
