IMPORTANT POINT
In a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic or psychotropic substance is recovered. Only the actual content is relevant for determining whether it would constitute a ‘small quantity’ or ‘commercial quantity’.

Badar Durrez Ahmed, J.—These ten bail applications were heard together as they raise common question. I shall deal with the common issues first and then with the individual bail applications. To consider the common issues I have taken a hypothetical case, which, it will become clear from what is stated below, bears a striking resemblance with the facts of each case:

1. An alleged recovery of a suspected narcotic drug is made from the person of an accused. It is a brown coloured powder in a polythene bag. The field kit reveals that it is heroin (diacetylmorphine). It is weighed on an electronic scale and found to be 500 gms in weight. Two samples of 5 gms each are taken and placed in separate envelopes marked A and B. These samples are sent to the Forensic Science Laboratory for chemical analysis1. Gas chromatography tests2 conducted at the laboratory reveal that the brown coloured powder tests positive for diacetylmorphine. But, it comprises only of 0.2 per cent diacetylmorphine. The question that arises is whether the alleged recovery is of a “small quantity” or a “commercial quantity” or an intermediate quantity of Heroin. Is the entire 500 gms of the substance to be taken into consideration or only the actual content of Heroin in it? It makes a big difference. For, 500 gms would qualify as a commercial quantity. On the other hand,1 gm (500 x 0.2/100), the actual content of Heroin in the substance,would be a small quantity. The punishments are different and more importantly, at this stage, the considerations for grant of bail are different. In the case of commercial quantities, the rigours of section 373 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) would apply.

This is the prototype of the factual matrix (with variations in quantities and percentages) in each of the bail applications and these questions are common to all. So, an answer to the above hypothetical case will provide us with the common key to the individual bail applications. At this stage, it would be sufficient to set out, in tabular form, the details of the alleged recoveries in each of the bail applications. This would give us an insight into the nature of the problem confronting us and also help in ascertaining whether these are truly recoveries of “commercial quantities” of heroin, which they purport to be:-

S. Bail Petitio-WeightPercent- Actual No. Applica-ner’s of sub-age of weight tion No.name (in stance Diace-of Diace- custodyalleg-tylmor-tylmor-since)edly phine phinerecove-(heroin) (heroin)redin sub-alleg-stnce edly recove-red)

1.646/2004Ansar500 gms0.61%3.05 gmsAhmed (5.1.2002).

2.1069/2004Satish 300 gms0.20% 0.60 gmsKumar ( )

3.1282/2004Raj Rani625 gms7.80%48.75 gms@ Raj Bala ( )

4.23/2005Akhil 500 gms8.10%40.50 gmsRajat Dass ( )

5.705/2005Guru-1000 gms2.50%25 gmsbaksh @ Bakshi (28.3.2004)

6.1923/2004Sallauddin300 gms.0.28% 0.84 gms(2.8.2001)

7.145/2005Dule NilNilNil Hassan (2 (21.2.2003)packets from co-accused; 0.08%00.204 gms255gms0.23%0.126555 gms)gms

8.164/2005Azad Ali500 gms9.30%46.5 gms(21.2.2004)

9.530/2005Mohd. 1000 gmsNil Nil Ramzani1000 gms4.4%44 gms12.12.2003

10.699/2005Mubina 500 gms6.20%31 gms@ Baby (4.9.2004)

Coming back to the common issue in all these bail applications, the learned counsel appearing for the petitioners argued that it is not the total weight of the substance allegedly recovered that is material but, the percentage content of Heroin translated into weight that is relevant. On the other hand, the learned counsel who appeared for the State urged that only the weight of the substance recovered ought to be seen. They submitted that once the substance tested positive for Heroin, its percentage content in the substance was irrelevant; the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a “small quantity” or a “commercial quantity”