The Customs Department has filed this petition seeking cancellation of bail granted by the learned Sessions Judge, Bangalore, for NDPS.

2. The case of the prosecution is that petitioner-accused No.2 and another were arrested on 20th February 2009 and seized two separate quantity of Heroin weighing 1056 grams and 1596 grams from the possession of the accused. The accused were produced before the learned Judge on 21.2.2009 and they were remanded to the judicial custody. On 5.5.2009, the accused No.2 filed an application seeking enlargement on bail on the ground that investigation is not completed within sixty days from the date of judicial remand and he is entitled for enlargement of bail under Section 167(2) of the Cr.P.C. the learned Judge by his order dated 1.6.2009 considering the fact that prosecution had not produced any material to show that seized material contains narcotic drugs either of commercial quantity or less than commercial quantity, in the circumstances, considering the punishment prescribed as per the provisions of Section 21(B) & (C) of the NDPS Act, came to the conclusion that as necessary material has not be produced by the prosecution and investigation is not completed within the prescribed period of sixty days, applying the provision of Section 167(2) of the Cr.P.C., it enlarged the accused No.2 on bail.

3. Shri Urval N. Ramanand, learned Sr. Counsel appearing for the petitioner submits that, the accused were arrested on 20th February 2009 and they were produced before the Court on 21st February 2009. Immediately, seized Drugs was sent for chemical examination and for quantitative examination on 21.4.2009 the report was received from Chennai office, intealia stating that necessary machine is not working and as such quantitative analysis was not made, and the said fact was brought to the notice of the learned Judge & he also submitted that the sample of seized articles were sent to Delhi for further chemical examination and quantitative analysis and the report was awaited, and in these circumstance, the learned Judge was not justified in enlarging the accused No.2 on bail. It is further submitted that, now the report is received and it is found that the total quantity of narcotic substance seized is to the extent of 647 grams which is the commercial quantity and as such, the learned Judge ought not have granted the bail to accused no.2, in view of the provisions of Section 37 of the NDPS Act. He submitted that the learned Judge only on the basis of the fact that the quantitative report was not submitted within the period of sixty days, has enlarged the accused on bail.

4. Shri Hashmath Pasha, learned Counsel appearing for the accused submitted that, as far as possession of the narcotic drugs is concerned, the presumption may arise under the provisions of the Act. As far as quantity of narcotic drug seized, it is based on chemical examination and quantitative analysis and the said report was not produced before the Court to show as to whether the accused was found in possession of smaller quantity or a commercial quantity of drug. Since nothing was produced before the learned session Judge and investigation was not yet completed, the accused is entitle to the benefit under Section 167(2) of Cr.P.C.. He submits that even as on the date of passing of the order, nothing was produced before the learned Judge to show that quantity seized was of commercial quantity. In these circumstances, bail order has been granted by the learned Judge and there is nothing wrong in the said order.

5. The object of chemical examination and quantitative analysis is to find out as to whether the accused was in possession of commercial quantity or smaller or less then commercial quantity, so as to know as to what punishment he is liable. If the quantity is of smaller quantity, the punishment is only six months, if it is more than smaller quantity and less than commercial quantity, the punishment is extendable upto 10 ye