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2011 Supreme(Bom) 177
2011 ALL MR (CRI.) 1761
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE J.H. BHATIA
Rajesh Jaswantlal Solanki
Versus
Ravindranath Shelatkar & Others
CRIMINAL APPLICATION NO. 176 OF 2011 WITH CRIMINAL APPLICATION NO. 200 OF 2011
Decided on : 15-02-2011
For the Applicant:Swapnil Wagh i/b. Rizwan G. Merchant, Advocates.
For the Respondents:R1, A.K. Wanwari i/b. K.A.J. Merchant, Ayaz Khan, Advocates, Smt. P.P. Shinde, APP.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 36-A(4)-Criminal Procedure Code, 1973, Section 167(2), Proviso-Bail-Granted to accused-As charge- sheet not filed within 60 days after his arrest-Illegal-Only traces of Heroin and Morphine alongwith opium alkaloids found in samples-Any neutral substance not found in said substances-Entire quantity of 340 gms. to be treated as opium derivative-A commercial quantity-Accused entitled to be released on bail only if charge-sheet not filed within 180 days after arrest and not within 60 days as held by trial Court-Order of trial Court, granted bail under Section 167(2) of Code set aside.-In the present case, the CA report reveals that besides the trace of heroin and some percentage of morphine, it contained other opium alkaloids. The report does not reveal that the samples contained anything other than heroin, morphine or other opium alkaloids. None of these articles are the neutral substances and therefore, the case would fall within the meaning of Entry 93 and as the quantity of the said substance, which was opium derivative, was 340 grams, it was a commercial quantity.
The contraband found in possession of the accused was opium derivative within the meaning of Section 2(xvi)(e) and Entry 93 is applicable to the same. As pointed out above, the CA report indicates that the traces of heroin and morphine along with opium alkaloids were found in the said samples. There is nothing to show that any neutral substance was found in the said that any neutral substance was found in the said substances. Therefore, at this stage, the entire quantity of 340 grams will have to be treated as opium derivative, which is a commercial quantity as per Entry 93 and therefore as per the provisions of Section 36-A(4) of NDPS Act, the accused would be entitled to be released on bail only if charge-sheet is not filed within 180 days after the arrest.
In the present case, the trial Court proceeded with the matter on the basis of wrong assumption and without properly looking to the provisions of law and particularly Entry 93 in the notification and committed error in holding that the accused are entitled to be released on bail if the charge-sheet is not filed within 60 days. When the bail has been granted in clear contravention of law, the Court can certainly interfere.
1. Both these Applications are filed by the original complainant for cancellation of bail granted to the accused persons, who are respondent No.1 in these two Applications by orders dated 1.2.2011 and 3.2.2011.
2. The implementation of the impugned orders was stayed by this Court and with consent of the learned Counsel, these Applications were taken up for hearing urgently.
3. To state in brief, the accused No.1 Ravindranath Shelatkar and the complainant/applicant had some rivalry. According to the complainant, accused No.1 Ravindranath hatched a conspiracy with accused Rajendra Bhosle, who was a police officer and some other police officers of Dongri Police Station, to falsely implicate the complainant in a case under the NDPS Act. As per the conspiracy, the accused persons planted 340 grams of heroin in the car of the complainant and arrested him. Accused Rajendra Bhosle registered Crime No.4/2004 under Sections 8(c) and 21 of the NDPS Act against the applicant and he was in custody for 150 days. On his application, the investigation was taken over by the superior officers and the true facts were revealed . The applicant was discharged and on the complaint of the present applicant, the learned Addl. C.M.M., 2nd Court, Mazgaon, Mumbai, directed investigation under Section 156(3) by the DCP Zone-I. The complaint was investigated by the officers of M.R.A. Marg Police Station and FIR came to be registered against 11 police officers, including Rajendra Bhosle and the builder Ravindra Shelatkar and his friend. Statements of several witnesses were recorded by the Investigating Officer and also under Sec. 164 Cr.P.C. The accused Rajendra Bhosale and Ravindra Shelatkar came to be arrested under the provisions of NDPS Act for possessing the contraband and for planting the same in the car of the applicant.
4. Both the accused persons filed applications for bail under Section 167(2) Cr.P.C. contending that in view of the C.A. report, the quantity of heroin was less than commercial quantity and as the charge sheet was not filed within 60 days after the date of arrest, they be released on bail. The learned Special Judge accepted the contentions and granted bail to both the accused. According to the applicant, the C.A. report was misread and on the basis of the C.A. report, it cannot be held that the quantity of the drug was less than commercial quantity. According to him, as the quantity in possession of the accused persons, which was planted in the car of the applicant, was 340 grams, in view of a Notification dated 18.11.2009 issued by the Government of India, entire mixture or solution has to be taken into consideration for the purpose of deciding whether it is a commercial or small quantity. According to him, commercial quantity of heroin as well as opium derivative being 250 grams, in this case, the accused were in possession of 340 grams of heroine or opium derivative. Therefore, prima facie, the accused were in possession of commercial quantity. As per the provisions of Section 36- A(4) of the NDPS Act, in case of commercial quantity, if the charge sheet is not filed within 180 days, then only the accused can be released on bail under Section 167 (2) ofCr.P.C.
5. The learned APP supported the applications filed by the complainant for cancellation of bail.
6. The learned counsel for the accused referred to several provisions of the NDPS Act and the Judgments of the Supreme Court, particularly the Judgment in E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 2 SCC (Cri) 558 in support of their contention that purity of heroin or morphin in the total quantity of contraband article is relevant to come to a finding as to whether the accused were in possession of small quantity or commercial quantity or intermediate quantity of heroin or opium derivative.
7. According to the applicant, the samples sent to the C.A. were tampered with and therefore fresh samples are required to be sent for test to Forensic Sc
