ORAL JUDGMENT:

1. The Union of India has preferred this application for cancellation of bail granted to the respondent nos.1 and 2, who are the original accused by the learned Special Judge (NDPS Act), Pune in Customs NDPS Sessions Case No.18 of 2011.

2. Prosecution case in brief, is that, one Satish Kulkarni, Inspector, Customs (Preventive) Narcotic Cell at Pune received intelligence on 19.11.2010 at about 13.30 hrs. that two persons namely, Ambalal Srilalji Ahir and Kailashchandra Mallara would be coming opposite Modern Cafe, Shivajinagar, Pune in a Maruti Alto at about 4 p.m. on the same day with about 15 kg of opium. After completing the other formalities, officers of the Narcotic Cell took position near the relevant spot. At about 4 p.m. one Maruti Alto car bearing registration no. RJ-27-CB-3899 arrived and stopped in front of Modern Cafe. The officers of the Narcotics Cell surrounded the car and introduced themselves to the occupants of the car and enquired about the identity of the occupants of the car. Applicant No.2 Kailash was on the driver seat while the applicant no.1 Ambalal was on the seat by the side of driver. From below the seat of the vehicle, one jute bag consisting of a plastic bag was found. The said plastic bag contained black coloured substance. With the help of field testing kit, small quantity of that substance was tested and it answered positive for opium. The contents of the plastic bag weighed 14.500 kg. Three representative samples of 25 gm each were drawn and put into three separate plastic pouches. They were heat sealed with the seal of “Narcotics Cell, Pune Customs” and other formalities were completed. The said samples were S-I, S-II and S-III. Sample S-II was referred to the Deputy Chief Chemist, Central Revenue Control Laboratory, New Delhi. Another sample marked S-I was referred to the Deputy Chief Chemist, New Customs House, Ballard Estate, Mumbai. Reports from both the laboratories revealed that the samples were opium. As per the report from the Central Revenue Control Laboratory, New Delhi, the sample of opium contained 10.6 % of morphine while as per the report from Chemical Analyser, Mumbai, the morphine was 9.88%. After investigation, case was filed and it is pending before the Special Court, NDPS, Pune.

3. Both the accused persons filed bail application before the learned Special Judge, Pune. The learned Special Judge granted bail to both of them, as per the order dated 7.7.2011, holding that the commercial quantity of opium is 2.5 kg but in the present case, as the morphine contents of the two samples were found 10.6% and 9.88% respectively on an average morphine contents of total quantity would be 1537 gm i.e. 1.537 kg and as it is less than commercial quantity of 2.5 kg. He observed that stringent provisions of Section 37 of the NDPS Act in respect of grant of bail are not applicable. That order is sought to be cancelled by the Union of India by filing this application. It is contended by the learned Spl. P.P. that the learned Special Judge had misled and misdirected himself in granting bail. He contended that commercial quantity of opium is 2.5 kg as per the Notification while commercial quantity for morphine is only 250 gm. He argued that total quantity of morphine could not be equated with the total quantity of opium and that whole of the substance recovered from the accused persons was opium. As it was 14.5 kg, it was much above commercial quantity as per the Notification issued by the Government of India and, therefore, the stringent provisions of Section 37 in respect of grant of bail would be applicable. He urged that there was no material to show that the accused persons had not committed the offence or would not commit offence in future, therefore, the bail could not be granted to them. It is contended that the order is completely illegal and against the law.

4. The learned counsel for the accused/respondent vehemently contended that two C.A. Reports are confl