IMPORTANT POINTS
(1) When any narcotic drug or psychotropic substance is found mixed with one or more neutral substance(s) for the purpose of imposion of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.
(2) That there occurs delay in getting the quantitative analysis report is not a ground to invoke sub-section (4) of Section 36A of the Act on the ground that the contraband involves commercial quantity. Unless there are materials to indicate that commercial quantity is involved, the court cannot apply sub-section (4) of Section 36A of the Act simply because an allegation is made without any material that commercial quantity is involved.

ORDER

K.T. Sankaran, J.— This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the second accused in O.R. No. 2 of 2009 of the Narcotic Control Bureau, Regional Intelligence Unit, Thiruvananthapuram. The petitioner was arrested on 28.7.2009 and he is in judicial custody.

2. The offences alleged against the petitioner are under Sections 8(c), read with 21(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The prosecution case is that the Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram received reliable information that one Shanavas of Kottackal, Malappuram District (first accused) was indulging in drug trafficking of heroin between India and Maldives with the help of one Atif alias Kunhappa of Kondotty and a lady by name Sarju, residing at Thiruvananthapuram. He also got information that Shanavas had already procured half a kilogram of heroin from Atif and the same would be delivered to Sarju on 18.7.2009 near the Railway Crossing Gate at Petta, Thiruvananthapuram. On 18.7.2009, Shanavas was apprehended. It was found that he was carrying 500 grams of heroin. He was arrested.

4. Later, K.K. Ashraf (the petitioner) and two of his friends (Saud Siraj and Mohammad Sajjad) were found near the District Jail premises of Thiruvananthapuram. On satisfying that they were also involved in the offence summons were issued to them to appear before the Intelligence Officer. The petitioner and others appeared before the Intelligence Officer. Their statements were recorded under Section 67 of the N.D.P.S. Act. The statement of the petitioner was recorded with the help of Saud Siraj. However, the petitioner did not sign the statement. He only signed the acknowledgement of having taken certain documents from his possession. The prosecution case is that Atif alias Kunhappa mentioned by Shanavas is none other than the petitioner.

5. The prosecution case is that Shanavas purchased heroin from K.K. Ashraf @ Atif, Kondotty, who in turn purchased the contraband from a person in North India. It would appear that the contraband was purchased from the petitioner by Shanavas for a sum of Rs.1,80,000 and it was proposed to be sold to Sarju for a sum of Rs. 2,50,000. Sarju was to take the contraband to Maldives for sale.

6. Learned counsel for the petitioner submitted that the petitioner is entitled to be released on bail since no complaint was filed within sixty days of his arrest as provided in Section 167(2) of the Code of Criminal Procedure. It was contended by the learned counsel for the petitioner that since the heroin is not proved to be of a commercial quantity, Section 21 of the N.D.P.S. Act would not apply and only clause (b) of Section 21 would apply. If clause (b) of Section 21 applies, it is submitted that sub-section (4) of Section 36A of the N.D.P.S. Act would not apply. If that is so, the petitioner is liable to be released forthwith.

7. Learned public prosecutor submitted that a quantity of 500 grams of heroin is involved in the case, which is a commercial quantity. It is not in dispute that heroin (diacetylmorphine) would constitute a commercial quantity within the purview of the Act, if the total quantity exceeds 250 grams. Small quantity is only up to 5 grams and any quantity between 5 grams and 250 grams would attract Section 21(b) of the N.D.P.S. Act.

8. For the sake of convenience, the relevant portion of Section 36A(4) is quoted below:

“36A. Offences triable by Special Courts:

(1) ……

(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”.

Provided that, if it is not possible to complete the investigation within the said period of one