The mandatory requirements for granting bail under the NDPS Act, particularly under Section 37(1)(b)(ii), must be strictly adhered to, and the principle of parity cannot override these statutory provisions.

JUDGMENT

Sanjay K. Agrawal, J. - Proceedings of this matter have been taken-up through video conferencing.

2. The accused/applicant has moved this bail application under Section 439 of the Code of Criminal Procedure, 1973 for releasing him on regular bail during trial in connection with Crime No.435/2019, registered at Police Station Surajpur, Distt. Surajpur for the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. Case of the prosecution, in brief, is that the applicant was found in possession of 288 capsules of Spas Trancan Plus containing Taramadol HCL and 100 bottles of Onerex cough syrup and thereby committed the offence.

1. Each capsule contains 50 MG of Taramadol HCL i.e. 288 x 50 MG = 14,400 MG = 14.4 grams.

2. Each bottle of Onerex cough syrup contains 100 ML i.e. 100 x 100 = 10,000 ML = 10 litres. 1 litre may be converted as 1 Kg. Thus, total amount of seized Onerex cough syrup is 10 Kgs.

4. Mr. Ashok Kumar Shukla, learned counsel appearing for the applicant, would submit that the quantity of narcotic drug seized from the present applicant is more than small quantity and less than commercial quantity and in the same crime number, Ganga Prasad Sahu co-accused has been granted bail in M.Cr.C.No.331/2020 and co-accused Bolbam has also been granted bail in M.Cr.C.No.825/2020 by common order dated 23-3-2020, therefore, the present applicant is also entitled to be released on bail on the principle of parity. The present applicant is in jail since 12-11-2019.

5. Ms. Veena Nair, learned Deputy Advocate General appearing for the State, would submit that the applicant was found in possession of 14.4 gms. of Taramadol HCL and 10 Kgs. of Onerex cough syrup containing codeine phosphate which is of commercial quantity, therefore, unless the conditions imposed in Section 37(1)(b)(ii) of the NDPS Act are satisfied, the applicant is not entitled to be released on bail.

6. I have heard learned counsel for the parties and considered the rival submissions made herein-above and also went through the records with utmost circumspection.

7. The main dispute is with regard to the quantity of Codeine Phosphate in Onerex Cough Syrup which was recovered from the possession of the applicant, as applicability of Section 37(1)(b) of the NDPS Act is dependent upon the quantity of narcotic drug.

8. The Supreme Court (two-Judges Bench) in the matter of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161 held that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance(s), for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. This view was doubted and the matter was ultimately referred to a larger Bench. Ultimately, their Lordships of the Supreme Court (three-Judges Bench) in Hira Singh and another v. Union of India and another,2020 SCCOnLineSC 382 have finally set at rest the controversy by holding that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances. Paragraph 10 of the report states as under: -

"10. In view of the above and for the reasons stated above, Reference is answered as under:

(I) The decision of this Court in the case of E. Micheal Raj (supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic dru