The actual content of the narcotic drug by weight in a mixture should be considered to determine whether it constitutes a small quantity or a commercial quantity under the NDPS Act.

BADAR DURREZ AHMED, J.

( 1 ) THESE ten bail applications were heard together as they raise common question. I shall deal with the common issues first and then with the individual bail applications. To consider the common issues I have taken a hypothetical case, which, it will become clear from what is stated below, bears a striking resemblance with the facts of each case:

0. 1. An alleged recovery of a suspected narcotic drug is made from the person of an accused. It is a brown coloured powder in a polythene bag. The field kit reveals that it is heroin (diacetylmorphine ). It is weighed on an electronic scale and found to be 500 gms in weight. Two samples of 5 gms each are taken and placed in separate envelopes marked A and B. These samples are sent to the Forensic Science Laboratory for chemical analysis1. Gas chromatography tests2 conducted at the laboratory reveal that the brown coloured powder tests positive for diacetylmorphine. But, it comprises only of.

0. 2. percent diacetylmorphine. The question that arises is whether the alleged recovery is of a small quantity or a commercial quantity or an intermediate quantity of Heroin. Is the the entire 500 gms of the substance to be taken into consideration or only the actual content of Heroin in it? It makes a big difference. For, 500 gms would qualify as a commercial quantity. On the other hand, 1 gm ( 500 x 0. 2/100), the actual content of Heroin in the substance, would be a small quantity. The punishments are different and more importantly, at this stage, the considerations for grant of bail are different. In the case of commercial quantities, the rigours of section 373 of the Narcotic drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) would apply. This is the prototype of the factual matrix (with variations in quantities and percentages) in each of the bail applications and these questions are common to all. So, an answer to the above hypothetical case will provide us with the common key to the individual bail applications. At this stage, it would be sufficient to set out, in tabular form, the details of the alleged recoveries in each of the bail applications. This would give us an insight into the nature of the problem confronting us and also help in ascertaining whether these are truly recoveries of commercial quantities of heroin, which they purport to be:- s. No. Bail Application No. Petitioner s name (in custody since) weight of substance allegedly recovered percentage of Diacetyl-morphine (heroin) in substance actual weight of Diacetyl-morphine (heroin) allegedly recovered

( 2 ) COMING back to the common issue in all these bail applications, the learned counsel appearing for the petitioners argued that it is not the total weight of the substance allegedly recovered that is material but, the percentage content of Heroin translated into weight that is relevant. On the other hand, the learned counsel who appeared for the State urged that only the weight of the substance recovered ought to be seen. They submitted that once the substance tested positive for Heroin, its percentage content in the substance was irrelevant; the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a small quantity or a commercial quantity.

( 3 ) AS pointed out by the Supreme Court in Basheer v. State of Kerala: (2004) 3 SCC 609 [ at page 612], the ndps Act contemplates severe and deterrent punishments as is evident from the minimum terms of imprisonment prescribed in Sections 21 and 22 thereof. It was found that a large number of cases, in which the accused were found to be in possession of a small quantity of drugs, were really cases of drug addicts and not of traffickers in narcotic drugs and psychotropic substances. As a result of the stringent bail provisions there were hardly any cases where such persons could obtain bail. Thus, trials were

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