The purity percentage in contraband should be considered for determining the commercial quantity, and recovery from different accused at different times and places should be considered separately for quantity determination.

JUDGMENT :

1. The present petition is filed under section 439 of Cr.P.C. on behalf of the petitioner for setting aside order dated 04.12.2019 passed by learned ASJ, Patiala House Courts, Delhi in SC No.8792/2016 and for grant of regular bail in FIR No.28/2012 registered at Police Station Special Cell for the offences punishable under sections 21/29/61/85 of NDPS Act.

2. Case of the prosecution is that on 12.10.2012, raid was conducted on secret information at main road from Dhaula Kuan to Gurgaon and two persons in Quallis car were intercepted with contraband goods, resulting into detailed interrogation. During interrogation, the police officials arrested the co-accused persons and on disclosure statement of one accused P. Mary, Petitioner herein was arrested and allegedly about 510 grams heroin was recovered from his house.

3. It is not in dispute that petitioner is in judicial custody since 15.10.2012 i.e. for a period of about seven years.

4. Learned counsel for the petitioner submits that as per the alleged recovery, the powder which was recovered from the Petitioner was 510 grams out of which 10% (i.e. 51 grams) was Diacetylmorphine (Scientific name of heroin).

5. Learned APP submits that as per the notification of 2009, it is the total quantity which is to be taken into consideration and not the percentage of substance.

6. As per the recent judgment passed by this Court in the case of ‘Sandeep Kumar vs. Central Bureau of Narcotics’, decided on 08.07.2019, 2019 Lawsuit (DEL) 2001, after appreciating the law laid down by the Hon'ble Supreme Court in ‘Rafiq Qureshi vs. NCB, Eastern Zonal Unit’, decided on 07.05.2019, 2019 Lawsuit (SC) 1179, the Court adjudicated the matter on the basis of purity percentage available in the contraband.

7. Thus, total quantity of substance recovered from the petitioner is 510 grams, out of which 10% (i.e. 51 grams.) was Heroin, which is intermediate quantity whereas the commercial quantity is 250 grams.

8. It is undisputed fact that recovery of the substance from accused is as under:

9. Learned counsel for petitioner has informed this Court that quantity of heroin recovered from Anil Pratap Singh Chauhan, one of the accused, is 800 grams and purity of same is 10.6%. Thus, total substance recovered from said accused is 84.8 grams. The said accused has expired, therefore, charges have not been framed against him. Thus, recovery cannot be proved against that accused and that recovery cannot be added in total recovery. Moreover, he submits that recovery from accused persons were effected at different time, places and quantities. In such a case, total quantity recovered from all accused cannot be clubbed.

10. Similar issue came before High Court of Punjab & Haryana at Chandigarh in Vicky Kaur vs. State of Punjab, wherein while citing case of LawSuit (P&H) Amar Singh Ramji Bhai Barot vs. State of Gujarat (2005) 7 SCC 550 held that quantity of contraband carried by both accused could not be added to bring it within the meaning of commercial quantity and Section 29 will not be attracted.

11. However, learned counsel fo