The legal determination of commercial quantity under the NDPS Act must consider both narcotic content and neutral substances, necessitating a larger bench's evaluation due to conflicting interpretations.

JUDGMENT

Subramonium Prasad, J. This is a petition under Section 439 CrPC for grant of regular bail in Complaint Case No.62/2020 registered at Police Station Customs (IGI Airport, Delhi) under Section 21 (c) and 23 (c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. The facts in brief leading to the present petition are as follows:

a) The petitioner was to travel Saudi Arabia by flight No.SV761/04. On suspicion of the security staff, he was handed over to Saudi Arab Airlines Staff and was further handed over with his baggage to the Customs Authorities by the Airlines Staff for further investigation.

b) Notice under Section 50 of the NDPS Act was served on the petitioner and the personal search was conducted but nothing incriminating was recovered.

c) The baggage of the petitioner was opened and examined. On opening it was found that the baggage was containing two big packets wrapped with brown tape. The first packet was opened and it was found that it contained 55 bottles of Phensedyl. The second packet was found containing 55 bottles of Phensedyl.

d) The bottles recovered from the first packet and second packet were tagged separately in corrugated boxes and given mark P-1 and P-2. All the recovered bottles were found containing Codeine Phosphate which is a manufactured drug under the NDPS Act.

e) The samples which were drawn were sent to the laboratory and vide report dated 01.10.2019 all the samples were opined positive for Codeine Phosphate.

f) The investigation reveals that each bottle weighing 100 grams and each of the bottle had Codeine concentration of 0.17% which translates to about 18.7 grams of concentrated codeine in total 110 bottles.

g) A Complaint Case No.62/2020 was filed before the learned Special Judge (NDPS) Dwarka Courts. Charges have been framed against the petitioner for offences under Section 21 (c) and 23 (c) of the NDPS Act for possession of narcotics substances.

3. Heard Mr. Amjad Khan, learned counsel appearing for the petitioner and Mr. Vishal Chadha, learned SPP for Customs and perused the material on record.

4. Mr. Amjad Khan, learned counsel for the petitioner states that the petitioner is illiterate and does not know either Hindi or English and was carrying cough syrup. He also contended that when the pack was searched, it was in pre-opened condition and it was not opened before the petitioner and he suggests that the pack could have been tampered with. He therefore contends that the petitioner is not in conscious possession of the drug.

5. The petitioner filed an application for bail before the learned Special Judge (NDPS) and it was contended that each bottle contained only 0.17% of Codeine concentration and cannot be called as commercial quantity. The learned Special Judge vide order dated 15.03.2021 held that the petitioner was having 11,000 ml of cough syrup and therefore held that it was a commercial quantity and since the petitioner has committed an offence involving commercial quantity, the bail application was rejected. The petitioner therefore approached this Court by filing instant bail application.

6. Mr. Vishal Chadha, learned SPP for Customs relied on the judgment of the Supreme Court in Md. Sahabuddin v. State of Assam reported as (2012) 13 SCC 491.

7. Mr. Amjad Khan, learned counsel for the petitioner contends that the judgment of Md. Sahabuddin (supra) does not apply for the reason that the total quantity in the said case was 34,700 bottles of Phensedyl cough syrup and 10200 bottles of Recodex cough syrup unlike the present case where only 110 bottles were recovered. He places reliance on the judgment of this Court in BAIL APPLN.645/2020 dated 31.07.2020 titled as Iqbal Sing