Koshy, J.

Doubting the correctness of the decision of the Division Bench in Shaji v. Kerala State (2004 (2) ILR Kerala 600) in view of the two earlier judgments of the Apex Court, this Bail Application was referred to the Division Bench. Petitioner is the 2nd accused in Crime No.18/2004 of Railway Police Station, Shornur. The allegation against the petitioner is that he along with another accused was found to be in possession of 3200 ampules of Norphine (Buprenorphine Hydrochloride) And 60 Ampules Ophenorgon. Petitioner was arrested on 25-6-2005. According to the counsel for the petitioner, he was in custody for about 110 days. Since quantity seized was a ‘small quantity’ he is entitled to statutory bail as charge sheet is not yet to be framed. Contention of the petitioner is that each ampule contains 0.3 gms. Of Buprenorphine and hence what was seized is a small quantity below 1 gm. The Sessions Judge while rejecting the bail application found that since each ampule contains 2 ml. Of Morphine. It is considered as commercial quantity coming under section 22 (C) and 18 (c) read with section 27A of the Narcotic drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). His bail application was rejected by the Sessions court holding that he was in possession of commercial quantity of Morphine and there is no circumstances or reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail as stated in section 37. Section 37 of the Act reads as follows:

“37. Offences to be cognizable and non-bailable:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure. 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

2. C.D. file shows that even though, initially, the crime was registered under Section 22 (a) of the Act, it was amended later under Sections 22(b) and Section 18(c) of the Act read with Section 27a of the Drugs and Cosmetics Act, 1940. We quote below section 22 of the Act:

“22. Punishment for contravention in relation to psychotropic substances:- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substances shall be punishable—

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

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