1. In this Writ Petition filed under Article 226 of the Constitution of India, the petitioner who is the first accused in Crime No. 140 of 2011 of Panangad Police Station for an offence punishable under Sec. 22 ( c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the N.D.P.S. Act for short) read with Sec. 34 I.P.C. challenges Ext.P3 notification dated 18-11-2009 as per which a "note" has been added with effect from 18-11-2009 as "Note - 4" to the notification published as S.O. 1055 (E) dated 19-10-2001. The said Note 4 reads as follows:-

"4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content".

(F.No.662/33/2008-NC-1)

VIMALA BHAKSHI, Under Secretary".

THE POLICE VERSION

2. The case of the prosecution as revealed by the final report in the above crime is as follows:-

On 24-01-2011 at about 7.20 p.m. the petitioner (A1) was found in possession of 842 ampules of buprenorphine injunction, 140 ampules of diazepam and 107 ampules of promethezine in an air bag kept beneath the cot in one of the bedrooms of a rented house belonging to one Sherif at Kaithavalappil in Nettoor where the petitioner is residing. The petitioner was arrested then and there. The case was detected by the 3rd respondent Sub Inspector of Police, Panangad on getting credible information before the detection. One Harshan (A2) and one Sibil (A3) who were allegedly found in the vicinity of the said house each carrying 25 ampules of diazepam for sale were also arrested. Each of the three accused persons were carrying mobile phones. A2 and A3 had cash worth Rs. 4000/- and Rs. 400/- respectively on their person. The contraband psychotropic substances, mobile phones and cash were seized under a search list.

3. The petitioner along with A2 and A3 (Harshan & Sibil) were produced before the Sessions Court, Ernakulam and were remanded to judicial custody. Applications for bail filed by the petitioner as Crl.M.C. 190 and 306 of 2011 before the Sessions Court Ernakulam were dismissed by that Court holding inter alia that the buprenorphine seized was of commercial quantity attracting Section 37 of the N.D.P.S. Act. Exts. P1 and P2 are the orders dismissing the bail applications. Subsequently the petitioner moved this Court seeking bail as per B.A. 1916 of 2011. The said application was dismissed by this Court also on 16-3-2011 holding inter alia that the psychotropic substances seized from the possession of the petitioner "attracted commercial quantity" which in turn attracted the rigour of Sec. 37 of the N.D.P.S. Act.

PETITIONER'S CASE

4. One ampule of buprenorphine injection contains only 0.6 mg. of buprenorphine in 2ml. of distilled water. The small quantity for buprenorphine as prescribed against Sl. No. 169 of the Notification dated 19-10-2001 is below 1 gram (i.e. below 1000 mg.) and its commercial quantity is above 20 grms. (i.e. above 20,000 mgs.) Going by the weight of buprenorphine content in the ampules, upto 1,666 ampules it will be small quantity only. Here, the total number of ampules of buprenorphine injection allegedly seized from the petitioner is only 842 which contain only 505.2 mgs. of buprenorphine which is below the small quantity of one gram. In order to get 20 gms. (i.e. 20000 mg.) of buprenorphine above which is the commercial quantity, there should be 33340 ampules. Likewise, the small quantity for diazepam which occurs at Sl. No. 194 of the Notification dated 19-10-2001 is below 20 grams (i.e. below 20000 mgs.) and its commercial quantity is above 500 grams. (i.e. above 500000 mgs.) 1 ml. of diazepam injection contains 5 mg of diazepam