The interpretation of the small quantity provision under the NDPS Act, 1985 and the burden of proof on the accused applicants influenced the court's decision to grant bail.

1. - Heard the learned counsel for the accused applicants as well as the learned Public Prosecutor.

2. In all these bail applications, common question of law, in the light of notification, issued by Central Government, in exercise of its power, conferred by Explanation (1) to Section 27 of Narcotic Drugs and Psychotropic Substances Act, 1985, in supersession of earlier notifications of Government of India in the Ministry of Finance Department dated 14.11.85, is involved, therefore, all these bail applications can be disposed of by a composite order.

3. I have heard the learned counsel for the accused applicants as well as the learned Public Prosecutor.

4. The quantity of different drugs, recovered from possession of the accused applicants, fall within the definition of `small quantity', specified by Central Government, in the aforesaid notification.

5. It is urged by the learned counsel for the accused applicants that the accused applicants, in these cases, if the narcotic drug or psychotropic substance possessed or consumed, is cocaine, morphine, diacetyl morphine or any other narcotic drug or any psychotropic substance, as may be specified by Central Government, by notification in Official Gazette, can be punished with imprisonment for a term, which may extend to one year, or with fine, or with both, whereas, under Section 27(b), where the narcotic drug or psychotropic substance possessed or consumed, is other than those, specified in or under clause (a), accused can be punished with imprisonment for a term, which may extend six months, or with fine, or with both.

6. It is urged by the learned counsel for the accused applicants that recovery in these cases, is of small quantity and falls below the specified limit, prescribed by Central Government, in the aforesaid notification, therefore, they are entitled to be enlarged on bail.

7. The aforesaid argument, raised by the learned counsel for the accused applicants, is opposed by the learned Public Prosecutor, who invited my attention towards sub- section (2) of Section 27, which provides that where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on the shoulder of the accused applicant. He also invited my attention to Section 105 of the Indian Evidence Act which provides that if any accused wants to bring any case within `exception', then, burden of proof lies on him.

8. It is also contended by the learned Public Prosecutor that granting bail under Section 439, Cr.PC., is subject to further limitations, provided under Section 37 of the NDPS Act, 1985.

9. I have given by thoughtful consideration to the rival contentions, raised at the Bar.

10. Without exploring the merit of the cases at this stage, I am persuaded to enlarge the accused applicants, on bail, who are alleged to have in their possession, a small quantity of narcotic drug or psychotropic substance, below the specified quantity, envisaged under Section 27(a) and (b) of the NDPS Act, 1985 and the notification, mentioned herein above.

11. Looking into the totality of the facts and circumstances of the present cases, it is, therefore, ordered that accused applicants Kalu, son of Seva; Ram Charan, son of Phool Chandra; Arifa, daughter of Late Nasiruddin; Ishtiyak alias Pappu, son of Abbas Khan; Dilip Kumar, son of Ramchander Sindhi; Smt. Patra alias Dholak, wife of Jagga; and Ajji alias Abdul Aziz, son of Ballu Khan be enlarged on bail, provided, each one of them, furnishes a personal bond of Rs. 20,000/-, with two sureties of like amount, to the satisfaction of the learned trial court, for their appearance before said court, as and when called upon to do so, during the pendency of trial against them.Bail granted to accused.

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