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2011 Supreme(J&K) 237
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Mushtaq Ahmad Malik -Appellant
Versus
State of J & K -Resopndent
B.A. No. 83/2010
Decided On : 11-05-2011
M/s Mohammad Abdullah Pandit & Zulfiqar Sheikh for Petitioner., Mr.Ajay Sharma for Respondent.
The determination of small and commercial quantity under the NDPS Act should consider the entire mixture, including the percentage of narcotic content, and the rigour of Section 37 of the NDPS Act must be applied with all harshness.
Headnote:
NDPS Act - Bail Application - Sections 8/20,21,23,28 - 8, 20, 21, 23, 28 - The court discussed the provisions of the NDPS Act, including the definition of small and commercial quantity, the relevance of percentage of narcotic content in the total material, and the impact of expert opinions on the determination of quantity. The court also considered the rigour of Section 37 of the NDPS Act in relation to bail applications and the protection of the accused's rights under Article 21 of the Constitution.
Fact of the Case:
The accused was facing trial for offences under the NDPS Act related to the recovery of hashish/charas. The quantity of the recovered substance was disputed, and the accused filed a bail application after an unsuccessful attempt to obtain bail from the trial court.
Finding of the Court:
The court allowed the bail application, considering the duration of the accused's custody, the discretion to extend the concession of bail, and the conditions imposed on the petitioner upon release.
Issues: Dispute over the quantity of the recovered substance, applicability of Section 37 of the NDPS Act to the bail application, and protection of the accused's rights under Article 21 of the Constitution.
Ratio Decidendi: The determination of small and commercial quantity under the NDPS Act should consider the entire mixture, including the percentage of narcotic content. The rigour of Section 37 of the NDPS Act must be applied with all harshness, but extenuating circumstances can warrant the extension of bail.
Final Decision: The bail petition succeeded, and the accused was admitted to bail with specified conditions.
2. Allegedly on 17.3.2010, car bearing registration No. HR-26M-4527 was intercepted, on search in presence of Gazetted Officer 1.8 Kg hashish/charas was recovered. Both petitioner and the co-accused Feroz Ahmad Shah were taken into custody. The recovered material was divided into two lots, lot A contained 40 pieces of sample marked 1 to 40 and lot B contained 8 pieces of sample marked 41 to 48. Same were send for analyses initially to Jammu & Kashmir Forensic Science Laboratory, Jammu. On examination the said laboratory on 26.4.2010 has submitted the report. The result of the examination was recorded as under:-
" RESULT:
The exhibits were subjected to various chemical, microscopical and chro-matographic examination and the result arrived at is as under:
i) Charas was detected in the Exhibit No. K-299/2010 & K-300/2010
ii) The percentage of Tetra hydro Cannabidol (T.H.C) in exhibit Nos.K-299/2010 & K-300/2010 was found to be 4.07% in each exhibit."
3. Later on the sample has also been send to Central Revenues Control Laboratory, New Delhi which in its report has stated that the samples under reference answers positive test for charas. The content of THC (Tetrahydrocannabidol) and gross weight of remnant samples are as under:
Lab No. Marked as % of THC Content Gross weight remnant samples along with plastic pouch
CLD-1281 (N) H1-40/B 5.03(five decimal zero three) 4.3gm
-do- H241-48/B 15.1(Fifteen Decimal one) 4.4gm
4. According to learned counsel for the petitioner, the THC as per FSL in the recovered material was 4.07% which would mean the total quantity of THC was around 50 grams and in terms of opinion of CRCL, Delhi, it would be around 100 grams.
5. In the table appended to the NDPS Act, the charas, Hashish appears at serial No. 23 wherein small quantity is shown as 100 grms and commercial quantity as 1 kg. In terms of the FSL opinion, the quantity recovered is less than small quantity and in terms of the CRCL Laboratory, the quantity will be slightly more than small quantity but in any case not the commercial quantity.
6. It is the contention of learned counsel for the petitioner that when the quantity involved is not the commercial one, then the rigour of Section 37 of NDPS Act will not operate.
7. It is to be borne in mind that the menace of drugs is disturbing the social environment and the persons indulging in such activities are required to be dealt with firmly but at the same time the protections as guaranteed by law are not to be sidelined. Furthermore, the cardinal principal of criminal jurisprudence i.e. presumption of innocence until guilt is brought home has to be on the side of the accused, there can't be sentence before conviction.
8. An unsuccessful attempt of the petitioner in seeking bail before the trial court has resulted in filing of instant petition.
9. The learned trial court has opined that in view of Notification SO 2941 (E) dated 18th November 2009, entire mixture or any solution, not just pure drug content of the recovered material, is to be considered for the purposes of being commercial or small quantity. Same argument was repeated by the learned counsel for the respondents. It shall be quite relevant to quote said notification:
"Ministry of Finance
(Department of Revenue)
NOTIFICATION
New Delhi, the 18th November, 2009
S. O. 2941 (E) - In exercise of the powers conferred by clause (vii a) and (xxiii) of Section 2 of the Narcotic Drugs and psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S. O. 1055(E), dated 19th October, 2001, namely:-
In the Table at the end after Note 3, the following Note shall be inserted, namely:-
"(4) The quantities shown in column 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply to the e
