K.A.Abdul Gafoor, J.: In all cases, the applicants the accused in Crime Nos.164, 182 and 214 of 2003 of Mattanchery Police Station or Thoppumpady Police Station, as the case may be, registered under Sec.22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as ‘the Act’) had been found possessing ‘Tidigesic’, a preparation of Buprenorphine, in excess of the commercial quantity made mention of against item No. 169 in S.O.1055(E), dated 19th October, 2001 issued by the Union of India, as empowered under Sec.2(viia) and (xxiiia). One among the applications was found to be in possession of 64 ampoules of the said substance; another one possessing 120 ampoules and the remaining one possessing 15 ampoules. The learned Sessions Judge, Ernakulam, as no Special Court is constituted under the Act for the said area, considered their applications and declined to grant bail. Thereupon, bail applications have been filed before this Court. When the applications came up for consideration before a learned single Judge, the matter has been referred for consideration of the following points by a Bench:

(1) Whether the offences which are punishable with imprisonment for a term of not more than three years are bailable or non-bailable?

(2) Is the Magistrate competent to extent the remand beyond fifteen days? Is he competent to order release of a person accused of any offence under N.D.P.S. Act?

(3) If the Magistrate is not competent to extend the remand beyond fifteen days what is the procedure to be followed by the Magistrate? Should he forward the accused to the Special Court?

(4) What is the procedure to be followed by the Special Court in such cases?

2. Before answering these questions we have to find out first whether the substance involved in each of these comes within the small quantity made mention of in the said notification. If it does comes within the small quantity, necessarily, the maximum punishment that can be awarded will be imprisonment for six months, or with fine, which may extend to ten thousand rupees, or with both, under Sec.22(a), in which case, it will be a bailable offence, and, consequently, they will be entitled to bail as of right. On the other hand, if it comes beyond the small quantity, necessarily, bail can be granted only after consideration of the aspects in terms of Sec.37(1)(b) of the Act. Therefore, we will, first of all, consider whether the substance found in the possession of each of the applicants come within the small quantity prescribed or not.

3. The contention of Counsel for the applicants is that admittedly by the prosecution, the substance involved is ‘Tidigesic", a solution of Buprenorphine. Each ampoule of ‘Tidigesic’ contains only 0-3 mg of Buprenorphine. There is no dispute about this quntitiative analysis. Even if the highest of the lot, viz., 120 ampoules, involved in Bail Application No. 1660 of 2003 is concerned, the actual quantity of ‘Buprenorphine’ involved will be less than one gram, which is specified as small quantity in the notification mentioned’ above. Therefore, the contention is that there arises no question of any of the applicants being punished with imprisonment for more than six months, even if the prosecution established their case, because, as per the said notification, a person possessing one gram of ‘Buprenorphine’ will be termed as possessing only small quantity.

4. Though, in terms of Sec.37(1)(a) of the Act, every offence punishable under the Act shall be cognizable, only those offences punishable under Secs. 19, 24 and 27-A and those involving commercial quantity are made non-bailable under Clause (b) thereof. In other words, offences involving small quantity is bailable. So, they are entitled to be enlarged on bail, they submit.

5. Counsel for the applicants further contended that merely because the solution altogether weighed more than one gram, as the psychotropic substance contained in the solution weighed only below one gram, it cannot be

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