The main legal point established in the judgment is the interpretation of the quantity of narcotic substances in determining commercial quantity under the Narcotic Drugs and Psychotropic Substances Act.

1. This petition under Section 439 of the Code of Criminal Procedure, has been filed by the accused-petitioner, for grant of regular bail, in case FIR No.161 dated 28-8-2005, under Sec.21 of the narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the act only), Police Station Guru -Har Sahai, district Ferozepur, which was registered against him, on the allegations, that on search of the bag, which was thrown by him, on 28-8-2005, 1200 intoxicant capsules and 8000 pyrevon capsules, manufactured in may 2005, the expiry date whereof, was April 2008, were recovered. The salt of dextropropexyphene, was found to be written, on the capsules. It was further alleged that the accused-petitioner absented from the Court proceedings, and was declared proclaimed offender, and, ultimately, arrested on 5-4-2008.

2. I have heard the counsel tor the parties and gone through the record of the case carefully.

3. The Counsel for the petitioner, has submitted that this is the second petition for regular bail, having been filed by the petitioner, as his first petition for regular bail was dismissed on merits, vide order dated 4-9-2008. He has further submitted that the changed circumstance, is that, the salt of dextropropexyphene, which was found in one capsule, was below 135 mg and, thus, fell within the permissible limits and, as such, no offence under Sec.21 of the Act, was committed by the accused-petitioner. He also placed reliance on Deep Kumar V/s. State of Punjab (1997 (2) RCR, 417): (1997 Cri LJ 3104) in support of his contention.

4. On the other hand, the counsel for the respondent-State, submitted, that the quantity 6f Dextropropexyphenceontained in the capsules, recovered from the accused, was to be taken collectively. He further submitted that if the quantity of salt, to all the capsules, recovered from the accused, is calculated it comes to more than 500 grams, and, as such, falls within the ambit of commercial quantity. He further submitted that it could not be said that the salt found in the capsules was within the permissible limits. He also placed reliance on Shaji V/s. Kerala state, 2004 (4) RCR (Criminal) 643 and ouseph V/s. State of Kerala (2004) 4 SCC 446 (SC), in support of his contention. He further submitted that since the petitioner was found in possession of commercial quantity of psychotropic substance, the parameters laid down, in Sec.37 of the Act/for the grant Of bail, having not been fulfilled and, as such he is not entitled to the grant of bail

5. After giving my thoughtful consideration to the rival contentions, raised by the counsel for the parties, in my considered opinion, it is not a fit case, in which the bail should be granted to the accused-petitioner, for the reasons to be recorded, hereinafter. The accused-petitioner was allegedly found in possession of 1200 intoxicant capsules and 8000 pyrevon capsules (totalling 9200 capsules ). As per the report of the Chemical examiner; each capsule was found containing 65 mg. Dextropropexyphene. The question, this, arises for consideration, is, as to whether the quantity of salt of dextropropexyphene, contained in all the capsules,allegedly recovered from the accused, was required to be taken into consideration collectively, or individually so as to find out, as to whether the same falls within the purview of permissible limits, as per notification No. S. O.826 (E) dated 14-11-1985. This question was answered in ousephs case (supra), decided by the Apex court. In that case, the accused was found in possession of 110 ampules of buprenorphine (under the trade name of tidigesic), which is psychotropic substance. The question, which was posed before the apex Court, was whether psychotropic substance, recovered, constituted small quantity. The Apex Court, took into consideration only the actual content of Buprenorphine (i. e.0.3 mg per ml) for the purpose of deciding whether the recovery was of small quantity of Buprenorphine or not. It found