Hon’ble Rajesh Chandra, J.—Learned counsel for the applicant and Union of India present.

2. In brief the facts are that on 5.10.2008 Mr. N.S. Bisht Deputy Information Officer of N.C.B. Lucknow on a tip off stopped a motor-cycle. The driver of the motor-cycle tried to escape but he was detained. He disclosed his name as Shakil Ahmad. Thereafter, an option was given to him that his search may be taken in the presence of a Magistrate or a Gazetted Officer and that it is his right. The accused however did not avail the option. Thereafter, a search of the motor-cycle was made in the presence of two public witnesses namely, Sanjay and Shamsher. A bag was recovered from the motor-cycle in which 500 gram of heroin was recovered.

3. Sample of the recovered contraband article was analysed at “Central Revenue Control Laboratory, Government of India” in which it was found that the percentage of Heroin is only 7%.

4. The learned counsel for the applicant argued that in the sample only 7% of Heroin was found hence the total weight of Heroin in the recovered contraband comes to 35 gram which is much below the commercial quantity. He has relied upon the judgment of Apex Court in E. Micheal Raj v. Intelligence Officer N.C.B., 2008(61) ACC 660 and has argued that since the recovered Heroin is less than the commercial quantity and the accused is in jail since 5.10.2008, he may be allowed bail.

5. Learned counsel for the Union of India argued that even if the recovered quantity of heroin is 35 gram, it is above the small quantity and the accused has confessed his guilt in the statement recorded under Section 67 of NDPS Act hence the bail should not be allowed.

6. I considered over the respective arguments. The main submission of the learned counsel for the applicant is that although 500 gram of contraband was allegedly recovered from the possession of the applicant but in the report of scientific laboratory the percentage of heroin in the recovered contraband is only 7% which means that the actual heroin in the contraband article was only 35 gram which is much below the commercial quantity.

7. In E. Micheal Raj v. Intelligence Officer N.C.B., 2008(61) ACC 660, the apex Court held as under :

1. The provisions of the NDPS Act, were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2.10.2001), which rationalised the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried.

2. Thus, by the amending Act, the sentence structure changed drastically. “Small quantity” and “commercial quantity” were defined under Section 2(xxiii-a) and Section 2(vii-a) respectively. New Section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material.

3. As per Entry 56 of the Notification dated 19.10.2001 issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm and commercial quantity has been mentioned as 250 gm.

4. So, the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity under Section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused.

8. It was held that the percentage of Heroin content translated into weight is relevant.

9. The aforesaid judgment was followed by the Supreme Court in State of NCT of Delhi v. Asif Khan alias Kalu, (2009) 2 SCC (Cri) 54 and it was held that the quantity of the narcotic drugs or psychotropic substance found in the mixture is relevant for the purpose of imposition of punishment.

10. Since the apex Court has taken a view that it is not the total quantity of the recovered article which has to be taken into consideration while awarding punishment but only the percentage of