- (1.) SAROJ Bala, J. This is an application for bail moved on behalf of the applicant Yogender Pal Singh indicted in case crime No. 36 of 2005 under Sections 18/22 of the N. D. P. S. Act. P. S. Loni, District Ghaziabad.
(2.) HEARD Shri Tripathi B. G. Bhai, learned Counsel for the applicant, learned A. G. A. and have perused the record. The learned Counsel for the applicant submitted that according to the recovery memo samples of 10- 10 grams from each packet were drawn but chemical examination report indicates that the samples weighed 5-5 gram. The learned Counsel argued that the samples sent to the Forensic Science Laboratory were not the same samples as taken out from recovered powder. The learned Counsel strenuously urged that quantity of diacetylmorphine in the samples sent for chemical examination having been found 1. 29 and 0. 93 percent, quantity of diacetylmorphine in the entire recovered heroine weighing one Kg. is only 11. 10 Grams which is less than the commercial quantity. The learned Counsel relying on decision of Ansar Ahmad v. State (Govt. of NCT of Delhi) 2005 (3) JCC 193, argued that in calculating the quantity of Narcotic drugs or psychotropic substance the quantity of the neutral substance or substances is not to be taken into consideration but actual content by weight of the narcotic drug or the psychotropic substances is relevant. The learned Counsel placing reliance on the decision of Apex Court in Ouseph alias Tahankachan v. State of Kerala, 2004 (4) SCC 446, argued that each ampoule containing 2ml. buprenorphine, total quantity of 110 ampoules was quantified as 66 mg. and it was held less than the 1/10th of limit of small quantity specified under the notification. The learned Counsel urged that the decision in the case of Yogesh Tyagi & Ors. v. State, 111 (2004) DLT 759, has been held per incuriam in the case of Ansar Ahmed (supra ). The learned Counsel placed reliance on Mohd. Sayed v. Customs, 2002 (2) JCC 1293, wherein it was held that actual quantity/value of buprenorphine found in each ampoule and not the total quantity of 2 ml can be taken for the purposes of framing of charges and so calculated the aggregate buprenorphine in 3215 ampoules would come to 0. 578 gm. which is a small quantity. The learned Counsel submitted that the compliance of mandatory provisions of Section 50 of NDPS Act was not made. The learned Counsel urged that the applicant was not informed about his right to be searched before the Magistrate or Gazetted Officer. The learned Counsel in support of his submissions relied on the decisions in Vinod v. State of Maharshtra, 2003 SCC (Cri) 14, T. Hamza v. State of Kerala, 2000 SCC (Cri) 216, Ahmad v. State of Gujarat, 2000 Cri. L. J. 4008 (S. C.) and State of Punjab v. Baldev Singh, 1999, III AD (Cr.) S. C. 193 and Ritesh Chakarvarti v. State of Madhaya Pradesh, 2006 (3) J. C. C. (Narcotic) 150. The learned A. G. A. submitted that percentage of diacetylmorphine is not relevant for ascertaining the quantity of recovered heroine. The learned Counsel urged that the percentage of purity of diacetylmorphine is immaterial for quantifying the drug or psychotropic substances as the Act does not prescribe any minimum percentage of purity or potency of diacetylmorphine for its possession to be unlawful. The learned Counsel contended that the small quantity and commercial quantity of drugs prescribed by the notification will be the same for any preparation, which may be in the form of mixture or 'solution. The learned Counsel in support of his argument relied on a decision in Yogesh Tyagi v. State, 2004 (2) JCC, 881. The learned Counsel contended that criminal appeal No. 390 of 2005 filed against the said decision before the Apex Court having been dismissed as withdrawn by an order dated 5-4-2005, the decision in the case of Yogesh Tyagi (supra) still holds the field. The learned Counsel submitted that Special Leave Petitions No. 6434 of 2006 and 6056 of 2006 filed by the State (Government N. C. T.) Delhi against the decision of Ansar Ahmad's case (supra) being pending before the Apex Court the said decision has not attained finality, The learned Counsel submitted that the decision of the Apex Court in the case of Ouseph's relates to possession of a small quantity of psychotropic substance for personal use and it relates to applicability of Section 27 of N. D. P. S. Act. The learned Counsel argued that the percentage contents cannot be used for calculating small or commercial quantity. The learned Counsel submitted that the percentage of diacetylmorphine is for the purpose of fixing price of the contraband in the international market and the drugs containing high percentage are sold at higher price. The learned Counsel inviting my attention to the definition of 'opium' argued that opium means the coagulated juice of the opium poppy and any mixture with or without any neutral material of the coagulated juice of the opium poppy but it does not include any preparation containing not more than 0. 2 percent of morphine. The learned Counsel submitted that 'opium derivative' means medicinal opium, prepared opium, phenanthrene alkaloids namely morphine, codeine, thebaine, diacetylmorphine also known as dia-morphine or heroin and its salts and all preparations containing more than 0. 2 percent of morphine or containing any diacetylmorphine. The learned Counsel referring to the definitions of 'opium' and 'opium derivutive' as contained in Section 2 (xv) and (xvi) of NDPS Act argued that percentage of morphine or diacetylmorphine is required to ascertain whether the recovered contraband is narcotic derivative or psychotropic substance and its potency. According to the learned Counsel the percentage of diacetylmorphine in recovered contraband is not less than 222%.
(3.) I have taken into consideration the submissions advanced on behalf of both the parties. The recovery of two packets of heroin each weighing 1/2 kg. was made from the personal search of the applicant. The applicant and co-accused were made aware of their right to be searched in the presence of Magistrate or Gazetted Officer. There is no specified form prescribed or intended for conveying the information required to be given under Section 50 of the NDPS Act. The applicant and co- accused though consented for search by the Police Inspector Incharge but by way of abundant caution, the Deputy Superintendent of Police (C. O. III) was contacted on R. T. set and search of the applicant and co-accused was taken on his arrival at the spot. The search of the applicant having been taken in the presence of Deputy Superintendent of Police there was sufficient compliance of provisions of Section 50 of the NDPS Act. The percentage of diacetylmorphine found in the samples and calculation of total quantity of heroin on that basis is not contemplated under the provisions of NDPS Act. For the determination of quantity of recovered contraband the entire weight of seized contraband containing morphine or diacetylmorphine is to be seen. The commercial quantity of heroin as prescribed under the notification dated 19-10-2001 is 250 gm. The weight of recovered heroin being One Kg. , it comes within the limits of commercial quantity. The recovery of heroin involving commercial quantity having been made from the possession of the applicant, the provisions of Section 37 of NDPS Act are attracted to the present case. The applicant having been found in possession of heroine weighing one Kg. , it cannot be held that applicant is not likely to commit any offence while on bail. The decision in the case of Ansar Ahmad & Ors. (supra) having been challenged by filing Special Leave Petitions before the Apex Court it has not attained finality. The decision of Apex Court in the case of Ouseph (supra) relates to the applicability of Section 27 of the N. D. P. S. Act and recovery was of 110 ampoules of Buprenorphine (Tidigesic ). In the backdrop of these facts am not inclined to grant bail to the applicant.;