- (1.) POONAM Srivastav, J. Heard Sri Amit Kumar Srivastava, learned Counsel for the applicant and Sri Sanjay Kumar Singh Advocate for Special Public Prosecutor (Narcotic Control Bureau) Additional Stating Counsel. Union of India.
(2.) COUNTER and rejoinder affidavits have been exchanged which are on record. The brief facts of the case are that Narcotic Control Bureau (hereinafter referred as N. C. B.) intercepted the applicant on 29. 12. 2006 and recovered 600 grams Heroin from the possession of the accused. The statement of the accused/applicant was recorded under section 67 N. D. P. S. Act. It is alleged that he admitted possession of narcotic substance, its weight was 600 grams. The prosecution asserts that the statement of Rajesh Keshari was recorded voluntarily and necessary conclusion is that he indulged in illicit trafficking of Heroin and. other narcotic substance. Conse quently, he was arrested and remanded to judicial custody on 30. 12. 2006. The prosecution further asserts that the provisions of N. D. P. S. Act has strictly been complied with. It is also alleged that the applicant has criminal antecedents. Sri Sanjay Kumar Singh has brought to my notice details of sampling process of the alleged 600 grams of Heroin. He submits that after recovery of Heroin on 29. 12. 2006, two samples of 5 grams were taken out and sealed in conformation with the provisions and procedure laid down by Rules and Act in presence of independent witnesses as well as the officers of N. C. B. , all of them endorsed their signatures. On 30. 12. 2006 after taking remand from the Magistrate at Varanasi, the articles were sent on 31. 12. 2006 to GOVERNMENT OPIUM AND ALKALOID WORKS, GHAZIABAD (U. P.) for chemical examination. The report of chemical examiner dated 19. 2. 2007 is as under :- " The sample was received duly sealed, Net Wt. = 4. 68 gm. The sample is in the form of Browneus Powder. On the basis of chemical and chromatographic examination, it is concluded that the sample under reference answer positive test for diacetylmorphine (Heroin) and falling under Sr. No. (xvi) (e) to section 2 to Chapter 1 of N. D. P. S. Act, 1985. % of diacetylmorphine (Heroin) in the sample is 5. 67% (five decimal six seven only) Sealed remain sample (Net Wt. = 1. 88 gm) will be returned separately. "
(3.) LEARNED Counsel for the applicant has vehemently argued that the assertion of the prosecution is far fetched. The mandatory requirement of the Act has not been complied with. The first submission is that the recovery memo is completely silent so for the manner in which the alleged recovered article was weighed. The argument is that perusal of the recovery memo suggests that there was no weighing scale etc. and, therefore, the weight given by the prosecution is only on an assumption. Besides no independent witnesses were examined at the time of his arrest. The search alleged is doubtful and possibility of plantation cannot be ruled out. LEARNED Counsel has tried to lay emphasis on the report of chemical analysis where the percentage of diacetylmorphine (heroin) in the sample sent for chemical analysis was detected only 5. 67%, therefore, the total recovery of 600 grams will only contain 34. 02 grams of diacetylmorphine (Heroin ). Since the analysis report is completely silent regarding existence of any other contraband or narcotic substance therefore the quantity of recovered diacetylmorphine is very small. This quantity is very much below the commercial quantity provided in the Act and therefore the applicant is entitled to be released on bail. The next argument on behalf of the applicant is on the basis of several decisions of the Apex Court, Ansar Ahmad v. State Government of N. C. T. of Delhi, 2005 (3) JCC, 193 Ouseph alias Thankachan v. State of Kerala, 2004 (4) SCC 466 and Pappu @ Jitendra v. State of U. P. , 2006 (54) ACC 422. The Hon'ble Supreme Court held that the actual percentage of the narcotic substance present in the sample is a significant consideration and, therefore, in view of section 21 of the Act, three classifications vis-a-vis the sentence is in ratio of the quantity such as small quantity, intermediate quantity and commercial quantity. The emphasis is on the actual quantity of the narcotic substance and not the entire quantity recovered.;