Mrs. Poonam Srivastav, J. - (1.) HEARD Sri A.P. Srivastava, learned Counsel for the applicant and Sri Sanjay Kumar Singh, Special Public Prosecutor, appearing for the opposite party. Counter affidavit filed on behalf of the Union of India, is taken on record.
(2.) THIS is second bail application on behalf of the applicant. Criminal misc. first bail application was rejected by this Court on 22.2.2008. Argument advanced by the Counsel for the applicant in first bail appli cation was that on perusal of analysis report, percentage of diacetylmorphine (Heroin) was only 5.67%; meaning thereby out of the total amount of recovered article, which was 600 grams, it contained only 34.02 grams of Heroin (diacetylmorphine). THIS argument of the Counsel for the appli cant was negated on the basis of an objec tion raised by Special Public Prosecutor, appearing for the opposite party that it is not percentage that has to be taken into consideration but the entire amount of re covered article. While analyzing the analy sis report, the Counsel for the Union of India had tried to demonstrate by means of definition of an Opium derivative narcotic drugs and various other definitions to substantiate his argument that admittedly, the recovered Heroin was more than 250 grams i.e. commercial quantity fixed by the Act and, therefore, the applicant was not entitled to be released on bail. Reliance was placed on the three decisions; Yogesh Tyagi and others v. State 2004 Cri. LJ 3907 Amar Singh Ramji Bhai Barot v. State of Gujarat 2005 (53) ACC 496 and Micheal Raj v. The Intelligence Officer, Narcotic Control Bu reau. 2005 Cri. LJ 1817 In the latest decision of Micheal Raj (supra), the High Court had come to a conclusion that it is the entire quantity re covered from the accused, has to be taken into consideration. THIS finding of the High Court was based on decision of the Apex Court recorded in the case of Amar Singh (supra). Finally, taking into consideration all these aspects, I had rejected first bail application of the applicant. The order in the case of Micheal Raj (supra) was challenged before Hon'ble Supreme Court. The second bail applica tion has been moved on behalf of the applicant only on the basis of the latest decision of the Apex Court; Micheal Raj v. Intelli gence Officer, Narcotic Control Bureau. 2008 (61) ACC 660 (SC) The Apex Court relied on the quantity of Heroin reported to be present in the report, submit ted by Chemical Analyst and since the amount was found to be only 60 grams, which is lesser than the commercial quantity but greater than small quantity fixed in the table provided in the N.D.P.S. Act, conse quently, the accused was awarded punish ment under Section 21 (b) of N.D.P.S. Act. On the basis of the aforesaid analysis, the Counsel for the applicant has argued that since the Apex Court had taken a view that it is not the total quantity of the recovered article, which is to be taken into consideration while awarding punishment but the percentage of Heroin reported to be present in the report of the Shemical Ana lyst. The argument advanced by the learned Counsel appearing on behalf of the (appellant is that the same yardstick has to be adopted in the instant case. Admittedly, the quantity of Heroin found by Chemical Analyst was 34.02 grams in the total quantity of the recovered article of 600 grams. This is definitely less than the com mercial quantity.
(3.) IN the circumstances, I am of the considered view that my decision rejecting first bail application of the applicant fol lowing previous decision of the Apex Court, is not correct and is liable to be al tered in view of the latest decision of the Apex Court. Taking into consideration the en tire facts and circumstances of the case, as well as provision of Section 37 (2) of N.D.P.S. Act, there is no criminal history of any previous case under the N.D.P.S. Act and there is no likelihood of the accused repeating the offence. Besides, also the fact that the applicant is in jail since 29.12.2006. The second bail application is allowed subject to an undertaking filed by the ap plicant before the Chief Judicial Magistrate concerned with an unequivocal assertion that he shall fulfil following conditions: (a) The applicant will not commit any offence under the N.D.P.S. Act. (b) The applicant shall not tamper with evidence or intimidate the witnesses. (c) The applicant shall appear before the C.J.M. concerned in the first of every second month. (d) The applicant shall co-operate in the trial pending before the Court concerned. He shall not be absent on any date during the trial.;