Vijay Kumar Verma, J. - (1.) Heard learned counsel for the applicant, AGA for the State and also perused the record. The applicant Prem Shankar @ Nanhey Pahelwan by means of this application under Section 439 of the Code of Criminal Procedure (in short, "the Cr.P.C") has sought his release on bail in case crime No. 385 of 2008 under Section 8/21 NDPS Act PS Aliganj, District Bareilly.
(2.) The allegation made in the FIR lodged at PS Aliganj (Bareilly) on 19.6.2008 by SI Vikas Kumar Saxena, in-charge SOG Bareilly, in brief, is that on being apprehended on 19.6.2008, 300 gm. smack was recovered from the accused Prem Shankar @ Nanhey Pahelwan.
(3.) The main submission made by learned counsel for the applicant is that although 300 gm. smack is alleged to have been recovered from the applicant's possession, but according to the report (annexure 2), on examination of the said contraband in Forensic Science Laboratory UP Lucknow, it was found heroin and percentage of heroin in the recovered contraband was found 31.25%, meaning thereby that actual weight of heroin in the recovered contraband comes 93.75 gm, which is below commercial quantity as per entry 56 of Notification dated 19.10.2001 issued by Central Government and hence the applicant should be enlarged on bail. The contention of the learned counsel is that only the actual contents of weight of the narcotic drug or psychotropic substance, as the case may be, is relevant for determining whether it would constitute "small quantity" or "commercial quantity" and on the basis of percentage of heroin in the recovered article in present case converted into weight, the heroin contents in the total quantity of recovered contraband would be 93.75 gm only, which is much below commercial quantity. For this contention, reliance has been placed by the learned counsel on E. Micheal Raj u. Intelligence Officer, Narcotic Control Bureau,(2008) SCC (Cri.) 558and State of NCT of Delhi v. Ashif Khan @ Kalu,2009(2) SCC (Cri.) 54. Itls also submitted that there is no criminal history of the applicant, who is languishing in jail since 20.6.2008.;