2011 (12) TMI 341 - HC - Indian Laws

The trial Court granted the bail holding that it was not commercial quantity of opium because the morphine contained in the total substance was 1537 gm. - Held that - The Ministry of Finance, Department of Revenue, in the Central Government had issued Notification dated 19.10.2001 prescribing the small quantity means 5 gm or less than 5 gm while the commercial quantity is more than 250 gm in respect of heroin, morphine, and opium derivatives - offence pertains to the possession and transportation of opium, which is the commercial quantity and is punishable under Section 17(c) with rigorous imprisonment which shall not be less than 10 years but which may extend to 20 years and also with fine which shall not be less than one lakh but which may extend to 2 lakh rupees. The offence is non-bailable - the order passed by the learned Special Judge granting bail to the accused persons stands set aside and cancelled. Accused persons be taken in custody.

Issues Involved:
1. Cancellation of bail granted to the accused.
2. Interpretation of the term "opium" under the NDPS Act.
3. Applicability of Section 37 of the NDPS Act regarding bail.
4. Validity of conflicting Chemical Analyser reports.
5. Considerations for granting and canceling bail.

Detailed Analysis:

1. Cancellation of Bail Granted to the Accused:
The Union of India filed an application for the cancellation of bail granted to the accused by the Special Judge (NDPS Act), Pune. The prosecution argued that the learned Special Judge misdirected himself in granting bail by considering the morphine content rather than the total quantity of opium, which was 14.5 kg, much above the commercial quantity threshold of 2.5 kg for opium. The stringent provisions of Section 37 of the NDPS Act were applicable, and the bail should not have been granted.

2. Interpretation of the Term "Opium" under the NDPS Act:
The court examined the definition of "opium" under Section 2(xv) of the NDPS Act, which includes both the coagulated juice of the opium poppy and any mixture of the coagulated juice with or without neutral material, provided it contains more than 0.2% morphine. The Chemical Analyser's reports confirmed that the substance contained significant quantities of morphine (10.6% and 9.88%), along with other opium alkaloids, thus classifying it as opium under the Act.

3. Applicability of Section 37 of the NDPS Act Regarding Bail:
Section 37(1)(b) of the NDPS Act stipulates that no person accused of an offense involving a commercial quantity of narcotic drugs shall be released on bail unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail. The Special Judge erred by equating the total morphine content with the quantity of opium, thereby ignoring the statutory provisions and the severity of the offense. The High Court found that the stringent conditions for granting bail were not met in this case.

4. Validity of Conflicting Chemical Analyser Reports:
The defense argued that the conflicting Chemical Analyser reports (10.6% and 9.88% morphine content) should benefit the accused. However, the court noted that the discrepancy was minor and did not affect the classification of the substance as opium. The court distinguished this case from Sami Ullaha v. Superintendent, Narcotics Central Bureau, where one report showed heroin presence, and another did not, thus benefiting the accused. Here, both reports confirmed the presence of opium.

5. Considerations for Granting and Canceling Bail:
The court emphasized that the considerations for granting bail differ from those for canceling bail. The Supreme Court in Anil Kumar Tulsiyani v. State of U.P. and Puran v. Rambilas established that bail could be canceled if granted without considering the gravity of the offense or if the order was perverse. The High Court found that the Special Judge's order was per se illegal and against the law, as it failed to consider the statutory provisions and the commercial quantity of opium involved.

Conclusion:
The High Court set aside and canceled the bail granted to the accused, directing that they be taken into custody immediately. The court refused to stay the order, citing the gravity of the offense. The judgment underscores the importance of adhering to statutory provisions and the gravity of offenses involving commercial quantities of narcotic drugs under the NDPS Act.

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