2017 (12) TMI 1570 - HC - Customs

Grant of Bail - Smuggling - Zol Fresh tablet containing Zoipidem as a psychotropic substances - case of Revenue is that the psychotropic drug recovered from the accused is well above the commercial quantity prescribed in the schedule and the restrictions contained in Section 37 of the NDPS Act and thus bail cannot be granted - bail was now claimed on the ground that the petitioner is in critical sickness condition - Revenue believed that all those medical facilities available in the Central Prison itself and therefore, the petitioner can very well avail all such medical facilities and get proper treatment Held that - Since this Court has already decided the issue involved in this petition, the question of considering the very same issue once again does not arise - On perusal of the Medical Certificate, dated 12.02.2017 given by Dr.L.Vijayalakshmi, Assistant Civil Surgeon, Government General Hospital, Chennai, it is seen that the petitioner was undergoing treatment from 20.09.2017 to till date and his health condition is very bad and was advised to take complete rest. Further, the petitioner was also enlarged on interim bail on medical grounds and got proper treatment in the Private Hospital and therefore, there is no problem in his health condition, if at all, he needs treatment, he can avail medical facilities from the Government Hospital. Bail cannot be granted - petition is dismissed.

Summary

Issues Involved:
1. Bail application under NDPS Act.
2. Commercial quantity determination.
3. Medical grounds for bail.
4. Previous bail cancellation and interim bail.
5. Legal precedents and statutory interpretation.

Detailed Analysis:

1. Bail Application under NDPS Act:
The petitioner, Accused No.2, was arrested and remanded for offences under Sections 8(c), 22(c), 27(A), 28, 29 of the NDPS Act, 1985, and related rules. The petitioner sought bail after being arrested on 29.04.2016. The prosecution alleged the recovery of 13,300 tablets of "Zol Fresh" containing "Zoipidem," a psychotropic substance, from a parcel service.

2. Commercial Quantity Determination:
The prosecution claimed that the total weight of Zoipidem was 2 kgs, classifying it as a commercial quantity under the NDPS Act. The petitioner argued that only 130 grams of Zoipidem were seized, which is below the commercial quantity threshold. The court referred to previous judgments, emphasizing that the entire weight of the seized substance should be considered, not just the active ingredient.

3. Medical Grounds for Bail:
The petitioner presented medical certificates indicating severe health conditions, including Chronic Pancreatitis and Type II Diabetes, arguing for bail on medical grounds. The court acknowledged the medical issues but noted that adequate medical facilities were available in the Central Prison.

4. Previous Bail Cancellation and Interim Bail:
Initially, the petitioner was granted bail on 05.08.2016, which was later canceled on 23.08.2016. Subsequently, interim bail was granted on 15.09.2017 based on medical grounds, and the petitioner was released for treatment. The court reiterated that the issue of commercial quantity had been previously decided, and the petitioner's health condition did not warrant bail.

5. Legal Precedents and Statutory Interpretation:
The petitioner’s counsel cited several judgments, including Narcotics Control Bureau vs. Kishan Lal and others, to argue against the commercial quantity classification. The court, however, referred to an unreported decision in Mohamed Ali vs. The State, which emphasized considering the entire weight of the seized substance. The court rejected the "isolation theory" of considering only the active ingredient's weight, aligning with the Supreme Court's stance in E. Michael Raj vs. Intelligence Officer, Narcotic Control Bureau.

Conclusion:
The court dismissed the bail application, directing the petitioner to surrender within a week and instructed the Central Prison Authorities to provide proper medical treatment. The decision was based on the gravity of the offence and the established legal position on determining commercial quantity under the NDPS Act.