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TMI Blog2011 (12) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 12-12-2011 - J.H. Bhatia, J. F.E. Saldanha, SPP for the Applicant/Union of India Anil Lalla, adv. for the Respondent Y.M. Nakhawa, APP for the State JUDGMENT 1. The Union of India has preferred this application for cancellation of bail granted to the respondent nos.1 and 2, who are the original accused by the learned Special Judge (NDPS Act), Pune in Customs NDPS Sessions Case No.18 of 2011. 2. Prosecution case in brief, is that, one Satish Kulkarni, Inspector, Customs (Preventive) Narcotic Cell at Pune received intelligence on 19.11.2010 at about 13.30 hrs. that two persons namely, Ambalal Srilalji Ahir and Kailashchandra Mallara would be coming opposite Modern Cafe, Shivajinagar, Pune in a Maruti Alto at about 4 p.m. on the same day with about 15 kg of opium. After completing the other formalities, officers of the Narcotic Cell took position near the relevant spot. At about 4 p.m. one Maruti Alto car bearing registration no. RJ-27-CB-3899 arrived and stopped in front of Modern Cafe. The officers of the Narcotics Cell surrounded the car and introduced themselves to the occupants of the car and enquired about the identity of the occupants of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kg, it was much above commercial quantity as per the Notification issued by the Government of India and, therefore, the stringent provisions of Section 37 in respect of grant of bail would be applicable. He urged that there was no material to show that the accused persons had not committed the offence or would not commit offence in future, therefore, the bail could not be granted to them. It is contended that the order is completely illegal and against the law. 4. The learned counsel for the accused/respondent vehemently contended that two C.A. Reports are conflicting in respect of contents of the morphine. C.A. Reports do not indicate whether the opium substance found in the present case would fall within the definition of opium under Section 2 (xv) (a) or (b). He contended that it was necessary for Chemical Analyser to specify under which particular provision the narcotic drug falls and as it is not shown specifically, the matter may be considered at the time of trial and, therefore, no fault can be found with the grant of bail. The learned counsel also argued that merely because of the presence of morphine, it may not be concluded that the substance was opium and not someth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the learned counsel for the rival parties, it would be useful to refer to certain definitions given in section 2 of the NDPS Act. "2(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs; (xv) "opium" means - (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine; (xvi) "opium derivative" means - (a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the prosecution is not clear whether substance would fall within the definition of opium as per the clause (a) or clause (b) of Section 2(xv). In the present case, the data of the analysis of the sample clearly shows that on every possible test, the sample was found to be opium because all the important alkaloids and acids in different quantities were found in the sample and, therefore, it could be definitely stated that even though Chemical Analyser had not specified whether it falls under Section 2(xv)(a) or (b), it may fall under 2(xv)(a). Even if one is to consider from angle of 2(xv)(b), opium means any mixture, with or without any neutral material, of the coagulated juice of the opium poppy; but does not include any preparation containing not more than 0.2 percent of morphine. In view of this definition, even if certain neutral materials are mixed in the coagulated juice of the opium poppy, it would amount to opium provided morphine contents are more than 0.2%. In the present case, morphine contents were found to be 10.6% by one laboratory and 9.88 % by another laboratory, which is much above minimum prescribed in clause (b). The learned counsel vehemently contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court considered the definition of opium in Section 3 of the Opium Act. It reads thus, "3. Interpretation-clause. In this Act, unless there be something repugnant in the subject or context, - "opium" means- (i) the capsules of the poppy (papaver somniferum L.),whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom; (ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any mixture, with or without neutral material, of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in section 2 of the Dangerous Drugs Act, 1930." The Supreme Court observed thus, "3. ....In our opinion this contention cannot be allowed to prevail. To begin with, the question of 0.2 per cent of morphine does not arise in connection with the 2nd clause of the definition to which this opium obviously belonged. It refers to a preparation which means a mixture with or without neutral materials containing any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the quantity of morphine itself being more than 1.5 kg, he could not have granted bail because commercial quantity for morphine is only 250 gm. 15. The learned counsel for the accused/respondent contends that when there is conflicting opinion of two Chemical Analysers, benefit must go to the accused and for this purpose, he placed reliance on Sami Ullaha v. Superintendent, Narcotics Central Bureau CDJ 2008 SC 1839. In that case, one C.A. Report revealed that sample contained 2.6% of heroin while the another C.A. Report revealed that there was no heroin in the sample and, therefore, the Supreme Court held that benefit would go to the accused and bail could not be cancelled. In the present case, difference is only about percentage of morphine in two reports. While one report shows that morphine contents were 10.6%, another report shows that it was 9.88%. Therefore, authority in Sami Ullah (Supra) is not applicable to the facts of the present case. 16. The learned counsel for the accused vehemently contended that the considerations for grant of bail are different for consideration of cancellation of bail and unless there are very strong and cogent reasons; or unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Their Lordships observed thus: 9. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram and Ors. vs. State of Haryana reported in 1995 (1) S.C.C. 349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 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. Section 37(1)(b) NDPS Act provides that no person accused of an offence punishable for offences under Section 19 or section 24 or section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and where the application is opposed, unless the Court is satisfied that (a) there are reasonable grounds for believing that he is not guilty of such offence and (b) he is not likely to commit offence while on bail. Taking into consideration the facts and circumstances of the case, I do not find any ground to believe that accused are not guilty of the offence nor it can be held that they are not likely to commit such offence if granted bail. These are the stringent conditions in respect of grant of bail in respect of commercial quantity of the narcotic drugs or psychotropic substance. The trial Court granted the bail holding that it was not commercial quantity of opium because the morphi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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