Through vs 3 The State Of Maharashtra
2011 Latest Caselaw 198 Bom

                                      1

SNS


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                      CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL BAIL APPLICATION NO.1631 OF 2011




                                                    
                                      IN
                    CUSTOMS NDPS SESSIONS CASE NO.18 OF 2011

      Union of India




                                                   
      Through
      Inspector of Customs (Prev.)
      Narcotic Cell 4th floor, ICE House,
      41-A, Sassoon Road,
      Pune 411 001                                       ..Applicant.




                                           
      v/s.
                           
      1 Ambalal Srilalji Ahir
      age 28 years
      Village Alod, Taluka: Dungla,
                          
      Dist. Chitodgarh,
      Rajasthan

      2 Kailash Chandra Mallara
      Age 35 years,
        


      At near Patwar Bhavan,
      Tal: Dungla,
     



      Dist. Chitodgarh,
      Rajasthan

      3 The State of Maharashtra                         ..Respondents.





      Mr. F.E.Saldanha, SPP for the Applicant/Union of India.
      Mr. Anil Lalla , adv. for the respondent nos.1 and 2.
      Mr. Y.M.Nakhawa, APP for the State.





                                            CORAM : J.H.BHATIA, J.

                                            DATE     : 12th December, 2011







    ORAL 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 car. Applicant No.2 Kailash was

on the driver seat while the applicant no.1 Ambalal was on the seat by the

side of driver. From below the seat of the vehicle, one jute bag consisting of

a plastic bag was found. The said plastic bag contained black coloured

substance. With the help of field testing kit, small quantity of that substance

was tested and it answered positive for opium. The contents of the plastic

bag weighed 14.500 kg. Three representative samples of 25 gm each were

drawn and put into three separate plastic pouches. They were heat sealed

with the seal of "Narcotics Cell, Pune Customs" and other formalities were

completed. The said samples were S-I, S-II and S-III. Sample S-II was

referred to the Deputy Chief Chemist, Central Revenue Control Laboratory,

New Delhi. Another sample marked S-I was referred to the Deputy Chief

Chemist , New Customs House, Ballard Estate,Mumbai. Reports from both

the laboratories revealed that the samples were opium. As per the report

from the Central Revenue Control Laboratory, New Delhi, the sample of

opium contained 10.6 % of morphine while as per the report from

Chemical Analyser, Mumbai, the morphine was 9.88%. After investigation,

case was filed and it is pending before the Special Court, NDPS, Pune.

3 Both the accused persons filed bail application before the

learned Special Judge, Pune. The learned Special Judge granted bail to

both of them, as per the order dated 7.7.2011, holding that the commercial

quantity of opium is 2.5 kg but in the present case, as the morphine

contents of the two samples were found 10.6% and 9.88% respectively on

an average morphine contents of total quantity would be 1537 gm i.e. 1.537

kg and as it is less than commercial quantity of 2.5 kg. He observed that

stringent provisions of Section 37 of the NDPS Act in respect of grant of bail

are not applicable. That order is sought to be cancelled by the Union of

India by filing this application. It is contended by the learned Spl. P.P. that

the learned Special Judge had misled and misdirected himself in granting

bail. He contended that commercial quantity of opium is 2.5 kg as per the

Notification while commercial quantity for morphine is only 250 gm. He

argued that total quantity of morphine could not be equated with the total

quantity of opium and that whole of the substance recovered from the

accused persons was opium. As it was 14.5 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

something else.

5 In view of the arguments and the points raised by the learned

counsel for the accused on the last date, I had directed prosecution to

produce complete data of the analysis, at-least from one of the laboratories

and accordingly, a copy of the data from the office of the Assistant

Chemical Analyser, New Customs House, Mumbai has been produced.

Some of the observations in the said data of the analysis would be relevant

and material. They are as follows:

Observations:

1 Sample is in the form of dark brown thick sticky paste

having characteristic strong odour of opium.

3 Mayer's test for Alkaloids- Positive 4 Marquis test for opium alkaloids - Positive 5 Test for Meconic Acid - Positive 7 "All the five major opium alkaloids viz. Morphine,

Codeine, Thebaine, Papaverine and Narcotine were found present in the sample."

11 Morphine strength is 9.88 %

Finally the report shows that "The sample is in the form of dark brown thick

sticky mass. It answers tests for opium and is covered under NDPS Act,

1985."

6 The learned counsel for the accused relied upon copy of

extract from the Merck Index to show what opium means. As per Entry No.

6854 in that book, opium consists of about 20 alkaloids, constituting about

25% of the opium; meconic acid, some lactic and sulfuric acids, sugar,

resinous and waxy-like substances; 12-25% water. Morphine is the most

important alkaloid and occurs to the extent of 10-16%. Other important

alkaloid are noscapine 4-8%, codeine 0.8-2.5%, Papaverine 0.5-2.5%,

thebaine 0.5-2%. In the sample in the present case, besides morphine,

most of the important alkaloids and acids were found in the sample and on

the basis of that, Chemical Analyser reported that the sample is opium as

defined in the NDPS Act.

7 As stated earlier, as per the report from the laboratory at New

Delhi, Morphine contents were 10.6% while as per the report from Mumbai

laboratory contents were 9.88%. It appears that before the learned Special

Judge, it was argued on behalf of the accused that on the basis of average

of the morphine contents as per these two reports in the total quantity of

14.5 kg, morphine contents would be 1537 gm or 1.537 kg and this being

less than commercial quantity of 2.5 kg, accused are entitled to bail. This

argument was accepted by the learned Special Judge.

8 To appreciate the arguments advanced 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;

(d) diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and

(e) all preparations containing more than 0.2

per cent of morphine or containing any diacetylmorphine;

"2(xviia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the

Official Gazette;"

2(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, mans any quantity lesser than the quantity specified by

the Central Government by notification in the Official Gazette;"

9 The Ministry of Finance, Department of Revenue, in the

Central Government had issued Notification dated 19.10.2001 prescribing

small quantity and commercial quantity for different categories of narcotic

drugs and psychotropic substances in the form of the table. Relevant

entries for this case are given below:

    Sr. Name of Narcotic      Other non- Chemical Name        Small         Commercial
    No. Drug and              proprietary                     Qty.          Quantity (in
        Psychotropic          name                            (in gm)       gm./kg.)





        Substance
        (international non-
        proprietary name
        (INN)


    28. Codeine                         3-0 methylmorphine    10            1 kg.
    56   Heroin                         Diacetylmorhine       5             250 gm.







    77   Morphine                       Morphine                5             250 gm.




                                                                             
    92   Opium                          And any preparation     25            2.5 kg.
                                        containing opium
    93. Opium Derivatives               [other than diacetyl    5             250 gm.




                                                     
                                        morphine (heroin),
                                        morphine and those
                                        listed herein.]
    120 Thebaine                        3,6-Dimethoxy-4,5-      2             100 gm.




                                                    
                                        epoxy-9a-methyl
                                        morphine-6, 8-diene


    10           From this, it would appear that in respect of heroin, morphine,




                                       

and opium derivatives, the small quantity means 5 gm or less than 5 gm

while the commercial quantity is more than 250 gm. In respect of thebaine

the small quantity is 2 gm and the commercial quantity is 100 gm. In

respect of codeine the small quantity is 10 gm and commercial quantity is 1

kg and in respect of opium and any preparation containing opium, small

quantity is 25 gm and commercial quantity is 2.5 kg.

11 The learned counsel for the accused vehemently contended

that as the C.A. Reports had not specifically stated 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 purity of the opium has

to be considered for the purpose of determining whether the accused was

found in possession of commercial quantity of opium or not. For that

purpose, he relied upon E. Micheal Raj v. Intelligence Officer, Narcotic

Control Bureau 2008 ALL MR (Cri) 1318 (S.C.). In fact, E. Micheal Raj

(Supra) pertains to the case of heroin, which is opium derivative under

Section 2(xvi)(d) and is defined as diacetylmorphine, i.e., the alkaloid also

known as dia-morphine or heroin and its salts. In view of the specific

definition, heroin does not mean complete mixture of any material other

than dia-morphine or diacetylmorphine and, therefore, purity of the heroin

has to be considered for the purpose determining commercial quantity of

heroin. The Supreme Court was considering the case of heroin to find out

whether it was commercial quantity or not. Language of opium derivative in

respect of heroin is materially different from the language of the definition of

opium in Section 2(xvi). Harjit Singh v/s. State of Punjab (2011) 4

Supreme Court Cases 441 deals with case of opium. The Supreme Court

observed thus:

"23. The judgment in E. Micheal Raj has dealt with heroin i.e. Diacetylmorphine which is an "opium derivative" within the meaning of the term as

defined in Section 2(xvi) of the NDPS Act and therefore, a "manufactured drug" within the meaning of Section 2(xi)(a) of the NDPS Act. As

such the ratio of the said judgment is not relevant to the adjudication of the present case."

12 In view of the provisions referred to above, the opium could

either (a) the coagulated juice of the opium poppy or (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 percent of

morphine. While the first is the coagulated juice of the opium poppy, the

second is mixture of the coagulated juice of the opium poppy with or without

any neutral material. The proviso or expression but does not include any

preparation containing not more than 0.2 percent of morphine governs only

second kind, i.e., the mixture of coagulated juice of the opium poppy with

or without any neutral material but is not applicable to the first kind, i.e.,

coagulated juice of opium poppy only. In Baidyanath Mishra and Another

v. The State of Orissa: 1968 (XXXIV) Cuttack Law Times 1, the Supreme

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 other two forms of opium. ..."

13 Clause (iii) in the definition of opium in the Opium Act is almost

similar to clause (b) in the definition of opium in NDPS Act. Therefore, it can

be stated without any difficulty that proviso or expression "but does not

include any preparation containing not more than 0.2 per cent of morphine"

is applicable only to clause (b) or the second category of opium. In Harjit

Singh (Supra), after quoting definition of opium under NDPS Act, the

Supreme Court observed thus in paragraph 18:

"Coagulated means solidified, clotted, curdled-something which has commenced in curdled/solid form. In case the offending material falls in clause (a) then the proviso to

Section 2(xv) would not apply. The proviso would apply only in case the contraband recovered is in the form of a mixture which falls in clause (b) thereof"

14 Looking to the C.A. Reports with data of the analysis, it

becomes clear that in this case opium falls in category "(a)" because all the

important alkaloids and acids of opium were found in the sample and the

analysis report does not show that any neutral material was found in the

sample. Assuming that it was mixture of the coagulated juice of the opium

poppy with some neutral material, in view of the presence of 9.88% or

10.6% of morphine therein, the whole of the material could be treated as

opium. Therefore, it must be held that the total substance weighing 14.5 kg

was opium. As per the Notification issued by the Central Government, small

and commercial quantities are provided for different narcotic drugs like

codeine, morphine, opium , opium derivatives, heroin, etc. Commercial

quantity for morphine is 250 gm. The learned trial Court on the basis of

arguments advanced on behalf of the accused accepted that the total

substance contained 1537 gm or 1.537 kg of morphine. If opium and

morphine would be one and the same thing, the Government would not

have provided separate and different commercial quantities and small

quantities for opium and morphine. It appears that the learned Special

Judge completely ignored the provisions about the commercial quantity and

small quantity for different narcotic drugs and readily accepted arguments

advanced by the advocate for the accused that because morphine weighs

1537 gm and it is less than 2.5 kg, the accused is entitled to be released on

bail. If the Special Judge would have 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 bail has been misused or the terms and conditions of the bail are

breached, bail can not be cancelled. On the other hand, the learned counsel

for the Union of India contends that if bail has been granted without looking

to the gravity of the matter and if order granting bail is per-se illegal, High

Court can certainly interfere and cancel the bail. In Anil Kumar Tulsiyani v.

State of U.P. and Anr. (2006) 2 SCC (Cri) 565 after considering the law in

respect of cancellation of bail, the Supreme Court observed thus,

"10. By now it is well-settled principle of law that

one of the considerations in granting bail in non- bailable offences is the gravity and the nature of the offence. The High Court has not at all addressed to this issue while granting bail to the respondent.

11. This Court in state of U.P. v. Amarmani Tripathi in which one of us (Raveendran,J) was a

member has considered various decisions of this Court and observed that the circumstances to be

considered in an application for bail are

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable

apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted

by grant of bail" (SCC p.31, para 18)

In that case, bail was granted to the accused, who was an Advocate and that

order was challenged before the Supreme Court. The Supreme Court held

that the respondent i.e. accused being an advocate was in commanding

position and had standing in the society. In this background, there was

reasonable apprehension of the witnesses being tampered with, coerced,

threatened or intimidated by using his influence. As these circumstances

were not considered by the High Court while granting bail, the Supreme

Court set aside that order and cancelled bail.

17 In Puran V/s Rambilas and Another AIR 2001 SC 2023 ,

the bail was granted by the Sessions Court for the offence under Section

498-A and 304-A of Indian Penal Code, the High Court cancel the bail and

that order was challenged by the Accused before the Supreme 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 & 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 evidence on record a

perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be

remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.

10. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is

totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or

because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan

Singh v. State (Delhi Admn.) reported in AIR 1978 SC

179. In that case the Court observed as under:-

"If, however, a Court of Session had admitted an

accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to

that Court. The State may as well approach the High Court being the superior Court under S. 439

(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new

circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate

position of the Court of Session vis-a-vis the High

Court.

12. Our view is supported by the principles laid down in the case of Gurcharan Singh & Others,

etc. vs. State (Delhi Administration) reported in 1978 (1) S.C.C. 118. In this case it has been held, by this Court, that under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it

was right and proper for the High Court, in the interest of justice, to interfere.

18 In the present case, offence pertains to the possession and

transportation of 14.500 kg 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. 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 morphine contained in the total

substance was 1537 gm. The trial Court committed serious error in equating

quantity of morphine with the quantity of opium and then gave go bye to the

stringent provisions of section 37 of the NDPS Act. Therefore, it is clear that

in the present case, bail could not have been granted under the law and

hence, the order passed by the trial Court granting bail is per-se illegal and

against the spirit of law, which seeks to prevent the offences relating to

narcotic drugs or psychotropic substance. Taking into consideration the

nature and gravity of the offence, severity of punishment, the specific

provisions prohibiting granting of bail, in view of the law laid down in Anil

Kumar (Supra) and Puran V/s Rambilas (Supra) , this Court can

certainly interfere in the order of bail passed by the Special Judge.

Therefore, the Criminal Application is allowed. 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.

20 The learned counsel for the accused persons seeks stay to this

order for two weeks. Taking into consideration the gravity of the offence, the

request is turned down. They be taken in custody immediately.

(J.H.BHATIA, J.)