Bombay High Court
Sayyad Sheru Sayyad Budan vs The State Of Maharashtra on 29 August, 2023
Bench: S. G. Mehare
2023:BHC-AUG:18555
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.1080 OF 2023
Sayyad Sheru Sayyad Budan,
Age 40 years, Occu. Labour,
R/o Near Madina Masjid,
Panchsheel Nagar, Bhusawal,
Tal. Bhusawal, District Jalgaon. ... Applicant.
Versus
The State of Maharashtra. ... Respondent.
...
Advocate for Applicant : Mr. Shaikh Nasimoddin Rafiyoddin.
APP for Respondent-State : Mr. K. S. Patil.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 17.08.2023
PRONOUNCED ON : 29.08.2023
ORDER :-
1. Heard the learned counsel for the applicant and the
learned APP for the respondent-State.
2. The applicant seeks bail in Crime No.89 of 2021 (CCTNS
No.257 of 2021, registered at Mohadi Nagar Police Station,
Taluka and District Dhule, for the offences punishable under
Sections 8(c), 21(c) and 29 of the N.D.P.S. Act.
3. This is the successive bail application of the applicant.
Learned counsel for the applicant would submit that when his
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earlier bail application was rejected, the chemical analysis
reports were not available. Now, the chemical analysis reports
have been received. Hence, on this facts, he can claim the bail.
4. The brief argument of the learned counsel for the
applicant were that the chemical analysis report does not
mention the quantitative test of the drugs. Therefore, the
prosecution case is defective. He would submit that the
chemical analyser was to make the quantitative test. Since
there was no quantitative test, the "commercial quantity" as
alleged cannot be accepted. Hence, the bar under Section 37
would not come into way.
5. To bolster his arguments, he relied upon the case of K. K.
Naushad and others Vs. Intelligence Officer, Narcotics Control
Bureau, Kerala High Court, Criminal Application No.2168 of
2004, decided on 28.03.2007. Relying on this case, he has
vehemently argued that in no way it can be accepted that the
quantity recovered from the applicant was commercial. Hence,
he deserves bail.
6. Per contra, learned APP would submit that the brown
sugar weighing 500 gram was seized and it was a commercial
quantity. Since it was a mixed drug, containing Monoacetyl,
Morphine along with Diazepam and Alprazolam, it need not be
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weighed separately because all drugs were narcotics.
Therefore, the quantitative test was not required. Hence, he
does not deserve bail.
7. The Government Notification reveals that Diazepam and
Alprazolam are the most prescribed benzodiazepine anxio
lytics and have potential for addictive use. A small quantity of
Alprazolam is 5 grams and commercial quantity is 100 grams,
and that of Diazepan is 20 grams and 500 grams. A small
quantity of Morphine is 5 grams and commercial quantity is
250 grams. The mixture of all above drugsweighing about 500
grams have been seized from the applicant.
8. The Kerala High Court in the case of K. K. Naushad
(cited supra) held that the approved test should be conducted
to find the actual quantity of diacetylmorphine or heroin in the
samples to attract Section 21 of the N.D.P.S. Act.
9. Detail discussion has been made as regards the
quantitative analysis test of the drugs. Admittedly, the drugs
recovered from the applicant were the mixed drugs as
discussed above. The Hon'ble Supreme Court in case of Hira
Singh and another Vs. Union of India and another ; (2020) 20
Supreme Court Cases 272 held that the conjoint reading of
provisions of Sections 2(x), (xi) and (xx) would indicate that
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total weight of such manufactured drug or preparation
including neutral materials is required to be considered for
determination of "small quantity" or "commercial quantity".
Such reading of provisions then and then only would achieve
objects and purpose of the Act. It has also been held that
determining whether the quantity is small quantity or
commercial quantity in relation to narcotic drugs or
psychotropic substances to be mixture with one or more
neutral substances, the entire weight of the materials/mixtures
i.e. including the weight of neutral material, held is to be
considered for ascertaining whether the quantity is "small
quantity" or "commercial quantity".
10. The 500 grams of brown sugar is apparently a
commercial quantity. It was a harmful drug. Therefore,
Section 37 of the N.D.P.S. Act would apply in this case. In view
of the recent judgments of the Hon'ble Supreme Court in Hira
Singh and another, the Court is of the view that the case of K.
K. Naushad and others (cited supra) of the Kerala High Court
would not come to his aid. At the cost of repetition, it is stated
that the quantitative test of the narcotic drugs is not
mandatory in the case where the drugs are the
materials/mixtures of various narcotic drugs.
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11. For the above reasons, the Court is of the view that the
applicant does not deserve bail. Hence, the bail application
stands dismissed.
(S. G. MEHARE, J.)
...
vmk/-
