Nepal Chand @ Doctor vs The State
2006 Latest Caselaw 1075 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The learned counsel for the petitioner had submitted that there was an alleged recovery of 1.5 kilograms in total in this case. 500 grams are said to have been recovered from the person of the petitioner and a further one kilogram is said to have been recovered from his house. According to the Forensic Science Laboratory Report, the percentage content of the diacetylmorphine in the 500 grams of substance recovered from the petitioner was 4.1 %, which, if converted in terms of actual weight, would amount to 20.5 grams of diacetylmorphine. Insofar as the sample taken from the recovery of 1 kilogram of substance from the house is concerned, the FSL Report indicates a percentage content of 5.4% of diacetylmorphine. This, if translated into weight, comes to 54 grams. Therefore, by actual weight, the total content of heroin allegedly recovered from the petitioner comes to 74.5 grams. The learned counsel for the petitioner submitted that in view of the decision in the case of Ansar Ahmed and Ors. v. State , this would amount to an intermediate quantity and would not be a commercial quantity. He further submitted that the petitioner is over 50 years of age, has already spent three years in custody w.e.f. 19.04.2003. He submits that there was also no previous involvement of the petitioner in any NDPS related case. He further submits that the petitioner has one son who is unemployed and has a married daughter who has been turned out of the matrimonial home and also has a wife and there is nobody else to support his wife and the said children. He, therefore, requests for release of the petitioner on bail.

2. Mr Pawan Sharma, the learned counsel who appeared for the State, submitted that although the quantity recovered from the petitioner would not be a commercial quantity in terms of Ansar Ahmed (supra), it would still be a substantial amount coming to about 74.5 grams. He submitted that, therefore, the petitioner ought not to be granted bail.

3. Considering the ratio of Ansar Ahmed (supra), it is true that the quantity allegedly recovered from the petitioner would be an intermediate quantity and not a commercial quantity. However, in view of the decision in the case of Mahesh Pal Singh v. State Bail Application No. 2529/2005, a judgment delivered today itself by this court, the purity of the recovery must also be considered. In the present case, I find that the purities of the samples taken are 4.1% and 5.4% which are on the lower side. In Mahesh Pal Singh's case (supra), the purity was 5.1%. Considering that the alleged recoveries are comparable, I feel that the petitioner would be entitled to bail, particularly because he has spent over three years in custody and has no previous involvement and also because of his personal circumstances. Accordingly, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the concerned court/Duty Magistrate. This application stands disposed of.