NASEER AHMED Vs. SUPERINTENDENT OF CUSTOMS

JUDGEMENT

(1.) Application filed by the petitioner seeking statutory bail under Section 167(2) of Cr. P.C. was dismissed by the Spl. Court for N.D.P.S. and hence, this petition is by the accused. The case of the prosecution in short is that, on 19.03.2012 at about 21.50 hours at Bangalore International Airport, the petitioner was arrested as he was found in possession of six bundles of heroin weighing in all 350 gms. He was remanded to judicial custody and thereafter, the petitioner moved the application under Section 167(2) of Cr. P.C. seeking bail on the ground that within 60 days period, the prosecution did not file any final report, and therefore, he is entitled to the grant of bail. Learned Judge of the Special Court rejected the application and took the view that the seized quantity was coming within the commercial quantity and therefore, bail cannot be granted in view of Section 36-A(4) of the N.D.P.S. Act which prescribes limitation of 180 days for submitting the final report and as such, application was premature in nature.

(2.) I have heard Sri. K.S. Vishwanath, learned Counsel for the petitioner and Sri. Urval N. Ramanand, learned senior counsel and Spl. P.P. for the respondent and perused the judgments cited by both sides.

(3.) Petitioner's counsel argued at great length and relied on several decisions to contend that quantity seized was not coming within the commercial quantity and at the preliminary stage, no FSL report was filed by the authorities concerned and therefore, as of right, the petitioner is entitled for bail. The main contention put forward is that, it is not the quantity of the drug that seized i.e., material, but the purity of the drug will have to be taken into consideration and in this connection, reliance is placed on the Apex Court's decisions reported in 2009 SCW AIR(1621) as well as (2008) 16 SCC 471. It is therefore argued that even if the FSL report is taken into consideration, the percentage of Diacetyl morphine in the samples taken together will not be more than 60 gms and therefore, quantity of the drug comes below the commercial quantity but above the small quantity and thus, falls within the intermediate category. As such, the petitioner is entitled for bail and even though the petitioner is a foreigner, there can be no apprehension of fleeing from justice because the passport can always be seized which will prevent the petitioner going away from the reach of the court.