YOGESH TYAGI Vs. STATE

JUDGEMENT

(1.) The short point involved for consideration in this batch of bail matters is whether percentage of diacetylmorphine as pointed out in the FSL reports in these cases is at all relevant for ascertaining whether quantity of drug or psychotropic substance recovered is small, commercial or in between.

(2.) Facts of some of these cases should be noticed in order to appreciate the point of law raised in these matters. In bail application No. 360/2004- Yogesh Tyagi Vs State. of smack was recovered from the three persons, 200 gram from Jitender Tyagi, 200 gram Yogesh Tyagi and 600 gram from Vireshwar Tyagi. Separate samples were taken out from these lots and analyst FSL reported that samples contained diacetylmorphine 1.12 %, 1.2% and 1.24 %. All three were challaned u/s 21, 25, 29 of the NDPS Act ( for short the 'Act'). In bail application No. 665/2004- Jagjit Singh Vs. State. & 220 gram of heroin was recovered. As per FSL report that the sample contained 5.9 % of diacetylmorphine. In bail application No. 845/2004- Mohd. Yaseen Vs. State.. Heroin was recovered which on analysis was found to contain diacetylmorphine 0.3 % . In bail application No. 573/2004-Sudhir Kumar Vs. State. heroin was recovered. On analysis it was found to contain diacetylmorphine 5.7%. In bail application No. 153/2004- Smt. Afroz Vs. State.. Heroin was recovered. On analysis it was found to contain 1.6% diacetylmorphine. Likewise in other connected matters different quantities of smack/ heroin have allegedly been recovered from the accused persons in those cases and diacetylmorphine with varying percentages has been noticed in the samples.

(3.) The contention raised by learned counsel appearing for the petitioners in all these cases is that the percentage pointed out in the FSL reports in all these cases represents the percentage of the weight of the diacetylmorphine in the samples and calculated on that basis, the total weight of diacetylmorphine from the entire lot recovered would come to less than the commercial quantity i.e less than 250 gram and therefore the rigours of section 37(1) (b) of the Act will not apply to such cases. Since I had some doubt about the correctness of the view, I thought it proper to hear arguments in these matters at length. Having given my thoughtful consideration to the arguments advanced by learned counsel for the petitioners and the learned counsel for State, I am of the view that the entire quantity recovered in each of these cases falls within the definition of Narcotic drug or psychotropic substance and the percentage mentioned in the CFSL reports whether by weight or potency is irrelevant for determining whether the quantity of drug recovered in each case is small quantity or commercial quantity. The reasons for my view are as under:- At the outset some definitions given in section 2 (V), (VI), (XIV), (XV), (XVI), (XX), (XXIII) may be taken note of.