SHAJI Vs. KERALA STATE

JUDGEMENT

(1.) In all these cases, the applicants the accused in Crime Nos. 164, 182 and 214 of 2003 of Mattanchery Police Station or Thoppumpady Police Station, as the case may be, registered under S.22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as 'the Act') had been found possessing 'Tidigesic', a preparation of Buprenorphine, in excess of the commercial quantity made mention of against item No. 169 in S. O.1055 (E) dated 19th October 2001 issued by the Union of India, as empowered under S.2(viia) and (xxiii a). One among the applicants was found to be in possession of 64 ampules of the said substance; another one possessing 120 ampules and the remaining one possessing 15 ampules. The learned Sessions Judge, Ernakulam, as no Special Court is constituted under the Act for the said area, considered their applications and declined to grant bail. Thereupon, bail applications have been filed before this Court. When the applications came up for consideration before a learned Single Judge, the matter has been referred for consideration of the following points by a Bench (1) Whether the offences which are punishable with imprisonment for a term of not more than three years are bailable or non bailable (2) Is the Magistrate competent to extent the remand beyond fifteen days Is he competent to order release of a person accused of any offence under N. D. P. S. Act (3) If the Magistrate is not competent to extend the remand beyond fifteen days what is the procedure to be followed by the Magistrate Should he forward the accused to the Special Court (4) What is the procedure to be followed by the Special Court in such cases

(2.) Before answering these questions, we have to find out first whether the substance involved in each of these cases comes within the small quantity made mention of in the said notification. If it does come within the small quantity, necessarily, the maximum punishment that can be awarded will be imprisonment for six months, or with fine, which may extend to ten thousand rupees, or with both, under S.22(a), in which case, it will be a bailable offence, and, consequently, they will be entitled to bail as of right. On the other hand, if it comes beyond the small quantity, necessarily, bail can be granted only after consideration of the aspects in terms of S.37(1)(b) of the Act. Therefore, we will, first of all, consider whether the substance found in the possession of each of the applicants conies within the small quantity prescribed or not.

(3.) The contention of Counsel for the applicants is that admittedly by the prosecution, the substance involved is 'Tidigesic', a solution of Buprenorphine. Each ampule of 'Tidgesic' contains only 0.3 mg. of Buprenorphine. There is no dispute about this quantitative analysis. Even if the highest of the lot, viz. 120 ampules, involved in Bail Application No. 1660 of 2003 is concerned, the actual quantity of 'Buprenorphine' involved will be less than one gram, which is specified as small quantity in the notification mentioned above. Therefore, the contention is that there arises no question of any of the applicants being punished with imprisonment for more than six months, even if the prosecution establishes their case, because, as per the said notification, a person possessing one gram of 'Buprenorphine' will be termed as possessing only small quantity.