SIYAD K U Vs. STATE OF KERALA

JUDGEMENT

(1.) Doubting the correctness of the decision of the Division Bench in Shaji v. Kerala State in view of the two earlier judgments of the Apex Court, this Bail Application was referred to the Division Bench. Petitioner is the 2nd accused in Crime No. 18/2004 of Railway Police Station, Shornur. The allegation against the petitioner is that he along with another accused was found to be in possession of 3200 ampules of Norphine (Buprenorphine Hydrochloride) and 60 Ampules Ophenorgon. Petitioner was arrested on 25-6-2005. According to the counsel for the petitioner, he was in custody for about 110 days. Since quantity seized was a 'small quantity' he is entitled to statutory bail as charge sheet is not yet to be framed. Contention of the petitioner is that each ampule contains 0.3 gms. of Buprenorphine and hence what was seized is a small quantity below 1 gm. The Sessions Judge while rejecting the bail application found that since each ampule contains 2 ml. of Morphine, it is considered as commercial quantity coming under Section 22 (c) and 18(c) read with Section 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). His bail application was rejected by the Sessions court holding that he was in possession of commercial quantity of Morphine and there is no circumstances or reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail as stated in Section 37. Section 37 of the Act reads as follows:

(2.) C.D. file shows that even though, initially, the crime was registered under Section 22(a) of the Act, it was amended later under Sections 22(b) and Section 18(c) of the Act read with Section 27A of the Drags and Cosmetics Act, 1940. We quote below Section 22 of the Act:

(3.) 'Small quantity' is defined in Section 2 (xxiiia) of the Act as follows: