M S M UWIZE Vs. STATE

JUDGEMENT

(1.) THE petitioner is the accused in C.C.No.191 of 2002 on the file of the Principal Special Judge, Special Court under N.D.P.S. Act, Chennai and he was charged for the offences under Section 8(c) r/w Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "N.D.P.S. Act") in crime F.No.48/1/7/2001 on the file of the respondent for the alleged possession of 308 grams of Heroin. Since he was arrested on 15.12.2001 for the said offences, he came forward with the petition for bail earlier in Crl.O.P.No.13 503 of 2005 and the same was dismissed by this Court on 27.6.2005. This petition is filed by him for bail on the ground of change in the circumstances as narrated in the petition.

(2.) PER contra, the case of the prosecution is that on 15.12.2001 on a specific information, the Officers of Narcotics Control Bureau, South Zonal Unit, Chennai intercepted the petitioner at Anna International Airport, Chennai and that since he denied possession of any narcotic drug with him when questioned, he was detained by the respondent and his officials as he was about to leave for Colombo at that time. They issued a summon under Section 67 of the N.D.P.S. Act on the same day and took him to NCB Office, Chennai for enquiry. During the course of interrogation, the petitioner admitted his possession of 300 grams of Heroin in 63 capsules swallowed and concealed in his stomach and expressed his willingness voluntarily to eject the contraband under medical supervision in a statement written on his own hand dated 16.12.2001. Hence, he was taken to the Judicial Magistrate, Alandur, Chennai on the same day and the learned Judicial Magistrate directed him for medical supervision at Kilpauk Medical College Hospital so as to eject the concealed contraband. Therefore the petitioner was taken to the said hospital where the medical officers recovered totally 63 capsules weighing 308.5 grams of brown colour powder believed to be Heroin and the same had been recovered by the respondent on four occasions (i.e.) 6 capsules weighing 29 grams, 12 capsules weighing 60.5 grams on 16.12.2001, 39 capsules weighing 189.5 grams on 17.12.2001 and 6 capsules weighing 29.5 grams on 18.12.2001.

(3.) RELYING on the said report, learned counsel for the petitioner has submitted that on a calculation out of 308.5 grams of the total quantity of the contraband only about 50% of the contraband was found by the chemical examiner to contain diacetyl morphine (Heroin). Hence he has submitted with reference to the notification dated 19.10.2001, wherein the Central Government specified under entry No.56 small quantity as 5 grams and commercial quantity as upto 250 grams of Heroin and that in view of the said Chemical Examiner's report, the contraband weighing only about 154 grams alone could be classified as Heroin. Therefore he has contended that the quantity of contraband seized was only less than commercial quantity as per the said notification and that it follows that the vigour of Section 37 of the N.D.P.S. Act, 1 985 is mellowed down so as to enable the petitioner to seek bail in this application.