RAJESH KESARI Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD Sri A.P. Srivastava, learned Counsel for the applicant and Sri Sanjay Kumar Singh, Special Public Prosecutor, appearing for the opposite party. Counter affidavit filed on behalf of the Union of India, is taken on record.

(2.) THIS is second bail application on behalf of the applicant. Criminal misc. first bail application was rejected by this Court on 22.2.2008. Argument advanced by the Counsel for the applicant in first bail appli cation was that on perusal of analysis report, percentage of diacetylmorphine (Heroin) was only 5.67%; meaning thereby out of the total amount of recovered article, which was 600 grams, it contained only 34.02 grams of Heroin (diacetylmorphine). THIS argument of the Counsel for the appli cant was negated on the basis of an objec tion raised by Special Public Prosecutor, appearing for the opposite party that it is not percentage that has to be taken into consideration but the entire amount of re covered article. While analyzing the analy sis report, the Counsel for the Union of India had tried to demonstrate by means of definition of an Opium derivative narcotic drugs and various other definitions to substantiate his argument that admittedly, the recovered Heroin was more than 250 grams i.e. commercial quantity fixed by the Act and, therefore, the applicant was not entitled to be released on bail. Reliance was placed on the three decisions; Yogesh Tyagi and others v. State 2004 Cri. LJ 3907 Amar Singh Ramji Bhai Barot v. State of Gujarat 2005 (53) ACC 496 and Micheal Raj v. The Intelligence Officer, Narcotic Control Bu reau. 2005 Cri. LJ 1817 In the latest decision of Micheal Raj (supra), the High Court had come to a conclusion that it is the entire quantity re covered from the accused, has to be taken into consideration. THIS finding of the High Court was based on decision of the Apex Court recorded in the case of Amar Singh (supra). Finally, taking into consideration all these aspects, I had rejected first bail application of the applicant.

(3.) IN the circumstances, I am of the considered view that my decision rejecting first bail application of the applicant fol lowing previous decision of the Apex Court, is not correct and is liable to be al tered in view of the latest decision of the Apex Court.