MANKALI SIVA PRASAD Vs. STATE OF A P

JUDGEMENT

(1.) The petitioner has been seeking regular bail. He is accused No. 1 in S.C.No.172 of 2009 on the file of the Metropolitan Sessions Judge (Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985), Hyderabad.

(2.) The petitioner is alleged to have committed the offences punishable under Sections 22, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). He has been in judicial custody since 6-9-2008. The specific allegation against the petitioner is that on specific information that the petitioner herein would be attempting to collect alprazolam, a psychotropic substance, on 6-9-2008, the officers of Directorate of Revenue Intelligence visited the godown of M/s. Sangeetha Travels, Afzalgunj, Hyderabad, and were waiting there with two mediators, that at about 11.00 a.m. the petitioner enquired about the consignment that was booked in the guise of Piperzine from Aurangabad, Maharashtra, that the name of the consignee was mentioned as M/s. Laxmi Trading, Ameerpet, Hyderabad and that the parcel when opened found that it contained off-white powder weighing 2.882 Kgs. Samples were taken and were sent for analysis. The forensic analysis report in Lab No. 2344, dated 14-10-2008, stated that the sample is of off-white powder and answers the test for the presence of alprazolam. However, the quantitative sample analysis was not done. The petitioner is alleged to have made a confessional statement on 7-9-2008. An amount of Rs. 90,000/-, one big scissor, one small scissor, scoop, Hacksaw blade, polythene covers and a chit containing certain information like perfect chemicals, phone numbers and some numbers were found in the red colour bag carried by the petitioner. The bail petitions filed by the petitioner have been dismissed by this Court in Crl.P. 7503 of 2008, dated 21-11-2008; Crl.P.No. 7884 of 2008 dated 27-1-2009 and Crl.P.No. 4469 of 2009, dated 27-8-2009.

(3.) Learned counsel for the petitioner submitted that speedy trial has been recognized as one of the facet of right to life, that the petitioner has been languishing in jail for the last nine months and further incarceration is not at all justified. It is also submitted that the children of the petitioner are unable to meet their educational expenses and all the family members of the petitioner are put to untold miseries and there is no scope for commencement of trial in the near future. It is also submitted that neither any lorry receipt nor any other document to claim that the parcel was seized from the possession of the petitioner. It is also submitted that alprazolam is a medicine under the schedule to the Drugs and Cosmetics Act, 1940. It is also submitted that alprazolam is mentioned in schedule-II of the Act and not in schedule-I and that the alprazolam being a medicine coming under the Drugs and Cosmetics Act, 1940, possession of psychotropic substance is not an offence attracting the provisions of the Act. Learned counsel submitted that the NDPS Act, 1985, has been amended by amendment Act, 1989, which came into force with effect from 29-5-1989, that the amendment introduced the concept of small quantity, commercial quantity and intermediate quantity, that entry No. 178 says that the small quantity of alprzolam is 5 grams and commercial quantity is 100 grams, that if it is small quantity, the punishment is only for a period not exceeding six months, that if the contravention is less than commercial quantity, no minimum punishment is provided and that if it is commercial quantity, the punishment provided is minimum 10 years with a fine of Rs. 1.00 lakh under Section 22 of the Act. Learned counsel submitted that there is no material that the petitioner dealt with the commercial quantity of psychotropic substance and it is the matter of mere speculation. It is also submitted that alprazolam is not a scheduled item in Schedule I and that it is shown only in Schedule II that there is only prohibition of export of alprazolam under Rule 53 of the Narcotic Drugs and Psychotropic Substances Rules, 1985. It is also submitted that under Rule 53, import into and export out of India of the Narcotic Drugs and Psychotropic Substances specified in Schedule I is prohibited and Rule 53-A prohibits export of any of the Narcotic Drugs and Psychotropic Substances specified in Schedule-II to the countries or regions of such country specified therein. It is further submitted that Rule 64 envisages that no person shall manufacture, possess, transport, import or export interstate, sell, purchase, consume or use any of the psychotropic substances specified in Schedule-I. He relied on the judgment of the Supreme Court in State of Uttaranchal v. Rajesh Kumar Gupta (1) 2007 (1) Crimes 6 (SC), wherein it is held as follows: