DHARMA ALIAS DHARMI LAL Vs. STATE

JUDGEMENT

(1.) This second bail application has been filed by accused petitioner primarily on the ground that FSL report has been received. The earlier bail application was dismissed by this Court on 2.8.2010 looking to the fact that contraband weighing 2 Kgs. opium has been recovered from the petitioner while he was going on a motorcycle. The learned counsel for the petitioner has submitted that now the FSL report has been received and the percentage of morphine found is 2.47. Therefore, he has submitted that the total quantity of contraband seized from petitioner would be only 49.4 gms. Such quantity is much less than the commercial quantity. Hence, it is prayed that the petitioner be now enlarged on bail. In support of his submission, learned counsel has placed reliance on the case of Biswajit Chandra @ Kanu vs. State of West Bengal, SLP (Cr.) No. 4771/2007 decided on 3.1.2008.

(2.) The learned Public Prosecutor has opposed the bail application and submitted that so far as the contention of learned counsel for the petitioner in respect of percentage of morphine and proportionate weight of contraband in question is concerned, it would not be the consideration for the purpose of contraband in the present case which is opium. He has further submitted that Hon'ble Supreme Court has dealt with the issue in the recent judgment of Harjit Singh vs. State of Punjab in Criminal Appeal No. 816/2011 decided on 30.3.2011, wherein similar contention was raised on behalf of the accused.

(3.) Anxious and thoughtful consideration has been given to the submissions made by the counsel for the rival parties. In order to appreciate the respective contentions, firstly the substance recovered from the accused is to be identified; the relevant provisions of law as given under the NDPS Act, 1985 particularly the definition clause is to be considered and then to find out the relevant entry given under the Notification issued by the Central Government specifying the small quantity and commercial quantity, which is required to be dealt with.