KAILASH Vs. STATE

JUDGEMENT

(1.) Heard on the application moved by accused applicant under section 389, Code Criminal Procedure seeking suspension of sentence awarded by the Special Judge, Narcotic Drugs And Psychotropic Substances Cases, Jhalawar in Sessions Case No. 56/2006, by which the accused - applicant has been convicted for the offences punishable under section 8/18 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred to as 'the Act of 1985') and sentenced for 12 years' rigorous imprisonment with a fine of Rs. 1 lac; in default of payment of fine, to further undergo two years' rigorous imprisonment. During the search, in the plastic bag, 10.500 kilograms opium was recovered from the accused appellant - Kailash.

(2.) Learned Counsel for the accused - applicant placed reliance on the judgment rendered by Honourable the Supreme Court in the case of E. Michael Raj Vs. Intelligence Officer, Narcotic Control Bureau, 2008 (65) AIC 112 (SC) : 2008 RCC (SC) 177 and it is contended that as per the F.S.L. report (Exhibit - P/13), the percentage of morphine, in the sample, happened to be 13.96%. In such circumstances, out of the entire 10.500 k.g., as per percentage of morphine; the total quantity as per the F.S.L. report, comes to 1.396 kilograms, which is as per the Schedule - II is less than commercial quantity. He further placed reliance on the judgment rendered by Honourable the Supreme Court in the case of Biswajit Chandra @ Kanu Vs. State of West Bengal, 2008 RCC (SC) 461. Thus, it is prayed that looking 'o the quantity as per F.S.L. report and in view of ratio decided by the Honourable Supreme Court, the accused - applicant be released on bail.

(3.) Learned Counsel appearing on behalf of accused appellant further argued that as per section 37 of the Act of 1985, there are limitations on granting bail specified in Clause (b) of sub - section (1), but it is not an absolute bar to grant bail in the Narcotic Drugs And Psychotropic Substances cases, as held by the Honourable Supreme Court in the case of State of Uttaranchal Vs. Rajesh Kumar Gupta, 2007 (1) WLC (SC) Cri 13 : 2007 (1) SCC, 355 , wherein the Honourable Apex Court has held that section 37 of the 1985 Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes.