MANGI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the petitioner as well as the learned Public Prosecutor and perused the record of the case. Learned counsel for the petitioner submits that the contraband recovered form the petitioner was 8 kg. 200 gm., however, in the FSL report, the quantity of morphine came to be 3.95%. It is stated that as per the notification specifying small quantity and commercial quantity, for morphine small quantity is notified as 5 gm. whereas commercial quantity is 250 gm. It is also stated that if the substance of morphine is taken note of then in the present matter, it comes less than the commercial quantity and therefore, the petitioner may be enlarged on bail.

(2.) To support his contention, learned counsel for the petitioner has referred the judgment rendered by this Court in S.B. Criminal Appeal No. 278/2003 Ghanshyam & Anr. Vs. Union of India wherein the substance of morphine was taken into consideration. Learned counsel has further referred the judgment of the Hon'ble Supreme Court in the case of E. Micheal Raj Vs. Intelligence Officer. Narcotic Control Bureau reported in : JT 2008 (4) SC 523. Learned counsel has also referred a bail order in the case of Biswajit Chandra @ Kanu Vs. State of west Bengal wherein the quantity of morphine was taken into consideration for the purpose of release of the petitioner. Learned counsel has lastly referred a bail order of this Court in S.B. Criminal Misc. Second Bail Application no. 5221/08 Bitthal & Anr. Vs. State of Rajasthan dated 30.7.08.

(3.) Learned Public Prosecutor, on the other hand, has opposed the bail application and submits that recovery of the opium being 8 kg. and 200 gm., thus the petitioner may not be enlarged on bail. It is also stated that in view of the notification issued in exercise of the powers conferred by clauses (viia) and (xxiiia) of Sec. 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act', for short) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527(E) dated 15th July, 1996, the contraband has been specified in different items along with details regarding small quantity and commercial quantity. It is stated that so far as opium is concerned, it exists at item No. 92 of the notification and small and commercial quantity has been given as 25 gm. and 2.5 kg. respectively whereas morphine has been separately given at item No. 77 wherein small quantity has been given as 5 gm. and commercial quantity as 250. It is also stated that since both the drugs have been separately specified in the notification, thus guiding factor has to be notification and not the contents of one drug. To elaborate the argument, it is stated that opium may be having mixed of material and out of which percentage of morphine may also exist but then guiding factor cannot be taken only for morphine but has to be taken for opium as the said contraband material has been recovered from the petitioner and this argument has not been considered in the judgments referred by the learned counsel for the petitioner. It is also stated that quantity of opium is 8 kg. and 200 gm. being more than commercial quantity given in the notification, thus the petitioner may not be enlarged on bail.