Crl. Misc. No.45170-M of 2007

12th November, 2007

Petitioner Counsel: Mr. A. S. SULLAR
Respondent Counsel: Mr. TARUN AGGARWAL

JUDGMENT

-This order shall dispose of Crl. Misc. No.45170-M of 2007 and Crl. Misc. No.48581-M of 2007 as both these petitions under Section 439, Cr.P.C. for the grant of regular bail have arisen out of F.I.R. No.154 dated 8.6.2007 under Sections 17, 18, 61/85 of the N.D.P.S. Act, registered at Police Station Sadar, Sirsa.

2. As per the allegations contained in the F.I.R., a Maruti Alto car while it was coming from the side of village Mallekan, was stopped by the Police patrolling party and upon search thereof, opium weighing 2 kgs. 500 grams was found lying in it. The car was allegedly being driven by Sukhwinder Singh whereas the co-accused Krishan Kumar was sitting inside. Both these petitions have been filed by Sukhwinder Sing and Krishan Kumar for their release on regular bail.

3. One of the contentions raised on behalf of the petitioners is that even as per the allegations contained in the F.I.R., the alleged contraband recovered from them i.e. 2.5 kgs. of opium would fall within the ambit of "non-commercial quantity", therefore, rigours of Section 37 of the Act are not attracted. In this regard, reference has been made to the expression "commercial quantity" as defined under Section 2(7-A) of the Act read with notification No.SO 1055(E) dated 19.10.2001 issued by the Central Government (Sr. No.92).

4. Section 2(7-A) of the Act defines "commercial quantity" and reads as follows :

"(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."

5. There is no quarrel between learned Counsel for the parties that as per the Central Government Notification dated 19.10.2001 (Sr. No.92), opium and/or any preparation containing opium weighing 2.5 kgs. shall be taken as "commercial quantity".

6. Prima facie, it appears that in view of statutory definition referred to above, unless a psychotropic substance is of greater quantity than the one specified by the Central Government by Notification in the Official Gazette, it cannot be treated as the "commercial quantity". Therefore, it would be debatable as to whether or not 2.5 kgs. opium allegedly recovered from the Alto Car is liable to be treated as "commercial quantity".

However, it is not desirable and/or expedient to express any definite opinion in relation to the above noticed contention. The contentious question as to whether the Notification dated 19.10.2001 issued by the Central Government is supplementary to the expression "commercial quantity" as provided in the Statute or the latter provision needs to be read and construed in isolation, can be aptly answered at an appropriate stage.

7. Be that as it may, the contentions raised on behalf of the petitioners do not permit Section 37 of the Act to play as a bar against the grant of bail.

It is not denied by the learned State Counsel that no other case under the NDPS Act is reported to be registered or pending against the petitioners.

8. Consequently and for the reasons afore stated, however, without expressing any views on merits of the case, these petitions are allowed. The petitioners are directed to be released on bail to the satisfaction of the Chief Judicial Magistrate, Sirsa.

Petitions allowed.