JUDGMENT 1. - Heard on the application moved by accused applicant under section 389, Criminal Procedure Code 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 Hon'ble the Supreme Court in the case of E. Michael Raj v. 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 Hon'ble the Supreme Court in the case of Biswajit Chandra @ Kanu v. 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 Hon'ble 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 Hon'ble Supreme Court in the case of State of Uttaranchal v. Rajesh Kumar Gupta, 2007 (1) WLC (SC) Cri 13 : 2007 (1) SCC, 355 , wherein the Hon'ble 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. 4. Learned Counsel for the accused - applicant also referred definition clause of the Act of 1985, more particularly, section 2, sub - clause (xv), which reads as under : (xv) "Opium" means : (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine; 5. After referring the definition of opium, Mr. Bajwa, learned Counsel for the accused - applicant referred sub - clause (xvi) of section 2, which reads as under : (xvi) "Opium derivative" means : (a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) diacetylmorphine, that is, the alkaloid also known as dia - morphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent of morphine or containing any diacetyl morphine; 6. Learned Counsel for the accused - applicant also referred section 21 (c) of the Act of 1985. which reads as under : 21 (c)-where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two Iakhs rupees. 7. After referred this section, learned Counsel for the applicant submitted that as per F.S.L. report, the percentage of morphine in the sample comes to 13.96%, hence, the total quantity as per percentage out of 10 kilo 500 grams, comes to 1 kilo 396 grams. 7. After referred this section, learned Counsel for the applicant submitted that as per F.S.L. report, the percentage of morphine in the sample comes to 13.96%, hence, the total quantity as per percentage out of 10 kilo 500 grams, comes to 1 kilo 396 grams. Therefore, as per Schedule - II, this quantity is less than commercial quantity. As per section 21 (c), the minimum sentence of 10 years is prescribed for where the contravention involves commercial quantity. Thus, in the instant case, the quantity which has been recovered is less than the commercial quantity and the accused - applicant is entitled to be released on bail and sentence awarded by the Court below requires to be suspended. 8. In support of his contention, learned Counsel for the applicant placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of Ouseph @ Thanakachan v. State of Kerala, (2004) 4 SCC 446 , I wherein the Hon'ble Apex Court has held that possession o a small quantity of a psychotropic substance for personal use - Prosecution to prove its case beyond reasonable doubt - Enough for the accused in his defence to satisfy the judicial mind on a preponderance of probability. 9. In the alternative plea that the offence fell under section 27, allowed as the amount recovered was less than the notified 'small quantity' and for personal consumption as is evident from recovery of two syringes from his possession - accused thereby by preponderance of probability discharged the burden of falling within section 27. 10. Per contra, learned Public Prosecutor strongly opposed the application seeking suspension of sentence and submitted that the ratio decided by Hon'ble the Supreme Court in .he case of E. Michael Raj (supra) is not applicable in the present case, as the Hon'ble Supreme Court in the case of E. Michael Raj has decided the appeal on merit and the case was not of bail. 11. It is also contended that in the case of E. Michael Raj (supra), the accused - appellant was charged with the offence committed under section 8 read with section 21 (c) and section 29 of the Act of 1985, whereas in the present case, the accused - applicant has been sentenced for the offence under section 8/18 (b) of the Act of 1985. Learned Public Prosecutor referred an abstract of Encyclopaedia, wherein the opium is defined as under : Opium is a narcotic formed from the latex (i.e., sap) released by lacerating (or "scoring") the immature seed pods of opium poppies (Papaver somniferum) It contains up to 10% morphine, an opiate alkaloid, which is most frequently processed chemically to produce heroin for the illegal drug trade. The resin also includes codeine and non - narcotic alkaloids, such as papaverine and noscapine. Meconium historically referred to related, weaker preparations made from other parts of the poppy or different species of poppies. Modern opium production is the culminating of millennia of production, in which the source poppy, methods of extraction and processing, and methods of consumption have become increasingly potent. (Emphasis supplied) 12. After referring definition of opium, learned Public Prosecutor submitted that 10% of morphine is considered as pure concentrate morphine and considering this fact in the present case, the percentage of morphine is found 13.96%, which is more than the 10%, thus the total quantity Le., 10.500 kilograms recovered from the accused - applicant, as whole be considered and same is commercial quantity. 13. Learned Public Prosecutor also referred section 37 of the Act of 1985 and submits that as per section 37, the bail cannot be granted, as held by Hon'ble the Supreme Court in the case of Union of India v. Shiv Shanker Kesari, 2007 (58) AIC 36 (SC)=2007 (59) ACC 778 : (2007) 7 SCC 798 , wherein the Hon'ble Apex Court has held that for granting bail, both the conditions prescribed under section 37 (1) (b) (ii) Le., satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail, must be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 14. Mr. B.S. Chhaba, learned Public Prosecutor further placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of Union of India v. Merajuddin, (2005) VII SLT 973, wherein the three Judges Bench of the Hon'ble Supreme Court has held that High Court completely ignored mandate of section 37, Narcotic Drugs And Psychotropic Substances Act while granting bail. High Court over - looked prescribed procedure. That was not proper. High Court over - looked prescribed procedure. That was not proper. Impugned order of High Court set aside and bail granted to appellant cancelled. 15. Learned Public Prosecutor also referred order dated 12.3.2008 passed by the Co - ordinate Bench of this Court in S.B. Criminal Misc. 5th Bail Application No. 71/2008 and another Bail Application No. 72/2008, wherein the Co - ordinate Bench has considered section 37 of the Act of 1985 and judgment rendered by the Hon'ble Apex Court reported in 2000 VII A.D. (SC) 201, JT 2000 (1) SC 185, JT 1999 (4) SC 1 and the order dated 18.7.2006 passed by a Co - ordinate Bench of this Court in S.B. Criminal Misc. S.O.S. Application No. 253/2006. The Co - ordinate Bench has also considered the judgment referred by learned Counsel for U.O.I., reported in AIR 2004 SC 3020 and in the case of Dadu @ Tulsidas v. State of Maharashtra, 2000 VII AD (SC) 201, wherein the Hon'ble Supreme Court has held as under : "It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in murder case the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death/blow to a number of innocent young victims, who are vulnerable; it causes celeterious effects and a deadly impact on the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved." (Emphasis supplied) 16. The Co - ordinate Bench having considered the ratio decided by the Hon'ble Supreme Court, rejected the bail application and directed to list the appeal for hearing. 17. Similar view has been taken by the Co - ordinate Bench of this Court in S.B. Criminal Misc. 3rd Bail Application No. 2965/2008 and 3112/2008 moved by accused - Gopal Sharma and Dinesh Sharma respectively. The Coordinate Bench in the aforesaid case considering the judgment rendered by Hon'ble Supreme Court in the case of E. Michael Raj and judgment rendered by the Coordinate Bench in S.B. Criminal Misc. Bail Application No. 3614/2007 Siraj Ahmed and another v. State of Rajasthan , rejected the bail application. 18. The Coordinate Bench in the aforesaid case considering the judgment rendered by Hon'ble Supreme Court in the case of E. Michael Raj and judgment rendered by the Coordinate Bench in S.B. Criminal Misc. Bail Application No. 3614/2007 Siraj Ahmed and another v. State of Rajasthan , rejected the bail application. 18. The Coordinate Bench has observed that the quantity of opium recovered needs to be scaled down as per the quantity of morphine found, so as to enable the petitioners to be released on bail, does not out weigh the gravity of the facts and circumstances of the case. having not satisfied with the submissions made on behalf of accused, the 3rd bail applications were rejected. 19. Further, the Co - ordinate Bench of this Court in S.B. Criminal Misc. 2nd Bail Application No. 2983/2008 Jahid Husain v. Central Bureau of Narcotics has rejected the bail application vide order dated 22.7.2008 . Similarly, considering the gravity of the offence, the Coordinate Bench of this Court has also rejected the S.B. Criminal Misr. 2nd Bail Application No. 5013/2008 aide order dated 12.8.2008. 20. Learned Public Prosecutor further placed reliance on the judgment rendered by Hon'ble the Supreme Court in the case of Union of India v. Kuldeep Singh, 2004 1141 AIC 528(SC) : 2004 (2) SCC 590 : 2004 (48) ACC 878 , I wherein the Hon'ble Supreme Court has held as under : The discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. When the volume of contraband articles is taken note of, it is sufficient for a conclusion that the quantity of finished produce out of it which would have been extracted it would have been nearly 300 kilograms of heroine, and the accused would have got about forty kilograms as admitted by him. The disastrous effect (of this quantity of heroin) would be mind boggling. The High Court, seems to have been swayed by the age of accused's father, his family problems and more importantly he being not a "habitual offender". Such considerations are really meaningless when one considers the fact that the accused was in possession of contra bands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance. Such considerations are really meaningless when one considers the fact that the accused was in possession of contra bands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance. But it is really inconsequential for a drug trafficker and smuggler. The reasons given by the High Court to reduce the sentence, according to us, have no foundation. The inevitable conclusion is that the appeal deserves to be allowed, which we direct. To put it differently, the sentence imposed by the Trial Court is restored. (Emphasis supplied) 21. Further reliance has been placed on the judgment rendered by Hon'ble the Supreme Court in the case of Ravindran @ John v. Superintendent of Customs, (2007) 6 SCC 410 , wherein the Hon'ble Apex Court considering the case of Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 (34) AIC 47 (SC) : 2005 (53) ACC 496 (SC) : (2005) 7 SCC 550 , has observed as under : " .. According to the notification 20 grams of diazepam is considered to be small quantity. Any quantity in excess of 500 grams is commercial quantity. In the instant case 1.528 kilograms of diazepam was found. In these facts the case is clearly covered by section 22 (c) of the Act. We, therefore, find no merit in any of the submissions urged on behalf of the appellant Ravindran. His appeal fails and is, therefore, dismissed." (Emphasis supplied) 22. After referring the aforesaid case laws and provisions, learned Public Prosecutor submits that the application seeking suspension of sentence deserves to be rejected because the quantity which has been recovered from the accused, i.e., 10.500 kilograms, admittedly more than commercial quantity. In view of this fact, as per section 37, no case of suspension/bail is made out. 23. In rejoinder to the reply, Mr. S.R. Bajwa, learned Counsel for the accused - applicant submits that the orders passed by the Co - ordinate Bench of this Court are not applicable to the facts and circumstances of the case. In view of this fact, as per section 37, no case of suspension/bail is made out. 23. In rejoinder to the reply, Mr. S.R. Bajwa, learned Counsel for the accused - applicant submits that the orders passed by the Co - ordinate Bench of this Court are not applicable to the facts and circumstances of the case. It is contended that the orders have been passed in the 2nd, 3rd and 5th bail applications while holding that no changed circumstances is observed and, more particularly, without discussing the case in view of ratio decided by the Hon'ble Apex Court in the case of E. Michael Raj (supra). 24. Learned Counsel for the accused - applicant argued the case on the basis of ratio decided by the Hon'ble Supreme Court in the case of E. Michael Raj (supra) and as per the F.S.L. report. In the F.S.L. report, the percentage of the morphine is assessed as 13.96%; and as per the percentage out of the total contraband i.e., 10.500 kilograms, this quantity comes to 1.396 kilograms, which is less than the commercial quantity. Therefore, in view of the ratio decided by the Hon'ble Apex Court, the accused should be enlarged on bail and his sentence requires to be suspended. 25. I have considered the rival submissions of the respective parties and have also perused the judgment impugned, record as well as judgments referred by the respective parties. 26. In the case of E. Michael Raj, the accused moved S.L.P. against the judgment dated 25.8.2004 of the Kerala High Court by which the conviction and sentence of the accused - appellant under section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was confirmed. 27. The Hon'ble Apex Court has also considered the case of Ouseph and Thanakachan. In the case of Ouseph @ Thanakachan v. State of Kerala , the Hon'ble Apex Court held as under : "The question is to be considered by us is whether the psychotropic substance was in small quantity and if so, whether it was intended for personal consumption. The words small quantity have been specified by the Central Government by the notification dated 23.7.1996. Learned Counsel for the State has brought to our notice that as per the said notification small quantity has been specified as I gram. The words small quantity have been specified by the Central Government by the notification dated 23.7.1996. Learned Counsel for the State has brought to our notice that as per the said notification small quantity has been specified as I gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admittedly that each ampoule contained only 2 ml. and each ml. contains only .3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1 / 10th of the limit of small quantity specified under the notification." (Emphasis supplied) 28. The Hon'ble Apex Court after considering the case of Amarsingh Ramjibhai Barto, 2005 (34) AIC 47 (SC) : 2005 (53) ACC 496 : (2005) 7 SCC 550 (supra) has observed as under : "On going through Amarsingh case (supra), we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s. Intact that was not the issue before the Court. The black - coloured liquid substance was taken as an opium derivative and the F.S.L. report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of section 2 (xvi) (e) as 'opium derivative' which requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance. Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned Counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of section 21 of the Narcotic Drugs And Psychotropic Substances Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropics substance is found mixed with one or more neutral substances, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration." (Emphasis supplied) 29. Herein in the present case in hand, the accused - applicant has filed the present bail application seeking suspension of sentence, in such circumstances, it is necessary to consider the provisions of section 37 of the Act of 1985 before passing any order on the application. 30. The Hon'ble Supreme Court in the case of State of Uttaranchal v. Rajesh Kumar Gupta (supra) 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. 31. Similarly, while dealing with the provisions of section 37, the. three Judges Bench of the Hon'ble Apex Court in the case of Hon'ble the Supreme Court in the case of Union of India v. Merajuddin (supra) has held that High Court completely ignored mandate of section 37, Narcotic Drugs And Psychotropic Substances Act while granting bail. High Court overlooked prescribed procedure. That was not proper. Impugned order of High Court set aside and bail granted to appellant cancelled. 32. It will not be out of place to consider the ratio decided by the Hon'ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari (supra) wherein it has been held that section 37 (1) (d) of the Act of 1985 itself provides that no person shall be granted bail unless two conditions are satisfied. There should reasonable grounds for believ in that the accused is not guilty and that he is not likely to commit any offence while on bail. Both these conditions have to be satisfied, if either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 33. There should reasonable grounds for believ in that the accused is not guilty and that he is not likely to commit any offence while on bail. Both these conditions have to be satisfied, if either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 33. Thus, applying the ratio decided by the Hon'ble Supreme Court in the cases, referred herein above, in the present case, it is not disputed that the 10.500 kilograms opium was recovered from the accused - applicant and there are no grounds for believing that the accused - applicant is not guilty and he is not likely to commit any offence and the quantity which has been recovered. Further, considering the judgment rendered by Five Judges Bench of Hon'ble the Supreme Court in the case of State of Punjab v. Baldev Singh , I wherein the Hon'ble Supreme Court has observed as under : "Drug abuse is a social malady While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti - drug justice is a criminal dimension of the social justice. The United Nations Conventions Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention." 34. Thus, taking into entire facts and circumstances of the case and considering the arguments, which are raised by the learned Counsel for the accused appellant, this is not the stage to consider all these arguments and same can only be considered at the time of hearing of the appeal. 35. The Government of India has ratified this convention." 34. Thus, taking into entire facts and circumstances of the case and considering the arguments, which are raised by the learned Counsel for the accused appellant, this is not the stage to consider all these arguments and same can only be considered at the time of hearing of the appeal. 35. Without expressing any opinion on merit and demerits of the case and considering judgments rendered by the Hon'ble Apex Court, the inevitable conclusion is that the application seeking suspension of sentence deserves to be rejected and at this stage the bail/suspension of sentence application stands rejected.However, the Deputy Registrar (Judicial) is directed to list the present appeal for hearing in the month of September, 2008. *******